Permitted development rights - phase 1 priority development types: consultation

5 Agricultural Developments

5.1 Our Programme for Government 2020-21 makes it clear that the rural economy must be at the forefront of Scotland's economic and environmental recovery. The proposals set out below are intended to help support agricultural development and diversification, as well as the delivery of new homes (including affordable properties) in rural areas. They would complement wider Scottish Government measures to support and protect the rural economy by:

• Increasing the scale of agricultural buildings that may be erected or extended under PDR;
• Allowing the conversion of agricultural and forestry buildings to residential and other uses under PDR; and
• Providing greater certainty as to the planning status of polytunnels

Larger agricultural buildings

Background

5.2 Class 18 of Schedule 1 to the GPDO sets out various PDR relating to agricultural buildings and operations. This includes works for the erection, extension or alteration of agricultural buildings, where these are carried out on agricultural land within an agricultural unit.

5.3 These rights are subject to a number of conditions and limitations. In summary, any building erected, extended or altered under these provisions may not:

• exceed 465sqm in area (this figure includes the area of any other building, structure, works, plant or machinery on the same farm which is being provided or has been provided within the preceding two years and which are within 90m);
• be carried out on agricultural land less than 0.4ha in area;
• exceed 12m in height (3m if located with 3km of an aerodrome);
• be within 25m of a trunk or classified road;
• be within 400m of a dwelling (other than a farmhouse) if it is to be used to house certain livestock or for the storage of slurry or sewage;
• involve the erection, extension or alteration of a dwelling; or
• involve the provision of a building designed for purposes other than agriculture.

5.4 In the case of the erection of a new building, or the "significant extension or significant alteration" of an existing one, the developer must – prior to commencing the development – apply to the planning authority for a determination as to whether prior approval is required in respect of siting, design and external appearance. The GPDO defines significant alteration and significant extension for agricultural and forestry buildings as where the cubic content of the original building would be exceeded by more than 10%, or the height of the building as extended or altered would exceed the height of the original building. The GPDO does not currently restrict Class 18 PDR for agricultural buildings in designated areas other than historic battlefields^[10].

5.5 Class 22 of Schedule 1 to the GPDO sets out PDR for forestry buildings and operations. This includes works for the erection, extension or alteration of buildings, where these are carried out on land used for the purposes of forestry, including afforestation. As with agricultural buildings, these rights are subject to certain conditions and limitations – including a requirement to seek prior notification/prior approval in respect of siting, design and external appearance where development consists of the erection of a new building, or the significant extension or alteration of an existing one. Unlike agricultural buildings, there is no maximum ground area of buildings provided under this PDR.

Proposals

5.6 The current 465sqm size limit that applies to agricultural buildings has been in place for several decades, during which time farming practices have evolved and associated machinery has increased in size and complexity.

5.7 For this reason we propose to:

• increase the maximum ground area of a building that may be erected or extended under class 18 PDR from 465sqm to 1,000sqm; and
• amend the definition of "significant extension" and "significant alteration" to refer to a 20% increase in the cubic content of a building. This new definition would also apply to forestry buildings extended or altered under class 22 PDR.

5.8 Taken together, the effect of these changes would be to approximately double the size of new agricultural buildings that may be erected under PDR (subject to prior approval), and double the size of extensions to existing agricultural and forestry buildings that may be carried out without requiring prior notification/approval.

Conditions and Limitations

5.9 We do not propose to alter the other existing restrictions (e.g. maximum building heights or minimum distances to trunk roads and dwellings) or the matters requiring prior approval.

5.10 As noted above and explained in detail below, this consultation also proposes new PDR for the conversion of existing agricultural (and forestry) buildings to residential and other uses. To limit the incentive for landowners to construct new buildings for the sole purpose of converting them, we propose that PDR under class 18 and 22 for the erection of a new building would not apply where a residential conversion has taken place (under the new PDR proposed below) on the same farm within the preceding 10 years.

Questions

Q.29 Do you agree with our proposal to increase the maximum ground area of agricultural buildings that may be constructed under class 18 PDR from 465sqm to 1,000sqm?

If you do not agree please explain why.

Q.30 Do you agree with our proposal to retain other existing class 18 conditions and limitations?

If you do not agree please explain why.

Q.31 Do you think that the new 1,000sqm size limit should apply in designated areas (e.g. National Parks and National Scenic Areas)?

Please explain your answer.

Q.32 Do you agree with our proposal to increase the scale of extensions or alterations to agricultural (and forestry) buildings that may be carried out without requiring prior approval?

If you do not agree please explain why.

Q.33 Do you agree with our proposal to discourage developers from erecting new buildings for the sole purpose of converting them by limiting class 18 and 22 PDR where a residential conversion has taken place under PDR on the same farm within the preceding 10 years?

If you do not agree please explain why.

Conversion of agricultural buildings to residential use

Background

5.11 Planning legislation provides that material changes of the use of land or buildings constitute development and therefore require planning permission. Although certain changes of use may be carried out under existing PDR^[11], these do not currently apply to agricultural buildings.

5.12 At present, converting an agricultural building to residential use would require an application for planning permission. Such an application would be determined in accordance with the development plan and any material considerations.

Proposals

5.13 We want to support the provision of new homes in rural areas by making it simpler to convert existing agricultural buildings to residential use. Our proposed new PDR for the conversion of such buildings delivers on a commitment in our Programme for Government 2019-20, and would complement wider Scottish Government initiatives to support Scotland's rural economy and promote rural repopulation.

5.14 The aim of the proposed new PDR is to allow the conversion of existing buildings to dwellings. It is not intended that this right would permit their wholesale redevelopment. However, it is accepted that some works affecting the exterior of an existing agricultural building may be required for it to function as a dwelling (e.g. installation of windows, doors, services). For this reason, we propose that reasonable building operations such as these would be included within the new PDR. We propose that the new PDR would include:

• Change of use of an agricultural building (and any land within its curtilage) to one or more dwellings (houses or flats); and
• The reasonable building operations necessary to convert the building to a dwelling (or dwellings).

5.15 It should also be noted that a building warrant is required for the conversion of a building, regardless of the amount of work being undertaken, and all relevant building standards would have to be met.

5.16 The proposals aim to strike a balance between the provision of new homes in rural areas, while limiting potential harm that could be caused by unconstrained conversion of buildings to residential use. Accordingly, a number of conditions and limitations are proposed.

Conditions and Limitations

5.17 We recognise that dwellings are very different from agricultural buildings in terms of the way they function and their relationship to (and impact on) the surrounding area. We also want to ensure dwellings provided under this right are safe and of good quality. As such we think that the PDR should provide for consideration and approval of a limited range of matters by the planning authority. Even so, this would represent a lighter touch process than submitting a full planning application. We propose that this would relate to:

• Design and external appearance (if building operations are proposed);
• The provision of natural light within proposed habitable rooms;
• Transport and access;
• Flood risk;
• Contamination risks; and
• Noise.

5.18 It would be open to planning authorities to impose conditions relating to these matters when prior approval is given. We accept that in a limited number of cases, site-specific circumstances may be such that it is not possible for the impacts of a development to be acceptably mitigated. For example, if the existing building is located in an area that is at high risk of flooding and it cannot be designed or adapted in such a way to make it safe for habitation. In such cases, prior approval may be refused.

5.19 We recognise that the proposed scope of such a prior notification/prior approval mechanism would go beyond that which currently applies to other PDR in Scotland. We are interested to hear views on whether the proposed approach would provide an effective and proportionate means of implementing the proposed new PDR.

5.20 In order to limit the impact on local infrastructure and facilities, we consider that there should be limits on the total number of new homes that may be provided under this proposed new PDR. We propose that a maximum of five dwellings within an agricultural unit may be developed under these provisions. We are also minded to limit the size of each home created under this PDR to a maximum of 150sqm.

5.21 Given that the intention of the new right is to provide for the conversion of buildings, we propose that the external dimensions of the development upon completion may not extend beyond those of the existing building. The right would not apply if the building is listed or if the site is (or contains) a scheduled monument.

5.22 As outlined above, existing PDR already provide for the erection of buildings used for agricultural purposes. We recognise that introducing a separate right which permits the conversion of such buildings to dwellings could lead to abuse and/or over-development. Specifically, landowners may be incentivised to erect buildings under existing rights (class 18) for the sole purpose of converting them to (potentially more valuable) residential use. To limit the scope of such 'gaming', we propose that any building converted to residential use under this right must have been used for the purposes of agriculture:

• On or before 5 November 2019; or
• In the case of buildings brought into use after that date, for a continuous period of ten years prior to the conversion taking place.

5.23 The cut-off date of 5 November 2019 is proposed because this is when the Scottish Government published its programme for reviewing and extending PDRs in Scotland, making public its intention to introduce PDRs for the conversion of agricultural buildings to residential use.

Q.34 Do you agree with the proposed new PDR for conversion of agricultural buildings to residential use, including reasonable building operations necessary to convert the building?

If you do not agree please explain why.

Q.35 Do you agree that the proposed new PDR should be subject to a prior notification/prior approval process in respect of specified matters?

If you do not agree please explain why.

Q.36 Do you agree with the proposed range of matters that would be the subject of a prior notification/prior approval process?

If you do not agree please explain why.

Q.37 Do you agree with the proposed maximum number (5) and size (150sqm) of units that may be developed under this PDR?

If you do not agree please explain why.

Q.38 Do you agree with the proposed protection for listed buildings and scheduled monuments?

If you do not agree please explain why.

Q.39 Do you agree with the proposed measures to discourage developers from erecting new buildings for the sole purpose of converting them?

If you do not agree please explain why.

Conversion of agricultural buildings to flexible commercial use

Background

5.24 Currently, converting agricultural buildings to a commercial use (e.g. shop, café, restaurant, office) would require an application for planning permission. Such an application would be determined in accordance with the development plan and any material considerations.

Proposals

5.25 We want to support Scotland's rural economy by making it simpler to convert existing agricultural and forestry buildings to a range of commercial uses. The proposed new PDR is intended to help support economic diversification and sustainable communities in rural areas. Doing so would respond to a number of the recommendations in Rural Planning Policy to 2050 published in January 2020.

5.26 The proposed PDR would allow the change of use of an agricultural building (and any land within its curtilage) to a 'flexible' use falling within class 1 (shops), class 2 (financial, professional and other services), class 3 (food and drink), class 4 (business), class 6 (storage or distribution or class 10 (non-residential institutions)^[12] of the Town and Country Planning (Use Classes) (Scotland) Order 1997. As with proposed PDR for residential conversions, we think that the new right should also include reasonable building operations necessary to convert the building to a commercial use.

5.27 It should also be noted that a building warrant is required for the conversion of a building, regardless of the amount of work, if any, being undertaken and all relevant building standards would have to be met.

5.28 The proposals aim to strike a balance between the economic benefits that this relaxation may deliver, while limiting potential harm that the unconstrained development of commercial uses could have on a local area. Accordingly, a number of conditions and limitations are proposed.

Conditions and Limitations

5.29 We propose that where the cumulative floorspace of a building or buildings that have changed use under this PDR exceeds 150sqm within an agricultural unit, a process of prior notification/prior approval would apply in respect of:

• Design and external appearance (if building operations are proposed);
• Contamination risks;
• Noise;
• Transport and highways; and
• Flood risk.

5.30 Below the 150sqm threshold, no prior notification/approval process would apply. Nevertheless, we propose that the planning authority would still need to be notified of the change of use in such cases.

5.31 We propose that the total cumulative floorspace of a building or buildings that may change to a flexible commercial use under this PDR may not exceed 500sqm within an agricultural unit.

5.32 As with the proposed PDR for residential conversion, we want to limit incentives for landowners to erect new buildings for the sole purpose of converting them. Accordingly, we propose to apply the same time limits/cut-offs to this right.

5.33 The right would not apply to a building which is listed or if the site is (or contains) a scheduled monument.

Questions

Q.40 Do you agree with the proposed new PDR for conversion of agricultural buildings to flexible commercial use, including reasonable building operations necessary to convert the building?

If you do not agree please explain why.

Q.41 Do you agree with the proposed cumulative maximum floorspace (500sqm) that may change use?

If you do not agree please explain why.

Q.42 Do you agree that the proposed new PDR should be subject to a prior notification/prior approval process in respect of specified matters where the cumulative floorspace changing use exceeds 150sqm?

If you do not agree please explain why.

Q.43 Do you agree with the proposed range of matters that would be the subject of prior notification/prior approval?

If you do not agree please explain why.

Q.44 Do you agree with the proposed protection for listed buildings and scheduled monuments?

If you do not agree please explain why.

Q.45 Do you agree with the proposed measures to discourage developers from erecting new buildings for the sole purpose of converting them?

If you do not agree please explain why.

Conversion of Forestry Buildings

5.34 The proposed new PDRs outlined above provide for the conversion of agricultural buildings to residential and various commercial uses. We consider that there is merit in making parallel provision in respect of forestry buildings. Insofar as relevant, we propose that the same conditions and limitations would apply to the conversion of a forestry building as to an agricultural building.

Q.46 Do you agree that we should take forward separate PDRs for the conversion of forestry buildings to residential and commercial uses?

If you do not agree please explain why.

Q.47 Do you agree that the same conditions and limitations proposed in respect of the PDR for the conversion of agricultural buildings should apply to any separate PDR for the conversion of forestry buildings, insofar as relevant?

If you do not agree please explain why.

Polytunnels

Background

5.35 Polytunnels are buildings or structures comprising a series of semi-circular or rectangular supports covered with polythene or other translucent material. Their purpose is to create a warmer micro-climate within the interior which is conducive to the growth of certain fruit or vegetable plants. As such, polytunnels can help to extend the growing season, which can in turn support greater product diversity and yields. By providing opportunities for localised food production, the use of polytunnels can help to reduce food miles.

5.36 There is considerable variation in the size, extent, scale, moveability and permanence of structures or buildings covered by the term 'polytunnel'. Some polytunnels are small-scale, temporary structures comprising metal hoops that are screwed into the ground and may only be covered with material for part of the year. These are relatively simple to construct, disassemble and move. However, polytunnels can also be substantial, permanent buildings covering multiple hectares of land. As well as being used for commercial purposes on agricultural land, polytunnels are also used for domestic purposes.

5.37 Reflecting this level of diversity, the planning status of polytunnels varies considerably. In some cases, the erection or provision of polytunnels may not involve 'development' (for the purposes of the Planning Acts) at all. In other cases, polytunnel schemes may constitute development but be covered by existing PDRs: in particular, under class 18 of Schedule 1 to the GPDO (see above). Alternatively, larger polytunnel schemes may require a 'full' application for planning permission. This situation can lead to uncertainty for planning authorities, farmers and communities. Furthermore, where a planning application is required (as opposed to an application for prior approval) it is not always clear what fee is applicable.

Proposals

5.38 To the extent that polytunnels constitute agricultural buildings, the proposed amendments to class 18 (see section on larger agricultural buildings above) would allow some larger schemes under PDR.

5.39 Otherwise, we are not currently minded to create a specific PDR for polytunnels. Given the considerable variation in the scale, nature and permanence of polytunnels outlined above, we consider that seeking to do so risks:

• Subjecting small-scale and/or temporary structures to additional regulation than at present; and/or
• Permitting very large-scale polytunnel developments whose impacts ought to be considered through a planning application.

5.40 Instead of taking forward a bespoke PDR, we propose

• Amending the fees regulations to clarify the appropriate fee where a polytunnel development requires an application for planning permission.
• Preparing new guidance clarifying PDR under which polytunnels may be erected or provided. For example, class 18 (agricultural buildings).
• Preparing new guidance, to be taken into account where a polytunnel proposal is the subject of a planning application, highlighting the need to give appropriate weight to the economic/agricultural benefits of polytunnels and the role they can play in extending the growing season and supporting local produce.

5.41 We will continue to keep the case for a specific PDR for polytunnels under review.

Questions

Q.48 Do you agree with our proposed approach to providing greater clarity as to the planning status of polytunnels?

If you do not agree please explain why.