Appeal 6000598

The appeal is dismissed.

The appellant has informed me that the application was submitted on 2 May 2025. The completed application form included the following note: “This form covers current legislation only. It cannot be used to make an application under the transitional provisions that allow applicants to opt to use the permitted development rights as they stood prior to 21 May 2024 for submissions made before 21 May 2025.” However, the planning officer’s report states, amongst other things: “The application form confirms the proposal is to be assessed using the permitted development rights as it stood prior to 21 May 2024.”

The LPA has informed me that having regard to the Planning Statement that was submitted in support of the application and the [name], it considered the proposal under the transitional arrangements1 that were in place for ‘Class Q’ applications up until the end of 20 May 2025. It is evident from the size of the proposed dwelling2 that the applicant intended the proposal to be considered in this way. I have determined the appeal accordingly.

The LPA has also informed me that owing to an administrative error, it now accepts that the appeal building was constructed / first put to use in accordance with a planning permission and does not wish to defend its first reason for refusal.

The LPA’s remaining reasons for refusal relate to the use of the building from 20 March 2013, whether or not the building is attached to another building within the curtilage of the grade II listed [name] and the floor space of the proposed dwelling. [name] was to agree with the LPA on any of these three matters, 1 Single dwellings not exceeding 465m2, as provided for in the Town and Country Planning (Permitted Development, Advertisement and [name]) (England) Regulations 2019/907 and allowed for under the transitional arrangements relating to the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2024/579. 2 Claimed by the appellant to be less than 465m2 but considerably in excess of the Class Q limit of 150m2 for single dwellings within the current version of the Town and Country Planning (General Permitted Development) (England) (Amendment) Order. the proposal would not meet the requirements for development permitted under ‘Class Q’ and I would have to dismiss the appeal.

An application for an award of costs has been made by the appellant against the LPA. This is the subject of a separate decision.

The main issue is whether the floor space of the proposed dwellinghouse would exceed [address] metres and fail to meet the requirements for development permitted under Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended3).

The appeal site includes a steel portal framed building with profiled sheeting on the walls and roof. It is proposed to adapt / re-use this building as a four bedroom dwelling with a garage and store. The submitted proposed ground plan is annotated “Internal Floor Area = 307m2” and the proposed first floor plan is annotated “Internal Floor Area = 157m2”. Within the Statement made in support of the appeal, the appellant has stated, amongst other things, “that the total development footprint across two floors is 464m2” and “the internal habitable floor area of the building is within the Class Q threshold.”

In contrast, the LPA has calculated that the proposed ground floor would be 450m2 and the proposed first floor would be 157m2. It has argued that the total floorspace would exceed the 465m2 allowed for under Class Q. The difference between the main parties on this issue appears to relate to the proposed garage and store and whether or not this should be included as part of the floorspace. If it is excluded, on the basis of it not comprising habitable space, then the proposal would fall within the Class Q floorspace allowance.

However, Article 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) includes a definition of floor space for the purposes of interpreting the Order. Here, floor space means the total floor space in a building or buildings. It makes no distinction between habitable and non-habitable floor space. As a consequence, the LPA was correct to include within its calculation the floor space of the proposed garage and store. [name] have no doubt that the appellant will be very disappointed and frustrated by this, if the definition / interpretation of floor space was only meant to include habitable space, this would have been specified / made clear within the Order.

I conclude on the main issue that the floor space of the proposed dwellinghouse would exceed [address] metres and fail to meet the requirements for development permitted under Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). The appeal is therefore bound to fail.

For completeness, I very briefly set out my findings on those other matters of dispute relating to the use of the building and any ‘curtilage listed’ status. 3 In force on 1 August 2020.

I understand that since about 2015, the appeal building has been used for storing and pressing apples grown solely on the appellant’s circa 50 acre holding. This holding is predominantly down to orchards. Apples are not brought onto the site for the purposes of making apple juice or the limited quantity of cider that is produced on the holding. The production of apple juice and cider has taken place on farms throughout Devon and elsewhere for centuries. Whilst there has been a considerable decline in the number of farm orchards, to my mind4, the existing use of the appeal building amounts to an ancillary agricultural use on this holding.

Prior to 2015, I understand the appeal building comprised loose boxes for stabling stud and brood mares. This appears to have been part of an established agricultural unit and stud farms may be considered as agriculture for the purposes of agricultural relief under the tax system. However, the planning system operates differently and I tend to agree with the LPA that this use of the building amounted to a separate commercial / equestrian use rather than an agricultural or ancillary agricultural use. As a consequence, the use of the building from 20 March 2013 to 2015 would also take the proposal outside the scope of permitted development.

Curtilage is determined on a case-by-case basis, having regard to the relevant facts. The Courts5 have set out relevant factors to consider when deciding whether or not a structure lies within the curtilage of a listed building and is thereby statutorily protected. In this instance, the evidence tends to suggest that although the appeal building abuts a traditional stone building within the farmyard of [name], the physical layout of the listed farmhouse and appeal building have little in common. The latter is largely screened from the farmhouse and farmyard and arranged in such a way as to appear unconnected to it, including being served by its own separate yard. Whilst both buildings have been in the same ownership since the appeal building was constructed in about 1999, the use or function of the appeal building is very different to that of the farmhouse6 and unrelated to domestic activities undertaken by residents.

I am unconvinced by the LPA’s argument that the appeal building is curtilage listed. I also note that when the appellant applied for planning permission and listed building consent for the building, the LPA returned the listed building application having deemed that consent was not required. Consistency in decision-making is important for maintaining confidence in the planning system.

My findings in respect of the other matters above do not overcome or outweigh the conclusion that I reached in respect of the main issue. Having regard to all other matters raised, I therefore conclude that the appeal should not succeed.