Sweating Farm Assets...
Class R of the GPDO 2015 - The change of use of agricultural buildings to flexible commercial purposes (which includes shops, financial and professional services, restaurants and cafes, business, storage or distribution, even hotels).
This month on a farm in Gloucestershire we changed the use of the ground floor of a traditional farm building to accommodate a furniture restorer who had expressed an interest in using the floorspace.
At less than 150m2 of floorspace we simply provide a pretty plan to the LPA, and demonstrate how the proposal concords with the terms of the Permitted Development. No need for floorplans or elevations, topo's, structural surveys, flood risk, or even a tussle with the Local Authority.
This is a really simple avenue from which to make use of under-utilised assets on the farm without onerous investment. The corner of an existing under-utilised building can provide additional income and provide a little bolstering against the scourge of volatility.
A satisfied customer? We should have them stuffed!
Planning success was achieved this week in conjunction with Morris Architectural Design for a property in Torbay, Devon.
The application involved a semi-detached dwelling, the owner of which sought three objectives: To replace an attached single-storey garage with a two-storey extension to increase internal living accommodation, to detach the existing garage from the neighbouring property to create an entirely detached dwelling, and to append a balcony to the rear of the property to allow the applicant to make the most of their sea view.
Working with Nathaniel Morris, we were able to counter the Local Authority's reservations - which were many, as well as vocal opposition raised by the neighbours.
Crucial to the success of the application was clear demonstration that the application was policy concordant, would not be overbearing to neighbouring properties, would not be of detriment to the wider locale in terms of overlooking or overshadowing and was appropriate to the character of the area. Further concerns were raised in terms of parking provision.
These objections required additional plans from Nathaniel over that normally required for an application and which demonstrated no detriment to the neighbour, a comprehensive assessment and interpretation of local policy to show that the Local Authority were wrong in many areas of their opposition, and the provision of Planning Appeal evidence to further bolster our arguments with relevant evidence.
We are very pleased that the applicant has achieved their goal, affording them a detached property with a significant increase in floorspace, and sea-views of the English Riviera (complete with Sydney Opera House, the Hanging Gardens of Babylon, and its herds of Wildebeest sweeping majestically across the plains...).
Another permission in the bag today with permission under Delegated powers for the provision of annexe accommodation on a farm in the Cotswolds.
A multi-generational solution was required to allow father and son to generate a living from the same holding, while allowing them each a bit of privacy.
A number of opportunities can be available in these circumstances. Where livestock numbers can demonstrate an essential need, an application for an ag-tied dwelling can be made, however this can take some doing where a farmhouse exists already. Other opportunities are also sometimes available, and can include the conversion of an existing rural building on the farm, maybe even under Class Q.
Sometimes though, the simplest solutions are the best. Here local policy provided for annexe accommodation to the main farmhouse which met the applicant's requirements. A quick, clean and efficient application was made with a decision being received ten weeks later.
A pleasing result was obtained this week for a client within the Green Belt...
Our client, an established Bee Keeper, maintains 40 hives across the region, and manages circa 40,000,000 bees. This is approximately 2% of the UK's two-billion bees. (By comparison a farmer managing 2% of the UK's sheep flock would represent 700,000 ewes). Therefore, this client is a major contributor to supporting bee numbers in the UK.
Our client required a larger building from which to grow the business further, and to replace an existing agricultural building which has begun to show its age.
Planning was achieved within 9 weeks - not bad given recent circumstances.
Not just rural planning!
Wreyland Rural Planning achieved permission today for a two-storey side and rear extension to a semi-detached property in central Gloucester.
During our initial research it was found that very few recent applications had been made for similar developments within the area... Notwithstanding this an application was made supported by a really strong set of plans together with a robust planning statement which emphasised an absence of any detriment to neighbouring amenity.
The application was permitted within nine weeks of submission under delegated powers with no further discussion required with the Planning Officer.
Thanks again to the finest draughtsman this side of Pugin, Mr Charles Board of Journeyman Draughting.
A strong and pleasing result.
A new set of buildings for an old farm business...
More success on the farm this week and again within the Cotswold AONB - this time near Winchcombe.
A range of dilapidated farm buildings required complete replacement. Plans were submitted for the storage of preserved fodder, farm machinery, as well as a spanking new workshop.
Prior Approval was sought using the farm's Permitted Development Rights and this morning we were notified that the Local Authority (Tewkesbury) were happy for the applicants to proceed without the need for a full application.
Decent, well designed and located buildings that are suitable to their intended uses are so important for a farm business. Older, traditional farm buildings may look nice, but their range of uses to modern farming is limited - happily it is fairly east to work up robust arguments to put them to more profitable use. What we call 'modern' farm buildings though can cover any building built almost since 1947. Working from a building of over 50 years old which may never have been intended to last that long can be of significant detriment to the efficiency of a farm enterprise, the well being of the people working in it and to husbandry in general, so we're very pleased that Tewkesbury Borough Council considered this application pragmatically, particularly given its location.
Thanks also to Charles Board of Journeyman Draughting for a cracking set of plans, and to Anton Kattan of Pure Ecology for a comprehensive Preliminary Ecological Assessment
In which we set about troubling the scorers...
Leather connects with willow in perfect harmony, and another application is sent arcing into the big blue, whistling across the boundary to meet with polite applause.
This week, a rather smashing little agricultural building granted in the Cotswold AONB. A tricky affair with the added constraints of a public footpath and an attractive Oak tree in close proximity that was subject to a TPO.
Thankfully our friends at Stroud District Council saw the merits of our argument and raised both hands above their head indicating that we'd just scored a six... (or that they were surrendering...)
Either way, it's job done and time for tea... (Or to discuss terms...)
This application marks our first success since Wreyland Rural Planning became operational, and though it may be small scale, to us it represents the next phase of development for a fledgling farm enterprise with some big ideas. We wish them well, and look forward to following their progress...
100 days of Wreyland Rural Planning!
Matt Hancock delivered a rousing speech yesterday on the first 100 days of the UK’s Coronavirus Vaccination Programme.
What he failed to mention, and which I personally believe is more important to the national interest, is that this week also marks the first 100 days since the launch of Wreyland Rural Planning.
We currently have going through the planning system…
An extension to a curtilage listed domestic outbuilding to provide for greater storage space and a permanent home office.
The discharge and variation of conditions concerning a new dwelling within the Dartmoor National Park
An application for two new dwellings near Gloucester
A new farm building situated within the Cotswold AONB for the storage of machinery and preserved fodder
A residential annexe for an existing farmhouse in the Cotswold AONB
The removal of an Agricultural Occupancy Condition in Gloucestershire
A new farm building within the Green Belt
A residential extension within the Green Belt
The change of use an existing outbuilding to a new residential dwelling within the Forest of Dean
Side and rear extensions to a semi-detached property in Gloucester
Extensions to a detached residence located in both the AONB and the Green Belt
The change of use of agricultural land to residential use within the Cotswold AONB
A new agricultural building within the AONB near Stroud
We have also provided consultation services to parties looking to acquire infill development within a Cotswold village, the wholesale movement of a company’s premises to an out of town location, the remediation of a property with outbuildings which were built without planning permission, the installation of an air source heat pump, the change of use a residential annexe in the north Cotswolds to commercial use, together with a multitude of additional enquiries which will soon begin to work their way through the system.
100 days ago I would never have anticipated the level of work that has come in, most of which has arrived with me through personal recommendations for which I am very grateful.
Here’s to the next 100 days!
A chat about winemaking and vineyards to sate the drier world of planning and development
I was saddened to hear that a gentleman named Mr David Millington had died in 2020.
I had never met Mr Millington, but I had talked about him with clients on many occasions and cited him in numerous planning applications during my tussles with Planning Officers.
For those of you who don’t know who he was (and if you’re a Planning Consultant, it’s straight to the Headmaster’s Office for you), Mr Millington was an Agricultural Consultant who, after a business trip to California in 1991, returned home to plant a vineyard at Wroxeter. Quite a courageous move thirty years ago.
Much as I would like to spend my days talking about wine, I am the first to admit that I know next to nothing about it. Thankfully I know a lot more about planning, which, at least goes some way to providing me with the means to drink the stuff…
Aside from being a remarkable vineyard owner, wine producer and really a pioneer in the English Wine Industry, Mr Millington’s tenacity gifted us all with clarification on what is and isn’t considered agriculture in the context of vineyards and other operations which might be undertaken on the farm.
So, let us open a bottle, toast the memory of our good friend Mr Millington, and have a chat about vineyards and wine making in the context of the sadly rather dry world of planning and development.
Is a vineyard ‘agriculture’?
Section 336 (1) of the Town and Country Planning Act gives the definition of “agriculture” as including;
“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), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly;”
The growing of grapes is there unequivocally therefore considered ‘agriculture.’
And the relevance of this?
Agriculture is expressly stated as not constituting development under Paragraph (e) of S55(2) Town and Country Planning Act 1990:
“The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land”… “The use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used.”
Excellent news. That means that I can take full advantage of the GPDO…
It most certainly does! As a vineyard is an agricultural use, you can make use of The General Permitted Development Order, more particularly Part 6, Classes A & B of the General Permitted Development Order, with Class A referring to agricultural units of greater than 5ha and Class B referring to units of less than 5ha.
Fundamentally, if your vineyard sits on a unit of greater than 5ha, the GPDO allows development for ‘the works for the erection, extension or alteration of a building, or any excavation or engineering operations which are reasonably necessary for the purposes of agriculture within that unit.’ This will however be subject to Prior Approval with the Local Authority.
This covers the erection of buildings up to 1000m2 (think machinery and equipment stores) and other associated operational development reasonably required for the purposes of agriculture, such as hardstandings, trellising, irrigation, culverts, tracks etc. Subject to a, supposedly, more straightforward Prior Notification with the Local Authority.
Conversely, if your vineyard comprises a unit of less than 5ha, regrettably while the GPDO makes no such provision for buildings, there is still a lot that can be done.
Well I’m sure that’s all very interesting but I fail to see the relevance of the late Mr Millington to this...
Mr Millington started a vineyard in 1991. In 1996 he started making his own wine on site. On part of his vineyard stood a modern agricultural building roughly 5m to the eaves – so, fairly large and the sort of thing wholly acceptable under the GPDO as mentioned above.
Mr and Mrs Millington then started to invite members of the public to come along and visit so that they might inspect the wine making process, and perhaps buy wine. They also gave visitors the opportunity to sample the wine and have a light snack - they could also take a tour of the vineyard. These are all the sorts of activities which we might consider part and parcel of contemporary English vineyards.
The problem was that as the vineyard increased in popularity, so did its alleged effects on neighbours and traffic safety.
The Local Authority (being typically anti-Bacchanalian) served an enforcement notice on the basis that the Millingtons had materially changed the use of the land upon which the building sat from agriculture, to mixed use commercial / industrial.
As part of the Enforcement Notice, The Millingtons were required to cease selling wine, cease selling light refreshments and cease permitting visits.
The rotten swine!
Indeed. The thing is, agriculture is expressly stated as not constituting development as discussed above – so, how could the Local Authority issue an Enforcement Notice for unauthorised development, where there hadn’t been any?
In agricultural terms, since agriculture is not development, an arable farmer can change his farm to a dairy unit if he likes and despite that fact that this might result in all sorts of detriment to the environment, roads and local environment it cannot be stopped by an enforcement notice as no development has taken place…
But I see that Wroxeter Roman Vineyard is still going strong (with 173 ‘Excellent’ reviews on Trip Advisor!), so what happened?
Well, Mr Millington made an Appeal to the Secretary of State.
It was concluded in the Appeal by the Inspector that;
“It seems to me that unlike vine cultivation, wine making involves a process whereby the grape, or the juice extracted there from, is converted into wine. It may be that much of this is achieved by a natural process, fermentation. Nevertheless, even if the addition of items such as sulphur and sugar is discounted, my view is that the manner in which the harvested product is altered, together with the subsequent bottling of the produce, falls within the definition of “industrial process.”
“Likewise, because this intermediate process is involved, I do not consider that the sale of wine, even that produced from grapes grown on the holding, can be regarded as ancillary to the agricultural use of the land.”
The Inspector went on to say that:
“Despite the relatively small scale of some of the equipment used at the premises I do not consider wine making is ancillary to the agricultural use of the appeals site. As I see it, the process is neither subsidiary or subservient to the growing of grapes here. On the contrary, it appears to me that the making of wine is the very purpose for which the grapes, which are a significant component of the agricultural enterprise on the holding, are grown. If anything, therefore, it could be said that the agricultural element, or the grape growing at least, is ancillary to the wine production. In the light of this, it follows on that I do not consider that the sale of bottled wine is ancillary to agricultural use either.”
The Secretary of State agreed:
“It is agreed with the Inspector for the reasons he gives, that the manner in which the harvested product is altered, together with the subsequent bottling of the produce, falls within the definition of an industrial process and, as such, is not considered to be an agricultural activity as claimed. As to whether the wine production is ancillary to the agricultural use of land, it is also agreed with the Inspector, for the reasons he gives his report, that whilst the growing of items such as grapes and lavender constitutes agriculture for the purposes of the Act, the wine making process is neither subsidiary nor subservient to the growing of grapes. It follows that the sale of bottled wine is also considered not to be ancillary to the agricultural use.”
(For my own part, and stepping to one side for a second to refill my glass, this illustrates the perennial problem in planning of people who may have never worked in farming, talking about farming. ‘Farming’ involves so many processes that make sellable commodities from raw materials. Look at any element on the farm in isolation and you can probably call it a commercial or industrial operation. Everything in agriculture needs to be considered in the context of the wider operation).
Anyway, where were we? Ah, yes. Not content with this outcome, Mr Millington took the case to the Court of Appeal, where Lord Justice Schiemann helpfully distilled the problem and worked it out for us…
Firstly he drilled down to the two fundamental problems:
The Planning Problem
The underlying problem turned out that the LPA had no real objection to the growing or making of the wine on the Millington’s land, they objected to the effect on residential neighbours and on traffic safety. The substantive question therefore was, were the LPA able to stop the activities at Wroxeter from happening?
The Legal Problem
Schiemann then considered whether the SoS was right in his assertion that where land is used for the creation of a new product from produce grown on that land, the land is therefore no longer used for the purposes of agriculture and thus exempt from planning control.
Schiemann considered the case in Williams v Minister of Housing and Local Government (1967) where it was held that use for agriculture necessarily includes the selling of products grown on the land, but that the selling of products grown elsewhere was not included in that definition. He also considered Farleyer Estates v Secretary of State for Scotland (1992) which reference the alleged unauthorised use of land as a timber stacking area for forestry operations some 1500m away. In that instance it was held that “There would be little point in cultivating or managing forests unless the fruits of the operation in the sense of the felled timber were to be taken away from the plantation for commercial purposes.”
On the other hand, in Gill v Secretary of State for the Environment (1985), it was held that, while the keeping and rearing of 1,800 foxes in various structures for their eventual slaughter was agricultural, there eventual slaughter was not agricultural. The slaughter of the odd animal on the farm can be considered ancillary or de minimis to normal farming, but the slaughter of substantial numbers of beasts throughout the year was held not to be within the definition of agriculture.
Similarly, Salvatore Cumbo v SoS for the Environment (1992) discussed whether a cheese-making enterprise was an agricultural use. Sir Frank Layfield QC held that “Ancillary activities [were] secondary uses that were undertaken in support of primary farming.” Cheese making was mixed-farming and manufacture.
In a ratings case “Perth & Kinross Assessor v Scottish Milk Marketing Board (1963), buildings on a farm which were used for bull housing were held to be agricultural. The next door shed which handled their semen was held not to be agricultural, with Lord Sorn stating that “I think the rate payers use these buildings, not in their capacity as farmers, but in their capacity as handlers and purveyors of semen and for that branch of their business….” Lord Sorn further cconsidered that; “If a farmer set up a butcher shop on his farm to sell his fat stock as meat no one would suggest that it should be derated, for the shop would be used for an independent purpose distinct from the farming operations."
In Assessor for Midlothian v Buccleuch Estates Ltd (1962), Lord Patrick considered that “I would agree that agriculture and pasturage do not cease when the crops are grown or beef raised, but may properly include operations reasonably necessary to make the product marketable or disposable to profit.”
In W & JB Eastwood v Herrod (Valuation Officer (1971), Lord Reid quantified Lord Patrick’s statement by saying: “One must have regard to ordinary and reasonable practice. But there comes a stage when further operations cannot reasonably be said to be consequential on the agricultural operations of producing the crop.”
“… The vineyard comes within the definition of use for agricultural purposes because it consists of fruit growing. The further processing of fruit is not the growing and cropping fruits. I do not think that wine-making can, therefore, be said to be “for the purposes of agriculture”… nor is it merely incidental to such purposes… Disposing of a crop by sale may well be said to be ancillary to the producing and the harvesting of the crop. Creating a new product for sale in a different form is not ancillary to the operation of growing fruit.”
Sensing that none of this was getting him anywhere, Schiemann also interestingly considered an American case, from The Appeals Court of Massachusetts…
“We think it reasonable to regard the slaughter of animals as a normal and customary part of preparing them for market. It then follows from the acceptably broad definitions of the word “agriculture” that a slaughter house used for the butchery of animals raised on the premises is primarily agricultural in purpose. .... The fact that an activity such as slaughtering, can become an industrial or business use when removed from an agricultural setting does not mean that activity cannot be primarily agricultural in purpose when it has a reasonable or necessary relation to agricultural activity being conducted on the locus.”
I’m going to need another glass… I’ve lost track – this is like being a piece vulcanised rubber which is being thwocked backward and forward between two people wielding pieces of stretched cats-gut.
Bare with, this’ll be over soon…
Schiemann recognised the QC appearing for the Local Authority’s position that there was a crucial distinction between an activity on the farm which led to the creation of a new product, and one which merely amounted to handling, packaging and selling the original product, and that it would be going too far to submit that any processing of an original product amounted to the creation of a new product. However, he also accepted that when grapes were crushed so as to produce juice, a new product was manifestly created and that the use of land for the creation of a new product was not agriculture.
Thankfully Schiemann recognised that that to make the distinction between development and non-development turn on whether a new product is being created is ‘pregnant with difficulty.’ He posed the question; “Is a new product being created when grapes are put out to dry in order to become raisins; when the honey in honeycomb is separated from the wax; when the chaff is separated from the corn; when silage is being made?”
Schiemann concluded that “The proper approach to the root question in this case is … to consider whether what the Millingtons were doing can, having regard to ordinary and reasonable practice, be regarded as ordinarily incidental to the growing of grapes for wine, included in the general term agriculture, ancillary to normal farming activities, reasonably necessary to make the product marketable or disposable to profit, or whether it has come to the stage where the operations cannot reasonably be said to be consequential on the agricultural operations of producing the crop.”
Schiemann concluded that this question faithfully echoed the intention of Parliament in excluding agricultural uses from normal development control. “My own instinctive view on the arguments which we have heard is that the making of wine or cider or apple juice on the scale which we are concerned is a perfectly normal activity for a farmer engaged in growing wine grapes or apples.”
In conclusion, the proper approach to this question is therefore whether what a farmer is doing can, having regard to ordinary and reasonable practice;
So it’s really question of scale?
It seems so yes – what is and what isn’t reasonably consequential and incidental to the main job of the farm.
So I can do what I like…? Great!
Not so fast Jilly Goolden! You’ll still the LPA’s blessing to put the buildings up don’t forget. The Late Mr Millington has helped us enormously, but as with everything in planning, every case must be treated on its own merits. Tours, tastings, wine making and sales from the cellar door may be considered agricultural, but only insofar as long as they are reasonably incidental to the growing of grapes.
Investment capital (planting materials and labour) required for the setting up of a new vineyard (not including purchasing the land) is estimated as £21,000 to £30,000 per hectare. If you’re planning on doing anything at scale, it always pays to have the Local Authority on side.
I think I need to lie down…
(Above image) A younger Tim Barker in more carefree days 'hard' at work on a particularly poor Sauvignon Blanc, Blenheim, New Zealand.
Beware the Planning Officer in the Sun…
“If you don’t know who the best Rural Planning Consultant is, it probably isn’t you…” Or was that fighter pilots?
You may remember, some years ago, a gentleman bought an isolated farmstead for a bit of peace and quiet, only to find that the RAF used it as a target for training (the house having been empty for a number of years). Jets would fly over the place day and night, waves of Hercules would fly past at a level lower than
the house. It was becoming a bit of an issue.
To solve the problem, the owner painted a sign on top of his shed which invited passing fast-jet pilots to perhaps consider using alternative training areas, as identified on the shed on the right hand side of the image...
Sadly, I am not a fighter pilot… Grandad was, but it’s no longer 1930 and the RAF apparently now looks for slightly more in its candidates than being a “first class, left-handed spin-bowler” which was how he got in…
I do however know a ‘Target Rich Environment’ when I see one. (Honestly, I’m going somewhere with this I promise…), so let’s pull the ejector handle, fire through the canopy and float gently down into the farmyard where we meet our bleeding-eared client who has invited us, in between being strafed, to think about some planning opportunities on his old stone barns on the left-hand side of the image…
Once we’ve established over a cup of tea that a planning application for an anti-aircraft battery would probably just upset the Parish Council, we might consider residential use, and specifically in this instance opportunities under ‘Class Q’ or to give it its long form, The Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2, Part3 (changes of use), Class Q... (Try saying while delivering Barnes-Wallis’s regards to the Ruhr Valley…).
Boiled down, this means that planning permission has already been granted for an agricultural building to be converted to a house, which can then be sold on the open market, or let out as either a long-term tenancy or for holiday use to serve as a diversified income stream, but its application will be subject to Prior Approval by the Local Authority.
During the Second World War, RAF pilots blamed ‘Gremlins’ for inexplicable accidents. They were considered “tricksters, acting out their mischief for their own self-interest.” What a lot of people don’t know is that, at the cessation of hostilities, these Gremlins moved on from inconveniencing fighter pilots, to scuppering innocent members of the public when trying to get planning permission...
Development under Class Q certainly hasn’t escaped the Gremlin’s insidious influence and is subject to a number of qualifications ready to catch out the un-wary. The list is extensive, open to interpretation and includes (inter alia), transport and highways, noise, contamination risk, flood risk, design and external appearance, and whether the location or siting is 'impractical or undesirable'... If you’ve got a couple of hours, a bottle of Whisky and a cold flannel, you can fully gen-up at The Town and Country Planning (General Permitted Development) (England) Order 2015 (legislation.gov.uk).
More recently the Government has provided further interpretation in their National Planning Practice Guidance which offers all the comfort of a lurking U-Boat, with a particularly mischievous and not-at-all-open-to-interpretation item being guidance on the need referenced above for Local Authorities to consider whether a development may be Impractical or Undesirable. This surfaced recently where an attempt was made by a Planning Officer (un-successfully thanks to yours truly) to provide a rather spurious reason for refusal on the basis that a rutted access track made a development impractical…
Class Q provides magnificent opportunities to put agricultural buildings back into use and to make them work for you, but its use needs to be fully considered before the expense and time is put into putting an application together.
If you’ve got a farm building which could be put to a more profitable use, have it looked at properly before taking it forward, explore the provisions of the GPDO and the NPPG in detail and get your ducks in row before making an application.
I am always happy to provide a no-obligation appraisal over the phone on whether a potential project has mileage.