This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
Pages
▼
Monday, 2 April 2012
Agricultural development after the NPPF
The truth is slowly dawning on a widening circle of farmers, builders and developers and their advisers that with the publication of the National Planning Policy Framework and the withdrawal of PPS7 (along with all the other PPGs and PPSs), the technical advice set out in Annexes A and E of PPS7 has also been ‘lost’. Annex A dealt with agricultural workers’ dwellings, and Annex E explained the practical operation of agricultural permitted development under Part 6 of the Second Schedule to the General Permitted Development Order.
The ‘loss’ of Annex A potentially poses a problem, but in practice I believe this is readily overcome. The only reference to agricultural workers’ dwellings in the NPPF is in paragraph 55, which simply states that local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as (inter alia) the essential need for a rural worker to live permanently at or near their place of work in the countryside. No guidance is given in the NPPF as to the use of agricultural occupancy conditions or as to their removal (but see below). However, “the essential need for a rural worker to live permanently at or near their place of work in the countryside” can only be judged on an objective basis, and I strongly suggest that the methodology explained in Annex A to PPS7, whilst it no longer forms part of ministerial policy as such, is nevertheless the appropriate way in which this issue should be approached. It is well-established and well understood, and I would expect LPAs and planning inspectors to continue to apply this approach, even though PPS7 can no longer be called in aid as the authority for doing so.
It should also be remembered that Circular 11/95 (on the use of planning conditions) remains in force, and so paragraphs 102 to 105 of that circular continue to apply, dealing with agricultural occupancy conditions and their removal. In relation to the removal of an agricultural occupancy condition, paragraph 105 refers to the requirement to show that the existing need for dwellings for agricultural workers in the locality no longer warrants reserving a house for that purpose. This paragraph does not prescribe any particular method for assessing continuing need, but long-established practice, which is clearly supported by several relevant judicial authorities, will undoubtedly continue to apply.
As regards Annex E to PPS7, this simply re-stated the basic rules applying to agricultural Permitted Development which would apply in any event, even if they had never been referred to in PPS7. The withdrawal of PPS7 does not affect those principles in any way, and they continue to apply as they always did. My own inclination would be to continue to quote from the text of Annex E to PPS7 in order to explain these principles, but without necessarily citing this as the source.
Thus I do not believe there need be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions. Similarly, the principles and practice relating to agricultural Permitted Development under Part 6 of the Second Schedule to the General Permitted Development Order will not change as a result of the withdrawal of PPS7. Nevertheless, De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annexes A and E of PPS7 in the form of a Circular. Failure to do so could lead to legal disputes which might otherwise be avoided.
© MARTIN H GOODALL
Hi Martin
ReplyDeleteAs one who is working in the sharp end and eventually looking to establish an ag tied dwelling on my farm (plus helping a few others build their farm business and homesteads), I felt that the NPPF wording is more relaxed.
I'm somewhat wary though that it is more open to abuse for those just wishing to establish a farm dwelling and then take profits.
I was in general agreement with the Annexe A requirements. The 'close by available dwelling' criteria is rarely available and close by rented accomodation is a non-starter (no security of tenure that would be required for a long term business). The functional requirement always seemed to be the most pertinent part of Annexe A and at the end of the day relied on the applicant providing a better case to gain PP versus any argument against that the LPA's agricultural consultant might put.
This leaves the financial test. That I feel is a problem and unjust. If a ag workers home is to be based on one financial standing (and to some degree the physical size of the dwelling being commensurate with those financial figures) then this leaves some rather unfair peculiarities. A farm of several hundred acres may by the nature of the type of farming being carried out, barely scrape through the finacial test. On the other hand, a farm of under 10 acres may contain very intensive methods and not just be allowed dwelling, but one of a much larger size.
This then raises the issue that if in a few years time the struggling large farm changes practice and enjoys more handsome margins, they would be entitled (on application) a larger home. Would the smaller farm. if it were to see a downturn in fortunes, have to reduce the size of home? Clearly not.
Then there are animal welfare issues to consider. Animal keepers of all kinds are constantly being put under pressure to provide better conditions and care management, quite rightly. Animals, just like humans, do not get sick just during the 8 hour day shift. There is a genuine need for someone to be on hand carrying out regular checks during both night and day. In certain circumstances, the financial test might not be met but the welfare one is still needed.
I feel this is where the 'essential need' under the NPPF is more appropriate and as such feel that there should be need to reference to Annexe A.
For all of the above, I do appreciate the need to control agricultural dwellings but believe the emphasis must be looked at from the perspective of good welfare, security and ease of management. Unfortunately, in pursuing to fulfil those kinds of criteria it does lead to the problem of the one chicken, 500 acres and declaring oneself a needy farmer. Maybe the answer lies in the old Scottish crofting system where under management or use of the land could be challenged.
The key to this is a single phrase in paragraph 55 of the NPPF, which says that “local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as.........the essential need for a rural worker to live permanently at or near their place of work in the countryside”. This necessarily involves a test of functional need. So, in my view, Annex A of PPS7 lives on, even though (for the present) it does not feature in published ministerial guidance.
ReplyDeleteIn fact Annex E of 'PPS7' is still extant as it was never actually part of PPS7 but a retained part of the earlier PPG7 which is not one of the documents listed as swept away by NPPF. So you can continue to refer to Annex E of PPG7 as constituting extant Government policy guidance.
ReplyDeleteOn a similar note, PPS 10 on Waste Management also remains extant and has not been replaced by NPPF. There may well be others.
I am grateful to David Barnes of Star Planning and Development Limited for clarifying the position regarding Annex E to PPS7. This was not in fact an Annex to this PPS but was reprinted from PPG7. Annex E was retained for reference from PPG7 as it is still in force “until completion of a review by the ODPM [!] of the GPDO 1995” and has not yet been replaced. Thus Annex E was not withdrawn when the rest of PPS7 was cancelled by the NPPF.
ReplyDeleteMight I just confirm that Annex A (agricultural dwellings) is abandoned along with PPS 7 or is that also being retained somehow, as per Annex E (agricultural buildings)?
ReplyDeleteRegards
Lionel (sry, did not intend to post as 'anonymous' in previous post)
My understanding is the same as Lionel’s (unless anyone else can say otherwise), namely that Annex A of PPS7 has gone with PPS7 itself (although, as I have pointed out, I see no reason why the principles set out in that annex should not continue to be applied to para 55 of the NPPF), whereas Annex E, which came from the old PPG7, is still extant.
ReplyDeleteMartin, I was disappointed to see your support for PPS7 Annex A.
ReplyDeleteThis is a sad piece of legislation which allows LPAs to block development of smallholdings and the like through application of onerous conditions.
Smallholders and similar agricultural workers are generally not well-off, are not always au-fait with legalistic paperwork and are usually not pushy Alpha-types.
They don't have the time, money or skills to combat retired, well-off, middle class, articulate NIBMY types now common in rural England.
(The Daily Telegraph campaign against the NPPF showed the power and focus of the retired British middle class)
In other words, smallholders etc prime targets for a planning refusal.
The whole 3-year temporary dwelling procedure also turns these people into supplicants not applicants.
Perhaps we need legislation to prevent the equine set and the executive-home types building houses in their fields ... but I'm sure that we can find a fairer alternative to Annex A.
I regret that I cannot agree with Richard’s comment. A smallholding will rarely require or justify an on-site dwelling. However, if there is a genuine need for an agricultural dwelling on-site, then the proposal should be capable of meeting the functional need test in para 55 of the NPPF (for which purpose I would still apply the practical criteria formerly laid down in Annex A to PPS7). It is not unreasonable to require the applicant to demonstrate (a) that there is an existing agricultural or horticultural enterprise in being, (b) that it is commercially viable and (c) that the permanent presence of someone on-site is essential to the enterprise (as opposed to merely being convenient). It would be all too easy to evade the clear ministerial policy that discourages dwellings in the open countryside if the functional need test were to be waived.
ReplyDeleteLet’s take it from the want to be farmers view. You purchase land you build up a business of animals be it Alpacas or pigs. The business flourishes and expands; all of a sudden farmer needs a house! But hang on the nimbi’s have them all. The very people that make up vexatious comments to keep him off of his land, to block, to stop, to prevent, the enterprise going any further. These very people are living in the houses called "Hensting Valley Farm" with a quarter acre back garden, all the rest of the acreage has been sold off!, no longer a farm house but a yuppie from London’s guest house for entertainment, then next door a retired Major again living in and surrounded by agricultural land, bragging with his neighbours the fact he has refused the farmer from gaining electric because the pole is 3' on his land, and 12 feet from the farmers land. His 6 other neighbours all follow suet, to put down said farmer to describe him as a speculator and worse!
ReplyDeleteWhere is the planning law to protect them? How long will it be before the rare breeds are extinct? You won’t find them out in all weathers clearing out poo collecting hatching eggs and passing on these genes for others to breed for the future, or being out in a clod wet night in the pitch black trying to save an animal from being ripped apart by a dog. But these people are all sat in there ex farm houses spouting out about building in greenbelt! They are the ones who should be forced to prove why they are taking up valuable farm houses, and prove to the rest of us why they are there, not the other way around
Derek
Derek Moore seems to me to make a very good point. Unfortunately, I am unable to think of a practical answer to the problem. However, if there really are no suitable properties to rent or buy nearby, and a farmer or agricultural worker can show that there is a genuine functional need for them to live on the holding, then they might get planning permission in those circumstances. However, if there is really no need for them to be on the holding itself, then they are clearly in considerable difficulty. The only real answer is to secure the building in rural areas of genuinely affordable homes, whose occupation is restricted to local people in housing need.
ReplyDelete>> It would be all too easy to evade the clear ministerial policy that discourages dwellings in the open countryside if the functional need test were to be waived.
ReplyDeleteHowever in Planning Speak the phrase 'open countryside' does not mean the middle of a beautiful large green meadow on a hill top. It usually means 'anywhere the local authority does not want houses to be built'. This can include odd scraps of land ideal for in-fill and the like. It usually also means 'anywhere within two miles of where decent retired middle class people live'. The more I work on planning issues the more I see how the system is biased against the poor and ill-educated and how it can be manipulated by the well-off, well-educated, retired middle classes who have plenty of free time on their hands.
I agree with Richard that the functional need test should certainly not be waived, and it is clear from para 55 of the NPPF that it still applies, albeit that we no longer have the assistance of the detailed technical advice set out in Annex A to PPS7.
ReplyDeleteRichard is also correct in pointing out the true meaning of ‘open countryside’ in planning terms – it means anywhere outside designated settlement boundaries.
Richard’s final point is another sound argument in favour of allowing the development of genuinely affordable houses to meet the needs of rural workers, by which I do not just mean farm workers but other people working in the area. To take an example, I met someone working in a craft workshop in Chipping Campden who has to commute from over 30 miles away because they cannot afford to buy or rent anywhere nearer. High time some more social housing for rent was built in the town, to give the place back to the genuine artisans!
Richard Hathway - you are on the nail, sir. This is exactly the case. And a rather self serving inclination amongst the already housed-on-ex-farming-land people combines with a rather linear and reductionist perspective from the planners (dwelling+outside settlement boundaries = refusal regardless of any genuine effort to grow food and work at community level in low impact means (ie labour intensive and low carbon land management) is seen as completely irrelevant. I have even been told that a nearby house inhabited by other members of the family *could* be made available (leading to refusal of a new agricultural famly dwelling) as the retired parents could be made to move out. I find this reprehensible to an almost unspeakable degree. Planners - and we - would do well to think in rather more joined up terms. Places are complex systems, and need understanding and responding to as such. I would posit that we need to do much, much better.
ReplyDeleteI would be interested Martin to get your views on the assumptions that the 'blonde Ag Advisor' makes in this article
ReplyDeletehttp://blondeagadvisor.wordpress.com/2014/07/17/possible-changes-to-how-you-get-an-ag-tied-dwelling/comment-page-1/#comment-2057
Namely that a recent high court case confirms that financial tests are no longer relevant when considering an agricultural tied property.
'In this case, the High Court rejected an application for judicial review of a planning permission for a livestock building and temporary dwelling on a farm in Northumberland. By giving this rejection it confirmed the following:
• There is no test of financial viability for a rural workers’ dwelling under the National Planning Policy Framework
• A short term assured shorthold tenancy will not necessarily offer sufficient security of tenure to provide suitable accommodation for a rural worker.'
I agree with MW that this judgment does suggest that the view which I previously expressed as to the continued applicability of Annex A to PPS7 (notwithstanding its cancellation) when considering the justification for a proposed agricultural dwelling may not be upheld by the courts. I will give some further thought to this and may publish a separate post in the main body of the blog on this topic.
ReplyDeleteMartin in your agreement with Richard on 24 May 2012 regarding open countryside being anywhere outside settlement boundaries, I'm interested to know if this has been established in any case? My Local Authority tell me that being just outside the settlement boundary and adjacent to other houses means I cannot use the provision of para 55 as the location is not 'isolated'.
ReplyDeleteI am sorry that Andrew’s query of 30 December seems to have got lost inside my computer, and I have only just found it. Hence its late appearance, and the delay in this response.
ReplyDeleteI regret that we are dealing here with some fairly arbitrary policies that are very restrictively applied. Yes, a site outside a development boundary is considered to be in “open countryside”. Furthermore the policy set out in paragraph 55 of the NPPF applies to such a site. In principle, the fact that the site is in “open countryside” is enough to make it a “new isolated home in the countryside”. Offhand, I am not aware of any case law on the point, but I am pretty sure you will find appeal decisions that back up this view – unfortunately I do not have any material to hand that I could quote.
You might try arguing that the site is not truly isolated, but I wouldn’t give much for the chances of succeeding with that argument. Development on a site like this is unacceptable in principle (i.e. in policy terms), and this is a very high hurdle to jump over, unless the proposal can be brought within one of the stated exceptions in paragraph 55.
If, on the other hand, Andrew is seeking permission for a development that does come within one of the exceptions in paragraph 55, then (all other things being equal, which they very rarely are) such a development, like an agricultural worker's dwelling for example, ought in principle to be acceptable, but you are then into all sorts of arguments as to why the worker cannot be accommodated in the nearby settlement, etc.
Hello Martin
ReplyDeleteDo you have any thoughts on a proposal for a dwelling within the middle of a village without a settlement boundary (I appreciate this is still classed as open countryside, but is not 'isolated') and where there is unanimous support from local residents and no objections from statutory consultees. The only objection is from the planning officer. I understand it is pretty rare to have such complete support from the 'nimby' community.
In answer to the question from “Nicholson” (9 January), this entirely depends on the adopted planning policies and other planning considerations that apply to this development in this location. Some local plans allow for ‘limited infilling’ in such situations, but it is impossible to predict how a particular application would be dealt with in any given situation.
ReplyDelete