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.
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Monday, 9 March 2020
“Used solely for an agricultural use ……. when it was last in use”
A question was recently raised by a reader, in which they asked about the position where prior approval has been given for permitted development under Class Q, but (before the PD is carried out) the building is sold off separately, thus separating it from the established agricultural holding.
The relevant wording is to be found in paragraph Q.1(a) of Class Q, which lists development that is not permitted by Class Q. This requires the position to be examined on the qualifying date (20 March 2013). If the building was in agricultural use on that date, it qualifies. It also qualifies if it was not in agricultural use on that date, but was in agricultural use when it was last used (before that date). Provided the building has not subsequently been used for any non-agricultural use, it will still qualify for PD under Class Q. It seems to me that there is no requirement that the building must have remained a part of an established agricultural unit after 20 March 2013, so if it has subsequently been sold off and separated from its ‘parent’ agricultural unit after that date, this would not in itself appear to affect the position in any way, provided that the building has not been put to a non-agricultural use at any time since it ceased to be used for agriculture.
That, at least, is the orthodox interpretation of the legislation, but it has raised an interesting point that had not previously occurred to me. The requirement that an agricultural use must have been the last use of the building is set out only in sub-paragraph (ii) of paragraph Q.1(a), which relates to a building that was in agricultural use before 20 March 2013 but was not in use on that date. So if the agricultural use had ceased before 20 March 2013, then the building must not have been used at any time subsequently for any other use. However, under paragraph Q.1(a)(i), a building would qualify for PD under Class Q if it was used solely for an agricultural use as part of an established agricultural on 20 March 2013, but on re-reading paragraph Q.1(a) it appears that the prohibition against the building having been used at any time subsequently for any other use does not apply in that event. The proviso as to the agricultural use being its last use is mentioned only in paragraph Q.1(a)(ii), and would therefore seem to relate solely to a building that had ceased to be in agricultural use before 20 March 2013.
Paragraph Q.1(a) seems in fact to be capable of being interpreted as referring only to the use of the building up to the qualifying date. It must either have been in agricultural use on that date, or (if it was not in agricultural use on that date) it must have been in agricultural use when it was last in use (before that date). On this reading of the legislation, it is irrelevant what use, if any, the building has had at any date after 20 March 2013.
Let me make it absolutely clear that this is not the interpretation of the legislation that has come to be accepted, nor is it the interpretation that I have myself advanced in this blog and in A Practical Guide to Permitted Changes of Use. It is in fact unlikely that the interpretation of paragraph Q.1(a) that I have tentatively put forward above can ever have been intended. But it is an intriguing possibility, nevertheless.
© MARTIN H GOODALL
An interesting point. Can I ask for your thoughts on the following:
ReplyDeleteFor the building to benefit from permitted development rights under Class Q, set out in Q.(a) the building must change 'from a use as an agricultural building', which is further defined within paragraph X as 'a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business'.
As an aside for the requirement for the building to have been in use for agriculture in 2013 or if not in use then, then when last in use - is there a chance that the definition in paragraph X, being in the present tense, requires the building to be, at the point of application, used for agriculture and so used for the purposes of a trade or business?
This argument has been used by one or two LPAs in an attempt to resist development under Class Q where the agricultural use is no longer current. However, I am absolutely certain that this line of reasoning is wrong, for the reasons which I explained in detail in paragraph 9.3.5 of Chapter 9 in the Third Edition of “A Practical Guide to Permitted Changes of Use”.
DeleteThe agricultural use must have been “for the purpose of a business or trade”, but this applies only to the building’s use when it was actually in agricultural use. This, too, is a topic discussed in the Third Edition of my book (in sub-paragraph (a) of paragraph 9.3.2 ,on pages 115 to 117.)
I recently dealt with a building that was last used for agriculture in 1992 but had not been put to any other use save a small bit of di minimus domestic storage. The LPA used the "to be agricultural it must used for trade or business and this is no longer in use" argument and refused the prior notification application. The Inspector at the subsequent appeal agreed with Martin's interpretation though and allowed the appeal (but not the application for costs).
ReplyDeleteKeith, (or other readers), do you have a reference/link for the interesting appeal case cited?
ReplyDelete