Appeal 6001116

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 3 Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for [name] under Part 3 Class Q (a) and (b) and paragraph W of the GPDO for change of use of barn to residential dwelling at Barn adjacent to The Old Shippon, [site address] , Chudleigh [postcode] in accordance with the application 25/00538/NPA and the details submitted with it including plan Nos 1041.01A; 1041.12A; 1041.15A; 1041.16A; and 0141.17.

A costs application is made by [name] against the Council, and this is the subject of a different decision.

Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO) was updated on 21 May 2024. Transitional arrangements allow for a prior approval application to be determined in accordance with the 1 August 2020 version of the GPDO as long as it was made before the 21st of May 2025. At the request of the appellant, the appeal has been determined in this way. All references to the GPDO in this decision therefore relate to the 2020 version of it.

The Planning Practice Guidance states that permitted development rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. Permitted development rights are subject to conditions and limitations to control impacts and to protect local amenity. This is effectively a 2-stage process where it is necessary in the first instance to determine whether or not the proposal is permitted development.

Class Q of Part 3 of Schedule 2 to the GPDO states that development consisting of Q(a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses) of the Schedule of the Use Classes Order; and Q(b) building operations reasonably necessary to convert the building, is permitted development.

The term ‘curtilage’ is set out in paragraph x of the GPDO, and means (a) the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building, or (b) an area of land immediately beside or around the agricultural building no larger than the land area occupied by the agricultural building, whichever is the lesser.

The Council partly refused the application on the basis that the curtilage would be larger than the building and part of it would not be immediately beside or around it. In response to submissions against this, the Council agrees with the appellant’s reasoning, and subject to a suggested condition, no longer wishes to defend this ground for refusal as part of the appeal. Even so, there remains an interested party objection, and it is still necessary to determine whether or not the proposal meets the definitions and restrictions set out in the GPDO, including those in paragraph [name] such, there would be no procedural unfairness in including this matter as a

Where development is found to be permitted, conditions set out in Q.2-(1) of the GPDO require the developer to apply for a determination as to whether the prior approval of the authority will be required as to (a) transport, highways, and (b) noise impacts; (c) contamination and (d) flood risks; (e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses) of Schedule 1 to the Use Classes Order; (f) the design or external appearance of the building; and (g) the provision of natural light in all habitable rooms.

In that context, the Council also refused the application for prior approval on the grounds it considered the change of use would have an undesirable effect on the South Hams Special Area of Conservation (SAC) by reason of its location and siting.

Having regard to the above, the main issues are: • whether the proposed development would be permitted development; and if so: • whether prior approval should be granted, with particular regard to the siting and location of the building.

‘Curtilage’ is not a use of land. The term generally refers to land which serves the purpose of a building in some reasonably necessary or useful manner given the physical layout, ownership, and use. The question is whether, as a matter of fact and degree, the land is part and parcel of or has an intimate association with the building to which it is attached.

The area of land immediately around the appeal building is compact, well defined, and includes hardstandings and a slurry bay. There is a shared access that dissects the hardstandings, and this has not been included within the site’s red line. It is acknowledged that access tracks linking sites to highways may not form curtilage, though the space in question cannot reasonably be distinguished from that which surrounds it. Overall, this broader area is larger than that of the agricultural building and is intrinsically linked to it in respect of its functionality.

It is claimed that the access route, along with proposed turning areas, boundary screening, shared landscaping, and areas inaccessible to future occupiers should not be considered part of any residential curtilage. There is however little substantive evidence to demonstrate why a curtilage could not include any of these features. In any case, the test is not to define residential curtilage, but rather, to establish whether or not the proposed residential use of land would be equal to or less than the area covered by the agricultural building, being immediately beside or around it.

It is not clear what shared landscaping amounts to, and at my visit, it did not appear that vehicle turning had to be shared. The inaccessible area is described as a yard on the plans and provides a defensible zone between the appeal building and the road. It would form a useful part of the dwelling’s outdoor residential space and should be included within the calculations.

Additionally, the proposed boundary treatment would alter the existing open layout to create a greater sense of private enclosure for the circulation areas around the dwelling. It is however noted that the GPDO only allows for building operations reasonably necessary to convert the building. Nevertheless, the GPDO allows for ‘any’ land within the agricultural building’s curtilage to change to a residential use. The proposed car parking is included within the layout plan and in every practical sense, are positioned immediately around the agricultural building. These are also highlighted on the ‘residential curtilage plan’ within the appellant’s statement. The parking, together with the defined turfed garden and yard, would meet paragraph x of the GPDO.

For these reasons, the proposal would be permitted development.

The refusal notice states the proposal fails to accord with Regulation 75-78 of the Conservation of Habitats and Species Regulations 2017 (HRs). Concerns in this respect are linked to light spill from the development and its effects on biodiversity. Article 3(1) of the GPDO grants planning permission for the classes of development set out in Schedule 2 (including Part 3 Class Q development), subject to Regulations 75-78 of the HRs.

Regulation 75 provides that it is a condition of any planning permission granted by the GPDO in these cases, that development which is (a) likely to have a significant effect on a European site, alone or in combination with other plans or projects and (b) not directly connected with or necessary to the management of the site, must not be begun until the developer has received the Council’s written notification of approval of an application made under Regulation 77.

Under Regulation 78(3)(a), a Regulation 75 approval is to be treated as an approval required by a condition imposed on a grant of planning permission for the purposes of the appeals provisions of the Town and Country Planning Act 1990. In other words, Article 3(1) and Regulations 75-78 operate to impose a pre-commencement condition on all development that is permitted by the GPDO and would affect a European Site. Therefore, a permitted development shall not be lawfully begun until the developer has made a Regulation 77 application and received written notification from the Council to the effect that development would have no adverse effect on the integrity of the European site.

Notwithstanding the Council’s current position in this regard, it is therefore not necessary to obtain written notification of a Regulation 77 approval before seeking prior approval. It is only the case that the development shall not be lawfully begun until both procedures are complied with. This is a separate process which does not necessarily need to be undertaken before prior approval proceedings.

Additionally, there are concerns that the proposal would not be able to provide securable mitigation. As set out in the officer report, Section 40 of the Natural Environment and Rural Communities Act 2006 requires every public authority to have regard, so far as is consistent with the proper exercise of those functions, to further the general biodiversity objective which is to conserve and enhance biodiversity. It is clear from the proposed plans and ecological assessments that measures to reduce light spill have been advanced in an attempt to further the biodiversity objective.

Even so, the GPDO does not, in Article 3(1) or otherwise, provide that permitted development is subject to the s40 duty. Having paid regard to the ecological submissions, even though land within the appellant’s ownership could be secured as part of any subsequent scheme of mitigation, there is little to show this reasonably relates to the prior approval matter of location and siting. Furthermore, given the requirements of the HRs, this could be dealt with later. As there is no power to impose conditions on a Regulation 77 approval, any required mitigation would need to be secured by other means, such as a planning obligation or other legal agreement. This would be for the Council to determine outside the prior approval process. Alternatively, if any such mitigation were to constitute development that required planning permission, this could be applied for.

Therefore, as the development cannot be begun until it has received the approval of the Council under Regulation 77, this process allows me to be satisfied that the appeal proposal would not adversely affect the integrity of the SAC. Accordingly, while other decisions of the Council are noted, the suggested conditions from both parties would not be reasonable. In conclusion on this issue, the location and siting is acceptable.

Any prior approval and planning permission granted for development under the GPDO is subject to the condition that it must be completed within a period of 3 years starting with the prior approval date, as well as the provisions of paragraph [name] requires development to be carried out in accordance with the details submitted. [name] have listed the submitted plans in my decision, a condition is unnecessary.

I have not imposed the suggested curtilage condition as this reiterates what is already permitted in the GPDO. The details provided on the plans and with the appeal demonstrate compliance is achievable and there is therefore no need for the condition.

For the reasons given, the appeal is allowed and prior approval should be granted.