Appeal 6004864

The appeal is dismissed.

The reason for refusal refers to a proposed building which the Council has confirmed this is a typographical error. The description on the decision notice is the same as that above. I am satisfied, based on the Council’s evidence, that the proposal was assessed as a track and not a building.

Based on the submissions provided, the dispute in this case centres around whether the proposal relates to land which is in agricultural use and whether the proposed access track is reasonably necessary for the purposes of agriculture. Therefore, the main issue is whether the proposed development would be granted planning permission by Article 3(1), Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the Order).

In order to be permitted development under Part 6, Class A of the Order it is necessary that the development is carried out on agricultural land comprised of an agricultural unit of 5 hectares or more. Clarification of the interpretation of Class A is provided at paragraph D.1.(1) to Part 6. This states that ‘agricultural land’ means land which, before development permitted by this Part is carried out, is land in use for agriculture and which is so used for the purposes of a trade or business.

The application form states that the total area of the agricultural unit is 36.5 hectares. I note, however, that there is no plan submitted showing the extent or location of the agricultural unit in relation to the proposed track. The submitted plans show only the extent of the proposed track which would connect from another track, across two grass fields to an existing open fronted structure.

The appellant states that there is an active agricultural business at the appeal site and that the existing structure is in agricultural use. During my site visit I saw that the fields where the track would be located were being used for grazing sheep. However, there is no substantive evidence before me to demonstrate that the structure or the fields are in agricultural use and are used for the purposes of a trade or business.

Furthermore, the fact that there is currently no vehicular access to the structure and fields does not sufficiently demonstrate why the proposed track is reasonably necessary for the purposes of agriculture.

Whilst the test is not one of ‘absolute’ necessity, the onus is upon the appellant to demonstrate that the land is in agricultural use and how the proposal is reasonably necessary for the purposes of agriculture within the unit. The evidence presented falls short of satisfying me on this point. That there may previously have been a vehicular access at the site does not materially alter this finding.

Consequently, there is insufficient evidence to demonstrate that the requirements applicable to Part 6 of the Order have been met. As such, the proposal is not permitted development under Schedule 2, Part 6, Class A of the Order.

The appellant contends that the Council was not entitled to have refused the application on the basis it considers the proposal not to be permitted development. In this regard, my attention has been drawn to an appeal decision1 for a road proposed under Part 6, Class A, and case law dated 20182 cited within that appeal decision. However, that case law is inconsistent with the New World Payphones case3 which was decided more recently and by a higher court. In that case it was held that the authority is bound to consider and determine whether the development otherwise falls within the definitional scope of the particular class of permitted development. The New World Payphones case was applied in a subsequent case in 20214 in which it was held that the Council did not act unlawfully in deciding that the proposed development did not come within the scope of Part 6, Class A of the Order. Accordingly, this consideration does not alter my findings on the main issue of this appeal.

I have also had regard to the advice contained in Planning Practice Guidance5 concerning the consideration of matters for prior approval. However, because I have found that the proposed development would not be permitted by the Order, it is not necessary, in this case, to go on to consider those matters which would require prior approval. 1 Ref: APP/E2205/W/21/3267998 dated 06 July 2021 2 R (oao Marshall) v [name] & Pitman [2018] EWHC 226 (Admin) 3 [name] v SSHCLG & New World Payphones Ltd [2019] [name] 2250 4 R (oao Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) 5 Paragraph: 027 [name]: 13-[phone]

I acknowledge the significant number of interested party representations about this appeal, including those in support of the proposal. However, my determination of the appeal may rest only on the criteria set out in the Order.

For the reasons given above I conclude that the appeal should be dismissed.