Not an appeal this time, but a decision made by a council which appended some informative notes that caused quite a stir amongst some consultants I know. I have set the notes out in full with my comments.
It’s not often that I come to the defence of an lpa in matters Class Q but I feel the need to here as I think that the council are stating the law correctly and helpfully putting people on notice of falling foul of the law. Let’s look at the notes section by section.
NOTE: This Prior Approval has been considered under Class Q of Part 3 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). It has been permitted on the basis of the site solely being used for an agricultural use as part of an established agricultural unit in line with the requirements of the Order and specifically Class Q.1 (a)-(m).
The Order does not require the local planning authority to consider whether the proposal meets the requirements of Class Q in every part. They are only charged with considering prior approval matters. W(3) says,
(3) The local planning authority may refuse an application where, in the opinion of the authority—
(a) the proposed development does not comply with, or
(b) the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in this Part as being applicable to the development in question.
All that this note does is inform the reader that they have considered the Class Q criteria. Approval of prior approval matters is not the same as the grant of planning permission. A scheme can be approved for the purposes of prior approval and yet not comply with Class Q. In the opinion of this authority the scheme complies with all matters.
It has also been permitted on the basis of the existing structure being converted as per the submitted plans/drawings. The applicant should note that any removal/demolition of the existing structure would render this Prior Notification application incapable of implementation as a conversion and that the requirements of Class Q.1 (a)-(m) should also be met.
This restates W(12)
The development must be carried out—
(a) where prior approval is required, in accordance with the details approved by the local planning authority;
and goes further, by stating in effect that the Order gives planning permission where the conditions and limitations of the relevant Class are met, and one of those is that works are to achieve conversion and are limited to those that are reasonably necessary for that purpose. Not only must the plans be followed, but only limited works are permitted when building in accordance with the plans.
Finally the Prior Notification has been determined based on the current information submitted at the time of the application. In the event that the site is sold on or there is a change in circumstances, any prospective purchaser should check whether the regulations continue to be met, and for the avoidance of doubt should consider the submissions of a further prior notification application if circumstances change.
I read this as a further reminder that the building must qualify at the point of the change of use. It must be an agricultural building at that date, because the Order grants planning permission for the change of use of an agricultural building which paragraph X defines as “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business”. If a farmer having obtained prior approval under Class Q then sells off the land with the barn for the purchaser to develop, there will be no planning permission under Class Q because the building no longer qualifies as an agricultural building.
The Informative note in my opinion does no more than tell us what the Order tells us, and the third part is particularly helpful in that regard. How many conveyancing solicitors would be aware of this very narrow point of law? Or planning solicitors for that matter?