What to check before starting a permitted development project
© John Eveson/Alamy Stock Photo While permitted development rights (PDRs) in England have benefited many farming businesses, there are important elements to check before going ahead.
Among the most common mistakes or misunderstandings is that these apply across the board.
They are not generally available in special designations such as conservation areas, national parks and areas of outstanding natural beauty (AONBs).
This may change in the next year or so, as the government is considering expanding the right to convert agricultural buildings to residential use in AONBs and national parks.
Alex Madden, head of planning at law firm Thrings, sets out some other areas to check out before embarking on a PDR project.
See also: How changes to permitted development may benefit farmers
Existing permissions on or affecting a site
These can sometimes include conditions which exclude PDRs being exercised. For example, a condition requiring the use of an annexe only when the use is ancillary to the main house would preclude its conversion for another use.
Preclusive conditions
These can also restrict any building to a certain use. An application can be made to remove or vary these, which may have been imposed decades ago.
Current government planning guidelines state that conditions should not be imposed which restrict the use of PDRs, so it can be argued that many older conditions are no longer relevant or are not precise enough to apply today.
Article 4 directions
These can remove permitted development rights in their entirety or remove certain classes of PDRs.
A local search will reveal whether any of these are in place, or check the local council’s website.
Planning obligations
These run with the land and bind the land. They can restrict the use of any buildings, for example to purely agricultural use, or to not separate any part of the land from the whole.
An application can be made to vary these, typically on the grounds that they are obsolete or that they no longer serve a planning purpose.
Lawfulness of existing buildings
It is not uncommon for proposed development relying on PDRs to falter because the original building was constructed without planning permission in the first place, or was constructed in breach of planning consent.
Check the lawfulness of buildings planned for PDR projects rights. If they are not lawful, it may be possible to regularise their use through a Certificate of Lawful Existing Use or Development (CLEUD).
A typical example of a construction in breach of planning is a barn constructed with permission for a 20m x 10m building, but that was actually built to a larger size, say 25m x 15m, or that was constructed on a slightly different area to that in the consent.
Breaches of pre-commencement conditions, such as a requirement for certain surveys, can also render a building unlawful.
The four-year rule
Under this rule the local authority can only take enforcement action within four years of building operations beginning or, where the use of a building is changing to residential, enforcement action must be taken within four years from the date of a breach of planning control.
It is proposed that this rule be removed, but this is unlikely to take effect for some time, perhaps 12 to 18 months.
The 10-year rule
If a building has been used for more than 10 years in breach of a planning condition – for example a house with an agricultural occupation condition being occupied by someone not employed in agriculture – then again a CLEUD confirming the lawfulness of that use can be applied for.
Deemed consent
Many PDR projects are only allowed following notification to the local planning authority (LPA), which then has 56 days to respond.
Many farmers assume that if they have not had a response within that 56-day period, they can go ahead with the project.
This is not the case, warns Alex. “I must get 10 questions a month on this. You need to ring the council and ask why you have not heard.
“Alternatively, you can apply for a certificate of lawfulness that the project satisfies the criteria as the council did not determine (decide on) the plan within the prescribed time period.”
One right may exclude another
Using one class of permitted development may mean that a different class may not be used for a set time period.
The General Permitted Development Order (GDPO) sets out different classes of PDRs and the associated rules.
Class A of Part 6 of the GDPO allows for the erection, extension or alteration of an agricultural building on units of 5ha or larger, subject to certain building size constraints and allowing also for excavation or engineering operations on the same unit. Class B of the same order applies similarly to units smaller than 5ha.
In either case, where agricultural PDRs have been used, this prevents the use of Class Q PDRs to convert farm buildings to residential use for 10 years, and vice-versa.
Planning hurdles
If at first a PDR project fails, all is not lost, says Alex. Building a fallback position can help to get a project over planning hurdles.
At a recent Thrings event he outlined how a proposed conversion of a farm building to residential use through Class Q PDRs hit the buffers when the building had been stripped so that only the frame was visible.
The breeze block walls of the proposed conversion had begun, but outside the envelope of the building, which is contrary to Class Q rules.
The Class Q rule was lost because of this and because the project was deemed a rebuild rather than a conversion.
Instead, a planning application for conversion was submitted drawing on support from adopted planning policy supporting conversion of redundant buildings.
Ecological enhancements including bat boxes, nesting bird boxes and solar panels on one elevation were included with this application.
The planning officer was pleased with the agrarian design and approved it under delegated powers.
“The line between a conversion and a rebuild is a fine one,” says Alex. “And it varies between planning authorities. Some councils provide guidance on this, so it is worth checking that out.
“For example, North Somerset requires conversions to re-use at least 70% of the fabric of a building for it to qualify under Class Q.
“In that area, this policy provides a useful rule of thumb for qualification under Class Q.”
When PDRs are exercised, conditions may be imposed for the use of nearby or adjoining buildings.
For example, where PDRs for residential conversion are used for a farm building attached to or near to other farm buildings, use of those other buildings may be restricted to non-livestock housing uses.
PDR changes proposed
A consultation in July 2023 from the Department for Levelling Up, Housing and Communities proposed additional flexibility on PDRs. While no policy change has yet been implemented, this included:
Class Q
- Increasing the number of homes that can be delivered on an agricultural unit from five to 10, with a single maximum floorspace limit of either 100sq m or 150sq m.
- Allowing a 4m, single-storey rear extension to be added to buildings converted under Class Q. This must be on land that has previously been developed, such as a farmyard, with the floorspace created counting towards the overall total floorspace that can change use.
- Extension of Class Q rights to former farm buildings that are no longer on established agricultural units – for example, a barn located just outside a village.
Class R
Class R allows agricultural buildings to switch to a range of commercial uses, subject to prior approval.
This includes flexible use for storage, distribution and hotels, as well as commercial, business and services, such as shops and offices.
The government has proposed expanding the type of building that can benefit from this right and greater flexibility in what a building converted under Class R can be used for.
Class A – agricultural development
The size limit for new agricultural buildings erected through Class A agricultural PDRs is proposed to increase from 1,000sq m to 1,500sq m.