The Current Law and Policy

In April 2015, the Town and Country Planning (General Permitted Development)(England) Order 2015 (the “GPDO”) statutorily embedded the right to change the use of agricultural land and buildings (subject to size thresholds, limitations and conditions and restrictions) in England.

Under the GPDO, agricultural land and buildings can be changed to any one of the following uses:

a flexible use (Class R): any use falling within Class A1 (shops), Class A2 (financial and professional services), Class A3 (restaurants and cafes), Class B1 (business), Class B8 (storage or distribution), Class C1 (hotels) or Class D2 (assembly and leisure);

an educational use (Class S): “state-funded school” or “ registered nursery”;

a residential use (Class Q): the conversion of a maximum floor space of 450 m2 into three dwellings, subject to siting, noise, contamination, flood risk, design or the transport or highways impacts of the proposal being acceptable.

The new permitted development rights have been incorporated into the Planning Practice Guidance (“PPG”). Permitted Development to change the use of agricultural land and buildings into residences was previously covered by Class MB which was far more restrictive in practice than originally intended and Class Q goes some way to remove some of the restrictions that existed under Class MB. As no planning application is required the process should be cheaper and easier.

Teething Problems

It inevitably takes time for organisations to get to grips with new legislation and policy. One of the main issues that Class Q applicants have encountered is that there are still some Local Planning Authorities (“LPAs”) resisting permitted development under Class Q on the basis of “sustainability of location”. This is illustrated by the recent appeal of Sawbridgeworth (East Herts DC [3140675] which was decided on 12 May 2016.

In Sawbridgeworth, there was no dispute that the qualifying criteria of Class Q were satisfied. The LPA raised no concerns in relation to noise, contamination, flood risk, design or the transport or highways impacts of the proposal; the only remaining issue was whether or not the location or siting of the proposed dwellings made it impractical or undesirable for residential use.

The LPA’s case was that the PPG contravenes the National Planning Policy Framework (the “NPPF”) and in particular paragraph 55. Relying on paragraph W.10(b) of Part 3 of the GPDO, the LPA claimed that it must have regard to the NPPF, so far as relevant to the subject matter of the prior approval, as if the application were a planning application.

However, the Inspector rejected this approach and stated that the PPG (as updated in March 2015) is clear that Class Q does not apply a test in relation to sustainability of location, especially considering that agricultural buildings will be located in a rural setting. Paragraph 109 of the PPG states “that an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval”. Accordingly, the re-use of a rural building to meet the rural housing demand is the correct approach.

The LPA has until the end of June to appeal the Inspector’s decision in Sawbridgeworth. This case clearly shows the lengths to which LPAs go in order to hold off development pursuant to Permitted Development Rights and begs the question: how can surplus agricultural buildings be reused and converted into housing in practice?

Looking Forward

The Government’s 10-point plan for boostingproductivity in rural areas published in August 2015 promised that it would “increase the availability of housing in rural areas, allowing our rural towns and villages to thrive, whilst protecting the Green Belt and countryside”. In accordance with its plan the government wants to ensure that any village in England has the freedom to expand in an incremental way, subject to local agreement. In addition to carrying out the review of planning constraints in rural areas mentioned above, the government stated it would:

“Ensure local authorities put local plans in place for housing according to agreed deadlines and require them to plan proactively for the delivery of Starter Homes… bringing forward proposals to speed up the process of implementing or amending a plan.

Help villages to thrive by making it easier for them to establish a neighbourhood plan and allocate land for new homes, including through the use of rural exception sites to deliver Starter Homes”.

The Housing and Planning Act 2016 which came into force in April 2016, has legislated for the construction of Starter Homes” which will be offered at a 20% discount for first-time buyers under the age of 40.

The government has further promised to review the current threshold for agricultural buildings to convert to residential buildings.

Conclusion

The conversion of agricultural buildings for residential use and the construction of housing thereby creating small residential developments does make economic sense, especially on sites no longer suitable to be used for agricultural purposes. However, it is early days and Sawbridgeworth illustrates that it may be some time before all organisations fully understand and embrace the ever-changing landscape of rural planning law and policy.