Whilst permitted development legislation grants farmers the right to erect buildings without planning permission if deemed ‘reasonably necessary’ for the purposes of agriculture, it requires that an application must still be made to the council prior to work starting.
Whilst not full planning permission, this was intended as determination of whether the council’s prior approval would be required in relation to the siting, design and external appearance of the building and became known as the ‘prior approval’ process. Through this process, the council would then confirm either that prior approval is not required, or that if it is required, whether it is granted or not.
On the face of it, this is a simple and straight forward process, but as a recent court case involving a Herefordshire farmer demonstrates, the devil really is in the detail – or lack of!
Mr Smolas and his wife farm sheep on 40 acres near Hay on Wye and over the years have diversified to convert several older farm buildings in to holiday cottages, as well as adding a glamping site. Wishing to expand their enterprise further to include organic vegetables, flower production and specialist animal breeding, the Smolas’ decided they needed a new barn to store machinery, equipment, and fodder and a prior approval application was subsequently submitted.
Crucially, however, limited information was submitted with the application that detailed the need for the new building. The council decided that prior approval was required and refused to grant it on the basis that there was insufficient evidence that the building was reasonably necessary for agriculture. The council additionally considered the design of the building not to be functional in nature and appeared overly designed for its stated purpose.
Unsurprisingly, Mr Smolas challenged the decision in the High Court, arguing that the prior approval process is simply light touch, and that the council was not in a position to rebut his statement in the application that the building was reasonably necessary for the purposes of storing machinery and fodder.
The judge disagreed, stating that the council is bound to consider and determine whether the development falls within the definitional scope of the particular class of permitted development, and that Mr Smolas could – indeed, should - have given the council considerably more information relating to the need for the new agricultural building, including his plans to diversify and expand.
Whilst this decision may be viewed as surprising by many and raise concerns that it could lead to a shift away from the ease with which prior approval has previously been obtained, it actually raises an important point. Simply that applicants and their agents should ensure that sufficient information is submitted at the outset with the prior approval application so that the reasons for the buildings being needed for agricultural purposes are indisputable when reviewed by the council.