Planning row victory a hollow win for pair

By afoster

A NORTH DEVON couple who have been involved in a long running planning dispute with North Devon Council have emerged triumphant from a public inquiry.

But it is a hollow victory for Bill and Lydia Ludgate of Brayford, because it has taken up two years of their lives and, they claim, prevented them from selling their home before the property market crashed.

Mr Ludgate said: "The inspector ruled in our favour because the council was completely wrong. What angers me is the total waste of public money."

The council originally gave the couple planning permission for trout-rearing ponds in Brayford in 1989.

Two years later, permission was also given for them to build their home, Oak Tree House, subject to an agricultural occupancy condition.

It was only when they came to sell their house that they discovered the trout farm, which sold fish to re-stock angling lakes, should not have been classed as "agriculture".

Mr Ludgate said: "It was the estate agent who first said 'what you have been doing is not agriculture and it would help the sale of your house if you could apply for a certificate of lawfulness'."

They needed the certificate to establish their operation was now lawful because no enforcement action had been taken in the 10-year time limit.

But North Devon Council refused to grant the certificate, so the couple appealed.

The inspector ruled that fish sold to restock angling waters fell outside the definition of agriculture and noted there was independent evidence to support Mr Ludgate's assertion that the fish he produced were mainly sold to fisheries or lakes.

As Mr Ludgate also carried out work for the couple's other business, the inspector agreed that he was not solely or mainly employed in the trout rearing operation.

Therefore, he concluded that on the balance of probability, Oak Tree House had been occupied in breach of the occupancy condition for more than 10 years and, as a result, ruled that a certificate of lawfulness should be issued.

Even before it went to appeal, council e-mails — which the Journal has seen — revealed that its legal department had reservations and that if the couple appealed there was every chance the council could lose and face costs.

Mr Ludgate claimed that if the application had been granted in 2007 when he first approached the council, he would have been able to sell his house in a buoyant market.

He added: "We are going to make a huge loss on the sale of the house because the market has collapsed."

They are now considering pursuing the council for damages through the Local Authority Ombudsman.

Mike Kelly, North Devon Council's planning manager, said the case involved a complex legal argument as to whether Mr Ludgate's fish farm was an agricultural or leisure activity.

He said: "The legal services manager was first of a mind that this was a leisure activity, but finally decided, on the basis of further evidence, that it was an agricultural activity and consequently refused a certificate of lawfulness.

"This evidence included a view from DEFRA — later changed — that such an activity was agricultural, a previous view from Mr Ludgate's former agricultural advisors that such a use was agricultural and a statement in 2004 from Mr Ludgate himself that his fish farm was an agricultural activity.

"The council therefore considered that it had a reasonable case to proceed with the inquiry."