Q & A 22.1/10
My client's farm comprises three operations, the largest of which is the hatching and rearing of pheasants. Although the laying birds are kept all year round, the progeny is sold for recreational shooting. Some of these birds are eaten. When not used for pheasant rearing, buildings are used for turkey fattening for five months of the year. My client also keeps a beef suckler herd. The planning authority disputes that the pheasant breeding is an agricultural operation. However, given that the definition at Sec. 336 of the Town and Country Planning 1990 Act uses the word "includes" before the activities deemed to involve agriculture, it is apparently not exhaustive. While the breeding of game birds for recreational shooting purposes has been held not to be agriculture, surely a distinction can be drawn between rearing birds on an estate where the primary purpose is shooting them "on the premises" for sport and rearing them on a game farm for sale as living birds. Does the latter not amount to "the breeding and keeping of livestock" and therefore agriculture?
Although "livestock" is not defined as such in the Act, the definition of agriculture makes clear that it includes "any creature kept for the production of food, wool, skins or fur or for the purpose of its use in the farming of land". In a call-in decision from Powys in 2000 (DCS No: 51966467), it was held that pheasant rearing was not agriculture because the birds were raised mainly for sporting purposes and could not be considered to be livestock. This followed a similar conclusion in a case from Carmarthen in 1991 (DCS No: 33064578) and the House of Lords ruling in Earl of Normanton v Giles , where it was held that the keeping of birds such as pheasants for sport was not agriculture for the purposes of the Rent (Agriculture) Act 1976. This judgment was accepted in an appeal from the West Midlands in 1995 (DCS No: 42139328). Similarly, the breeding and keeping of horses, other than for working on the land, and fish for angling purposes has been held to fall outside the scope of agriculture. However, in a decision from Wiltshire in 2001 (DCS No: 37816226), an inspector opined that since agriculture is defined as including the breeding and keeping of livestock without reference to how they are killed or the purpose for which they are bred, and as pheasants can be reared for slaughter as well as for sport and eventually be eaten, the matter is arguable. In the circumstances you describe, if the combined turkey and beef fattening operations represent the primary use of the holding for agriculture, pheasant rearing may be ancillary in any event. Otherwise I think the distinction you draw is irrelevant. It does not matter whether the birds are reared to be shot elsewhere for sport but whether the primary purpose is that they are bred to be eaten. Bearing in mind the general approach to this issue, the planning authority may be right in this case.
A client wishes to place several mobile poultry shelters within a field. These measure 14m by 5.5m, and are approximately 3m in height. They are used to provide shelter for 670 free range chickens. My local authority (in Scotland) is insisting that planning permission is required, The walls are timber, and the roof is constructed from profile sheeting. The shelters are not in any way fixed to the ground, as they are fitted with wheels and skids, and are moved around the field every 7 weeks. We would be grateful for confirmation, or otherwise, that the local authority is correct in requiring a planning application. RL.
In determining whether any structure is a building operation for the purpose of planning control the normal considerations are size, permanence and physical attachment to the ground. In England specific advice relating specifically to agricultural buildings was given in former PPG7, although not repeated in PPS7. Annex D of PPG7 stated that, while pig arks and moveable poultry shelters may not be buildings, this may not be the case if structures are placed on foundations secured to the ground and have facilities such as an integral water supply. The advice concludes, however, that each case must be determined on its merits. An illuminating appeal decision from 2002 is (DCS No. 027-358-122). Here, enforcement action was taken against two 18m x 8m poultry arks on skids so as to be moveable by tractor. An inspector noted that the arks were built from a kit of parts forming a galvanised steel framework onto which cladding and roof panels were fixed. The structures took 4.5 days to be erected and fitted out and weighed between 7-9 tons. It was concluded that, although the arks were not fixed to the land except by gravity, the delivery of parts to the site, and their erection, amounted to an operational development. The fact that the arks were substantial buildings resting securely on their own weight, and not moved often, was also cited by the inspector. A later case concerned even larger arks with their own solar panels and wind turbines (DCS No, 100-045-016). Here an inspector noted that, although the arks had a mains water supply, there was no significant attachment between them and the ground. However, this was not a case where a ready made structure was brought onto the site. It amounted to the construction on site of a building requiring substantial time and labour. In addition the fact that the buildings would only be moved once a year suggested a degree of permanence.
With regard to the type of ark which you describe there may be more of a case for arguing that it is not a building operation, but clearly much depends on a matrix of considerations. GH.
I am enquiring about the planning status of large mobile chicken arks. I know of two previous decisions where an inspector decided that the construction of the arks on site amounted to a building operation and was development. In each case an inspector went on to grant permission. My query is, if it is only the construction of the arks that requires planning permission, what is the position if they are then towed to another parcel of land altogether? Can they then be treated as moveable structures not requiring planning permission as there would be no change of use of the land and no building operation taking place on the land? RW.
You are probably referring to the two cases I highlighted in response to an earlier Forum query in Planning 14 September 2007, p29. Your question raises an interesting point, which only serves to underline the lamentable lack of precision in planning law relating to the control of ‘moveable’ structures. In these types of case, decisions that a building operation has occurred tend to be based on a combination of two considerations. Firstly, that the business of assembling the required components on site is, in itself, so complex and time consuming as to amount to a building operation. Secondly, that the resulting structure is of such a size and scale that it cannot be readily moved, thus making a permanent material change to the character of the land upon which it is situated. If, as you pose, intact arks are in fact subsequently relocated by dragging them to another site, the first criterion is clearly no longer relevant. The second is somewhat undermined by the reality that the unit has in fact been moved, and on the evidence of this may well be moved again. This draws me towards the conclusion that if, say, an enforcement action was directed against an ark in a substantially different position from that where it was initially constructed and sited, it would be difficult to sustain at appeal. Of course, no matter where the chicken ark is moved to there will be no material change of use of the land because agriculture is not development by reason of section 55(2)(e) of the Town and Country Planning Act 1990. If the alternative site is ‘comprised in an agricultural unit’ it is possible that agricultural permitted development rights could come into play, but that is another story! GH.
Can you advise whether a planning authority is correct in stating that an extension to an agricultural or forestry building which was granted planning permission, can only be dealt with by a further application for planning permission rather than by the prior notification procedure. Also whether a planning authority is entitled to place conditions on the use rather than on matters of siting and design. BL.
I can find nothing in Part 6 of the Town and Country Planning (General Development) Order 1995 to suggest that the prior notification procedure is not applicable just because the building to be extended originally required conventional planning permission. It would be possible for a condition to have been applied to such a permission taking away rights to the prior notification procedure for future extensions, but I envisage that it would have to be carefully justified in order to survive an appeal. Government advice has always been that the matters which may be controlled using the prior notification procedure do not extend to the principle of the development , only its effect upon landscape strictly in terms of siting and design. It follows that conditions applied should be similarly confined and not seek to control matters such as access or residential amenity. GH.
A condition of a permission granted on appeal restricts the storage of mowers and other equipment in a redundant barn to a named gardening firm. After this went out of business, the barn was let to a local amateur theatrical company as a store for its costumes. Since productions by the company are infrequent, comings and goings are at widely spaced intervals, probably several months apart. The building's owner maintains that there has been no material change of use. The authority disagrees and claims that a new permission is required. Who is right? PM.
The storage of non-agricultural items in the barn by a firm or persons not identified in the condition represents a breach of planning control. But where the use is so slight and sporadic in nature as to be de minimis it would not constitute development. This is a matter of fact and degree. PM.
We are dealing with a prior approval submission for siting and design details of an agricultural building under class A of part 6 of the General Permitted Development Order 1995. We told the agent that the building should be lowered for us to be able to give approval. He has replied that the applicant is unwilling to lower it but will incorporate a screen planting scheme into the submission of details. This would overcome our objection to height. Our concern, however, is there is no mechanism to enforce against failure to provide such planting or ensure its retention.
We have received legal advice that we only have powers approve or not approve submitted details and not impose conditions. Furthermore, the Encyclopaedia of Planning Law and Practice (paragraph 3B-2110.3) says, ‘The Order (does not) confer powers to impose conditions on approval it is merely a power to approve or not approve the details submitted by the applicant’. Whilst an acceptable landscaping scheme could be submitted, normally we would impose timetabling and aftercare conditions. Have you any guidance on how we can take this forward? DE.
Paragraph E22 of Annex E of Planning Policy Guidance Note Number 7, which is still in force although the rest of the Note is superseded, states, "Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when approval is given. (DOE Circular 11/95 gives further advice in this respect.)". Furthermore, conditions requiring a landscaping scheme and its subsequent maintenance have been imposed in one instance where there has been a prior approval notification for an agricultural building in Cheshire (
An analogous situation is submissions for phone mast, etc prior approvals under class A of part 24 of the Order, as amended. In my experience, conditions are similarly often placed on such approvals both when being granted by planning authorities and on appeal, although there is likewise no power given in the Order to do so. Government policy and practice would thus appear to support the use of conditions for these approvals. Nevertheless, if a High Court challenge were made to such conditions, it is possible that they would be held to be unlawful. If conditions are imposed, it would seem they should relate to issues of siting and design, not say an issue like highway safety. In the circumstances you describe, I consider a landscaping condition would be appropriate. JH.
Do any readers have experience of 'care farming' or similar proposals, comprising a combination of agriculture and horticulture with educational and therapeutic uses? A social green belt enterprise seeks new semi-permanent buildings (e.g. yurts) for training, storage etc. on a derelict site recently brought back into agricultural use. Would permitted development rights apply given the mixed nature of the use? If permission is needed, have other such proposals received favourable treatment in green belt locations? PM.
The questioner seeks others’ experiences and I would urge any readers who can comment to do so. Regarding your query about permitted development rights, an assessment would have to be made as a matter of fact and degree whether the use was still agricultural or composite. If a farmer has very occasional educational visits, the use would be still agricultural. On the other hand, if he has regular coach parties, etc and there is a classroom block, the use would probably be composite and these rights would not apply. An appeal decision in Shropshire relating to permaculture activities (DCS no: 100-059-638) is worth studying, especially as it refers to other relevant appeal decisions. In that instance educational courses were provided, but the inspector did not consider these were of a scale that took the use outside agriculture.
In relation to green belt issues, unless it were to be considered recreation, such development would be inappropriate. This does, however, seem a somewhat literal interpretation of the planning policy guidance note 2 advice. Such a use has to be in a rural location and preferably close to urban areas. Thus, provided such a proposal did not unduly harm the openness of an area, it might be justified as very special circumstances. JH.
I own a 5.24 ha agricultural unit and submitted a prior notification under schedule 2 part 6 of the General Permitted Development Order 1995 to erect multiple agricultural buildings, in total less than 465 sq m. The authority replied "...only one building can be applied for as prior notification. Any other proposed buildings within a 90 metre radius should be the subject of a full application." On challenging this, I was directed to the wording of Part 6.A.a) where the word used is "building" singular, to support their interpretation (i.e. there is no explicit mention of "buildings" plural, though "development" is used in D.2) and also to the interpretation D.2(a) as a reason why one may not apply multiple times simultaneously for prior notification. Another planning officer has told me that "the preceding two years" mentioned here refers to the substantially completed construction of the proposed building, not the date of prior notification. Do you have a view? JD.
I have not been able to find a court case or appeal decision where this issue has been determined, so have looked at the wording of the Order to deal with your question. As you indicate, Part 6.A.a) uses "building" in the singular and this support’s the council’s view. On the other hand this produces a rather illogical interpretation. If a farmer obtains prior notification for a small building, he is then stymied from using this provision for two years, although he may have "spent" only a small part of his 465 square metres allowance. The prior notification procedure set out in A.2(2), however, also uses the singular "building". Thus, it would seem, on a strict interpretation, someone wanting to erect multiple buildings can use this provision, but has to make separate prior notification applications for each one. This, however, is a tentative conclusion as these provisions are quite complex and I wonder if any readers can comment further on this issue.
Regarding your query about the meaning of "the preceding two years" in D.2(a), I presume it relates to the date of commencement of the building, but again it is not very clear. JH.
An authority informs me it cannot determine an agricultural prior notification application because the site is not part of an agricultural unit so planning permission is required. The land is used for agriculture but they consider it does not form part of an agricultural unit because there is no farmhouse connected to the land. Is the interpretation correct and has there been any case law on this? NH.
I have not previously heard the suggestion an "agricultural unit" must include a dwelling. The definition of "agricultural unit" in section D1 of part 6 of schedule 2 of the General Permitted Development Order 1995 refers to any dwelling occupied for the purpose of farming the land by the person who occupies the unit or any farmworker’s dwelling. The use of the indefinite pronoun, "any", clearly indicates a unit does not have to have a dwelling. Thus, I would not accept the authority’s assertion. Whilst I am not aware of a case where this issue has been specifically raised, in a ministerial decision in Wiltshire (DCS no 030-029-400), where the issue was whether an agricultural building was permitted development, the unit did not appear to include a dwelling, but this issue did not arise. JH.
Do rights under part 6 of schedule 2 of the General Permitted Development Order 1995 apply if the agricultural use of the site is not operated as a business, e.g. where a hay crop is taken to feed the owner’s own horses? PT.
The interpretation section of part 6 indicates the rights granted only apply to land "used for the purposes of a trade or business". In South Oxfordshire v Geoffrey East & Secretary of State for the Environment 1987 it was established that it was not necessary for an enterprise to be viable in order for this definition to apply, so long as the activity was not purely a recreation, but if an activity is purely hobby farming then a proposal could not be permitted development. It is also worth mentioning in this context that keeping horses for recreational purposes would not be considered an agricultural use both for purposes of the General Permitted Development Order or the Town and Country Planning Act 1990. More guidance on the issues of the status of hobby farming and whether keeping horses can be an agricultural use can be found in section 3.441 of Development Control Practice. JH.
My authority has recently received queries regarding erecting structures sheds and greenhouses on a proposed allotment site. We have replied that planning permission is not required for the use which was formerly agricultural, but permanent structures are not, permitted development under either parts 6 or 12 of the General Permitted Development Order 1995. This advice has been contested and the allotment society has cited the Crowborough case. Although structures exist on other allotment sites, this seems to be a question which has not been asked before. Could you advise? SD.
The "Crowborough" case is Crowborough Parish Council v Secretary of State for the Environment and Wealden District Council where it was held that the use of land as an allotment was an agricultural use, though as section 4.32 of Development Control Practice indicates, this is not necessarily always the case. This case does not relate to the erection of buildings which would require planning permission normally. The only way the need for planning permission could be avoided would be for your authority to make a special development order.
On the general issue of erecting sheds and similar structures on allotments, in most instances erecting them on allotments is not controversial, and it might be argued these should be made permitted development subject to suitable size limitations. If the General Permitted Development Order were to be extended to allow these, however, there would be some sites where they would not be acceptable such as green belt ones. This is presumably why the government has never introduced such a provision. JH.