Farm Diversification: reform to permitted development rights
Whilst hosting the Farm to Fork Summit back in June, the UK Prime Minister pledged to "cut the red tape currently holding farmers back from delivering projects on their land to diversify their incomes". Although there had been a lot of media attention around these proposals due to the "Clarkson's Farm effect", there had been little substantive explanation as to how the Government proposed to implement this strategy until now. The Government recently launched a consultation on the proposed reform of permitted development rights contained within the Town and Country Planning (General Permitted Development) (England) Order 2015 which include several proposals that could impact the diversification of agricultural holdings.
It's no secret that the pressures on farmers to find new ways to make money are intense. The agricultural sector is experiencing huge challenges on many fronts, not least of all as the Basic Payment Scheme ("BPS") is phased out. Farmers are having to look at creative options to help futureproof their businesses and to maximise the return from their assets in a volatile market.
Therefore, many farmers are exploring options for development such as the creation of farm shops, wedding venues, barn conversions and much more.
What can I do without planning permission?
Planning permission is required where the statutory definition of "Development", as set out in Section 55 of the Town and Country Planning Act 1990 (the TCPA 1990), is met. Development falls into two categories: (1) operational development – building things; and (2) material change of use.
Taking the creation of a farm shop as an example, most farmers are looking to convert an existing agricultural building. Provided specific criteria is met, a full planning application to convert an existing agricultural building will not be required pursuant to what is known as Class R (flexible commercial use) permitted development rights, but there are currently alternative requirements depending on the size of the existing building. If the footprint is more than 150 metres squared then approval from the Local Planning Authority (LPA) will be required in respect of certain matters associated with the use such as: transport and highways impacts, noise, and flood risk. You can expect a prior approval decision within 56 days of submission.
There are also qualifications and conditions attached to these permitted development rights. For example, firstly it's important to check that permitted development rights have not been removed pursuant to an existing planning condition or planning obligation, or other planning designation such as an article 4 direction (which operates to restrict certain permitted development rights). You should then consider the specific limitations of Class R, for example, the building must have been in agricultural use as part of an established agricultural unit since 3 July 2012 for a period of ten years before development begins.
Once you can demonstrate to the LPA that you satisfy all of the specific requirements of Class R the LPA might propose granting permission subject to conditions. For example, these could include a condition that only food and drink produced on the farm or within the local vicinity shall be sold within the shop, and so it is important to consider any planning conditions in detail before proceeding to open doors to customers.
However, before the shop can be opened it is likely that external works will need to take place. Class R permitted development rights do not allow for external building works to be undertaken and a full planning application may need to be submitted for approval, which will be considered against the local authority's development policies and so the process is not as simple as it may first appear.
What are the Government proposing to help?
As mentioned, the Government has released a consultation on the reform of certain permitted development rights. In summary, the proposals being consulted upon which could directly affect farmers are as follows:
- As noted above with our example of the farm shop, Class R permitted development rights only apply to buildings which have been in agricultural use as part of an established agricultural unit. The Government are suggesting that the type of building which could benefit from this right be expanded so it may include buildings used for forestry, equestrian or other predominantly rural use. This could open up development opportunities for a large number of disused buildings.
- Currently, the Class R permitted development rights allow for a flexible change of use to: Commercial, Business and Service (Class E use), Hotels (Class C1 Use) or Storage and Distribution (Use Class B8). It is proposed that this flexibility could be increased to allow additional flexible uses such as use for indoor sports, recreation or fitness, research and development of products and processes or industrial processing. Referring again to our farm shop example this may allow farmers to process raw goods produced on site to be sold onsite (notably this would exclude livestock), which could be welcome news for arable farmers. Alternatively, it could see farmers looking to introduce fitness classes such as "goat yoga" onsite.
- The Class R permitted development rights currently allow for the operation of one of the permitted uses. However, it is proposed that this could be changed so that a mix of the permitted uses could be authorised, such as use as a hotel and a farm shop. This is coupled with the proposal to increase the amount of floorspace which can be subject to the change of use under the rights (an increase from 500sqm to 1000sqm). This could assist farmers with building upon the diversification of the businesses quicker to provide the vital support needed to replace BPS although this is caveated by the requirements discussed at (4) below.
- On the subject of floorspace, as is explained above when we considered our farm shop example, if the proposals currently exceed 150sqm of floorspace then prior approval must be sought from the local planning authority in relation to certain impacts (i.e. transport, noise etc). The Government have not suggested any immediate reform to this threshold, but they have inserted a question within the consultation, seeking opinion as to whether this threshold is set at the correct level. Given the proposals explained at (3) above, if the Government really intend to "cut red tape" then consideration needs to be given to increasing this threshold to reduce the need for prior approval. Equally this must be balanced with considerations of any harm this could create such as increased traffic in rural areas which may not be welcome.
The consultation also discusses the permitted development rights which currently exist in respect of supporting farmers with their core business, but for the sake of this article we have focused only on those which would support farm diversification.
Essentially, whilst the consultation appears to be a step in the right direction of thinking, the Government could take things one step further and allow minor conversion works to be undertaken within the Class R permitted development rights without the need for separate planning consent for such works. That would align Class R with Class Q permitted development rights which already allows for conversion of agricultural buildings to residential dwellings, and also allows minor works to facilitate the change of use. The Government could include conditions and limitations on the works to ensure that the works do not harm the visual appearance of the area. Consideration should also be given to increasing the floor area threshold which triggers a prior approval application.
Whilst it's encouraging that the Government is recognising that support needs to be given to the farming the proposals are very much early days. They have not yet committed to delivery and are simply consulting. It is positive that flexibility is being considered especially for those farmers who adopt less intensive methods of farming and, therefore, look towards less traditional methods of diversification
The consultation is open until 25 September 2023 and so if you wish to have your say we encourage you to do so.
If you have any questions about how you can utilise permitted development rights please contact Jasmin Andrews or Rory Stracey in our Planning team at Trowers & Hamlins.