Permitted Development Rights for Agricultural Buildings

What are permitted development rights?

Permitted development rights (PD rights) are rights granted by Parliament to carry out development without express planning permission. They are contained in The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015).

They enable, in certain circumstances, operational development to be carried out and changes of use to be instituted without needing to obtain planning permission from the local planning authority. For PD rights to apply, there are conditions and limitations that need to be met. In many cases, prior approval of the development proposal is required from the local planning authority.

Agricultural PD rights in focus

PD rights are available to:

• Change the use of agricultural buildings to residential (Part 3, Class Q) and commercial (Part 3, Class R)
• Erect new agricultural and forestry buildings without planning permission (Part 6, Classes A and B)

Recent changes to these PD rights include:

• Creation of up to 10 dwellings with a maximum cumulative floorspace of 1,000 m² (Class Q) (however, the maximum size of any individual dwelling is now 150 m²)
• Converting agricultural buildings to flexible commercial use* up to a maximum floorspace of 1000 m²
• New agricultural buildings for farms over 5ha, up to 1,500 m²
• New agricultural buildings for farms of less than 5ha, up to 1,250 m²

*Commercial uses, for the purposes of Part 3, Class R, include general industrial, storage or distribution, hotel, commercial, business or service and outdoor sport or recreation uses as well as the provision of agricultural training.

Many landowners use PD rights to diversify and increase the value of rural property, raise capital, or earn rental income for other investments. However, the application of these rights can be complex, so professional advice is strongly recommended.

Agricultural PD Rights in Practice

The conditions and limitations applicable to PD rights are very class-specific. It is therefore difficult to provide overarching guidance on the application of these rights. We have identified some key themes from recent cases and appeal decisions, as follows:

• PD rights impose many constraints on development.
• Although preparing a planning application takes more time and money, local planning authorities often prefer full conversions and fully planned new developments.
• From an end-use perspective, planning applications can also be more practical, as amenity issues (such as openings for windows) are easier to address without the many constraints imposed by PD rights.
• The Hibbit principle provides that there is a ‘fact and degree’ distinction between a conversion (which is permitted by Part 3 rights) and a rebuild (which is not). In practice, this limits the amount of demolition and operational development in connection with the adaptation of the building for its new use.
• For these reasons, PD rights are often most useful for ‘fall back’ scenarios, i.e., making a counterfactual case for a planning application for express planning permission.
• Part 3, Class R PD rights do not permit any operational development. The scope for building operations is therefore limited to internal works.
• By contrast, Part 3, Class Q PD rights only permit operational development which is “reasonably necessary” for the conversion to a dwelling.
• The term “reasonably necessary” does not mean that the works must be essential, or the smallest possible option, as long as they are not excessive and remain reasonable in scale for the building to function as a dwelling. However, the demolition of adjoining buildings is ruled out.
• Part 3, Class Q conversions are subject to strict dimensional restrictions. Problem areas include flues, external staircases, and solar panels. These have the effect of extending the conversion beyond the external dimensions of an existing building (and do not neatly fall within the list of building operations that are reasonably required to convert the building to a dwelling).
• Where a Class Q conversion has been carried out on a farm, Part 6 PD rights are suspended on the agricultural unit for 10 years from the date of the change of use to a dwelling. This means no other agricultural buildings can be erected or extended on the farm without express planning permission during this 10-year period.
• A dwelling converted under Part 3, Class Q, does not benefit from PD rights under Part 1 of the Second Schedule to the GPDO 2015 (development within the curtilage of a house, as well as alteration of the house). This means that future alterations and extensions will usually require express planning permission.
• With Part 6 rights, the local planning authority needs to be persuaded that the works are reasonably necessary for the purposes of agriculture within the relevant agricultural unit. If they are not, the works do not fall within the scope of these PD rights.
• Where prior approval is required, either the 28-day (for Part 6 rights) or 56-day rule (for Part 3 rights) applies. This means that if the local planning authority fails to confirm whether or not prior approval is required within the specified time period, the development benefits from deemed consent to proceed. However, this deemed consent needs to be approached with utmost caution. If the qualifying criteria for the PD right are not met, then it is not permitted development. This means it is not authorised by the permission granted by the GPDO 2015 and is vulnerable to enforcement action.
• In circumstances where the proposed development does not qualify as permitted development, the local planning authority has no power or duty to grant prior approval for that development. They are not, therefore, obliged to respond to the prior approval application at all.

Conclusion

With the recent changes to agricultural PD rights, there are more opportunities for redundant agricultural buildings to be converted to residential dwellings and an increased range of commercial uses, making it even more important to ensure that the requirements of the GPDO 2015 are thoroughly assessed and applied to the individual proposal.

Find out more

We would always recommend obtaining professional advice before seeking to rely on PD rights.

Our experienced team of planning solicitors is on hand to advise on any proposed development or potential or current enforcement action.

Contact our legal experts