Wednesday, 20 March 2019

Class Q - “Last” used for agriculture?


One problem that seems to recur regularly in relation to prior approval applications for the residential conversion of an agricultural building under Class 3, Part Q in the Second Schedule to the GPDO is whether a former agricultural use was the last use of the building, or whether it has been used for other purposes since then.

It is clear from the wording of paragraph Q.1(a) that a non-agricultural use of the building after its agricultural use ceased would disqualify the building from residential conversion under Class Q. However, it should not be assumed that any other use, no matter how minor, would automatically have this effect.

By virtue of section 55(2)(e), the agricultural use of land and of any building occupied together with land so used is not to be taken for the purposes of the 1990 Act to involve development of the land. It follows that if the building is then used in some way that represents a material change of use, then the agricultural use will be at an end, and will have been supplanted by the new use that replaced it. The crucial question, however, is whether such subsequent non-agricultural use did in fact represent a material change in the use of the building, or whether it was of no real significance in planning terms, so as to have been de minimis.

It cannot automatically be assumed that any use of an agricultural or former agricultural building for some non-agricultural purpose would represent a material change of use. This is bound to be a matter of fact and degree in each case, but, a casual, low key or occasional use for other purposes would not normally amount to a material change of use, if this did not result in any significant change in the character of the building’s use, nor a change in its impact in planning terms. Bearing this in mind, it seems clear that the disqualification in paragraph Q.1 would not apply unless the subsequent non-agricultural use of the building did amount to a material change of use. The disqualification in paragraph Q.1 would not therefore be engaged where any such non-agricultural use was, as a matter of fact and degree, de minimis.

A discussion of the materiality of a change of use will be found in my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts (Bath Publishing, ISBN978-0-9935836-5-0) in paragraph 3.8 of Chapter 3 in that book.

I do not usually report inspectors’ planning appeal decisions in this blog, but a practical example of this approach to the issue was provided by an appeal decision at Great Totham, Essex (Maldon DC) in July 2018 [3198348]. The appeal building was part of a long standing and larger farm complex which was subdivided in 1988. The LPA suggested that there had been no agricultural activity since 1988 and that the building had instead been used for both commercial and domestic activities. The appellant himself had never operated an agricultural trade or business from the appeal building and it was no longer part of an established agricultural unit. However, this did not mean it had moved away from its historic and lawful agricultural use, and the Inspector noted that planning permission to use the building for purposes unrelated to agriculture had never been granted. On the balance of probability, he therefore found that the building was probably last in an active agricultural use as part of an agricultural unit in 1988.

At points between 1988 and 2004 the appellant operated a number of heavy goods vehicles (HGVs) from the yard as part of an agricultural haulage business. There was nothing to suggest the material being transported derived from an agricultural unit operated by the appellant. However, the HGV licence only permitted the parking of HGV vehicles in the yard. The HGV vehicles were too large to be parked within the appeal building. There was nothing before the Inspector to suggest the barn formed part of this enterprise. The Inspector therefore concluded that the lawful agricultural use, which had not been active since 1988, would have endured even if the building had been used occasionally to support the unlawful HGV business (which seemed unlikely).

The appeal building itself had been intermittently used to store a tractor and other paraphernalia left over from the historic agricultural use, such as apple crates. The barn had also, at points, been used to kennel dogs, to park vehicles and as a workshop. The barn was described as being used for the storage of the owner’s vehicles and farm equipment, but it was unclear what farm the equipment related to. The storage and workshop use appeared to be domestic in nature given the items on show.

It was unclear whether the non-agricultural uses were for unbroken periods of time, more than intermittent and consistently more than low key. As such, the recorded use of the appeal building as a store and workshop was unlikely to be sufficient evidence to demonstrate that a material change of use of the barn from agriculture to some other use had occurred [my added emphasis]. Thus the historic and long standing use as an agricultural building had endured. This suggested that the barn had had a lawful dormant agricultural use since 1988. The LPA had never previously asserted that a material change of use from agriculture to some other use had occurred.

The Inspector observed that the evidence before him was incomplete and finely balanced but, on the balance of probability [my emphasis again], he found that the appeal building, whilst not in use on the 20 March 2013, was last lawfully used in 1988 and this was solely for agriculture in connection with an established agricultural unit. In this respect, the permitted development rights in Class Q of the GPDO applied to the appeal building. The Inspector therefore found that the proposal was permitted development, and concluded that the appeal should be allowed and approval granted.

An alternative argument on the part of LPAs that has occasionally been encountered is the assertion that casual or occasional storage of domestic items, or of logs as firewood renders the use of the building in question ‘ancillary’ to the residential use of a nearby farmhouse (or former farmhouse). However, it should be borne in mind that the farmhouse is a separate planning unit, and so the use of any of the agricultural buildings cannot be ancillary to the use of that other planning unit. (See Westminster City Council v British Waterways Board [1985] A.C. 676.)

In some cases, the mistaken view as to the agricultural building’s ancillary status is based on the assumption that the building is within the curtilage of the farmhouse. But a nearby barn or other agricultural building is very unlikely to be within the domestic curtilage of the farmhouse, because in most cases the agricultural building does not meet the essential functional test in Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C.R. 195. Furthermore, in most cases it would not meet the requirement laid down in Dyer v Dorset CC [1989] 1 Q.B. 346 of forming one enclosure with the farmhouse. (See also Burford v SSCLG [2017] EWHC 1493 (Admin).) Any doubt on this score was entirely dispelled by the High Court judgment in R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin), which established that nearby farm buildings are very unlikely to be within the curtilage of the farmhouse. [This point has previously been discussed in this blog, on Friday, 15 March 2013 - "Barns near listed farmhouses" - when I analysed the Egerton judgment in some detail.]

© MARTIN H GOODALL

15 comments:

  1. Understandable. However at what point would the barn be considered abandoned and not merely dormant and therefore losing the planning use class?

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    1. At first sight, complete abandonment of the building might perhaps be thought to lead to the loss of the permitted development rights under Class Q, but the fact that an agricultural use is not to be taken for the purposes of the 1990Act to involve development of the land (see section 55(2)(e)) would seem to me to imply that in the case of an agricultural use, there is no use right (in planning terms) that can be lost by reason of what might amount to abandonment in the case of other uses.

      On the other hand, a lengthy period of disuse of a building, or of the land that constituted an agricultural unit at the relevant time could give rise to evidential difficulties if the applicant for prior approval under Class Q cannot vouch for this previous use on the basis of their own knowledge, but is relying solely on anecdotal or other evidence of the building and the surrounding land having been used for agriculture by a previous owner (in the absence of any corroborative evidence of the sort referred to above). The appeal decision mentioned above, however, [3198348] indicates that detailed evidence need not necessarily be required even in cases such as this.

      But if the building in question is now semi-derelict or in a state of significant disrepair, then this would throw considerable doubt on its being capable of conversion to residential use.

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  2. For the purpose of Class Q, "Agricultural Building" is defined by X. as: a building used for agriculture and which is so used for the purposes of a trade of business; and "agricultural use" refers to such uses.

    Therefore I presume an LPA would not be unreasonable to refuse permission on a hobby farm, on the basis the proposal is not an "agricultural building" and would thus not fall within the definition of Class Q

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    1. As my anonymous correspondent points out, an “agricultural building” is defined by paragraph X of Part 3 as a building used for agriculture and which is so used for the purposes of a trade or business, and “agricultural use” refers to such uses. This definition therefore precludes the residential conversion of buildings that are not used for the purposes of an agricultural trade or business as such. The farming enterprise may not necessarily be profitable but must be essentially 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. However, an alleged agricultural use that is not carried out on a commercial basis is a disqualification. So the definition of an “agricultural building” would not include a use that only amounted to hobby farming, without any view to profit.

      However, as in all cases, this will be 'a matter of fact and degree', and I suggest that the LPA should not jump to conclusions without examining the issue properly.

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  3. Hi Martin
    Interesting questions. Can’t say I’m impressed by the Maldon inspector however. Determining a question of lawfulness – is the proposal within scope of PD – in a S78 appeal? (And then expressly choosing not to determine the appeal de novo – tut tut.)
    I would however agree with inferring a ‘lawful’ test to the uses being considered and as I recall there is much case law establishing the related proposition that a use has to be lawful to benefit from whatever PD rights attach to that use.
    Not convinced however by the intriguing line of thought about agi use being excluded from the definition of development. Am I not right in thinking this exclusion applies to all land and buildings – and would that mean that Class Q (and any other agi PD rights) would therefore attach to all land and buildings?

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    1. When determining a prior approval application or appeal under Class Q, the decision-maker must necessarily be satisfied that the previous or pre-existing use of the building qualifies it for residential conversion under Class Q. Paragraph W.3 gives the decision-maker the power to refuse the application (or appeal) if they are not satisfied that the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It follows that it was entirely proper for the Inspector to determine that the development did comply with those conditions, limitations or restrictions, and that it did therefore qualify for PD under Class Q.

      Agricultural use of land and buildings differs from all other uses of land or buildings precisely because this use is specifically excluded by section 55(2)(e) from the definition of development set out in section 55(1). (In planning terms, it is a ‘non-use’.) Existing use rights (in planning terms) can be lost in various ways, but the effect of section 55(2)(e) is that there are no such existing use rights for agricultural land and buildings that can be lost. It is for this reason that the concept of abandonment (as set out in judgments such as Hartley v MHLG and Hughes v SSETR) cannot apply to an agricultural use of land or buildings. On the other hand, a material change of use can occur from ‘non-use’ for the purposes of agriculture to some other use, whether the new use comes within the Use Classes Order or is a sui generis use. Such a material change of use would bring the previous agricultural use of that building to an end, and so would disqualify it from PD under Class Q. The point is that a non-agricultural use that falls short of being a material change of use (and is, as a consequence, de minimis) would be insufficient to bring an existing agricultural use to an end.

      The PD right under Class Q applies solely to a building that complies with the relevant, conditions, limitations or restrictions set out in the GPDO. If it is within the definition in Class Q, and is not caught by any of the exclusions in paragraph Q.1, then it qualifies for PD under Class Q.

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    2. There is just one point that I would add. If a building is demolished or is accidentally destroyed (for example by fire or storm), then existing use rights are said to be lost. This point was established by the decision of the Court of Appeal in Iddenden v SSE. However, in light of section 55(2)(e), it might be more correctly stated that any planning permission that applies specifically to an agricultural building would be lost if it ceases to exist. It is the building’s continuing existence that would be crucial in this case, rather than any use rights in planning terms that might apply to buildings that are in any other use.

      This rule has been applied in a number of barn conversion cases, where planning permission for the residential conversion of the building was held to be lost upon the complete demolition or destruction of the building. (See, for example, Hadfield v SSE) So in such a case, where the permission was for conversion of the existing building rather than its complete demolition and replacement, then where the building is wholly or substantially destroyed there is no implied permission to rebuild if necessary. (See the judgment of the Court of Appeal in North Norfolk DC v Long, which confirmed that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission.)

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  4. I've trawled through the original post and the comments but have been unable to find a reference to Brexit - very disappointing!

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    1. I thought it was about time that I posted something on planning law for a change!

      (But Brexit is becoming an ever more fraught subject, and next week promises to be even more dramatic than this week has been. Is Cap'n May going to steer the SS Britannic straight at the iceberg, if she can't get her own way in parliament? If so, then the ship will be fatally holed below the waterline just like its sister ship, the Titanic, when it hits the iceberg at 11.00 p.m. GMT on Friday evening next week and, as we are now well aware, there aren't enough lifeboats on board to prevent a disaster ensuing. The crew is running around yelling, and imploring May to change course, but it remains to be seen if they can seize the ship's wheel and steer the ship out of danger. Rest assured that I will return to this subject. I might even post an occasional item on planning law in between times.)

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  5. 'But if the building in question is now semi-derelict or in a state of significant disrepair, then this would throw considerable doubt on its being capable of conversion to residential use.' I recall a presentation at the RIBA where some pretty-derelict-looking barns were reimagined under precisely this legislation.

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  6. I remember it well, having been one of the other speakers at that seminar. But that was several years ago, long before Hibbitt and when many LPAs were feeling their way with this legislation. (Some still are, more than 5 years after Class MB, as it was then, was introduced!)

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  7. Hi Martin

    If an agricultural building has been converted to residential use under class Q - is it then possible to extend that building under housholder PD rights? This is what a planning consultant is arguing (as a fall-back position presumably) in an application for a [larger] replacement building for a shed converted under class Q (the shed has not been converted according to approved plans, so is not as yet signed off by the LPA...)

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    1. No. PD rights under Part 1 are removed where the building has been converted to residential use under Class Q of Part 3. So there is no ‘fallback’ position here, although the basic PD right for the residential conversion might be a material consideration (falling short of a fallback).

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  8. With regard to part Q and Last Use, I have an agricultural site and holding, on that site I diversified and ran an agricultural training facility from 2007 to 2015 which is now ceased. I have a barn on that land for which I applied to change to a dwelling under part Q, it was refused on not being in sole agricultural use in 2013. My argument was that the barn in question was in agricultural use, it had sheep, pigs etc in it albeit as part of the agricultural training facility which was been run as part of an agricultural business on agricultural land. The planners argue a change of use to D1 occurred, but my argument is that the building itself was still under an agricultural use. I would welcome your opinion on this point of principle

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    1. Frankly, an answer to this question would depend on the precise and detailed facts of the matter. This is not a point of principle; it is a matter of fact and degree for the decision-maker to determine.

      Development is not permitted by Class Q if the site 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 was not in use on that date, when it was last in use).

      I can understand why the LPA may have considered that the last use of the building was either a mixed use or as a use under Use Class D1. However, whether they were right or wrong in reaching this conclusion can only be determined by an Inspector on an appeal under section 78 against the refusal of prior approval, and this will depend entirely on the view of the facts that the Inspector reaches. I would not care to guess at the possible outcome of such an appeal.

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