Ongoing issues with new permitted development legislation related to agricultural buildings

The National Bat Helpline has been receiving an increasing number of calls concerning "The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014" which came into force on the 6th of April 2014 and their potential to impact on agricultural buildings. Unfortunately, the provision did not take into account any of the recommendations that the Bat Conservation Trust (BCT) made during the consultation period leading up to implementation. We are aware that there is now a great deal of confusion in the way in which Local Planning Authorities (LPA) are taking this matter forward and are currently compiling evidence of this. BCT is also tackling this issue at ministerial level and has requested a meeting to discuss the matter.

In October 2013 BCT responded to the consultation on 'greater flexibility for change of use' (permitted development) which incorporated farm buildings and included their demolition. Our concerns were based on the fact that no mention at all was made for the consideration of impacts on European Protected Species. In our response we made the following strong recommendations:

- The list of reasons for prior approval, which currently includes the subjects of local plans on design, materials types and outlook and also for transport and highways impacts, should include prior approval requirements to ensure that protected species legislation is taken into account. To fail to do so would be misleading the property owner or developer into potential breaches of that legislation and would also be a gross failure of the duty of national and local government; or

- The excluded types of development listed in paragraph 55 should include buildings that host protected species,

- Protocols and triggers currently exist that alert planners to the presence of protected species in developments. It was strongly recommended that the adoption of similar measures accompanies the proposals.

We pointed out the biodiversity duty of public authorities and local government. Also the vulnerability of applicants to prosecution should they negatively impact protected species as a result of their actions. This could be a matter for building control officers as well as planners as demolition is included for redundant agricultural buildings.

In a response to our concerns, Eric Pickles, Secretary of State for Communities and Local Government, stated in a letter to BCT on 10 June 2014 that:

"All development, including under permitted development rights, must comply with all relevant legislation and regulations. This includes EU regulations such as the Conservation of Species and Habitats Regulations 2010.

We have been clear that those undertaking a change of use under permitted development rights must satisfy themselves that they comply with all other necessary planning requirements, building regulations and other legislation such as related to habitats and biodiversity and consider that this provides the necessary safeguards"

However the calls to our Helpline demonstrate that there is much confusion and this message is not coming across clearly in all situations.Some Local Planning Authorities are taking a welcome proactive approach, highlighting the ongoing need to consider protected species using wording such as the following:

Whilst not expressly referred to as one of the prior approval issues for the Council to consider, ecology remains a key factor in the conversion of rural buildings. The Department for Communities and Local Government report (March 2014) on responses to the consultation on changes to Permitted Development rights in paragraph 25 indicates that "All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations." Section 40 of the Natural Environment and Rural Communities Act 2006 (NERC) requires all public bodies to have regard to biodiversity conservation when carrying out their functions. In the exercise of its functions the Council is also required to have regard to the requirements of The Conservation of Habitats and Species Regulations 2010 (as amended) (Habitats Regulations).

The Council believes that presence and implications for protected species should form part of the consideration of 'whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use.' It is also noted that prior approval applications are required to be determined with regard to the requirements of the National Planning Policy Framework which also requires decisions to be taken with regard to protected species. Accordingly, the council will require this prior approval application to be accompanied by an ecological assessment of the potential presence of and impact upon protected species and a mitigation strategy if there are protected species at risk of harm from the development.

We would welcome your support in order to ensure our concerns are addressed so please do contact BCT with any comments or suggestions or in particular if you are aware of the stance taken by your local planning authority. You can contribute by emailing comms@bats.org.uk