tag:blogger.com,1999:blog-8170718846507476773.post2138325349211703485..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Class Q - “Last” used for agriculture?Martin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger18125tag:blogger.com,1999:blog-8170718846507476773.post-53471536081279708032020-03-03T12:49:23.903+00:002020-03-03T12:49:23.903+00:00Martin thank you for your comments and the health ...Martin thank you for your comments and the health warning!. I agree with you in that it would be very unlikely that a ruse would work. CIL represents a major cost and the possibility of mitigating this by putting the building to a genuine agricultural use for a year or two is worth consideration. Rogerhttps://www.blogger.com/profile/00780970165322692187noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-20249500708160804152020-03-03T12:35:35.723+00:002020-03-03T12:35:35.723+00:00This question seems suspiciously like a request fo...This question seems suspiciously like a request for free legal advice, and I must make it clear that (as is stated in the Introduction to this blog) my reply must not be taken to constitute legal advice, and no liability can be accepted by either Keystone Law or myself for any loss or damage caused by reliance on such comments.<br /><br />The two essential qualifications for PD under Class Q are that (1) there the building must have been in solely agricultural use on or before 20 March 2013, and (2) the building must not have been put to any other use since the agricultural use ceased. Bearing in mind that, by section 55(2)(e) of the 1990 Act, the use of any land [including a building] for the purposes of agriculture or forestry is not to be taken for the purposes of the Act to involve development of the land, it would seem to me that (subject to the 2013 qualifying date having been met) the resumption of an agricultural use should not be a use that would disqualify the building from PD under Class Q.<br /><br />This comment comes, however, with a massive health warning. From several points of view, it would be essential that the new use of the building should be solely agricultural; and for the purposes of CIL it would need to be shown that the building was genuinely occupied for at least six months for a genuine use. I don’t pretend to understand CIL myself (I leave that to my colleagues!), but I have a shrewd suspicion that a purported use that is claimed to reduce the liability to CIL would be examined by the charging authority very closely before they would accept that there is indeed relief from CIL in such a case. My natural scepticism suggests to me that the odds are stacked against getting away with something that looks like a ruse.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-7073911613307404782020-03-03T08:29:53.507+00:002020-03-03T08:29:53.507+00:00A very interesting blog. I am involved with simila...A very interesting blog. I am involved with similar issues surrounding "last use" but from a slightly different perspective. Class R has been approved even after a change of use was successfully removed by an enforcement notice. A Class Q application was subsequently discussed with the LPA and approval has been indicated. CIL payments would be due on any Class Q residential development. However, these CIL payments can be mitigated if the building has been in use for a period of 6 consecutive months within the 3 years prior to the date of approval. Is there anything in the legislation that would cause a Class Q application to fail if the previously dormant agricultural use was reinstated for 6 months prior to making a Class Q application. I am particularly wary of the 10 year requirement for a building that is brought into use after 2013. All comments would be appreciated.Rogerhttps://www.blogger.com/profile/00780970165322692187noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-31248286977108454792019-09-26T13:19:18.512+01:002019-09-26T13:19:18.512+01:00Frankly, an answer to this question would depend o...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.<br /><br />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). <br /><br />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.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-85412495165131758432019-09-26T12:38:16.714+01:002019-09-26T12:38:16.714+01:00With regard to part Q and Last Use, I have an agri...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 principleAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-59082620971673827652019-07-11T14:48:59.248+01:002019-07-11T14:48:59.248+01:00No. PD rights under Part 1 are removed where the ...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).Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-62568531461778572882019-07-09T10:34:53.219+01:002019-07-09T10:34:53.219+01:00Hi Martin
If an agricultural building has been co...Hi Martin<br /><br />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...)<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-90995017543040418452019-03-21T15:24:05.729+00:002019-03-21T15:24:05.729+00:00I remember it well, having been one of the other s...I remember it well, having been one of the other speakers at that seminar. But that was several years ago, long before <i>Hibbitt</i> 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!)Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-80158077118926618542019-03-21T11:44:38.704+00:002019-03-21T11:44:38.704+00:00'But if the building in question is now semi-d...'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.passerbyhttps://www.blogger.com/profile/07133499748098929618noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-76219278272278363142019-03-21T10:01:37.825+00:002019-03-21T10:01:37.825+00:00I thought it was about time that I posted somethin...I thought it was about time that I posted something on planning law for a change!<br /><br />(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.) Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-3526678215863487482019-03-21T09:50:13.629+00:002019-03-21T09:50:13.629+00:00I've trawled through the original post and the...I've trawled through the original post and the comments but have been unable to find a reference to Brexit - very disappointing!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-48234711499666326292019-03-20T13:19:18.996+00:002019-03-20T13:19:18.996+00:00There is just one point that I would add. If a bu...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 <i>Iddenden v SSE</i>. 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 <i>exist</i>. 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.<br /><br />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, <i>Hadfield v SSE</i>) 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 <i>North Norfolk DC v Long</i>, which confirmed that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission.)<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-62478216026200815572019-03-20T13:00:12.339+00:002019-03-20T13:00:12.339+00:00When determining a prior approval application or a...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.<br /><br />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 <i>Hartley v MHLG</i> and <i>Hughes v SSETR</i>) 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 <i>sui generis</i> 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 <i>material change of use</i> (and is, as a consequence, <i>de minimis</i>) would be insufficient to bring an existing agricultural use to an end.<br /><br />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.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-37823005130329409252019-03-20T12:20:39.078+00:002019-03-20T12:20:39.078+00:00Hi Martin
Interesting questions. Can’t say I’m imp...Hi Martin<br />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.)<br />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.<br />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?<br />Richard Wnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-59312438892525871052019-03-20T12:09:06.816+00:002019-03-20T12:09:06.816+00:00As my anonymous correspondent points out, an “agri...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 <i>for the purposes of a trade or business</i>, 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.<br /><br />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.<br /><br />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.Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-56889659699462789432019-03-20T11:29:54.119+00:002019-03-20T11:29:54.119+00:00For the purpose of Class Q, "Agricultural Bui...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. <br /><br />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<br /><br /> Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-74416454348580868602019-03-20T10:35:29.319+00:002019-03-20T10:35:29.319+00:00At first sight, complete abandonment of the build...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.<br /><br />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.<br /><br />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.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-43797113675200349552019-03-20T09:34:12.079+00:002019-03-20T09:34:12.079+00:00Understandable. However at what point would the ba...Understandable. However at what point would the barn be considered abandoned and not merely dormant and therefore losing the planning use class? Iannoreply@blogger.com