AC-2024-LON-002558 - [2025] EWHC 2278 (Admin)

There are some similarities between Ground 1 and Ground 2. Both relate to the material before the Council regarding the 5 hectare site size, but Ground 2 focuses more on whether the Council acted rationally in not requiring the Interested Party to provide more information.

In particular the Claimant’s complaint is that, having apparently identified a need for more information from the applicant to demonstrate that the size of the agricultural unit was at least 5 hectares, the Council acted irrationally because the new information which it in fact received did not contribute to its understanding of the point.

Mr Beglan also raised a secondary complaint about whether the Council properly informed itself of whether the new activities would constitute use for the purposes of an agricultural trade or business, and thus take place on “agricultural land” within the meaning of paragraph D.1 of the GPDO. This complaint related to an apparent concern by the Council that there was insufficient information available about the nature of the new tomatillo cultivation.

The new material provided to address the site size query comprised Land Registry title information. Whilst this provides evidence of the common ownership of the wider site and the land shown on the larger scale application plan, I agree that it is not determinative of the use of that land.

Mr Beglan submits that, having identified a gap in the evidence (which presumably the Officer felt it necessary to fill), it was irrational for her then to conclude that that gap was filled by the receipt of evidence which was incapable of doing so.

In my judgement one needs to be cautious before jumping to that conclusion.

As I have noted above in discussing Ground 1, there was other evidence available to the officer to confirm that the size of the unit was at least 5 hectares. I remind myself that the passage in the Report to which reference has been made states as follows (with my emphasis):

“It is noted that within the submitted location plan, the blue line (showcasing the ownership of the land) measures shy of 5 hectares. However, it was understood that this did not reflect the entire extent of the holding, and displays only the land capable of being shown within the scale of 1:1250. As such, a further document was requested. The agent supplied two further site plans which outline the full extent of the site, one of which being a land registry document, on the 23^rd March 2024. These are considered to be sufficient. It can therefore be agreed that the agricultural unit exceeds 5 hectares”

It does not take much to interpret this passage as being no more than the Officer querying the previous references to a site larger than 5 hectares when the total site area in the submitted plans showed not quite 5 hectares. She therefore wished to see evidence that there was a site of at least 5 hectares, and the title information provided satisfied her of that. The Officer was not saying, for example “I can see a large site but I am seeing less than 5 hectares of it in use for agriculture so I need to see more land in use for agriculture before I can be satisfied that the Class A criteria are met”. Instead her question was not about use, it was about plot sizes. In order to be satisfied that there is a 5-hectare site in use for agriculture it is a logical prior question to ask whether there is a site of at least 5 hectares at all, because the only plans, being at a scale of 1:1250, abridged the boundaries of the site and so did not show one.

Ms Nevin for the Council relied on the judgment of Underhill LJ in Balajigari v Secretary of State for the Home Department [2019] 4 All ER 998 as authority for the fact that the court has limited jurisdiction to trespass on the assessment of whether the Council had sufficient information to answer its own question. Citing with approval the six-part summary of the Tameside duty, as set out by Haddon-Cave J (as he then was) in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), Underhill LJ said (at [70]):

“… subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken”

Mr Beglan drew attention to the comment in the Report that “It is understood that the planning statement lacks detail …” and inferred from this that the officer was expressing concerns about whether the 5-hectare criterion could be said to be met. However, that comment appears in the section of the report headed “Is the development reasonably necessary for the purposes of agriculture?”, not the separate section headed “Is the land ‘agricultural land’ in an agricultural unit of 5 hectares or more in area?” The inference which Mr Beglan sought to draw about the absence of sufficient evidence of a 5-hectare agricultural unit cannot, in my judgement, therefore be drawn from this comment.

As I have noted above in connection with Ground 1, there was sufficient material available for the Officer to conclude that the 5-hectare criterion was met. Even if I am wrong in my interpretation of the Report, and the Officer did indeed think that she needed more evidence to show the agricultural unit was at least 5 hectares in size, the fact that the additional evidence she procured does not assist with that is not the end of the story. If – as I have concluded in relation to Ground 1 - there was by any objective analysis sufficient evidence to satisfy that criterion from the material already before the Council then the fact that the further evidence did not add to it does not render the Officer’s conclusions irrational.

Mr Beglan’s observation that the Planning Statement “lacks detail” does not support his secondary complaint about the absence of evidence of an agricultural trade or business either. The relevant extract from the Report is not suggesting that there is a fatal lack of detail, merely that there is not much of it. But in my judgement it is unarguable that there is insufficient detail in the Planning Statement to allow the Officer to conclude that the new activities did amount to an agricultural business. This is another fact which distinguishes the present case from the case of Palley. There is also no support for the argument that an agricultural process which is new to a site demands a greater degree of scrutiny when applying the criteria in the GPDO.

For these reasons Ground 2 fails.