Agricultural permitted development rights

Dominic Raab MP, the then Minister of State for Housing at the Ministry of Housing, Communities and Local Government, announced significant changes to the Town and Country Planning (General Permitted Development) (England) Order 2015 (the Order) in an attempt by the government to help the rural communities.

These amendments, which came into being on 6 April 2018, have given more flexibility to agricultural landowners to be able to adapt existing buildings to create new housing, and will also enable farmers to keep up with modern farming practices by permitting the size of their agricultural buildings to be increased without having to make a full planning application to the local planning authority. The recent announcement of these changes provides a welcome opportunity to review the range of rights available.

Conversion to non-agricultural uses

Agricultural buildings to residential

The Government’s much touted changes introduced in April 2015 allowed for the conversion of existing farm buildings into up to three residential units totalling not more than 450m2 on an agricultural unit.

Under the recently introduced changes to the Order, this right has been expanded to allow for the conversion of existing farm buildings into up to three larger (greater than 100m2 but less than 465m2), or five smaller (less than 100m2), residential units totalling not more than 1,000m2.

The right is essentially two-fold. It is a right for a change of use and also a right for such works as are reasonably required for the conversion of the buildings into residential use.

Following the introduction of the permitted development (PD) right, there was some confusion as to what could lawfully be considered a conversion with reports of some local authorities allowing the conversion of open-sided barns into housing with others taking a much stricter approach. This has been addressed both by the courts and also directly in the planning practice guidance (PPG).

The position that has been arrived at is that for something to be a qualifying conversion, it cannot go beyond that which could sensibly be called a conversion (Hibbitt and Another v Secretary of State for Communities and Local Government, Rushcliffe Borough Council [2016] EWHC 2853 (Admin)). This is reinforced by the PPG which states: “this includes the installation or replacement of windows, doors, roofs, exterior walls, water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwelling house; and partial demolition to the extent reasonably necessary to carry out these building operations” (PPG Paragraph 105).

Before proceeding under these PD rights it is first necessary to make an application to the local planning authority for prior approval in respect of a number of matters including transport and highways, noise, contamination, flooding, practicality of location and design and appearance.

As with all permitted development, these rights are subject to certain conditions. These include a requirement that there is no extension beyond the external dimensions of the existing buildings and that the agricultural use of the building was subsisting on 20 March 2013, or in the case of buildings out of use at that date, the last use prior to that date had been for agriculture. It is not permitted to terminate agricultural tenancies to allow for conversions without agreement of the tenant.

Permitted development of this type must be completed within three years of the date of prior approval.

Agricultural buildings to flexible commercial use

It is permitted to change the use of a building and its curtilage to a flexible use within use classes:

• A1 (shops)
• A2 (financial and professional services)
• A3 (restaurants and cafes)
• B1 (business)
• B8 (storage or distribution)
• C1 (hotels)
• D2 (assembly and leisure).

Unlike with agricultural to residential PD rights, there is no right to carry out any works in relation to this change that would otherwise ordinarily need planning permission.

Where changes of use are proposed under this provision it is necessary to either notify the local planning authority (where the proposed change of use involves an area of 150m2 or less) of certain details or make an application for prior approval (where the proposed change of use involves an area of 150m2 to 500m2).

Similarly to the residential PD right, it is necessary to show that at a particular date, the use of the building was for agriculture, or if not in use on that date, the previous use prior to that date was for agriculture. Confusingly, the government opted for a different date, being 3 July 2012. As with all PD, the right is also subject to certain conditions.

Changes of use under this right must take place within three years of the date of prior approval, or where planning permission has been granted for associated development, within three years of the date of that permission.

Agricultural buildings to state-funded school or registered nursery

An additional right exists to convert up to 500m2 of existing farm building into a state sponsored school or registered nursery. Again, this right carries with it no right to carry out associated works. As such, it is difficult to see how this right will be widely utilised.

In order to rely on this right, the agricultural use of the building must have been subsisting on 20 March 2013, or in the case of buildings out of use at that date, the last use prior to that date had been for agriculture. As with all PD, the right is also subject to certain conditions.

Before proceeding under this PD right it is first necessary to make an application to the local planning authority for prior approval in respect of a number of matters.

Changes of use under this right must take place within three years of the date of prior approval, or where planning permission has been granted for associated development, within three years of the date of that permission.

Expansion of existing agricultural uses: big or small

Under Part 6 of the Order, if the size of your farm is 5 ha or more, it was PD and, therefore, possible to erect, extend or alter a building or carry out excavations and/or engineering operations that are reasonably necessary for agricultural purposes on your farm provided the area covered by the building did not exceed 465m2. Under the 2018 revisions, a significant change has been made as the size limit for new agricultural buildings increases to 1,000m2.

If the size of your farm is smaller, that is more than 0.4 ha but less than 5 ha area under the Order, you could do a more limited range of works without first obtaining planning permission as you could extend or alter an agricultural building; install additional or replacement plant or machinery; provide, rearrange or replace a sewer, main, pipe or cable; provide, rearrange or replace a private way or put in a hard surface; deposit waste and carry out several acts in connection with fish farming. The size of the extension or altered agricultural building or hard standing under the Order was also restricted to 465m2 but under the 2018 revisions, this has been increased to 1,000m2 and the cubic content of the original building being extended/altered has increased from 10% to 20%.

In theory, whilst it sounds relatively straightforward, it is imperative that to be classed as PD, you must comply with certain complicated conditions, several of which relate to size and measurements, as well as submitting details of what you are proposing to do to the local planning authority and obtain their prior approval. Accordingly you should engage a suitable professional to advise on the available options before committing to cost on a project, or risk enforcement proceedings from the local planning authority.

The content of this article is for general information only. For further advice, please contact Edward Long or Nicola Doole.

This article is from the summer 2018 issue of Room with a View, our newsletter for professionals within the property industry. To download the latest issue, please visit the newsletter section of our website. Law covered as at July 2018.

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