Appeal 6002716

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Class R of Part 3 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for a change of use of agricultural building into Class E use at [site address] , Andover, [postcode] in accordance with the application Ref 25/02548/GPDAG and the details submitted with it including plans Block Plan (Sheet 1) and Location Plan (Sheet 2), and subject to the conditions set out in the attached schedule.

At the application stage, the Council requested a structural survey. A Structural Inspection Report was submitted at the appeal stage. A new [name] was also submitted at the appeal site. As the report provides relevant information relating to the current condition of the barn, and the [name] provides relevant information relating to the history of the site, and the Council had an opportunity to respond to the substance of the report and the [name] via their Appeal Statement, I have taken these documents and the Council’s comments on them into account in my determination of this appeal.

The main issue is whether the proposed change of use constitutes permitted development, with particular regard to whether the barn is lawful under Class A of Part 6 of Schedule 2 of the GPDO.

This appeal concerns [site address] , comprising a dutch barn to the rear and a lean-to to the front. The barn is slightly set back from the highway. According to the Council, it forms part of a wider agricultural unit, which includes a number of large barns and a residential building. The barn suffered fire damage in the late 1980s and again in the 1990s.

Class A of Part 6 of Schedule 2 of the GPDO relates to agricultural development on units of 5 hectares or more. Class A allows for works for the erection, extension or alteration of a building. [name].2.(2)(a) of Class A provides that, subject to paragraph A.2.(3) of Class A, development consisting of the erection, extension or alteration of a building is subject to a prior approval procedure. [name].2.(3) provides that, amongst other things, that prior approval procedure does not apply to the extension or alteration of a building except in the case of a significant extension or a significant alteration.

[name].1. of Part 6 (interpretation of [name] to C) clarifies that "significant extension" or "significant alteration" means any extension or alteration, as the case may be, of the building where the cubic content of the original building would be exceeded by more than 10% or the height of the building as extended or altered would exceed the height of the original building.

The earliest photograph before me is from 2009. This shows the barn as being substantially damaged, with the roof of the dutch barn element being severely compromised. The submitted photographs show that the barn has been subject to numerous repairs since 2009, albeit it was still in a state of disrepair in late 2021.

The Council have stated that the whole frame (sides and roof) of the dutch barn element have been replaced. However, as mentioned above, the relevant test for whether a significant alteration has taken place under Class A of Part 6 relates to the cubic content of the building and its height. In this regard, the Council have not provided figures which show that the cubic content of the original building has been exceeded by more than 10%.

The fact that parts of the barn were taken off-site is not of itself indicative of significant alterations having been undertaken. The submitted invoice of 6 December 2020 shows that the barn framework was strengthened and repaired. The invoice does not indicate that significant alterations were undertaken to any part of the barn. As far as I can tell from the submitted photographs, it appears that, despite the repairs undertaken, the footprint, shape, and overall scale of the barn has remained largely unchanged over the years. The evidence does not indicate that the cubic content of the original building has been exceeded by more than 10%, as per the test set out in Class A of Part 6.

The Council have asserted that the height of the barn has been increased. However, no evidence, such as measurements, have been provided to substantiate this. The Council have not provided any indication as to how much higher the barn might be now compared to previously. The Pictorial History, submitted by an interested party, does not provide a photograph of the original building, and no measurements are provided within that document. The evidence does not indicate that the building as altered has exceeded the height of the original building, as per the test set out in Class A of Part 6.

Taking all of the above into account, on a balance of probabilities I find that the barn has not been subject to significant alterations as defined in Class A of Part 6 of Schedule 2 of the GPDO. I therefore find that the proposed change of use constitutes permitted development, with particular regard to whether the barn is lawful under Class A of Part 6 of Schedule 2 of the GPDO.

It is common ground between the main parties that the proposed change of use would comply with the prior approval requirements of Class R of Part 3 of Schedule 2 of the GPDO. I have no substantive evidence to indicate otherwise. Therefore, prior approval can be granted for the proposed change of use.

I have had regard to the conditions suggested by the Council. I have considered them against the advice on conditions set out in the National Planning Policy Framework (the Framework) and the Planning Practice Guidance (PPG).

[name].(13) of Part 3 of Schedule 2 of the GPDO allows prior approval to be granted subject to conditions reasonably related to the subject matter of the prior approval.

A condition is necessary requiring the proposed vehicle parking spaces to be provided, to ensure that the approved change of use does not result in adverse impacts on the highway network (condition 1). A condition is necessary requiring the implementation and maintenance of visibility splays, in the interests of highway safety (condition 2).

The submitted [name] states that the site will be served by the existing agricultural access which has historically been used by large, slow moving agricultural vehicles. Although no change to the existing access is proposed, I observed that it mainly consists of bare ground and is therefore unlikely to be suitable for use in conjunction with a Class E use. As such, the Council’s suggested condition relating to the construction of the access with a non-migratory surface material is necessary to ensure that the permitted use functions properly with respect to transport impacts (condition 3).

No evidence has been submitted to demonstrate that a vehicle larger than a 7.5T panel van can safely enter and exit the site and turn within the existing access. A condition is necessary requiring a Servicing Management Plan to be approved in writing by the Council, which shall include details of the maximum size of vehicle which can visit the site, in the interests of highway safety (condition 4).

The Council’s Environmental Protection team have identified a risk of contamination of the soil both inside and beside the barn. A condition is therefore necessary requiring a contaminated land investigation to be carried out, and (if necessary) a remediation scheme to be approved in writing by the Council, to protect the health of the future users of the Class E use (condition 5). It is not necessary for condition 5 to specify that part (a) of the condition will likely be satisfied where significant contamination is not identified (meaning that parts (b) and (c) of condition 5 need not be subsequently carried out), as the Council will apply the appropriate threshold when assessing the desktop study required under part (a) of condition 5, and parts (b) and (c) of condition 5 are not required if agreed in writing by the Council.

A condition is necessary requiring actions to be taken in the event that, during the course of the change of use being brought into use, any contamination is found which has not been previously identified, to ensure that any contamination risks on site are appropriately mitigated, to protect the health of the future users of the Class E use (condition 6).

A condition is necessary requiring that remediation works are verified, to ensure that any contamination risks on site have been appropriately mitigated in accordance with the approved remediation scheme, to protect the health of the future users of the Class E use (condition 7). To ensure that planning conditions are kept to a minimum whilst still ensuring that any contamination risks are appropriately mitigated, the requirements of the Council’s suggested condition No 11 (relating to imported material) have been included within part (c) of condition 7.

The Council’s Environmental Protection team have raised concerns that the roof and walls of the barn may be composed of cement bonded asbestos panels. A condition is therefore necessary requiring verification that any identified asbestos has been removed from the site and appropriately disposed of, to protect the health of the future users of the Class E use (condition 8).

As some of the conditions mentioned above would require works on site to mitigate the transport and highways impacts of the change of use hereby approved, a condition is necessary restricting the hours of work to implement the change of use, to protect the amenity of the users of the footpath adjacent to the site and walkers using [name] from noise in this usually quiet and tranquil rural area (condition 9). I have omitted the Council’s suggested wording, “No work relating to the construction of the development hereby approved, including works of demolition or preparation prior to operations, or internal painting or fitting out...”, as the change of use hereby approved does not involve any associated operational development.

[name].(12) of Part 3 of Schedule 2 of the GPDO requires the development to be carried out in accordance with the approved details. The submitted plans are included in the formal decision at paragraph 1 above. The Council’s proposed condition specifying the approved plans (suggested condition No 1) is not necessary.

[name].3.(2) of Class R of Part 3 provides that development must begin within a period of 3 years starting from the date of this decision. The Council’s proposed commencement condition (suggested condition No 2) is not necessary.

It is not necessary to impose a condition relating to the requirements of paragraphs R.3.(3) and R.3.(4) of Class R, regarding any planning permission granted on an application in respect of associated operational development, as those provisions apply in any event by operation of the GPDO. Therefore, the Council’s suggested condition No 3 is not necessary.

The change of use approved does not provide consent for any associated operational development required to convert the barn for the approved use. As set out at paragraph R.3.(4) of Class R, associated operational development means building or other operations in relation to the same building or land which are reasonably necessary to use the building or land for the use proposed under Class R. An application for planning permission would be required for any such proposed works.

With this in mind, there is no indication that the change of use under consideration in this appeal involves demolition, or the stripping of the barn. Thus, the Council’s suggested condition No 13 is not relevant to the change of use hereby approved. If planning permission were to be granted at a later date for any proposed associated operational development, the Council would have the opportunity to impose suitable planning conditions on any grant of planning permission at that time.

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

The change of use hereby approved shall not be brought into use until the vehicle parking spaces have been provided in accordance with the following approved plan: Access and Visibility ([name]. NJC-001). Thereafter those spaces shall be retained for the parking of vehicles only.

The change of use hereby approved shall not be brought into use until the 2 metres by 55 metres visibility splays shown on the approved plan: Access and Visibility ([name]. NJC-001) are free of any obstruction exceeding 1 metre in height above the adjacent carriageway line. The visibility splays shall be retained as such thereafter.

The change of use hereby approved shall not be brought into use until the site access is constructed with a non-migratory surface material for a minimum distance of 6 metres measured from the nearside edge of the carriageway on the adjacent highway. The site access shall be maintained in that condition thereafter.

The change of use hereby approved shall not be brought into use until a Servicing Management Plan has been submitted to and approved in writing by the Local Planning Authority. The Servicing Management Plan shall include details of the maximum size of vehicle which can visit the site. The change of use hereby approved shall thereafter be carried out in accordance with the approved Servicing Management Plan.

No works pursuant to the change of use hereby approved shall commence until there has been submitted to and approved in writing by the Local Planning Authority: (a) a desktop study carried out by a competent person documenting all the previous and existing land uses of the site and adjacent land in accordance with national guidance as set out in [name]. 2 and 3 and [name] 10175: Investigation of potentially contaminated sites - Code of Practice and the Environment Agency‚ [name] (LCRM) (or equivalent [name] and [name] if replaced); and, unless otherwise agreed in writing by the Local Planning Authority: (b) a site investigation report documenting the ground conditions of the site and incorporating chemical and gas analysis identified as being appropriate by the desktop study in accordance with [name] 10175: Investigation of potentially contaminated sites - Code of Practice and the Environment Agency‚ [name] (LCRM) (or equivalent [name] and [name] if replaced); and, unless otherwise agreed in writing by the Local Planning Authority: (c) a detailed scheme for remedial works and measures to be undertaken to avoid risk from contaminants and / or gases when the change of use hereby approved is brought into use. The remediation scheme must include a timetable of works and site management procedures and the nomination of a competent person to oversee the implementation of the works. The remediation scheme must ensure that the site will not qualify as contaminated land under [name] of the Environmental Protection Act 1990 (as amended) and if necessary incorporate proposals for the future maintenance and monitoring of the site.

If, during the course of the change of use hereby approved being brought into use, any contamination is found which has not been previously identified, work shall be suspended until: i. additional measures for the remediation of the site have been carried out in accordance with details that shall first have been submitted to and approved in writing by the Local Planning Authority; and ii. a verification report for all the remediation works has been submitted to and approved in writing by the Local Planning Authority.

The change of use hereby approved shall not be brought into use until there has been submitted to the Local Planning Authority verification by the competent person approved under the provisions of condition 5) (c) above that any remediation scheme required and approved under the provisions of condition 5) (c) above has been implemented fully in accordance with the approved details (unless varied with the written agreement of the Local Planning Authority in advance of implementation). Unless otherwise agreed in writing by the Local Planning Authority such verification shall comprise: (a) as-built drawings of the implemented remediation scheme; (b) photographs of the remediation works in progress; and (c) certificates demonstrating that sufficient sampling of imported material has taken place and that any imported and / or material left in situ is free from unacceptable levels of contamination. Sampling should take place in situ at a frequency of 1 per 100m3. Thereafter the site shall be monitored and maintained in accordance with the remediation scheme approved under condition 5) (c) above, unless otherwise agreed in writing by the Local Planning Authority.

The change of use hereby approved shall not be brought into use until there has been submitted to the Local Planning Authority verification that any identified asbestos has been removed from the site and disposed of by a licensed asbestos contractor in accordance with the Control of Asbestos Regulations 2012 (as amended).

Works on site relating to the change of use hereby approved shall take place only between the hours of 07:30 and 18:00 on Monday to Friday, and between the hours of 08:00 and 13:00 on Saturdays, and shall not take place at any time on Sundays or on Bank or Public Holidays. End of Conditions Schedule