Appeal 6002355

The appeal is dismissed.

The address in the banner heading above has been taken from the application form as neither party has provided written confirmation that a revised address has been agreed.

From 6 April 2018 to 21 May 2024, under Article 3(1) and Schedule 2, Part 3, Class Q, of the Town and Country Planning (General Permitted Development) (England) Order 2015 as amended (GPDO), development is permitted for the change of use of a building and any land within its curtilage, from use as an agricultural building to a use falling within Class C3 (dwellinghouses) together with building operations reasonably necessary to convert that building. This is subject to various limitations and conditions as set out in paragraphs Q.1 and Q.2 of that Class. It is common ground between the main parties that the proposed development meets the requirements of Q.1, and I have no evidence to indicate otherwise.

Any prior approval application or appeal which was made before 21 May 2024 in respect of the ‘old’ Class Q should be determined on that basis. Similarly, given transitional arrangements set out under Article 10 of the amending Order, any prior approval application made before 21 May 2025 in respect of the old Class Q can be decided on the basis of what was previously permitted if the applicant so wishes. This is the case in this instance and therefore the appeal will be determined on this basis.

Schedule 2, Part 3, Section W of the GPDO outlines the prior approval process, and provides that a local planning authority may refuse an application where, in the opinion of the authority, the proposed development does not comply with, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with any conditions, limitations or restrictions specified as being applicable to the development in question.

The relevant conditions under Q.2(1) include (a) transport and highways impacts of the development, (b) noise impacts of the development, (c) contamination risks on the site, (d) flooding risks on the site, and (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). The Council refused the application on the basis that the proposed development would not satisfy these prior approval matters.

Given the foregoing, the main issues are whether or not the proposal would be permitted development under Schedule 2, Part 3, Class Q of the GPDO, having regard to: • whether the location or siting of the building make it impractical or undesirable for the building to change to a dwellinghouse, with particular regard to whether the proposal would harm the living conditions of future occupiers with regard to noise, odour, contamination and disturbance, • flooding risks on the site, • the transport and highways impacts of the development.

The appellant has stated that [site address] forms part of a substantial dairy enterprise based at various farm sites in the area employing around 130 staff and with [site address] used to rear youngstock replacements for the main dairy herd.

The Planning Practice Guidance (PPG)1 states that ‘impractical or undesirable’ are not defined in the regulations, and the local planning authority should apply a reasonable ordinary dictionary meaning in making any judgment. Impractical reflects that the location and siting would ‘not be sensible or realistic’, and undesirable reflects that it would be ‘harmful or objectionable’. The example of a building on top of a hill with no road access, power source or other services is given as an instance where conversion may be considered impractical. The example of the location of a building adjacent to other uses such as intensive poultry farming buildings, silage storage or buildings with dangerous machines or chemicals is given as an example of a case where conversion may be undesirable.

I have no substantive evidence to suggest that any issues would be present in ensuring that the proposed dwellings had access to power and other services such to make conversion impractical.

However, the appeal buildings are located directly adjacent to and in close proximity to a number of existing agricultural buildings and a slurry lagoon. It is also positioned directly adjacent to one of the main vehicular access points to a number of those buildings and the wider holding. Some of these nearby buildings are used 1 Paragraph: 109 [name]: 13-109-20150305 to accommodate livestock and I have not been made aware of the use of the closest building to the east. Furthermore, I have not been made aware of whether there are any restrictive planning conditions in relation to the slurry lagoon, that was in use at the time of my site visit, or conditions limiting the use of the agricultural buildings.

I note that the proposed dwellings would be located over 30 metres from any livestock housing and the slurry lagoon, that the 400m separation distance between livestock accommodation and habitable accommodation relates to determining whether a proposal is permitted development, and that it is the intention for agricultural vehicles to use the western most access. However, few details have been provided to substantiate that noise, odour or other disturbance from the operation of the farm would be at acceptable levels. Nor have details been provided to illustrate the nature and scale of the operations undertaken across [site address] and I note that the western most access leads to a yard close to the southern extent of the appeal buildings. In these circumstances, given the large size and number of nearby agricultural buildings, relatively close location of a slurry lagoon, size of the wider business and number of staff, and the consequent potential for excessive noise, odour and disturbance arising from associated activities in close proximity to the Class Q buildings, it is necessary to take a precautionary approach.

This means that, in the absence of any detailed technical evidence (such as noise and odour assessments, for example), I find that insufficient evidence has been submitted to demonstrate that the nearby slurry lagoon and the use of nearby agricultural buildings and associated vehicular movements would not result in an unacceptable level of noise, odour and disturbance which would unduly undermine the reasonable expectations of peace and quiet for the future occupiers of the proposed dwellings, thereby harming their living conditions.

The fact that other Class Q prior approval applications may involve buildings that are located in, or within close proximity to, working and operational farms, does not alter the fact that the Class Q buildings involved in this appeal are located in a particularly sensitive position, given the close location to a slurry lagoon, existing agricultural buildings and sizable nature of the wider farming enterprise.

[name] have had regard to the construction of a new slurry lagoon 900m to the south-west of the site, I have not been provided with substantive evidence that this prevents the use of the slurry lagoon shown on the plans before me.

The appellant has stated that the dwellings would be used by agricultural workers and that there is a need for these given difficulties recruiting, lack of available properties to rent, and high local rental and property prices. However, I do not have substantive evidence before me in relation to this, or substantive evidence of the need for rural workers to be living on the site at all times to justify related agricultural occupancy conditions. In light of this and given that agricultural workers should also be entitled to a reasonable standard of living conditions, I give this limited weight in favour of the proposal.

The Council’s first reason for refusal references contamination risks, but little evidence has been submitted in relation to this aside from reference to odour and air impacts that I have dealt with above. Furthermore, I note that the comments from the Council’s Environmental Protection Team do not raise concerns with regard to contamination. As a result, I do not find that the Class Q building makes it undesirable for the buildings to change use, with particular regard to paragraph Q.2(1) (c) of the GPDO related to contamination risks on the site.

The Council has also referred to part (b) of paragraph Q.2(1) in its reason for refusal. However, this relates to the noise impacts of the development itself. In light of the residential nature of the proposal and location a considerable distance from other dwellings in the countryside, the proposal would not in itself result in any harmful noise impacts. As a result, I do not find that the Class Q building makes it undesirable for the buildings to change use, with particular regard to the noise impacts of the development.

Nonetheless, it follows from the above that I cannot conclude that the siting of the Class Q building does not make it undesirable for the buildings to change use, with particular regard to noise, odour and disturbance. The proposed development would not comply with paragraph Q.2(1) (e) of Class Q of Part 3 of Schedule 2 of the GPDO.

[name](10)(b) of Schedule 2, Part 3 of the GPDO requires that regard be had to the National Planning Policy Framework (the Framework) so far as relevant to the subject matter of the prior approval as if considering a planning application. Paragraph 135 of the Framework, amongst other things, states that decisions should ensure that development creates places with a high standard of amenity for existing and future users. Paragraph 198 of the Framework also requires decisions to ensure that new development is appropriate for its location taking into account the likely effects (including cumulative effects) of pollution on health and living conditions. In doing so they should avoid noise giving rise to significant adverse impacts on health and the quality of life.

The PPG advises that to assist local planning authorities in their determination of an application as to whether their prior approval is required for a change of use of agricultural buildings to dwelling houses in an area at risk of flooding, the applicant should provide with their application an assessment of flood risk where the development is in an area within [name] 2 or [name] 3, or in an area within [name] 1 which has critical drainage problems.

However, the appeal site does not fall within [name] 2 or [name] 3, or in an area within [name] 1 which has critical drainage problems. As such, this proposal does not require consultation with the Environment Agency or submission of a site-specific flood risk assessment.

[name] note that the appeal site falls within the Environment Agency’s Groundwater Flood Warning Map area indicating that flooding is possible when ground water levels are high, I also note that the site falls outside of the area defined as susceptible to groundwater flooding as identified in the Council’s Strategic Flood Risk Assessment (February 2023).

The appellant has stated there is no evidence of historical flooding at the site and that any minimal risk of groundwater flooding can be adequately managed via a condition(s) securing mitigation measures following the Environment Agency’s advice on Flooding from Groundwater.

In relation to surface water run-off, as the proposal would be unlikely to significantly change surface water run-off levels given that the existing buildings are proposed to be converted, I see no reason why a condition could not ensure the submission and approval of appropriate surface water details to prevent increased flooding risks on the site and elsewhere. With regard to foul drainage, should this not be possible within land falling within the [name] area for technical or flooding reasons, given that the appeal site is only a relatively short distance from land falling outside of the [name] area, I see no good reason why conditions could not be imposed to secure the submission and approval of an appropriate foul drainage system to ensure that there would be no additional flooding risks on the site.

For these reasons, and subject to conditions, I conclude that the proposal would be acceptable with respect to flooding risks on the site, and [name].2.(1)(d) of the GPDO is satisfied.

The appeal site is accessed off an existing hard surfaced vehicular access, approximately 200m before the adopted highway in [address]. Although narrow in places with planted boundaries, between the appeal site and [address] the access track is passable by car and of sufficient width for cars to safely pass in places.

I note that the Council’s Highway Authority consultation response requests further information to establish whether there is an intensification of the use of the access and that visibility splays should be provided within land owned by the appellant if there will be an intensification of use.

In relation to this, I cannot rule out the likelihood of the addition of 5 dwellings increasing the use of the access. Furthermore, I note that the existing mature hedgerows and road alignment mean that for traffic exiting the access road onto [address], visibility is restricted. However, given the limited number of dwellings proposed, the lane serving only a few properties, and the carriageway’s width and alignment naturally keeping vehicle speeds down, I do not find any increase in vehicle numbers to be significant or severe.

Furthermore, while the visibility onto [address] is restricted, I have not been advised that the junction is subject to heavy use or has a history of accidents and it is not untypical of a rural area. As such, in these circumstances, there would be adequate visibility to ensure that the potential for conflict between vehicles exiting the access and other road users would remain low and would not pose a significant risk.

For these reasons, I conclude that the proposal would be acceptable with respect to transport and highways impacts, and [name].2.(1)(a) of the GPDO is satisfied.

I understand that the appeal site lies within the nutrient catchment of the Poole Harbour Special Protection Area and Ramsar (the [name]). The Council has indicated that mitigation may be required.

The grant of planning permission under Article 3(1) of the Order is subject to the provisions of the Order and compliance with Regulations 75 to 78 of the Conservation of Habitats and Species Regulations 2017 (as amended) (“the Habitats Regulations”). In effect, Article 3(1) of the Order provides a pre-commencement condition which must be met, where the development would affect a European Site. This includes a separate application to the Council under Regulation 77 of the Habitats Regulations to allow the Council to undertake an appropriate assessment and, dependant on the outcome, determine whether the scheme could be undertaken as permitted development under the Order.

It is not clear from the evidence before me whether an application has been made to the Council under Regulation 77, however it is possible that such an application could be made and subsequently approved had I been allowing the appeal. For these reasons, and as I am dismissing the appeal for other reasons, there is no need for me to consider this matter further.

[name] have found that the proposal, subject to conditions, would comply with the requirements of Conditions Q.2.(1)(a), (b), (c) and (d) of Class Q of Part 3 of Schedule 2 of the GPDO, I have found that it would not comply with the requirements of paragraph Q.2(1) (e) of Class Q of Part 3 of Schedule 2 of the GPDO. As such, prior approval cannot be given for the proposed development. Therefore, for the reasons given above, having considered all relevant material considerations, I conclude that the appeal should be dismissed.