Saturday, 9 February 2013
Agricultural buildings - the “reasonably necessary” test under Part 6
Everyone is familiar with the prior notification procedure under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order (erection of a building and other operational development on an agricultural unit of 5 ha or more), but it should not be forgotten that, in order to qualify as permitted development under this part of the GPDO, the building in question must also be “reasonably necessary for the purposes of agriculture within that unit”.
The question as to whether or not a particular building is reasonably necessary for the purposes of agriculture is not one for determination by the LPA; it is purely a matter of fact and degree – either the test is met or it is not. It is an entirely objective test. However, existing government guidance (in the still extant Annex E to the old PPG7) does encourage LPAs to state their opinion if they believe that the building in respect of which they have received prior notification is not reasonably necessary for the purposes of agriculture. The important point to be borne in mind is that any such opinion has no binding effect. The mere statement of such an opinion cannot in itself disqualify development from being permitted development within Part 6 (Class A). On the other hand, there will clearly be an onus on the developer, if their right to erect the building as permitted development is challenged, to prove on the balance of probability that the objective test of reasonable necessity is in fact met.
An LPA may easily fall into a trap if it forms the opinion that the building is not reasonably necessary for the purposes of agriculture and then (as a result of that) fails to respond to the application it has received within the mandatory 28-day period. If the LPA is objectively correct in its view that the building does not meet the qualifying criterion, then it is not under an obligation to respond to the prior notification application within 28 days or at all. However, if it turns out that the LPA was wrong about the test of reasonable necessity, then a failure to respond to the notice within the 28-day time limit will allow the developer to proceed with the erection of the building without any further input from the LPA, and in particular without obtaining the LPA’s approval of its siting or design.
One point which is abundantly clear is that a building will not qualify under Part 6 (Class A) if the agricultural activity has not yet started or is being conducted purely or mainly as a hobby. Paragraph D.1 in Part 6 of the GPDO clearly states that, for the purposes of Part 6, “agricultural land” means land which, before development permitted by this part is carried out, is land in use for agriculture for the purpose of a trade or business (i.e. there must be an existing agricultural use and this must be a business, not a hobby). So a building cannot be erected as permitted development under Part 6 where the agricultural enterprise has not yet started, and it cannot be erected if the agricultural activity amounts to no more than ‘hobby farming’.
Thus the ‘chicken and the egg’ question can be easily answered in relation to this particular issue – the ‘chicken’ (the agricultural enterprise, conducted on a commercial basis) must come first. Only then can the ‘egg’ (a new agricultural building or buildings) follow, and only if the ‘reasonably necessary’ test is met, as well as the other criteria laid down in Class A of Part 6.
The need to meet the objective test of reasonable need for the building does not necessarily imply a requirement to prove that the agricultural unit is commercially viable. However, the issue of the viability of the agricultural unit cannot be entirely ignored, because if there is no viable agricultural business being carried on, then there may be some doubt as to whether the site falls within the definition of “agricultural land” at all, as explained above, and it might reasonably be argued that it shows that the building in question is not reasonably necessary for the purposes of agriculture. This is not to say that it is essential to be able to demonstrate the commercial viability of the agricultural enterprise, but if the agricultural enterprise is not (currently) viable, it may in those circumstances be difficult to show on an objective basis that the building is reasonably necessary for the purposes of agriculture within that unit.
Unfortunately, it is impossible to lay down any hard and fast rule in relation to these points. All I can say is that the developer does need (if challenged) to be able to demonstrate on the balance of probability that the objective test as to the building’s being reasonably necessary for the purposes of agriculture within that unit was met at the time when it was erected. The commercial viability of the agricultural unit may well be a factor in relation to this question, although viability might not be the determinative factor in the circumstances of a particular case. I suggest, for instance, that whereas the test formerly proposed by the now withdrawn Annex A to PPS7 (in relation to demonstrating a need for a new agricultural dwelling) insisted on existing viability being proved by at least three years’ accounts, the ‘reasonably necessary’ test for other agricultural buildings does not appear to require such a stringent criterion to be applied. Future or potential viability might suffice to satisfy the test, so long as it can be shown that there is a reasonable basis for anticipating this, sufficient at least to demonstrate on the balance of probability that the proposed agricultural building can properly be said to be reasonably necessary for the purposes of agriculture within that unit.
© MARTIN H GOODALL