Tuesday, 13 June 2017

Qualifying use of agricultural building under Class Q


I am grateful to Nathan Dickinson for drawing to my attention a problem that seems to have arisen over the interpretation by certain LPAs of the rules relating to the qualification of agricultural buildings for residential conversion under Class Q in Part 3 of the Second Schedule to the GPDO. I explained the rules in Chapter 9 of my book, “A Practical Guide to Permitted Changes of Use” (which can still be ordered by clicking on the link on the left-hand side of this page.).

Paragraph Q.1(a) puts this in the negative. Development is not permitted by Class Q if the site [i.e the building and an area no larger than its footprint] was not used solely for an agricultural use as part of an established agricultural unit on 20th March 2013, or (in the case of a building which was in use before that date but had ceased to be used for agriculture by that date) when it was last in use.

I really don’t think there can be much doubt as to what this means. The building must have been in agricultural use on, or at some date before, 20 March 2013, but it still qualifies if it is no longer used for agricultural purposes, provided it has not been used for any other purpose since ceasing to be used for agriculture. Thus a redundant or disused agricultural building does qualify for conversion under Class Q, but this permitted development right is lost if the building has been put to some other use since it ceased to be used for agriculture.

I can therefore find no justification whatsoever for the bizarre interpretation that Breckland DC (to name just one LPA) has sought to put on Class Q. They have entirely ignored the words of paragraph Q.1(a) and have seized instead on the operative words of Class Q(a), namely “Development consisting of - (a) a change of use of a building and any land within its curtilage from a use as an agricultural building [their emphasis] to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order……..” Thus, they claim, the building has to be in current agricultural use, and they demand that the applicant should demonstrate that this is for a trade or business purpose.

I understand that the Council bases this interpretation on the definition of “agricultural building” in paragraph X, viz: “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business”. This, they seem to assume, means that to be an agricultural building as specified in Class Q(a) the building must now be used for agriculture (and it is not disputed that this necessarily requires that this use is or was commercial, and would not include a use that only amounted to hobby farming). However, if present and continued agricultural use were to be a necessary qualifying criterion, it would render the words of paragraph Q.1(a) entirely otiose. The inclusion in that paragraph of a reference to a building which was in use before 20 March 2013 but had ceased to be used for agriculture by that date was clearly intended to show that the building qualifies if it was last in use for agriculture, but has since been disused.

Clearly, if anyone gets a nonsense decision from any LPA which purports to find that the building in question is disqualified from residential conversion under Class Q because it is not currently in agricultural use, even though it was last used for an agricultural trade or business and was so used on or before 20th March 2013, they should have no hesitation in appealing to the Planning Inspectorate against this decision under section 78, and coupling this appeal with application for an award of costs, bearing in mind that an LPA will be held to have behaved unreasonably if its refusal of planning permission (or in this case prior approval) is based on a misunderstanding or misinterpretation of the law.

© MARTIN H GOODALL

16 comments:

Alky Lee said...

I am sure that some Local Authorities confuse themselves with the two different definitions of agriculture. In this case they seem to be using the definition for Part 6 of the GPDO in other contexts. As far as I am aware, that definition is only for use in Part 6.

Anonymous said...

I don’t really understand what you are trying to get at here Martin?

Clearly the first test when considering permitted development is whether the building benefits from permitted development. Thus a consideration must be made as to whether the building is an ‘agricultural building’.

As an ‘agricultural building’ is clearly defined in the GPDO, I do not think it would be fair to label a decision which clarifies whether the building is an ‘agricultural building’ as a nonsense. The GPDO has to be read as a whole after all.

I understand you feel LPA’s are too prescriptive, but maybe you should lay your blame at the writers of the statutory instrument itself, who included many conflicting criterion and advice, ie;

- Its impossible for a building to be converted without structural alteration
- Redundant buildings are allowed by Q.1 (a ii) but are not agricultural buildings as defined by para X
- Impractical means isolated from services, gas, water, etc, however, clearly most rural buildings are.
- Who even knows if first floors are allowed, or new floor slabs etc, as the building operations permitted clearly don’t include these?

Permitted development should be black and white, however, regardless of your book which im sure you will guide me to, LPA and inspectors decisions are so varied and there is clearly no precedent (with perhaps the exception of the recent high court judgement).

Any planning agent would be a fool to advice any client that the process isn’t a lottery.

Anonymous said...

Easy for a Planning Inspector to be confused when the Planning Inspectors Manual states '...the use must be as specified in the permitted development right at the time the application is being considered. For example, for the Class Q (agricultural to residential) right to apply, the building must be in agricultural use, which would not include a mixed agricultural/domestic storage use.'
I accept your point that 'in agricultural use' means a building who's lawful use is agricultural(whether in use or not at the time), but I wouldn't be surprised if some LPA's and Inspectors don't.

Richard W said...

Martin

Putting aside the clear intent of government and the perverse outcome of their analysis, aren't Breckland actually right to look first at the description of development permitted before looking at the impact of any conditions or limitations? Isn't that the orthodox approach to lawfully interpreting PD rights? Should you blame Breckland, or the drafters of the PD legislation?

Martin H Goodall LARTPI said...

I am grateful to correspondents for their comments.

There is no doubt that, in order to qualify under Class Q, the building in question must have been in agricultural use on or before 20 March 2013, and I think it can be agreed that the definition of agriculture in the GPDO must be applied in this context (including the requirement that this use must at all material times have been on a commercial basis). I have not sought to suggest otherwise.

However, it is equally clear that the building will still qualify if it is no longer in use, but was last used for agriculture. This means that following any cessation of the agricultural use, there must not have been a material change of use to some other use.

Whether there has subsequently been a material change of use to another use is a matter of fact and degree. It is unlikely, for instance, that intermittent or casual low level storage of non-agricultural items would be material in this sense, and is more likely to be judged to be de minimis, but the extent of any such use following the cessation of agricultural use would have to be carefully considered.

Gary Mickelborough said...

Martin, we have experienced an appeal inspector supporting such nonsense. One of the London Boroughs refused an application relating to a redundant chicken shed which had last been used, in the 1970's, as a farm workshop. We submitted stat decs to confirm the building had not been used for any other purpose since that time and submitted all available invoices to verify the trading of the former agricultural business which used the building. However an inspector determined that given the amount of time that had passed, and given that adjacent buildings had been used for many years for alternative purposes, there was insufficient evidence to confirm that the building had last been used for agricultural purposes. This was a former, clearly redundant, chicken shed on an existing agricultural unit (which used to be known as a farm). The only available evidence verified an agricultural use all those years ago.

The building is of sufficient construction to satisfy the requirements of Hibbitt, I might add.

I can forward you the appeal decision.

Martin H Goodall LARTPI said...

Gary Mickelborough’s comment prompts me to add a further comment that was already in my mind before I read Gary’s note. This relates to the standard of proof that can reasonably be demanded by the LPA (and by an Inspector) as to the previous agricultural use of the building.

This will simply be ‘a matter of fact and degree’, and an applicant cannot be required to prove any such facts beyond the balance of probability. It appears to me that the proper approach to this issue should be the same as it is in the case of an application for a Lawful Development Certificate, namely as laid down in F W Gabbitas v SSE [1985] J.P.L. 630, where it was held that the applicant’s own evidence does not need to be corroborated by “independent” evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate “on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but Gabbitas is now referred to in the government’s online planning practice guidance on this topic.

If an Inspector were to depart from this approach in an appeal, either against the refusal of prior approval under section 78, or against the refusal of an LDC application under section 195, it would be open to legal challenge in the High Court under section 288 of the 1990 Act, although the strict 6-week time limit for such a claim must be borne in mind.

JP said...

Martin,
What in laymen's terms is the test that differentiates hobby farming from a commercial farming unit? Many people will have smallholdings that they farm, but financially have a primary source of income from other employment whilst making a supplementary income from their farming activities ie conditioning and selling on livestock, or selling produce at a farmers market.
These smallholdings will have old farm building that will be perfect for conversion, but from what I infer from your comments, will be prevented from conversion under PD because the holding itself may not be seen as a "commercial unit" by the local authority.
Kind regards,
JP

RichardW said...

Whilst I stand by my earlier point and others’ comments that it is right to look first at the definition of the development granted permission in the relevant Class of PD, thinking about it I guess it all comes back to the interpretation of “agricultural building”. And in particular whether the use of the present tense in Part 3 Para x means an active use only, or whether it means a building with current use rights for agriculture. I.E. Does a building cease to be an agricultural building because the use has presently ceased (but it has not been abandoned or supplanted by another use)?
Sensibly it seems the only answer can be ‘no’ - as you suggest Martin (albeit for a different reason). It does look to me that the use of the present tense in para x must mean a building with current agricultural use rights, not a building that is presently in active use for agriculture. Typically planning only questions whether a use has been active when we’re considering continuity of use leading to immunity from enforcement action in relation to an unauthorized change of use. And if an active use in these terms was a precondition of a PD change of use (as distinct from development to support the expansion of the use) how could the PD right ever be implemented? Even if a use was active up until the day before the new use began, the old use would still have to cease prior to the new use starting.
My only other thought is whether there is any established precedent for the very similar definition of agri land in part 6 – which is similarly expressed in the present tense. Does the use of agri land have to be ‘active’ as opposed to ‘currently lawful’ to benefit from Part 6 rights? If it does then the very similar drafting of the two definitions might leave a problem. On first principles it makes some sense to require a use to be active as a precondition of a PD right to expand or improve the land or buildings which accommodate that use – but as noted above – it simply doesn’t make sense to require the former use to continue until after the implementation of a PD change to a different use. But the words of the two definitions are so similar that I can’t see how they could be properly interpreted so differently within the same legal instrument.
Of course, if there is law on the Part 6 definition which establishes that the use merely has to be currently lawful, and not presently active, then that would seem to be case closed on the interpretation of Part 3 Para x.
And that’s quite enough for a Friday – have a good weekend!

Martin H Goodall LARTPI said...

In answer to JP, the definition in Paragraph X requires that the building must be used for the purposes of a trade or business. This means exactly what it says, neither more nor less. The farming enterprise may not necessarily be profitable but must be commercial in nature. Unlike the standard agricultural occupancy condition, this does not imply that the agricultural holding must be the sole or main source of income for the user. So-called “hobby” farming is not, therefore, ruled out entirely, provided the farming enterprise is carried on with a view to profit. It is the essentially commercial nature of the agricultural use that matters.

Turning to Richard W’s comment, I have made the point in my book, A Practical Guide to Permitted Changes of Use, in relation to conversions from various other changes of use, that the right (in planning terms) to use the building for that pre-existing purpose must still subsist. The use need not be active, but must not have been lost or abandoned. Agricultural use differs from other uses because section 55(2)(e) of the 1990 Act provides that the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used is not be taken for the purposes of the Act to involve development of the land. Thus there can be no “existing agricultural use rights” attaching to the land, but there will nevertheless be a material change of use where the use of land or buildings is changed from agricultural use to some other use.

I would therefore suggest that an agricultural use cannot be ‘abandoned’ (as other uses can) and so non-use after the cessation of an agricultural use will not affect the PD rights under Class Q. However, if the agricultural use is supplanted or succeeded by some other use, then the agricultural use is undoubtedly at an end, and any PD right under Class Q will have been lost. I don’t think one needs to resort to Part 6 in order to interpret this situation.

Richard W said...

I can't help feeling this is a question that the Courts will need to tackle at some point. I've just been reading another CoA judgement from this week:

Keenan v Woking Borough Council & Anor [2017] EWCA Civ 438 (16 June 2017)
http://www.bailii.org/ew/cases/EWCA/Civ/2017/438.html

This heavily underlines the principle that conditions cannot expand the scope of the definition of the development permitted in the relevant class.

Which I think means we (LPAs and Inspectors etc.)do all have to fairly and reasonably tackle the consequences of Class Q defining agricultural use in the present active tense. The clear message from Keening is that conditions only come into play if the proposal falls squarely within the definition of development described as permitted development in the first place. In looking at this would it not be generally unlawful to set aside the definition as set out in the statute in favour of what we might all believe was the true (but contrary) intention of parliament?

Martin H Goodall LARTPI said...

I am grateful to Richard W for drawing attention to Keenan v. SSCLG, but it seems to me that this case simply confirms a point that I have made repeatedly in the past: namely that the 28-day rule (in Part 6) [and likewise the 56-day rule in Part 3] cannot operate at all if the development in question does not in fact qualify as PD. The pre-conditions in Part 6 [or in the relevant Class in Part 3] have to be met before the 28-day [or 56-day] rule can even begin to operate.

The Court of Appeal’s judgment in Keenan does not seem to me to give any help in the interpretation of Part 3, Class Q as such. Clearly the qualifications in Class Q must be met before a proposed residential conversion of an agricultural building can be PD, but there is nothing in the judgment in Keenan that sheds any light on the use of the present tense in the operative words of Class Q(a), bearing in mind the wording of paragraph Q.1(a).

I am entirely clear in my view that the agricultural building in question does not need to be in current agricultural use, provided that it has not been put to any other use since ceasing to be in agricultural use. It is a necessary pre-condition that the building fell within the definition of “agricultural building” in paragraph X at the time when it is alleged to have been in agricultural use, but (for the reasons I have explained earlier) there is no implication that this situation has to continue right up to the date of the prior approval application. Only a material change of use to some other use could prevent a previously qualified agricultural building being converted to residential use under Class Q.

Anonymous said...

Also, if currency of active agricultural use were a requirement, surely this would render every single Class Q or MB Prior Approval granted to date unlawful and undeliverable (on the assumption that for practical reasons, in every case, there must be a short gap between trading and commencement)?

Anonymous said...

Another point on this one. The standard downloadable Class Q application form refers exclusively to "the building" in relation to the 20 March 2013 cut off date.

https://ecab.planningportal.co.uk/uploads/1app/forms/prior_approval_of_agricultural_to_residential.pdf

Martin H Goodall LARTPI said...

As my anonymous correspondent today points out, the questions on the form are:

”4. Description of proposal

If the building was not in use on 20th March 2013, what date was it last in use?

What was the use of the building on 20th March 2013 or the last use before that date?”

Richard W said...

To be clear on my view, I'm not arguing for the Breckland position, I was merely trying to highlight a)the principle that conditions cannot expand the definition of development permitted and b)the point that the use of the present active tense in the definition of agricultural buildings poses problems of statutory interpretation as they cannot sensibly be given their normal plain English meaning without the nonsense outcomes Martin and Anon have highlighted.