Appeal 6000814

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 3, Class R of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO) for the change of use of an agricultural building to storage use (Class B8) at [site address] , Bath and [name] [postcode] in accordance with application 25/01037/PACOU and the details submitted with it, and with the attached schedule of additional conditions.

The description of development used in the header differs from that on the application form. However, the revised description of development has been agreed between the main parties during the appeal process. I have therefore used the agreed description in the header and in my decision, omitting wording which does not relate to an act of development.

The appellant has drawn my attention to an appeal decision submitted with their final comments. As this would represent the introduction of new evidence at a stage where other interested parties would not have the opportunity to comment, and therefore may be disadvantaged, I have disregarded this evidence.

Class R of the GPDO does not permit any operational development associated with the change of use. Thus, a planning application is required for associated operational development to enable the change of use of the building granted by Class R (defined in paragraph R.3(4) as buildings or other operations in relation to the same buildings or land which are ‘reasonably necessary’ to use the building or land for the use proposed). The evidence before me does not indicate planning permission having either been sought or granted in relation to operational development associated with this appeal scheme.

Under the GPDO, Class R permits the change of use of a building and any land within its curtilage from a use as an agricultural building to a flexible commercial use falling within one of the following provisions of the Use Classes Order; Class B2 (general industrial), Class B8 (storage or distribution), Class C1 (hotels), Class E (commercial, business or service), Class F.2(c) (outdoor sport or recreation) or for the provision of agricultural training. Whilst the appellant’s application form did not specify which of the flexible uses within Class R that was being sought permission for, it has subsequently been clarified that they seek permission for a change of use to a Class B8 storage use. I have therefore proceeded on that basis.

There is dispute between the main parties as to whether the appeal building is an agricultural building. The main issues are therefore: • Whether or not the proposed development would constitute permitted development in respect of Schedule 2, Part 3, Class R of the GPDO, and • If the proposal is permitted development, whether prior approval is required and should be granted with regards to: (i) transport and highways impacts of the development; (ii) noise impacts of the development; (iii) contamination risks on the site; and (iv) flooding risks on the site.

The appeal building was erected following planning permission1 granted in December 2010. The parties agree that the building was approved for an agricultural use and was part of an established agricultural unit, described in the officer’s delegated report for the 2010 consent, as being in excess of 5 hectares.

The Council identifies that as other buildings of the agricultural unit have been subject to change of use, and that most of the agricultural land of the unit has been sold. However, I see no reason why such changes would automatically change the use of the appeal building. At my visit, the building contained a small amount of equipment associated with agricultural use, with no evidence of the building having been put to other uses. Nor is there any evidence before me which indicates that the appeal building has been used other than for agricultural purposes. I am therefore satisfied that the appeal building is an agricultural building for the purposes of Class R.

Under the GPDO, Class R, paragraph R.1 sets out a list of criteria, (a) to (e), by which development is not permitted. The main parties agree that the appeal proposal would not be development defined by criteria (c), (d) and (e).

Criterion (a) states ‘the building was not used solely for an agricultural use as part of an established agricultural unit - (i) on 3rd July 2012; (ii) in the case of a building which was in use before that date but was not in use on that date, when it was last in use, or (iii) in the case of a building which was brought into use after 3 rd July 1 DC-10/04817/AGRN 2012, for a period of at least 10 years before the date development under Class R begins’

There is no apparent dispute between the parties that the building was not used solely for an agricultural use as part of an established agricultural unit on 3 rd July

Accordingly, it would not be development defined by criterion (a).

Criterion (b) relates to the cumulative floor space of buildings which have changed use under Class R within an established agricultural unit. The floorspace of the appeal building is [address] metres. Whilst other buildings within the unit have already been subject to changes of use, the evidence indicates these were all carried out following grant of planning permissions, not under Class R. Accordingly, the cumulative floorspace which has changed use under Class R would be below [address] metres, and therefore the proposal would not constitute development defined by criterion (b).

For the above reasons, I find that the appeal building does not represent development excluded by the criteria in paragraph R.1(a) to (e) of Schedule 2, Part 3 of Class R of the GPDO. It therefore benefits from permitted development rights.

Having confirmed that the proposal would be permitted development, it is now necessary to consider the matters which are required to be addressed under prior approval in paragraph R.3 (1)(b) of the GPDO.

The floor area of the appeal building is [address] metres. Accordingly, where the floor area of the building which has changed use under Class R is greater than [address] metres in area, paragraph R.3(1)(b) defines four criteria, (i) to (iv), which the developer would need to apply to the local planning authority for a determination as to whether the prior approval of the authority is required.

There is agreement between the main parties that the proposal would be compliant with regards to criteria (i), (iii) and (iv) of R.3(1)(b). However, the Council considers that with regards to criterion (ii) noise impacts of the development, due to its proximity to the adjacent property ‘The Bungalow’, it would result in significant adverse impacts on the occupiers of The Bungalow’s health and quality of life, as a result of noise, nuisance and disturbance from vehicle movements and the loading and uploading of goods. Therefore, they consider it would be contrary to paragraph 198(a) of the National Planning Policy Framework (the Framework).

The appeal building and The Bungalow are both situated to the north of the A4 [site address] , in an elevated position and some distance from the highway. The A4 is a major road subject to the national speed limit (60mph) and is a busy road used by a variety of vehicle types, it therefore generates a significant amount of noise from traffic, as was evident at my visit. The transport statement within the evidence, notes the proposed use would generate only a small number of additional vehicle movements per day, roughly equating to one per hour over a 12-hour day.

At my visit, it was evident that the appeal building had a large roller shutter door in its eastern elevation facing The Bungalow, and a personnel door within its southern elevation. There were separate means of vehicular access to both doors, with a large area of hardstanding present, in the area where car and cycle parking is indicated on the site plan, to the south of the appeal building. A head-height close boarded timber fence enclosed the hardstanding area, separating it from The Bungalow, though with access gates within it.

The B8 storage use would be a quiet use for most of the time, with intermittent noise of vehicles arriving and leaving, and any loading and unloading. However, these operations may be sporadic. The appellant has suggested that the hours of operation for delivery and collection could be controlled by a suitably worded condition, restricting the hours to standard business hours, Monday to Friday.

Having examined the evidence, I find that the likely level of disturbance caused to the occupiers of The Bungalow from the proposed use, would only marginally differ from that likely to be experienced from continuation of the existing agricultural use.

However, the main increase would be in the noise and disturbance from vehicles arriving and leaving, and from doors opening and closing during loading and unloading. During the daytime, this would likely be masked by the background noise levels from the A4 [site address] . However, at night-time, it would be more noticeable, as background noise levels from the A4 would be likely to be lower.

Therefore, I find that with the application of a condition restricting the hours of operation to standard business hours, Monday to Friday, the level of noise and disturbance to occupiers of The Bungalow would be controlled to an acceptable level. It would therefore accord with the requirements of paragraph 198(a) of the Framework, insofar as it is relevant to the development and the prior approval matters.

The Council considered the red line boundary identified on the site location plan ref: (3)001 [name], to represent the curtilage being sought for change of use along with the building. As the area within the red line boundary exceeded that defined within the description of Curtilage contained in Part 3, paragraph X of the GPDO, the Council cited this as reason for refusal 2 on their Notification of Decision.

The appellant has stated that the red line boundary identified on site location plan ref: (3)001 [name], was purely to identify the site location and its access to the highway, in accordance with the requirements of the Planning Practice Guidance (the PPG) for location plans. An additional plan was submitted ref: (3) 008 [name] at the appeal stage. Whilst the Council state that they have not seen this plan and so cannot comment on whether it addresses reason for refusal 2, the plan was submitted with the appellant’s appeal submission which was available to all parties to the appeal. I am therefore satisfied that the parties have been given the opportunity to make representations on the additional plan, giving rise to no procedural unfairness. For that reason, I have accepted the plan.

As the curtilage for a building proposed for change of use under Class R is defined by Part 3 of paragraph X of the GPDO, the extent of curtilage does not fall within my remit to assess as part of this appeal. Except in so far as the additional plan identifies that the proposed change of use includes land within the curtilage of the building, it has not therefore been necessary for me to consider this matter further.

I have had regard to the ‘Government Blog’ extract submitted with the Council’s statement of case. However, its contents summarising the (then) proposed changes to Permitted Development rights do not alter my interpretation of the provisions of Class R as enacted.

Development under Schedule 2, Part 3, Class R is permitted subject to standard conditions set out at paragraph R.2. Further, paragraph R.3.(2) states that, subject to sub-paragraph (3), development under Class R of the type described in paragraph R.3.(1)(b) must begin within a period of 3 years starting with the prior approval date.

[name](13) of Part 3 of the GPDO allows conditions to be imposed that are reasonably related to the subject matter of the prior approval. In the interest of certainty, I have attached a condition specifying the approved plans. A condition is also necessary to control the hours of operation to protect the living conditions of occupiers of neighbouring residential property.

For the reasons given above, I conclude that the appeal should be allowed, and prior approval should be granted.