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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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
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.
ReplyDeleteI don’t really understand what you are trying to get at here Martin?
ReplyDeleteClearly 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.
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.'
ReplyDeleteI 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.
Martin
ReplyDeletePutting 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?
I am grateful to correspondents for their comments.
ReplyDeleteThere 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.
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.
ReplyDeleteThe building is of sufficient construction to satisfy the requirements of Hibbitt, I might add.
I can forward you the appeal decision.
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.
ReplyDeleteThis 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.
Martin,
ReplyDeleteWhat 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
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)?
ReplyDeleteSensibly 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!
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.
ReplyDeleteTurning 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.
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:
ReplyDeleteKeenan 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?
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.
ReplyDeleteThe 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.
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)?
ReplyDeleteAnother 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.
ReplyDeletehttps://ecab.planningportal.co.uk/uploads/1app/forms/prior_approval_of_agricultural_to_residential.pdf
As my anonymous correspondent today points out, the questions on the form are:
ReplyDelete”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?”
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.
ReplyDeleteHaving followed the blog with interest as well certain LPA decisions around the country in regards to PD applications for proposed residential conversion of an agricultural buildings, i thought i would share a very recent and interesting case.
ReplyDeleteAn application for Certificate of Lawfulness for Existing Use of agricultural building (17/09886/CLE) was granted by the LPA on 4th December 2017, and thus confirming that use of the building for the last 10 years as being in agricultural use.
A subsequent application submitted by the same applicant, for a Notification for Prior approval for a Proposed Change of Use of Agricultural Building to a Dwellinghouse (Class C3), and for Associated Operational Development (17/10801/PNCOU) was then refused on the 27th December 2017 on two main grounds. The first being that the scope of the building works fell outside of the class Q (this being a conversation for a later date) and the second being that the applicant had failed to show that the building had been in agricultural use on the 20th March 2013.
Now the crunch of this particular case is that the same planning officer determined both cases. I fail to see how a certificate of lawfulness can be issued confirming the buildings continual agricultural use for the last 10 years and then the Notification of prior approval refused on the very grounds that the applicate failed to show an agricultural use.
Now surely this raises the question of what standard of proof that can reasonably be demanded by the LPA if they are unwilling to accept certificate of lawfulness which they them selfs issued.
There’s something slightly odd about this scenario. An agricultural use is a ‘non-use’ for planning purposes, and so is subject to neither the 4-year rule nor the 10-year rule. The change of use of a pre-existing building to agricultural use is therefore lawful immediately upon that change of use being made (by virtue of section 55(2)(e)), except in the rather unlikely event of its being expressly prohibited by a condition attached to a planning permission relating to that building (and subject also to that planning permission having been implemented).
ReplyDeleteSo I am slightly puzzled as to the basis on which the LDC in this case was issued. If, however, the certificate actually stated in terms that the building in question had been used for agricultural purposes for the period claimed, then I don’t understand how the planning officer could now claim that there was insufficient evidence to show that the building was in agricultural use on or before the qualifying date, and had not been used for any other purpose since ceasing to be used for agriculture (if it was no longer in agricultural use at the time when the prior approval application was made).
I suspect that there must be some other explanation for what has arisen. In any event, it will be necessary to deal with the issue of the extent of the proposed building operations in any appeal against the refusal of prior approval, and so the issue as to the qualifying use can also be addressed as part of that appeal.
I have been reading this thread with great interest whilst researching a specific situation;
ReplyDeleteA commercial glasshouse constructed for the purpose of horticulture in 1988 and used for horticulture until 2005. During 2006 the now empty glasshouse is occupied by a second-hand truck dealer & trucks are stored and sold from the site. In 2014 this use is removed by an enforcement notice upheld at appeal.
In 2015 a prior application for change of use to storage under new GPDO rules was refused on the basis that the glasshouse was not in agricultural use on the required date in July 2013.
The truck storage was unlawful so there was not a lawful change of use away from agriculture (horticulture) therefore would the lawful use as at July 2013 not remain as agriculture?
The definition of "use" is clearly critical. Is the use the actual use on the required date or is it the lawful use? If it is the actual use which is subsequently removed by enforcement then one assumes that after 10 years of dormant agricultural use, the GPDO rights will kick in again?
I am sorry to say that Roger (2 August) is on a hiding to nothing on this one. There was quite clearly a material change of use, well documented by an enforcement notice that duly took effect after an unsuccessful appeal. The fact that the change of use was unlawful is neither here nor there. The last use of the building was not for agriculture. End of story.
ReplyDeleteMartin thank you. Two things;
ReplyDeleteWhat do you think is the purpose of this regulation? We now have a redundant glasshouse unsuitable for agricultural use and unable to take advantage of GPDO rights. Surely this cannot have been the intention when the policy was drawn up?
Secondly, if the glasshouse remains in a redundant & vacant state for 10 years then I assume that the GPDO would kick in again, assuming that the regulation remains as is.
When I wrote “End of story” in reply to Roger this morning, I meant precisely that. The only way that the PD rights under Class Q could be revived would be by re-using the greenhouses for horticulture (agriculture) for at least 10 years. This has nothing to do with the 10-year rule for gaining immunity from enforcement under section 171B, but is a provision in Class Q itself. If the building is continuously used for agriculture on a bona fide commercial basis for at least that time from now on (or from some future date), then it might once again qualify for PD under Class Q some time after 2028. (Ten years’ non-use, on the other hand, would do nothing to revive the PD rights which were lost by the unlawful non-agricultural use.)
ReplyDeleteThere are in fact doubts in my mind as to whether this building would have been capable of residential conversion in any event. Paragraph 105 of the PPG makes it clear that in order to qualify under Class Q the agricultural building must be “capable of functioning as a dwelling”, and the works necessary to convert it to a dwelling must be limited to what is required for such a conversion; they must not amount to complete rebuilding or to substantial demolition and what amounts to the erection of a new building.
Martin. I have a slightly different scenario. Our barn was in use as part of a small agricultural business on 20/03/13 and continues to be so. We have pigs and sheep and use the building for the storing of agricultural equipment and tractors. We occasionally move the sheep into the open fronted part of the barn during extreme weather. It’s a normal agricultural barn used in a normal agricultural way. We have horses on the land and have permission for this. We store all the horse equipment elsewhere on site an not in the agricultural barn. However, as the barn in open fronted very occasionally the horses will walk into the barn or very occasionally we’ll feed them outside in the shade of the barn. We do not keep the horses in the barn ever. The primary use of the barn is for agricultural. During our Class Q application a local resident submitted one photo of a horse near the barn and claimed we use the barn for the keeping of horses. The council agreed with this and refused Class Q. This is a hard pill to swallow as we know the main and primary use is agricultural
ReplyDeleteIn answer to my anonymous correspondent of 31 August, this seems to be a simple issue of fact. If my correspondent is confident that they have the evidence to prove that the barn has been solely used for agriculture, and not for some mixed use (as apparently alleged by an objector), an appeal should be submitted to the Planning Inspectorate and will be determined by the Inspector on the basis of the actual evidence submitted in that appeal. An application for costs might be made against the council if it can be shown that they were unreasonable in refusing the prior approval application on the basis of the evidence that had been presented to them.
ReplyDeleteSo just to be absolutely clear here.
ReplyDeleteI had assumed that if a building was in sole agricultural use on 20.3.13 then you passed the use test, otherwise if its last use was agricultural then you also passed this test. But are you suggesting that the inspectorate is upholding the view that if a building was (and can be shown to have been) in agricultural use on 20.3.13, and is (and can be shown to be) in agricultural use at the time the application is made, then if it was used in between for any other purpose for any period of time, say by a tenant who kept horses in it for a period, then this becomes equestrian use and resets the 10 year clock? Clearly this cannot have been the intention of those drafting the legislation (at least according to Domenic Raab). If this is the position then maybe I could suggest that the intention of the law seems to apply when it is in favour of the LA and the detail of the wording that applies when it is against the applicant!
What I am saying is that if, after 20 March 2013, there has been a material change of use of the building (even if it reverted later to agriculture or to non-use), the PD right under Class Q is lost. However, if the non-agricultural use was de minimis, then the building was still ‘last used’ for agriculture.
DeleteDear Mr Goodall
ReplyDeletePlease can you inform me as to the Dates of Publications of your relevatn books. I only ask so that I can refer to them assuming they are recent - and contain the recent changes to and including the Town And Country Planning, England The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018.
Thank you very much
Guy
I am sorry that I have previously overlooked this query.
DeleteThe Second Edition of A Practical Guide to Permitted Changes of Use was published in October 2016, and does not therefore contain amendments to the GPDO after that date. A Third Edition will be published in due course, but I am currently awaiting a further amendment order which I expect to be made in the next couple of months. In the meantime, I have covered more recent amendments to the GPDO in this blog.
My second book, The Essential Guide to the Use of Land and Buildings under the Planning Acts was published in November 2017. This book dealt only briefly with permitted changes of use (in Chapter 18) but it did note certain changes to the GPDO made by the two amendment orders of 2017.
This second book remains generally up-to-date, as the law relating to the use of land and buildings generally has not changed to any material extent.
I have an update on my post of 2nd August and Martins reply of 7th August. The LPA have now approved my prior notification on the basis that I had complied with the enforcement notice. These are the words used in the Officers report:
ReplyDeleteThe landowner complied with this Enforcement Notice and the site was cleared of unauthorised storage of
vehicles and trailers. Taking into account the provisions of R (a) (ii), the compliance with the
Enforcement Notice is now therefore considered to be a material consideration in the determination
of this application. Officers have reconsidered the provisions of the GPDO, and on the basis of the
compliance with the Enforcement Notice, the use of the site (including the greenhouse subject to
this application) reverted back to its lawful use for horticulture (agriculture) on 3 July 2012. And
complies with clause R1 (a).
Hi Roger.
DeleteWe have a similar situation to the above. Our agricultural barn was used for a couple of years for storage of a classic car and a horse but no change of use application was made by the then owner. hence we are arguing the lawful use is still agricultural. Are you above to provide a planning reference number so I can follow the application?
Hi Roger
DeleteWould you be kind enough to provide the reference number and LPA name for your glasshouse Class Q approval? I have a similar case.
Well Martin let's hope you're right. Well I'm sure you're right it's whether the Inspectorate agrees. I await a site inspection for an appeal on this very issue. The LPA refused prior approval on grounds that the building was not agricultural because the agricultural business ceased in 1992. The building and ground has stood more or less as it was left and apart from a little domestic storage - kids bikes and a few chickens, has not had another use since then. The LPA are insistant that because it is not currently used for an agricultural business at present it in effect is not agricultural. It ignores the fact that the LAST use was agricultural but agrees it has no evidence of it being used for anything else. So an appeal and a request for costs as per Martin's suggestion. Let's see......
ReplyDeleteCases of this sort will always depend on the evidence the applicant/appellant can adduce to demonstrate (on the balance of probability) that the building in question was solely in agricultural use on or before 20 March 2013. If that use ceased a considerable time before that date, it could still qualify, but the problem would be an evidential one, so as to show that it really was in agricultural use before that earlier date, and that its use has not been changed to some other use at any time since then.
DeleteThe issue in relation to an allegation by the LPA or by objectors that the building has subsequently been in mixed use will depend on the materiality of that other element (e.g. domestic storage). If any such other use was de minimis in planning terms, then no material change of use (e.g. to a mixed agricultural and domestic use) will have occurred, and so the last use of a building that was previously in agricultural use will still be agricultural use in those circumstances. But, here again, it comes down to the evidence, and it will have to be determined as ‘a matter of fact and degree’.
Just an update - the Inspector agreed with me (and Martin) the last use was agricultural. The limited domestic use was not sufficient to effect a change of use and the appeal was allowed. He refused costs however because it was reasonable for the LPA to explore the change of use issue (despite having no evidence) and initially refuse a certificate. Heh ho at least my client can proceed.
ReplyDeleteLocally there is a scenario where there is strong evidence that the last sole use of a barn was not solely agricultural because it was used principally for stabling horses for riding. Despite this being pointed out to the LPA, agents for the then owner put together a statement that inferred the building had agricultural use (noting S55(2)(e) TCPA 1990) and the LPA gave Class Q prior approval subject to conditions that before the commencement of development the boundary treatments, the drive/access and exterior materials had to be approved to the satisfaction of the LPA.
ReplyDeleteThe building was subsequently sold with c. an acre of land and now the purchaser wants to evolve the scheme for which approval was granted. Allegedly he was advised by the LPA to submit a further prior approval application and if that application was rejected he could adhere to the original prior approval. As the new owner has already commenced development (S55&56) and materially altered the curtilage by incorporating additional land with the building (he is not a farmer) it is difficult to see how can now adhere to the original prior approval. There is every possibility that the new Planning Officer will determine that, on looking at a new Class Q application afresh (given the weight of evidence adduced, indicating that that on the balance of probability) the last use was not solely agricultural and Class Q does not apply - leaving the applicant between a rock and a hard place. It will be interesting to see what the LPA determine - will they have regard to Keenan v Woking BC & Another [2017] EWCA, suggesting that permitted development cannot be permitted development if the LPA decides that the qualifying criteria were not met after all (potentially making the new owner's new investment practically worthless, thereby giving rise to a potential action against the vendor, who knew or should have known the last use was not solely agricultural)? - or will the LPA determine that the new owner "shot himself in the foot" by commencing development contrary to the specific conditions attached to the prior approval, - or will the LPA come up with another answer (so questions are not asked of the LPA why they granted approval in the first place given the weight of evidence (including a Planning Inspectorate determination in respect of potential enforcement action that the land in question had a mixed use / equine use and the LPA acknowledged this prior to the first prior approval - suggesting something fishy)? I doubt the LPA will do themselves any favours by trying to ignore the breach of planning control/breach of conditions and grant "retrospective" prior approval. It seems that the proper way out of this mess is a [part retrospective] full planning application (so a no compromises scheme can be evolved / considered). There are of course risks that a planning application will be refused.
This may turn out to be a salutary lesson to agents; that they should not try and circumvent the legislation by claiming a building qualifies when they know or ought to know it does not in order to enrich themselves and their clients. Caveat emptor must also play a part - the purchaser could have easily seen the evidence disputing the claimed sole agricultural use on the LPAs website. The purchaser took the commercial decision to commence development prior to obtaining sign off.
It is always risky to ‘play’ the system.
DeleteFor reasons that I have previously discussed in this blog, there must be a degree of doubt as to whether a prior approval under any of the Classes in Part 3 where a prior approval application is required can be taken to have confirmed the lawfulness of the proposed development. Ex p Palley, combined with the wording of paragraph W(3), suggests that this might perhaps be the case, but that judgment preceded Reprotech, and so there must be some doubt as to whether continued reliance can be placed on the earlier judgment. In any event, paragraph W(3) simply says that an LPA may refuse an application where, in the opinion of the authority the proposed development does not comply with any conditions, limitations or restrictions specified in this Part as being applicable to the development in question [etc.]. Thus, it might be argued that the mere fact that an LPA has granted prior approval, rather than refusing it, does not indicate that the LPA has actually decided that the proposed development does comply with the relevant conditions, limitations or restrictions. Although they dealt with the differently worded provisions of Part 6, R (Marshall) v E Dorset DC and Keenan v Woking BC might lend support to that view.
The view which I originally expressed on this issue may turn out to be the correct one – namely that prior approval cannot render lawful a proposed development that does not in fact meet the qualifying criteria specified for the relevant Class of development in Part 3, or that fails to comply with the relevant conditions, limitations or restrictions in some other way. If the pre-existing use in the case referred to by my anonymous correspondent turns out to have been equestrian rather than agricultural, then it may be that no reliance can be placed on the prior approval that was granted in that case.
As my anonymous correspondent points out, the commencement of development would appear to rule out a fresh prior approval in respect of the same development. Prior approval (by its very nature) can never be retrospective.
Martin - I have read this with some interest and thank you for continuing this blog - valuable resource. I have a slightly different question relating to Q1(b) and (g) specifically. Does the fact that the carrying out of any development under Part 6 Class A or B on any part of the whole agricultural unit prohibit class Q? The interpretation in Class X of 'established agriculture unit' would appear to assume so. The provisions of Class Q are related to building and resulting curtilage but is relatively silent on the matter on what would constitute the agricultural unit (from my reading this does not mean the building) to which the Class Q application is being sought. As such the PD requirement seems to prohibit profiteering in the sense that people would be able to obtain prior approval under Part 6 Class A&B and immediately convert the said buildings.
DeleteAny thoughts would be most welcome
The provision relating to development under Part 6 was widely drawn deliberately, specifically to avoid exploitation of the PD rights in the manner described. There are two relevant provisions: first, if agricultural PD under Class A or Class B of Part 6 was carried out on date later than 20 March 2013, this prevents a residential conversion of any building under Class Q in Part 3 anywhere on the same agricultural holding for 10 years; secondly, carrying out a residential conversion under Class Q in Part 3 prevents any agricultural PD under either Class A or Class B of Part 6 anywhere on the same agricultural holding for 10 years. The 10-year period in this case runs from the date of first occupation of the new dwelling.
DeleteIn my view, the ‘established’ agricultural holding for this purpose is the holding as it existed at the time of the relevant PD that prevents other PD as specified until 10 years have elapsed.
So, farmers beware!
Discussions here are always interesting and Martin's comments are useful in clarifying interpretation of Class Q.
ReplyDeleteI have a case where a former agricultural barn was granted permission for the change of use to motor sales and valeting for a temporary time period of two years (1998-2000). The temporary use was implemented but not renewed and I have assumed it has reverted to agricultural use although the buildings have not actually being used for agricultural purposes since 1998 as the owner does not farm land. It transpires that there has been some intermittent personal storage of classic cars in the same barns by the owner but the scale and frequency of this storage use is a little vague. I have read the earlier threads here about whether a material change of use might have occurred in these sort of instances is a matter of fact and degree. The LPA are saying that the barns were not last used for agriculture which is technically correct even though it appears that the lawful use is logically agriculture since the the motor sales/valeting use expired. I am not convinced that our arguments will be strong enough to secure a Part Q conversion. Any thoughts of observations would be welcome.
What matters for the purpose of Class Q is that the building must have been in actual agricultural use on or before 20 March 2013, and this must have been the last use of the building. So I am not too hopeful about the scenario described above. There was an agricultural use of the building that appears to have ceased in the late 1990s, following which there was clearly a material change of use (authorised by planning permission). Whilst the subsequent resumption of an agricultural use would undoubtedly have been lawful, this does not appear to have occurred in practice. So the last use of the building in practice was for motor car sales and valeting, and not for agriculture.
DeleteThis, of course, is only my off-the-cuff opinion, so the owner should not be deterred from pursuing a Class Q application if he thinks that there is a chance of arguing in some way that the last use of the building really was for agriculture.
Former stable barn block refused due to lack of information proving agricultural use.Resubmitted LPA agreed last use of building was agricultural covering march 2013 date but then refused the application based on an elderly horse on site which only grazes the land needing a rug and possibly hay through the winter therefore the LPA stated this was equestrian hence the agricultural unit was no longer agricultural now although it was at the relevant march 2013 date.
ReplyDeleteAs always, it is ‘a matter of fact and degree’. If you can demonstrate to an Inspector on appeal that the low level ‘use’ of the land for grazing is de minimis, so that it does not amount to a non-agricultural use of the land (or indeed any use at all in a material sense), and if you can also show that the building itself is not used in any way in connection with the occasional or low level grazing of the horse in the adjoining field, then you may still be able to prove (on the balance of probability) that the last use of the building was for agriculture, and that it has remained disused since then. But it will really be up to the Inspector to decide as question of fact what the true position is.
DeleteI should have added that if the horse is there solely for the purpose of grazing the grass, then that is an agricultural use, but if the horse is being kept on the land, then this would not amount to an agricultural use of the land.
DeleteThis comment was posted by an anonymous correspondent on the “COMMENTS” page, but as explained there, no comments are published on that page and are usually deleted automatically. This one, however, seemed worth publishing, and so I am now posting it under the blog post to which it refers.
ReplyDeleteWith reference to your blog of Tuesday, 13 June 2017 "Qualifying use of agricultural building under Class Q" and also to the content of Chapter 9 of your book "A Practical Guide to Permitted Changes of Use" which, as you stated, deals with the same subject.
Ordinarily, any unauthorised material change of use of land or buildings, to a use within a different Use Class, will be classed as development which, in the absence of enforcement action, could only become lawful after an unbroken period of 4 or 10 years (other than in the case of a change of use to agriculture or forestry which is not development as per s55(2)(e) of the 1990 Act).
It seems quite bizarre then that, if a building had a lawful agricultural use as of 20.3.2013, any subsequent full or partial change of use of it to one that is unlawful (because it does not satisfy the time limit requirements of s171(B) of the 1990 Act) would still have the legal effect of disqualifying it for Class Q PD.
Is that correct?
The answer to this question is that the position must be judged as a matter of fact and degree as at the qualifying date. Was the building in agricultural use on 20 March 2013 (or, if not in use on that date, when it was last used before that date)? A material change of use of the building at any time after the agricultural use ceased, whether before or after 20 March 2013, would disqualify the building from residential conversion under Class Q. It does not matter whether that change of use was made with or without planning permission, or whether it has subsequently become immune from enforcement (and therefore lawful) under the 10-year rule. What matters is what has actually happened (irrespective of its legal status). A material change of use is a single event that occurs immediately it occurs (or as soon as it becomes material); it is a simple matter of fact, irrespective of its legal status or effect. It is a disqualifying event for the purposes of Class Q.
DeleteThe question above does not raise the converse point that a change of use to an agricultural use is automatically lawful as soon as it occurs, by virtue of section 55(2)(e). Thus there is [in theory] no qualifying period for that agricultural use provided it occurred on or before 20 March 2013. I have, however, drawn attention in my book to the rule in Kwik Save Discount Group Ltd v SSW [1981] J.P.L. 198, which made it clear that the pre-existing use must be more than purely nominal. How long this use should continue in order to qualify for PD under any of the Classes in Part 3 has never been judicially determined, but I have drawn attention in the book to an appeal decision some years ago in which a planning inspector suggested that the pre-existing use should have continued for at least a year before it could be regarded as a qualifying use.
Hi Martin,
ReplyDeleteWe have a scenario where we have a building which was permitted under a full planning application for a hay store. It was approved in 2003 and erected that same year. It continues to be used for that purpose.
Oddly, there is a condition on the consent that stated that the building shall be solely used for agricultural purposes, the reasoning being to restrict the use of the building to one compatible with the surrounding areas. Unlike a standard condition, which would otherwise require its removal within the first ten years, this condition provides no such requirement.
I've looked through the Class Q material and it doesn't mention the provision or otherwise, of such a condition to preclude its change of use. How would you read it? We have submitted a pre-app enquiry to the LPA for its conversion and they've not mentioned this condition.
The building remains in lawful use as part of the existing agricultural unit.
As I understand it, this permission was not intended to be temporary (so it doesn’t appear to be one to which the rule in I’m Your Man would apply). So I don’t think the time during which the building has been in use affects the position.
DeleteIt does seem to me, however, that the condition may be effective to preclude permitted development under Class Q in light of the Court of Appeal’s judgment in Dunnett Investments.
If Simon has a copy of my book on Permitted Changes of Use, he will find that this issue is discussed at some length in paragraph A.5 of Appendix A (pages 334 to 346 of the Third Edition)