Appeal 6002868

The appeal is dismissed.

An application for an award of costs was made by the Council of the London Borough of Bromley against [site address] Ltd. This application is the subject of a separate decision.

The description of development above is taken from the planning application form. I have however removed any wording which in itself does not relate to acts of development.

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 (the GPDO), planning permission is granted for the change of use of an agricultural building, and any land within its curtilage, to a residential use, and any building operations reasonably necessary to convert the building.

Amendments to Class Q took effect from 21 May 2024. However, under transitional arrangements, applications could be made until May 2025 for development which would have been compliant with the previous rules. The details within the application form, including date of submission of the planning application and way of the questions answered, show that the appellant sought [name] under the transitional arrangements. Therefore, I shall determine the appeal under the old rules, irrespective of the appellant’s request for me to consider the proposal under both sets of regulations.

Schedule 2, Part 3, [name] of the GPDO states that the local planning authority may refuse an application where, in its opinion, 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.

My attention is drawn to previous appeal decisions1 for development within the appeal site, including the change of use of the agricultural building into a dwelling. I have had regard to those decisions only insofar as they are relevant to my assessment of the main issues in this case, but I have determined the appeal based on the evidence and details of the proposal before me.

The main issues are: • whether the proposed development would constitute permitted development, having regard to whether the requirements of Schedule 2, Part 3, Class Q paragraph Q.1(a) of the GPDO would be met; and • if so, whether prior approval would be required in accordance with the relevant conditions set out in [name].2(1) of the GPDO.

Class Q permits development consisting of (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) or development referred to in paragraph (a) together with building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwellinghouses).

[name].1(a) of the GPDO requires that the site must have been used solely for an agricultural use as part of an established agricultural unit on 20 March 2013 (the relevant date).

[name] of the GPDO defines an ‘agricultural building’ as one used for agriculture, and which is so used for the purposes of a trade or business and ‘agricultural use’ refers to such uses. An ‘established agricultural unit’ means agricultural land occupied as a unit for the purposes of agriculture. Whether this is the case is a matter of fact and degree based on the merits of the case and the evidence presented.

The Planning Practice Guidance and caselaw2 have established that the onus of proof falls to an appellant with the evidence tested on the balance of probabilities. Accordingly, an appellant is required to provide sufficient evidence in making their case. Also, an appellant’s evidence should not be rejected simply because it is uncorroborated. If there is no evidence to contradict their version of events, or make it less than probable, and their evidence is sufficiently precise and unambiguous, it should be accepted. 1 Appeal Ref: APP/G5180/W/21/3273659; Appeal A Ref: APP/G5180/X/17/3188807; Appeal B Ref: APP/G5180/W/17/3187672; Appeal C Ref: APP/G5180/W/17/3187675 2 Gabbitas v SSE & [name] [1985] JPL 630 7

The appellant has submitted photographs, a social media profile and statutory declarations (dated 11 May 2015 and 27 November 2020) from a previous tenant stating that they farmed the land for producing hay and sheep grazing and used the barn for storing hay for several years before the land was sold in 2014. The previous tenant declared that these activities were undertaken as a part of the tenant’s agricultural business on the basis of a contractual arrangement with the owner of the land. The statutory declaration dated 22 November 2020 made by other hay farmer is largely consistent with the statements of the previous tenant.

However, the social media profile supplied does not include any indication regarding where the photographs were taken, and the oldest post within this evidence dates 31 October 2016. While this does not negate earlier activity, it does not demonstrate it either. Moreover, no details relating to accounts and invoices to indicate that the activity at the site, including the barn, at the relevant date, had been carried out for the purpose of a trade or business are before me. Additionally, the previous tenant stated that he rented land elsewhere on a contract basis. Therefore, I cannot rule out that the previous tenant cut hay on the site as part of an agricultural operation taking place elsewhere.

The statutory declarations made by two parties indicate that around 100-200 sheep grazed at [name] every winter until 2014 for about 4 to 5 weeks per year to support the production of hay. This suggests that this agricultural activity was taking place, but only for a time limited period. Moreover, the evidence indicates that the sheep belonged to a third party, and they grazed the land as a part of their agricultural business.

The statutory declaration (dated 12 August 2014) of the previous owner of the site and their letters to the Council dated 17 February 2017 and 6 March 2017 state that he stored tractors in the barn. However, it appears that these were classic tractors and there is no substantive evidence to suggest that they were used in connection with an agricultural activity. While the evidence by the previous owner did not indicate when the classic tractors were stored within the barn, the declaration made by the previous tenant suggests that the tractors stored in the barn were removed except for one by the end of 2012.

Further, the appellant’s statutory declarations (dated 23 January 2021 and 9 January 2022) state that when they visited the site in the first week of March 2013, they saw that the secure part of the barn was empty and the roller shutter door was not operational. They also state that during a previous inquiry3 the Council admitted that the likelihood of tractors being stored inside the barn on the relevant date was small. There is no compelling evidence before me to suggest that the Council’s position in this respect has changed.

Having regard to the above considerations, I find it likely that the classic tractors were not being stored within the barn on the relevant date. However, I find that the appellant has failed to provide sufficiently precise and unambiguous evidence to establish, on the balance of probabilities, that the site including the barn was in agricultural use for the purposes of a trade or business as part of an established agricultural unit on the relevant date. 3 Appeal A Ref: APP/G5180/X/17/3188807; Appeal B Ref: APP/G5180/W/17/3187672; Appeal C Ref: APP/G5180/W/17/3187675

Corrections were added to the appellant’s statutory declarations. However, the documents were not signed in the presence of a solicitor. Therefore, I afford negligible weight to these corrections.

For the above reasons, I therefore conclude that, as a matter of fact and degree and based on the evidence before me, the proposal would not satisfy the requirements of Schedule 2, Part 3, Class Q.1(a) of the GPDO, and therefore is not development permitted by it.

[name] have concluded that the proposed development is not permitted development under Class Q of the GPDO, it is not necessary to consider whether prior approval would be required.

Reference is made to a planning application4 approved by the Council for the change of use of agricultural building to Class C3 dwellinghouses under Class MB of Part 3 of schedule 2 of the GPDO 1995 as amended. My attention is also drawn to planning applications at [address] and [address].

I have had regard to the court judgment5 that has been referred to regarding consistency in decision making and the materiality of other decisions. However, this case turns on its own merits and evidence, and there is little before me to suggest that the details and circumstances associated with these examples would be comparable to the proposal before me. Therefore, these examples do not justify allowing the appeal.

For the reasons given above the appeal is dismissed.