Agriculture and forestry have benefited from widescale exemption from the need for planning permission, although that has been eroded by the extension of the prior notification system. New permitted development rights might be introduced as part of the ongoing review of the Scottish planning system.
A recent enforcement notice appeal decision is a reminder that legal advice may be required on the extent of permitted development rights in planning.
Glenshee Pheasantries Ltd
Glenshee Pheasantries Ltd operates a business for the rearing of partridges, pheasants and ducks for sale to sporting estates across the UK and Europe.
In November 2016, Glenshee appealed against an enforcement notice served by Perth and Kinross Council requiring the rearing of such birds to cease at their site in Blairgowrie.
The appeal centred on the definition of ‘agriculture’ as defined in the Town and Country Planning (Scotland) Act 1997, which includes: “horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land)…”
Glenshee contended that the birds were reared for the combined purpose of sport and food production, on account of the majority of birds being used for food once shot.
The purpose for which birds are reared
In reaching his decision, the Reporter made reference to a decision made by the House of Lords regarding whether agricultural tenancy rights applied to a gamekeeper employed for rearing pheasants. In concluding that the gamekeeper was not, in fact, employed in ‘agriculture’, their Lordships placed emphasis on the purpose for which the birds were reared, namely shooting and enjoyment rather than food production or the keeping of livestock.
Even if the majority of pheasants shot were then eaten, the House of Lords did not consider that the birds had been produced for food; if that was the purpose, easier ways of rearing and killing them could have been adopted.
The Reporter also commented that it did not make a difference that there were no shooting activities taking place on Glenshee’s land. It was sufficient that Glenshee was aware that the birds were being sold to estates and suppliers for that purpose.
This case is a timely reminder of the fine line that exists within the planning system between ‘country’ and ‘agricultural’ activities, which, in practice, may appear similar but in law have different consenting requirements.
While pheasants might require very similar maintenance to chickens, turkeys, geese and other birds, the decision is consistent with the established position in law that the primary use of the birds for shooting – notwithstanding that the sport takes place off-site, at a later time and/or is operated by a third party – will prevent the rearing of pheasants from being classed as an agricultural land use.