Government statistics suggest that 68% of farm businesses in England had some diversified activity in 2021/2022. The most common form of diversification involved using buildings and related land for non-agricultural uses and/or for processing and retailing of farm produce.
In England, materially changing the use of a building or land from agricultural to a non-agricultural use needs planning permission. There are two routes to securing the necessary permission: an ‘automatic’ permission under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) or an express planning permission granted by the relevant Local Planning Authority (the LPA) in response to a formal planning application. Each of these routes have their own benefits and disadvantages.
Diversification under the GPDO
Classes Q and R of the GPDO[2] grant ‘automatic’ planning permissions[3] to convert agricultural buildings such as a barn and land within its curtilage to respectively, a residential use (Class Q) or a ‘flexible’ commercial use (i.e. storage or distribution, hotel or a range of commercial uses including a shop, office, restaurant or light industry) (Class R).
The word ‘automatic’ should be treated with a pinch of salt, as both PD Rights are subject to a number of criteria and restrictions, of which the main ones are summarised below. However, where an application for prior approval is required (see below), it is intended to be a ‘light touch’ process. As long as the proposal falls within the scope of the relevant PD Right an approval should normally follow swiftly.
| Class Q – Agricultural to residential use | Class R – Agricultural to flexible commercial use |
| – Building must have been in solely agricultural use on 20 March 2013 (or if then empty, when last in use before that date), or for at least 10 years before date of proposed change of use. – Total change of use floorspace not to exceed three houses of 100sqm-465sqm or five houses of up to 100sqm each. – The proposed development must not extend the building beyond its existing external dimensions. – Does not apply to sites occupied under an agricultural tenancy / where agricultural tenancy terminated within 1 year before proposed date of development unless consent of both landlord and tenant obtained. – Excludes Listed Buildings, sites of scheduled monuments, sites within an AONB, Conservation Area, the Broads, a National Park or a Site of Special Scientific Interest. – Includes a right to install/replace windows, doors, roofs, exterior walls and carry out related partial demolition and the installation of services as are “reasonably necessary” for the building to function as a dwellinghouses. – Where proposal does not include building works, developer must ask LPA to confirm whether prior approval required for matters listed below. – Where proposal includes building works, developer must apply for prior approval of (amongst others) transport & highways, noise, potential contamination and flood risks, whether siting makes proposal impractical or undesirable, the design and appearance of the building. | – Building must have been solely in agricultural use on 3 July 2012 (or if then empty, when last in use before that date), or for at least 10 years before date of proposed change of use. – Total change of use floorspace must not exceed 500sqm. – Excludes Listed buildings. – If floorspace of building exceeds 150sqm, LPA must give ‘prior approval’ of transport & highways, noise and potential contamination and flood risks. –Does not include right to carryout out related works which may require separate planning permission. – Includes right to subsequently change use between Classes B8, C1 and E (subject to obtaining prior approval (etc) where appropriate). |
Both Classes Q and R allow the proposal to include land within the ‘curtilage’ of the building. However, ’curtilage’ is narrowly defined as the lesser of (a) the land immediately beside or around the agricultural building or (b) such land with an area not exceeding the footprint of the relevant building.
Where prior approval is required (or a determination that no prior approval is required), the developer must not start the development before the Council has issued its decision. A failure by the Council to respond within 56 days of an application for prior approval will result in a deemed approval. A refusal of prior approval can be appealed to the Secretary of State in the usual way.
The Courts have consistently found that to benefit from a PD right, the development must fall squarely within the description of development (Keenan v Woking Borough Council & Anor [2018] PTSR 697).
Government guidance advises in respect of Class Q: “[i]t is not the intention of the [PD] right to include the construction of new structural elements of the building”[4]. Following that logic, in the leading case of Hibbitt and Another v Secretary of State for Communities and Local Government[5], a proposed ‘conversion’ under Class Q of an open-sided, steel framed shed to a dwellinghouse, which required adding external walls and a range of other works, was held to constitute a substantial rebuild falling outside the scope of Class Q. In its judgement, the Court held that there was a clear distinction between works of conversion (within the scope of the PD right) and works “of such magnitude that in practical reality what is being undertaken is a “rebuild” (outside the scope). Whether proposed works constitute conversion or a rebuild is a matter of the reasonable planning judgement of the decision maker.
A similar logic is likely to apply to Class R conversion. In December 2022[6], a planning inspector dismissed an appeal against South Cambridgeshire’s refusal of prior approval to change the use of a glass house to a motel on the basis that the applicant had provided insufficient information to show that the change of use could be carried out without a complete rebuild of the building. The implication is that had evidence been submitted demonstrating that the conversion required a complete or substantial rebuild of the glass house, it would by definition have fallen outside the scope of Class R.
The fact that a Class Q or Class R conversion might result in a development in an area not otherwise supported by policy is not normally a reason for refusing prior approval (East Hertfordshire District Council v Secretary of State for Communities and Local Government[7]). NB, this does not prevent an LPA refusing prior approval under Class Q because if the location of the building makes its residential use impractical for (say) amenity or safety reasons.
Class Q and R must have a building as their focus. For example, an application to change the use of land from agriculture to the storage of cars, but without any related change of use of a building, will fall outside the scope of Class R[8].
If the building which is proposed to be converted exceeds the floorspace criteria but otherwise meets the Class Q or Class R criteria, in principle an application can be made to convert just part of it. Class Q (and by extension Class R) allow for a building partially in residential or commercial use, and partially in agricultural use (Michael Mansell v Tonbridge and Malling Borough Council)[9].
Formal Planning Applications
A downside of Classes Q and R is that the development is limited to the fabric and envelope of the existing building in its existing location and the narrow geographic scope of its curtilage. The resulting conversion may not be either attractive or practical. In these cases, an express planning permission tailored to the needs of the developer and the site is preferable.
As a result of section 38(6) of the Town and Country Planning Act 1990, planning applications must be determined in accordance with the policies in the relevant local plan unless material considerations indicate otherwise. Unfortunately, national and local plan policies tend to discourage residential or commercial development in rural locations outside of settlement boundaries, where most agricultural operations are located.
However, where there is a “real prospect” that a site could be developed under Class Q or Class R (known as a ‘fallback’), that is often a powerful material consideration in favour of granting an express planning permission for a better designed scheme, notwithstanding that the better designed scheme still conflicts with local plan policy.
Mansell v Tonbridge and Malling BC is a case in point. It concerned an application to demolish a barn and a bungalow on an agricultural unit, and in their place construct four detached dwellings with garages and gardens. The proposal conflicted with local plan countryside policies. However, in granting permission for the proposal, the Council gave considerable weight to applicant’s fallback, which involved converting much of the existing barn under Class Q. The case officer advised that the limitations of Class Q meant that the fallback would result in a “a contrived and piecemeal” development of the site which would be visually detrimental. By contrast, the proposed, full permission scheme presented a “more comprehensive and coherent redevelopment of the site”, was more attractive, and therefore preferable. Rather than see the site developed in accordance with the unattractive and contrived fallback, the Council granted permission for the better designed application.
Final Thoughts
In summary, Classes Q and R provide some scope for changing the use of agricultural buildings as part of a diversification scheme. Proposals must fall ‘four square’ within the scope of the PD right, and the procedural requirements must be strictly adhered to.
If the agricultural landowner’s diversification scheme exceeds the scope of Classes Q and R, an express planning permission will be required. Local Plan policies tend to discourage rural development outside of existing settlement boundaries. However, a realistic prospect that a similar (albeit potentially less attractive) development could be carried out under Classes Q and/or R can be a powerful material consideration in favour of granting permission for a better designed scheme, notwithstanding that it conflicts with Local Plan policy.
Buckles Solicitors have successfully worked to promote a number of agricultural diversification schemes including at appeal. If you are considering diversifying an agricultural operation, we would be delighted to help you develop an appropriate strategy to secure the necessary consents.
[2] GPDO, Schedule 2, part 3.
[3] Known as ‘permitted Development’ or simply, ‘PD’ Rights
[4][4] NPPG Paragraph: 105 Reference ID: 13-105-20180615
[5] [2016] EWHC 2853 (Admin)
[6] APP/W0530/W/22/3303443
[7] [2017 EWHC] 465 (Admin)
[8] APP/Z5630/X/20/3256152
[9] [2017] EWCA Civ 1314,
