Farm diversification opportunities – converting agricultural buildings to children’s nurseries

In these economic times farm diversification is ever increasingly important. Securing planning permission can however at times feel like a slow and frustrating hurdle. Knowing the available permitted development rights can cut through much of this frustration and open up opportunities you may not have considered. You will probably know of the rights to convert agricultural buildings to residential dwellings but you may not know that rights also allow conversions to various commercial uses, including childcare facilities.

You may not think a children’s nursery is a great commercial opportunity but with thousands of childcare providers closing since the start of the pandemic there is currently a shortage of early years provision. This is often felt more strongly in rural areas. Alongside this, the Department for Education recently consulted on reducing staff to child ratios for younger children with the aim of making childcare provision more viable, so this could be a great time for landowners to take advantage of the lack of nurseries in their area by converting their agriculture buildings to create more childcare options for local parents.

What are the permitted development rights for childcare facilities?

The Town and Country Planning (General Permitted Development) (England) Order 2015 (the “GPDO”) sets out the types of development which are granted planning permission without the need for a planning application.

Since August 2021, Class R of Schedule 2 of the GPDO permits a change of use of a building and any land within its curtilage from a use as an agricultural building to a ‘flexible use’ falling within Use Class B8 (storage or distribution), Use Class C1 (hotels), and Use Class E (commercial, business or service). Childcare facilities fall within Use Class E(f) being ‘for a creche, day nursery or day centre’.

It is important to note that Class R only permits a change of use. If associated operational development is required (e.g. to materially change the appearance of the building) then planning permission will be required for such operational development only.

It is also important to note that any completed conversion under Class R will be treated as sui generis, rather than Use Classes B8, C1 or E. This means the permitted development rights associated with those use classes will not apply.

When can Class R be used?

When relying on Class R, you should check whether the building is solely used for agriculture as equestrian buildings and farmhouses are not considered to be in agricultural use.

Also the building must have been used as part of an agricultural unit:

1. on 3 July 2012; or
2. when last used (if not in use on that date); or

• for at least 10 years prior to the change of use taking place if brought into use after 3 July 2012.

Class R cannot be used in certain instances, including but not limited to listed buildings, or where the proposed change relates to more than 500sqm of floor space (cumulatively with any other permitted development changes of use which have taken place on the unit already).

What steps need to be taken to commence the change to Class R ‘flexible use’?

In relation to 150sqm or less of floor space (cumulatively), confirmation of the intended start date and use, with a plan identifying the site needs to be sent to the planning authority in order to rely on Class R. In respect of changes of use for between 150sqm and 500sqm (cumulatively), a landowner will need to apply to the planning authority for a determination as to whether prior approval is required in respect of transport and highways, noise impacts, contamination and flooding risks so it is more focused than a planning application. Nonetheless, we recommend seeking advice on the application prior to its submission to ensure the requirements of the GPDO are met.

Once the application has been submitted, the development can commence after either:

1. the receipt by the applicant from the planning authority of their prior approval, or of their determination that prior approval is not required (in which case, development must be commenced within 3 years of this date); or
2. the expiry of 56 days following the date on which the application was received by the planning authority without the authority providing any notice of their decision.

The date of receipt of the correct documents and fee will start the 56-day clock running and not the date when the application is validated. If the intention is to commence development on the expiry of 56 days, we recommend seeking acknowledgement of receipt and considering applying for a certificate of lawfulness to confirm the conversion is lawful and in accordance with the GPDO, particularly if the building will be sold at a later date.

The planning authority can refuse a prior approval application if the proposed development does not comply with the restrictions in the GPDO or if insufficient information has been provided to enable the planning authority to establish whether the proposed development complies. A landowner has a right to appeal a refusal.

How can we help?

Landowners considering relying on permitted development rights to convert agricultural buildings should ensure they seek advice as permitted development rights can be inflexible and it may be that a planning application is more appropriate. In all cases, it is important to ensure that the development is completed within the time limit and that the requirements of the GPDO are strictly adhered to, otherwise landowners could inadvertently find themselves in breach of planning control.

For any assistance or advice in relation to the permitted development rights discussed in this article or on any other planning highways and environment issues then please contact HCR’s Planning Highways and Environment Team.