Farm diversification is becoming increasingly important for our agricultural clients, and putting farmland to alternative use is one way of diversifying income streams. There is a lot of contradictory commentary available online about whether planning permission is needed to use farmland for allotments. It's time to set the record straight.
1. When is planning permission required?
Planning permission is required where the statutory definition of "Development", as set out in Section 55 of the Town and Country Planning Act 1990 (the TCPA 1990), is met. Development falls into two categories: (1) operational development – building things; and (2) material change of use. In the context of allotments, one needs to consider (1) whether anything built to facilitate the allotments would need planning permission; and (2) whether the use of the land is a material change of use.
The use of land for agriculture and forestry is excluded from the definition of development in accordance with Section 55(2)(e) of the TCPA. Therefore, if an allotment use were to be considered as agricultural then planning permission would not be required for such a purpose.
"Agriculture" is defined within s336 of the TCPA 1990 to include the following: horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes.
The High Court decision of Crowborough Parish Council v Secretary of State for Environment (1982) (the Crowborough Case) held that allotments are capable of falling within the definition of "Agriculture" for the purposes of the planning acts. This judgement continues to be good precedent. However, it is short on detail in respect of the requirements for an allotment to be considered as agricultural and so further consideration is needed as to whether there would be a material change of use.
2. Is there a material change of use?
In a recent appeal decision (APP/C3430/X/22/3297848), the Planning Inspectorate (PINS) considered whether allotment use was considered to be agricultural. The Crowborough Case was endorsed, and it was noted that the use included "the growing and cultivation of fruit trees and vegetables and keeping hens for eggs [which] are all firmly within the definition of agriculture". In addition, it was noted that there were less intensely managed areas, such as growth of rye grass and wildflowers which could reasonably be considered as agriculture.
This leads us to the question of whether there has been a material change of use. Materiality is determined by "fact and degree" in each case. In this appeal, the Local Planning Authority were arguing that there was a material change of use as the allotment in question could be considered as an extension of a residential garden. PINS did not accept this noting that land used for residential purposes would be characterised by for example: a maintained lawn, flower beds, formal or informal seating areas, patios, decking and play equipment.
Appeal decision (APP/M0655/C/10/2135179) also endorsed the Crowborough Case noting that the question should be confined to whether the definition of agriculture is met, rather than whether the use was more intense than before.
The case law and appeal decisions on this topic are very fact dependent, and each case must be assessed on its own merits. In some cases, agricultural land may be subject to special planning restrictions – for example planning conditions or planning obligations that restrict development. Because each case is different, we always recommend that an application for a certificate of lawful use is sought before putting farmland to use as allotments, and we regularly prepare and submit such applications on behalf of our clients.
3. Will there be Operational Development?
Even though planning permission will not usually be required for the use of farmland as allotment land, planning permission may still be required for operational development unless you can rely on permitted development rights. Permitted development rights for agricultural uses generally only apply where the agricultural use is a trade or business, as opposed to hobby allotments. Permitted development rights for agricultural uses are a complicated area, and careful consideration would need to be given to whether things like sheds, fences, greenhouses, parking areas and accessways would fall within permitted development rights. We regularly advise our clients on the scope of permitted development rights.
Summary
In summary, whilst the use of agricultural land for allotments will not usually require planning permission, the local planning authority will likely look closely at your use to see if there has been a material change of use which is a question of fact and degree which can be subjective. If you are considering any operational development in connection with the allotment use, close consideration will need to be given to your proposals to determine whether such works require planning permission.
If you would like any advice on your specific queries in relation to your agricultural land or if you would simply like to discuss this topic in more detail please contact Rory Stracey or Jasmin Andrews in our Planning, Highways and Compulsory Purchase team.
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