Marie Stacey guides us through the definitions of development, permitted development rights and change of use, and advises on applying for planning permission
Diversification can take many different forms, but do you need planning permission for your project? Planning permission can be the key to unlocking the potential in your business or land through diversification. If you are changing the way you use your buildings or land, then it is likely that you will need to apply to your local authority for permission unless the changes fall within your permitted development rights.
The definition of development within Section 55¹ of the Town and Country Planning Act 1990 includes ‘the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.’ However, the question as to whether or not a structure constitutes development within the meaning outlined above has been a long-standing issue and one of fact and degree.
A recent 2012 Court of Appeal case has expanded the parameters of what constitutes a building and the tests set in a previous well-known Court of Appeal case in Skerritts of Nottingham Ltd v SSETR  JPL 1025. The Skerritts Court of Appeal case defined three main tests to identify what is a building, which include:
- The construction of the structure on site;
- Permanence of the structure; and
- The structure’s physical attachment to the land.
Construction activities normally undertaken by a person carrying on business as a builder is usually deemed as an operation and therefore constitutes development. It has been argued that if a structure is prefabricated and easy to assemble i.e. without a builder, then this does not constitute development, however, the 2012 Court of Appeal case provided further clarity on ‘the construction of structures on site’. It found that even if the structure is easily constructed on site, and therefore not defined a ‘building’, a structure such as this may still fall within the definition of development in relation to ‘other operations in, on, over and under land’.
Accordingly, you may require planning permission for your ‘temporary’ structure, therefore, it is best to consult your local planning authority or planning consultant to understand whether planning permission will be required, or if your development falls within your permitted development rights.
Permitted development rights
In the 2013 Budget Statement, the Government realised that the Use Classes Order 1987² and the General Permitted Development Order 1995³ were significant deregulatory tools that could be expanded to allow greater flexibility to the change between land uses that have similar impacts, without the need to apply for planning permission. Since this time, there have been a raft of changes to permitted development rights which allow further flexibility between use classes to support change of use from agricultural to certain other uses such as business, retail and residential. These changes are now in place, and are outlined within the consolidated Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) (as amended). These changes have gone through a period of testing through various prior approvals and appeals, so there is now more certainty to what is required and, therefore, 2017 is the right time to try and make the most of your new business venture.
The reason why it is important to distinguish whether your development falls within your permitted development rights is down to time and money. Utilising your permitted development rights should involve less work and time so that you can start your new venture without delay. This is because permitted development rights are essentially a national grant of planning permission, which allow certain building works and changes of use to be carried out without having to make a planning application. But, be aware that any permitted development rights are subject to conditions and limitations to control the impact of your development on the surrounding area and to protect local amenity.
Schedule 2 of the GPDO 2015 contains 19 parts relating to the different types of permitted development rights, but ‘Part 3: Changes of Use’ and ‘Part 4: Temporary Buildings and Uses’ will be of most relevance to your new venture.
Change of use of existing buildings
It may be beneficial to change existing agricultural buildings to support your open-air business i.e. function rooms for weddings.
Class R of Part 4 of the 2015 GPDO permits agricultural buildings and land in their curtilage to be converted to a “flexible commercial use” subject to a number of conditions and restrictions. A flexible use includes shops, financial and professional services, restaurants and cafes, business use, storage or distribution, hotels or assembly and leisure. In this respect, a function room could fall under the ‘assembly and leisure’ use permitted subject to adhering to the necessary condition and restrictions.
Class R is only applicable to buildings that have been solely in agricultural use on 3 July, 2012, or if it was not in use on that date when it was last in use if now redundant. If the building was brought into agricultural use after 3 July, 2012, then you will not be able to convert the building into a use defined in Class R for at least 10 years.
The rights under Class R do not extend to buildings that are listed or a scheduled monument; sites forming a military explosives storage area; or a site forming a safety hazard area. In addition, these rights do not include work associated with building operations, i.e. any physical alterations to the building for window or door openings, so a planning application will be required for these building operations.
The maximum cumulative floor space that may be converted under this permitted development right is 500m2 of floor space of a building or buildings within a single established agricultural unit.
Development is only permitted subject to prior approval from your Local Planning Authority. Development can commence if your Local Planning Authority provides a written notice giving prior approval or outlining that prior approval is not needed; or the local planning authority does not provide a written notice before the 56-day time limit expires from the receipt of the application.
Temporary changes of use of land
Class B of Part 3 of the 2015 GPDO permits the use of any land for any purpose for not more than 28 days, unless it relates to a market (car boot) or motor car/motorcycle racing, which cannot exceed 14 days. The provision also includes any moveable structure for the purposes of the permitted use. Be aware that the 28 days includes any days that moveable structures are left on the land and are not taken down.
If the development does not fall within your permitted development rights, then planning permission will be required from your local planning authority. In this respect, a planning application will need to be submitted and the authority will determine whether or not planning permission should be granted, having regard to the Development Plan and material considerations relevant to your proposals.
Before submitting your planning application, there are some key questions to ask yourself to help inform your proposals:
What are the local planning policies applicable to my site and proposals?
Each Local Planning Authority will have a Development Plan that can include a number of documents including a Local Plan, Proposals Map, Development Management Policies Development Plan Document and Neighbourhood Plan. These documents will contain information relating to the planning policies and designations that will be applicable to your site and proposals.
As the Local Planning Authority will have to refer to the Development Plan when determining your application, it is essential that you carefully consider these documents to ensure that your development complies with the relevant policies.
Is my site within a designated area for its landscape, ecological or heritage value?
Designated areas such as Areas of Outstanding Natural Beauty, National Parks, Conservation Areas, or Sites of Special Scientific Interest will not necessary prohibit your development obtaining planning permission however, careful consideration will need to be had to the siting of your development and the potential effects your development will have on these designations.
Does my site have appropriate vehicular access?
The highways impact associated with your development will need to be evaluated to assess the effects of the additional increase in traffic and whether the visibility onto the highway is sufficient.
Is the development close to any neighbours?
The residential amenity of any neighbours will need to be considered particularly in respect of noise however, these can usually be avoided through careful siting.
There are many considerations that can be material to your proposals and therefore engaging with your Local Planning Authority from the outset will help to smooth out any potential issues and define what it would require to support your application. Some planning authorities still operate a free pre-application advice service but, even so, if there is a charge then it is usually nominal and money well spent. If in doubt, a planning consultant will be able to advise and manage the process for you.
¹ R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council  EWHC 2161 (Admin)
² The Town and Country Planning (Use Classes) Order 1987 (as amended)
³ The Town and Country Planning (General Permitted Development) Order 1995 (as amended)
ABOUT THE AUTHOR
Marie Stacey is a senior planner at Pegasus Group, a leading independent national planning consultancy specialising in town, environmental and commercial planning; urban and landscape design; and public engagement. Marie has provided planning advice to a range of clients including various country estates, farmers, landowners, commercial businesses and housebuilders. She has assisted clients through the planning process and gained planning permission for a variety of developments comprising farm diversification projects, renewable energy, countryside pursuits and housing. www.pegasuspg.co.uk