Hayes, R (on the application of) v Stroud District Council

A condition attached to agricultural permitted development rights is construed in the context of the statutory scheme that created those rights. Where a building was permitted because it was reasonably necessary for agriculture, the agricultural use permanently ceases when it is replaced by another use or a mixed use, even if some agricultural activity continues. Fluctuations in the intensity of agricultural use do not themselves trigger the condition. Once triggered, the removal requirement is a material consideration in determining a later planning application that would authorise retention of the building. Failure to consider that matter renders the decision legally flawed.

The claimant sought judicial review of the defendant’s retrospective planning permission for the processing, seasoning, drying, storage, sale and supply of firewood at a farm in an Area of Outstanding Natural Beauty containing a listed farmhouse. The principal issue was whether the condition attached to barn B’s construction under agricultural permitted development rights had been triggered.

The claimant argued that the agricultural use had permanently ceased when the barn began to be used for the firewood business, despite some continuing agricultural use. The defendant argued that the condition operated only when all agricultural use had ceased. The court also considered whether the defendant had failed to take account of the removal requirement as a material consideration.

1. The claim succeeded on the sole ground for which permission had been granted. The planning permission granted on 12 July 2021 was quashed.
2. The construction of the condition required an ordinary, natural and common-sense reading, considered in the context of the whole statutory scheme and the purpose of the condition. The court agreed that the outcome would be the same applying the principles concerning interpretation of planning conditions in Trump International Golf Club Limited & Anor v The Scottish Ministers [2015] UKSC 74 and London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government & Ors [2019] UKSC 33.
3. Part 6 Class A of the Town and Country Planning (General Permitted Development) Order 1995 permits agricultural buildings only where they are reasonably necessary for the purposes of agriculture. The condition in A.2(5) must be read consistently with that entitlement. Agricultural use permanently ceases when it is replaced by another use or by a combination of agricultural and other uses. A continuing agricultural element, whether described as de minimis or ancillary, does not prevent the condition being triggered.
4. The intensity of agricultural use may increase or decrease without triggering the removal requirement. The trigger is permanent cessation of the agricultural use that justified the permitted development right.
5. The statutory scheme and section 55 of the Town and Country Planning Act 1990 reinforced the conclusion. A change from agricultural use to another or mixed use would amount to development requiring approval outside the scope of Part 6 Class A.
6. On the facts as presented in the application, the condition had been triggered and removal of barn B was material to the planning application. The defendant accepted that it had not taken that matter into account. The decision was therefore legally flawed and had to be quashed. It was unnecessary to determine separately whether an agricultural use could lawfully be ancillary to the firewood use.