Planning circular 2/2015: non-domestic permitted development rights - consolidated circular - updated 2021

Annex I

Conversion of Agricultural and Forestry Buildings to Flexible Commercial Use

Introduction

1. Classes 18C and 22B allow the change of use, and certain building operations to effect the change of use, from use as an agricultural or forestry building respectively to use as a flexible commercial use or a flexible commercial use permitted by this class to another flexible commercial use. Where a change of use of a building to flexible commercial use has been made under the provisions of either class 18C or 22B the use of the building is considered to be 'sui generis' and does not sit within any of the use classes specified within the schedule to the Town and Country Planning (Use Classes) (Scotland) Order 1997.

2. 'Flexible commercial use' means, for the purposes of classes 18C and 22B any of the following, including a combination of any of the following, classes of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (as amended);

• Class 1 (Shops)
• Class 2 (financial, professional and other services
• Class 3 (food and drink)
• Class 4 (business)
• Class 6 (storage or distribution)
• Class 10 (non-residential institution)

3. Building operations are only permitted by classes 18C and 22B to the extent that they are reasonably necessary to convert the existing building to use as a flexible commercial use. They are limited to:

• the installation or replacement of doors, windows, roofs and exterior walls
• the installation or replacement of water, drainage, sewerage, electricity, gas or other services
• partial demolition to the extent necessary to carry out the installation or replacement of doors, windows, roofs and exterior walls; and
• the provision of access to the building and of a hard surface for parking of vehicles ancillary to the enjoyment of the building .

4. The installation or replacement of doors, windows, roofs and exterior walls or of water, drainage, sewerage, electricity, gas or other services is only permitted to the extent reasonably necessary for the building to function as a flexible commercial use.

5. Consideration of what works are 'reasonably necessary' will be a matter of fact and degree in any individual case and should be considered in accordance with the various restrictions set out in the respective classes.

6. The purpose of these provisions is to support the conversion of buildings: they do not allow for a complete demolition and erection of a new building on the footprint of the existing building. Nor are they intended to permit such extensive demolition and rebuilding works as to create what, in effect, would constitute a new building. The existing building needs to be capable of being converted to commercial use for classes 18C and 22B to apply.

7. The partial demolition of any building should therefore be minimised and generally confined to work essential to make the building suitable for use as a flexible commercial use. While partial demolition is only permitted to the extent it is reasonably necessary to carry out the operations specified above, it is recognised that in some cases doing so could enhance the design and appearance of the proposed conversion. It should also be noted that (with the exception of guttering and pipes for drainage or sewerage, flues and aerials) development carried out under class 18C or 22B may not have the effect of extending the external dimensions of the building at any given point. For the avoidance of doubt, demolition of the existing building and erection of a replacement does not fall under this PDR and will require a planning application

8. Both classes also permit the provision of access to the building and of a hard surface for vehicle parking incidental to the enjoyment of the building for the purposes of the flexible commercial use. Consideration should be given to the utilisation of existing access routes and hard standing wherever possible.

9. The change of use includes the land within the curtilage of the building.

10. Any consent granted under these permitted development rights do not affect any obligations to comply with other legislative requirements such as, but not restricted to, building standards. Where buildings are to be connected to private water or sewerage supplies are to be undertaken, appropriate permissions should be sought^[35]. More information on private water supplies may be sought from the relevant local authority and the Scottish Government's website: https://www.mygov.scot/new-private-water-supply/.

Limitations

11. There are a number of limitations common to both classes.

12. Development is only permitted if the use of the existing building on 4 November 2019, or if not used on that date the most recent use of the building before that date, was:

• For class 18C, as a building solely for used for an agricultural purpose as part of an agricultural unit, or;
• For class 22B, as a building solely used for the purposes of forestry.

13. Development is not permitted if the building is or was constructed after 4 November 2019. This date is specified because the Scottish Government published its intention to take forward PDR for conversion of agricultural buildings on 5 November 2019. This cut-off is intended to prevent situations where an agricultural or forestry building could be constructed (including under the provisions of classes 18 or 22 (see Annex E)) and, within a short period following construction, subsequently be removed from such use and converted to a flexible commercial use under class 18C or 22B.

14. The cumulative floor space developed by virtue of these classes cannot exceed 500 square metres. For the purposes of class 18C the cumulative total applies to a building or buildings on the "original" agricultural unit, which is defined as the agricultural unit which the building formed part of on 4 November 2019. For class 22B, the cumulative total relates to an individual building. It should be borne in mind that partial change of use of a building would not be permitted under either class.

15. The permitted development rights set out in classes 18C and 22B do not apply to listed buildings. Furthermore, the permitted development rights do not apply to development within:

• The curtilage of a listed building,
• A site of archaeological interest,
• A safety hazard area, or
• A military explosives storage area.

Prior Notification and approval

16. Anyone who wants to carry out development under either class 18C or class 22B provisions is required to apply to the planning authority for a determination as to whether the prior approval of the authority is required - this is a condition of the planning permission granted under these provisions. This is referred to as 'prior notification'. The prior notification submitted to the planning authority must be accompanied by:

• A written description of the development, including a description of any building operations and materials to be used
• A scaled plan showing the location of the development
• Any other scaled plans and drawings as are necessary to describe the development
• Any fee to be paid

17. Applicants should be aware that prior notification/approval must be sought before any work has commenced. If any development for which prior notification is required is commenced before submitting the prior notification, or where prior approval is required, before that approval is issued, the permitted development rights do not apply and a planning application is required instead.

18. The change of use under either class extends to the land within the curtilage of the building that is the subject of the application. To enable the planning authority to determine the prior notification (and if required, consider prior approval), scaled plans and drawings describing the development should clearly indicate the extent of the curtilage associated with the building. Similarly the plans should clearly indicate any proposed access and areas of hard standing and the location of any proposed septic tanks and other services.

19. The prior approval procedure provides planning authorities with a means of regulating, where necessary, important aspects of new development for which full planning permission is not required by virtue of the GPDO. Provided all the GPDO requirements are met, the principle of whether the development should be permitted is not for consideration. Those matters which the planning authority may consider in determining any requirement for prior approval are;

• The design or external appearance of the building
• The impacts of the proposed development on transport
• Access to the building
• The impacts of noise on those using the building or as a result of the development
• Risks to those using the building from contamination from the site
• The risk of flooding of the site.

20. To enable the planning authority to reach a view on these matters, it may – depending on the location and nature of the proposed conversion – be in the developer's interest to provide supporting information that goes beyond the minimum set out at paragraph 16. This could include, but is not restricted to, an agricultural holding number, contaminated land survey, flood risk assessment or noise assessment. In the absence of sufficient information to reach a view on the prior notification application, prior approval may be delayed or refused. Applicants are therefore encouraged to discuss the likely provision of information prior to the submission of a prior notification.

21. Applicants are encouraged to consider providing such information at the initial notification stage to enable planning authorities to consider such matters as early in the process as possible and to minimise the potential requirement for applications to be subject to prior approval.

22. Upon receipt of a prior notification the planning authority has 28 days to decide whether or not their prior approval is required. If no indication that prior approval is required is received within the 28 day period, the development permitted by the class may proceed provided that the development is in accordance with the details submitted with the application.

23. Where the authority gives notice that their prior approval is required, the development cannot proceed until that approval is given. It is therefore in the developer's own interests to submit the above details and any relevant supporting information as soon as possible. Doing so will assist the planning authority in reaching a view as to the need for prior approval and – subject to that – whether or not prior approval can be granted. If the developer proceeds without submitting details or without, or in contravention of, the authority's prior approval (if required) the normal enforcement measures would be available to the authority as it deems appropriate in the circumstances of any particular case.

24. As noted above, a number of the conditions and limitations that apply to class 18C relate to the agricultural unit within which the building is located (e.g. the cumulative maximum floor space that may be developed). Accordingly, in relation to prior notifications under class 18C, the provision of the relevant agricultural holding number by the developer will assist in the identification of the site and help the planning authority to determine whether a proposal complies with relevant limitations.

25. Subject to the normal criteria governing their use - and insofar as they relate to the matters specified in class 18C and 22B - conditions may be attached to the grant of prior approval. Similarly, consideration may be given to the use of planning obligations or other legal agreements, subject to the relevant tests in circular 3/2012. Matters which are not relevant to prior approval decisions under class 18C and 22B (e.g. provision of education facilities) should not be the subject of conditions or planning obligations. In operating these controls, planning authorities should always have full regard to the need to avoid imposing any unnecessary or excessively costly requirements; and to the normal considerations of reasonableness.

Efficient Handling of Prior Notifications and Details Submitted for Approval

26. The Scottish Ministers attach great importance to the prompt and efficient handling of prior notifications and any subsequent submissions of details for approval under the provisions of the GPDO. Delegation of decisions to officers will help to achieve prompt and efficient handling, and should be extended as far as possible. It is essential that authorities acknowledge receipt of each prior notification, giving the date on which it was received.

27. Where the authority does not propose to require the submission of details it should not merely wait for the 28 days to expire but should inform the developer as soon as possible, to avoid any uncertainty and possible delay. Where the authority does decide prior approval is required, it should write to the developer as soon as possible stating clearly and simply exactly what, if any, further details are needed. Care should be taken not to request more information than is absolutely necessary.

28. If, as a result of discussions, the developer's original proposal is modified the authority should give its written approval to the modification to make it clear that the developer has authority to proceed with the modified proposals.

Records of Notifications

29. Although there is no statutory requirement to do so, planning authorities should keep records of such notifications

Completion of development

30. Where prior approval is not required the development must be carried out in accordance with the plans and description submitted to the planning authority.

31. Where prior approval has been required and granted, the development must be carried out in accordance with the details approved.

32. In all cases, the development is to be carried out within three years of the date from which all approvals have been issued, or the date on which the 28 day period expired if no decision was issued before that date.