Appeal 6002640

The appeal is dismissed.

The main issue is whether the proposal would be permitted development by reason of Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the Order), with regard to the building operations proposed.

Under Class Q(b) of the Order, 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, subject to limitations and conditions. The Class Q regulations were amended on 21 May 2024 to change the maximum floorspace permitted for a dwelling. There were transitional arrangements provided in the legislation to allow applications to be made under the previous Class Q legislation until 20 May 2025. This application was made under those transitional arrangements, and I have determined this appeal as such.

The submitted Proposed Site Plan1 includes an annotation indicating a “1.[address] board fence” at the western boundary of the site. Another annotation indicates a “Timber post and rail stock proof fence” on the northern boundary and part of the eastern boundary of the site.

[name].1(i) of the Order states that development is not permitted by Class Q if the development under Class Q(b) would consist of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity gas or other services. [name].1(i) does not permit 1 Ref 201, [name] fences or any other means of enclosure. Therefore, the building operations proposed as part of this appeal fall outside the scope of Class Q. The imposition of the condition suggested by the appellant would not overcome this, as it would not change the fact that the proposed fences are development not permitted by the Order. As such, the proposal would not constitute permitted development in respect of Class Q(b).

I have had regard to the [name] submitted by the appellant. [name] understand their desire to reside at [address] and I sympathise with the reasons given for not implementing a previous Class Q Prior Approval, this does not materially alter my consideration of this appeal, which I must determine in accordance with the Order.

There is a dispute between the main parties concerning contamination at the site, however as the proposal would fail to constitute permitted development, I do not need to consider this matter further.

The appeal site is located within the zones of influence of the Rodborough Common Special Area of Conservation (SAC), the [name] and the Severn Estuary Special Protection Area, Site of Special Scientific Interest and Ramsar Site, which are European protected sites. The proposal is likely to result in localised effects for which mitigation measures in the form of a financial contribution towards increased recreational pressures on these sites is sought.

The grant of planning permission under Article 3(1) of the Order is subject to the provisions of the Order for each class of development and compliance with regulations 75 to 78 of the Conservation of Habitats and Species Regulations 2017 (as amended) (Habitats Regulations). Effectively, Article 3(1) provides a pre-commencement condition which must be met, where the development would affect a European protected site, before the works can be undertaken as permitted development. 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, depending on the outcome, this would determine whether, in terms of that matter, the scheme could be undertaken as permitted development under the Order.

Based on the evidence before me, it does not appear that an application to the Council under regulation 77 has been made. However, as the regulation 77 application can be submitted and potentially approved after the grant of prior approval, it is not determinative in respect of this appeal and, therefore, I do not need to consider this matter further.

For the reasons given above, the appeal is dismissed.