When Agricultural Development Isn't - The Section 55(2)e Exception

I was recently posed this question: ‘Does the change of use from a non-agricultural use to an agricultural use (being one within the definitions of the Planning Acts) require planning permission’. Apparently a local planning department had requested a planning application. 

My instinctive response was 'no it doesn't'. But you know what it's like, you begin to think twice about it and then doubt your recollections and understandings, and before you know it you're up to you're eyeballs in Planning Law tomes and yellowing photocopies of long lost case-law.

This is a potentially complex point which certainly challenged my fading memory cells first thing on a Monday morning. However, this issue goes way back in planning and - as there is evidently some uncertainty about it both in the public and private sector - I set out my understanding of the matter.

Section 55 of the Town & Country Planning Act 1990 establishes the meaning of development in planning terms. In section 55(2) the Act also establishes certain operations and land uses that DO NOT constitute development. It states (inter alia):

55(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;

On its face the Act stipulates that the use of land for agricultural purposes is specifically excluded from the definition of development. Crucial to the operation of planning enforcement provisions is the concept of the carrying out of development without planning permission. Where the very activity at issue does not involve development at all, it is not then possible to turn it into development simply for the purposes of requiring a planning application or enabling enforcement action to be taken against the proposed use. If the land use is not development by default then there is no material development in planning terms involved in any change to that use, and it cannot then be considered as development for planning application or enforcement purposes.

McKellan v Minister of Housing & Local Government (1966) 198 EG 683 is one of the leading cases on this point which established that S.55(2)e (or rather its equivalent reference at that time as this provision has been in planning law for a long time) has a broad interpretation. 

In addition McKellan is referred to in the more recent case of JL Engineering Ltd v Secretary of State for the Environment (1993) EGCS 24 which was determined in the Court of Appeal.

In this latter case that there was an original use for industrial storage that then altered to an agricultural storage use for a period of years (1973 to 1978). There was then a reversion to the original industrial storage use which the council took action over as a material change of use. It was not the industrial to agriculture use they were concerned about, but the reversion back to the previous industrial use from agriculture. The argument put for the defendant was that because the change of use to agriculture did not (by virtue of S.55(2)e) involve development, the original use remained intact – questions of abandonment notwithstanding.

The Court held that the change of use to agriculture ‘supplanted’ the original industrial use (thereby removing the chance to revert to it without permission), but although the use for agriculture self evidently involved a change of use, it was not one that was challengeable as it did not constitute development under the Act.

  

The Planning Encyclopaedia is similarly clear on its position. The 'bible' notes that, "...in McKellan...the court held that a broad interpretation should be given to the sub-section, and that it should be taken as authorising all changes of use from non-agricultural to agricultural use".

A further case, North Warwickshire Borough Council v Secretary of State for the Environment (1984) JPL 434, found the the rights afforded by the sub-section also extended to any building occupied together with agricultural land. The Encyclopaedia notes that: "Thus an intensive agricultural use may be introduced to an existing building in an urban area without need of planning permission (though subject to public health and nuisance controls)".

So the change of use of any land to an agricultural use (with 'land' also including buildings) does not require planning permission by virtue of Section 55(2)e.

It is entirely possible that land could be returned to agricultural use anywhere. And at a time when agricultural land values are continuing to rise, there is evident scope to convert land as an alternative to sustaining an unprofitable non-agricultural land use.

'Agriculture' includes - amongst other things - horticulture, fruit growing, market gardens, nursery grounds, and by way of case-law the creation of allotments (Crowborough Parish Council v Secretary of State for the Environment (1981) JPL 281). The use of land for woodlands and forestry is also included by the Section. So perhaps we could see some useful reversion of land to purposeful agricultural uses in the heart of our urban areas as much as the wider countryside. I'd like to think so anyway.

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Picture courtesy of http://www.capitalgrowth.org