The High Court in Marshall, R (on the application of) v East Dorset District Council & Anor [2018] EWHC 226 (Admin) has recently clarified the meaning and procedural application of the permitted development rights available to farmers for the construction of new agricultural buildings under Part 6 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”).
The case concerned a proposed agricultural building pursuant to permitted development rights under Part 6 Class A which permits, subject to a prior approval application, the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in an area of: (a) works for the erection, extension or alteration of a building; or (b) any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture within that unit.
The landowner in the Marshall case noted on the prior approval application form that the proposed agricultural building was not to be used to house livestock. However, the landowner also noted on the application form that the building was ‘reasonably necessary for the purposes of agriculture’ because, amongst other things, it would be used to house 45 ewes and their lambs during the winter periods.
This was important as the proposed agricultural building was within 400 metres of several dwellings (being therein defined as ‘protected buildings’) and the Part 6 Class A permitted development rights excluded works within such proximity if such agricultural building is to “be used for the accommodation of livestock”.
Additionally, Part 6 Class A imposed conditions on the permitted development rights in that where the permitted development works are carried out within 400 metres of dwellings such buildings are not to be used for the accommodation of livestock except:
(a) that no other suitable building or structure, 400 metres or more from the curtilage of a protected building, is available to accommodate the livestock; and
(b)(i) that the need to accommodate the livestock arises from quarantine requirements, or an emergency due to another building or structure in which the livestock could otherwise be accommodated being unavailable because it has been damaged or destroyed by fire, flood or storm; or
(ii) in the case of animals normally kept out of doors, they require temporary accommodation in a building or other structure because they are sick or giving birth or newly born, or to provide shelter against extreme weather conditions.
In this case, the council failed to respond to the prior approval application within the prescribed 28 day period. As such, they issued a decision stating that (a) prior approval was not required; and (b) that the development constituted permitted development under Part 6 Class A.
Meaning of Part 6 Class A – the livestock exclusion v condition
The primary challenge in the Marshall case was how the ‘condition’ permitting limited accommodation of livestock should be interpreted against the overall ‘exclusion’ that prevents as permitted development agricultural buildings for the accommodation of livestock. That is, whether the exclusion applied to the proposed agricultural building, given the stated purpose of the building was to house ewes in winter, and therefore the development would be outside Part 6 Class A permitted development.
The High Court found that the two provisions are intended to address different circumstances, although both are directed at protecting nearby residences from unacceptable environmental and health hazards.
The exclusion applied to proposed developments where the intended purpose is use for the accommodation of livestock. This is likely to be an intended permanent use, whether full-time or part-time. In contrast, the condition controls the use of a development which has already been carried out. It prevents the use of any permitted agricultural building (whatever its original intended use) to be used as accommodation for livestock. The Court noted that this prevents a change to, or adoption of, an unacceptable use, either because of a change of circumstances or deliberate avoidance of the exclusion.
Heritage Matters
Although academic given the 28 days response period had elapsed for the council in the matter, it is worth noting the Court’s obiter finding as to the relevance of heritage impact issues under the GPDO. The Court stated:
“’siting, design and external appearance of the building could properly include the impact on neighbouring properties, and construction of a barn within only 81 metres of a Grade II Listed building would, in principle, be a relevant consideration for the Defendant to take into account, in the exercise of its discretion and its planning judgment. An express legislative basis for doing so was not required”
The Decision
The High Court noted that the local planning authority, when deciding a prior approval application, is not empowered (either expressly or implicitly) to decide whether or not the proposed development comes within the description of the relevant class in the GPDO. Moreover, a failure by the authority to make a determination within the 28 day period enables the developer to proceed with the proposed development but strictly only to the extent such development is “permitted development” under the GPDO.
Accordingly, the Court decided that the council had exceeded its powers when it stated in its decision letter that the proposed development constituted permitted development under Part 6 Class A.
The Court therefore quashed the decision letter but refused to make any declaration as to the lawfulness of the development within the meaning of Part 6 Class A. Noting uncertainty over both the size of the agricultural unit and the proposed use of the agricultural building, the judge reaffirmed that ‘the Court must not usurp the functions and powers of the local planning authority, by making planning judgments involving matters of fact and degree’.
Lesson: applicants and Local Authorities must carefully consider the purpose of any agricultural buildings under Part 6 Class A when such buildings are within 400 metres of dwellings. If the dominant and primary purpose is to accommodate livestock then the exclusion will apply and express planning permission will be required. If it is an ancillary or changed purpose of the building, after completion, then the conditions will then likely instead apply. The distinction between the two is matter of fact and degree for the decision maker in exercising their planning judgement.
