This application specifies that it is a re-submission of planning application 3PN/2016/0029/UC which was appealed and the appeal refused. Hoe and Worthing Parish meeting considered that application with another that was submitted close to the same date (3PN/2016/0006/UC) and provided written responses which we ask are considered with this application to avoid lengthy repetition. A copy of the response document relating to the appeal is attached for reference as it does not form part of the various files held by the Local Planning Authority (LPA)
The essence of the current application is that both the case officer and appeal inspectors erred when they concluded that the degree to which there was evidence of an agricultural business was insufficient for the purposes of class Q. In this response we will seek to reinforce our previous observations and support those of the appeal inspector and previous case officer that any evidence of agricultural business activity is insufficient to qualify this proposal for permitted development.
We take issue with the contention that this is the only aspect of the class Q provisions that should be reconsidered here however as we take the view that other aspects of Class Q, as they affect this application, should also be reviewed. To that end we wish to highlight the following points.
Agricultural issues
Class Q qualifies that it cannot be relied on to support a claim for permitted development ‘….if the site was not used solely for an agricultural use as part of an established agricultural unit’. In this application the applicant indicates that the unit extends to 5 acres that have been run as an agricultural unit.
Previously this parish challenged this and stated that the vast majority of the five acres was overtly maintained as a grassed area and that any activity taking place in the pollytunnels and metal building were so discreetly conducted with little activity that they must, at best, be on a very small scale. The observations of both the case officer and appeal inspector who visited the site confirmed this last point.
With regard to the maintenance of the extensive expanse of grass, the response compiled by our parish had wrongly described the machine used as ‘a ride on lawnmower’. This error was subsequently pointed out by the applicant who quite correctly stated in a letter received by the LPA on 13.05.2016 (3PN/2016/0029/UC) that the machine should correctly be described as a ‘tractor and topper’. He observed ‘The area of field would be too large to do with a ride on lawnmower and we have a tractor and topper with which we cut the grass which is stored in our agricultural building on site. Prior to the building of the barn we had the machinery but had to store it in a farmers barn in North Elmham and had to travel each time we needed to use it.’ ‘Topping’ grass in this way is not an agricultural or business activity so it follows that there has never been a point where the grassed area that covers almost all of the site has been used by the applicant for agriculture. It was not therefore ‘….used solely for an agricultural use as part of an established agricultural unit’ (Class Q).
Any agricultural use that might have been taking place was in the two tunnels and the metal building, unobserved by the many people who pass and re-pass this very open site daily. The appeal inspector did not concern himself with whether the metal building was being used for agriculture because the case officer had concluded during her visit that it was. This conclusion was based on finding in the building ‘A tractor and topper were stored with some other machinery, pots and mesh fencing, which is confirmed in the supporting information provided by the applicant to support the horticultural business’. That business was claimed by the applicant to be taking place in the two tunnels and as neither the tractor, topper or fencing were connected with those structures the storage was not associated solely with agricultural use.
The applicant states in this application ‘It is also a key point that it does not matter what is happening at the site now, but rather what was happening in March 2013’ (the qualifying date in Class Q).
The previous case officer, after noting the storage in the metal building stated ‘As such I am satisfied that the site is being used for agriculture and have no reason to conclude that the site was not in agricultural use on 23rd March 2013.’ This did nothing however to explain how the class Q requirement that the site was used ‘solely’ as part of an agricultural unit was overcome and as there is no evidence offered that it was, we believe this point should be re-considered.
The business that the applicant and the agent explained at some length in previous applications was to grow on native trees to very substantial sizes for sale as mature specimens. At the initial planning hearing the applicant described the size of the stock to be sold as very considerable indeed, after being purchased when small and grown on. In order for the business of growing these trees to have been in existence in the tunnels on 23.03.13.the specimens from that year would now be more than six years old and clearly visible to those passing the site.
Clearly however, from the observations of both the case officer and appeal inspector the volume of specimens being grown is very modest and in no way consistent with the extremely optimistic forecast made in the projections that accompanied the earlier planning applications. In fact the level of activities being carried out at the time of the site visits was so low they were concluded to be on the level of a hobby and the appeal inspector was not satisfied a business had ever got off the ground
Determining whether there is an agricultural business operating is not the same as concluding whether there is some agricultural (including horticultural) activity. As stated, there is certainly not either operating over the whole ‘holding’ so that it in any way resembles an ‘established agricultural holding’ but whether there is an agricultural business operating must rely on the sum of all of the evidence which includes the degree of commercial activity. In our parish we have examples of ‘hobby farming’ on small acreages, of sheep being used to replace lawnmowers and the small scale selling of home grown produce. All of these could perhaps be seen as agricultural activities but it would be an impossible leap to claim they were taking place on ‘established agricultural holdings’ and fanciful in the extreme to fashion them as ‘agricultural businesses’.
The applicant argues that there is no statutory definition of a ‘trade or business’ in planning law, it is therefore necessary to rely on a dictionary definition and introducing a test relying on concepts such as of the level of activity or profit is flawed. Online reference www.businessdictionary.com answers the question ‘what is a business?’ with a definition….
‘Organisation or economic system where goods and services are exchanged for one another or for money. Every business requires some form of investment and enough customers to whom its output can be sold on a consistent basis to make a profit’.
This conforms with our understanding of what a business is and our parish agrees with the conclusions reached by the case officer and inspector based on the evidence, that the activities at this site have never risen above the level of a hobby.
Structural issues.
Paragraph 3.2 of the Acorus report accompanying this application purports to lay out the Planning Practice Guidance relating to the building works allowed under Class Q. This effectively summarises the provisions of the order but does not go beyond that to include the aspects covered in paragraph 105 of the guidance. This lays out ….’it is not the intention of the permitted development right to include the construction of new structural elements for a building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes from the external works to provide for residential use that the building would be considered to have permitted development right’. Taking those things and the information provided in the application into account, it appears to be correct to consider the following points.
The nature of the building is that it is lightweight cladding mounted on steel supports and the most common method of erection of this type of structure is to mount the supports on individual ‘piled’ foundations. If that arrangement applies in this case it would not be possible to construct the new low brick outer wall proposed without new foundations and therefore Class Q could not be relied on.
If the existing structure is mounted on a concrete pad it would have to be thick enough to support the weight of the two surfaces and insulation that will form the replacement outer wall. It would have to currently exceed the overall width of the steel frame to allow sufficient space for the outer leaf of the brick part of the wall to be erected, whilst leaving a margin to ensure it is not built at the very edge of the concrete. The pad width would therefore have to exceed the frame width by at least 400mm and if it was necessary to add further concrete to allow for the building of the walls then this would also be outside of the scope of Class Q.
There is no structural appraisal included with the application, although it is clear there will be an uplift in the structural loading, so this issue is not addressed, other than by an assertion ‘There will be no need for additional structural elements to enable it to support the external elements.’ It is also noted that in replacing the existing thin sheet cladding with a brick wall (typically a minimum of 100mm thick), the applicant states ‘The proposed design would not extend the external dimensions of the building in any direction’. That can only be correct if the existing cladding also has a 100mm profile.
The provisions of Class Q only allow for ‘conversion’ of qualifying agricultural buildings and not for replacement or, what amounts to substantially rebuilding. The Acorus report accompanying the application makes the following statement in this respect…
‘The barn is steel frame with steel sheeting on both walls and roof. The cladding will be removed and replaced with brick dwarf walls and timber cladding above, to give a more traditional appearance. The roof will be replaced with a lightweight material such as zinc, which will be finished in slate grey’.
What is clear from this is that all of the existing external structure (walls, doors and roof) will be stripped away to leave only the basic steel supporting frame as a start point for development. These are exactly the circumstances that gave rise to the decision in The High Court Hibbitt and Another v Secretary of State for Communities and Local Government and Another [2016]. In this case the same work was proposed, with the court finding that it went a very long way beyond being a ‘conversion’ and as the structure would be substantially re-built there was no entitlement to permitted development under Class Q.
To cast further light on the issue the court specified that a development that includes new structural elements is a ‘rebuild’ and not a ‘conversion’. It was made clear that the proposal in Hibbitt went a long way beyond a conversion, was in all practical terms starting afresh and if a development does not amount to a ‘conversion’ it ‘fails at the first hurdle’.
Other issues
As already indicated, the submissions made by this parish in respect of the two identical and earlier planning applications should still be considered but we also feel we must underscore the impact this proposal would have if it was granted. Although this is a substantial concern to Hoe parish it is only fleetingly referred to in the application in respect of prior determination (Class Q(b)) as….’The location and sighting of the building does not make it undesirable or impractical to change the use. It is in the vicinity of several other houses.’
This parish has resisted all previous efforts to develop this land which has always included a residential element. That resistance included objecting to the current building as well as the establishment of a separate dwelling that was proposed at the time. Consent for the now existing structure was only granted after the elected planning committee were persuaded that research conducted by the applicant and a business forecast demonstrated an extensive turnover and income, while it would allow for the creation of a rural enterprise without impacting on its surroundings. It also considered the building colour, use and design would be appropriate for its setting.
It is quite clear from day to day observation and from the observations of the previous case officer and appeal inspector that the business never took off but even if it had, in the form placed before the planning committee, it would only have involved extremely infrequent movement of vehicles and people. A residential use would make a far greater impact and in this case it would be achieved without any opportunity for the elected committee to approve the design or use. Our parish would also have no input but on considering the elevation drawings submitted on this occasion we have concluded it can only be entirely incongruous with the built and natural existing environment, obtrusive in the landscape and inconsistent with the history of the area. Contrary to the assertion of the applicant it would be entirely undesirable, inappropriate and destined to appear stridently at odds with this setting.
The application refers to this application in terms of its orientation against nearby farm cottages. Those buildings are typical of the part of Hoe situated to the East of the Holt Road (B1110) in that their origins are the 18th century or earlier and their construction relied heavily on local materials (brick and flint). The houses closest to the proposal site are associated with Manor Farm and those further distant were once part of Hoe Hall estate or small farmsteads. Those mentioned last are designated a ‘conservation area’ and the only reason that Manor Farm was not included is because of the strong insistence of the (then) owner. Nevertheless there is a historic and architectural consistency that the proposed new dwelling would move directly away from.
One final thing that should be referred to is the inclusion by the applicant of an appeal decision dated 01.03.2017 (APP/G5180/X/16/3151746) and insistence that it should inform the decision in this case as it is of a later date than the earlier refusal at the site. It relates to a site in Kent where the main issues are the same as in this case i.e. whether there is an agricultural business and whether the ‘conversion is compliant with class Q. The first question is dealt with in paragraphs 10 and 11 and there appears to be no direct parallel with the current case because of the background and lack of challenge. At paragraph 17 however the appeal inspector succinctly describes the building subject of the appeal and the works proposed for its ‘conversion’. Those include removing the outer coverings to leave only a steel frame as a start point, as is proposed in this application. The inspector drew a direct parallel with Hibbitt and concluded that as the work went well beyond conversion it was outside of the scope of Class Q.
Conclusion
Our parish strongly objects to this application and believes it has demonstrated a rationale for agreeing with both the previous planning officer and appeal inspector, that there is a dearth of any evidence of agricultural business use. We agree that the activity on the site resembles a hobby rather than a business and we continue to observe that there is no evidence of an agricultural unit used solely for agriculture.
We take the view that what is proposed would be stridently out of place in its setting and would require such a degree of structural development that it is outside of the scope of the Class Q provisions.
We cannot see that there has been any change in the circumstances that brought about a refusal of the last application and appeal but the precedent of Hibbitt in 2016 has served to clarify aspects of what is acceptable in terms of the degree of development required.
We do not agree with the applicant that only the issue relating to agricultural business use is relevant but ask that a wider consideration of the issues is given, as we have laid out here.
We ask that this application is refused.
Trevor Wood
Chairman, Hoe and Worthing Parish Meeting
