At Galbraith, we have followed the development of a particularly interesting planning appeal case which serves as a warning to those who rely on "agriculture" permitted development rights.
In a recent appeal decision notice, a reporter appointed by ministers from the Planning and Environmental Appeals Division (DPEA), upheld a planning enforcement notice issued by Perth and Kinross Council to Glenshee Pheasantries Limited to cease using a section of purchased land for the purposes of pheasant and partridge rearing as it constituted an "unauthorised change of use of agricultural land".
For Glenshee Pheasantries this was a costly conclusion to a frustrating year of interaction with the planning system.
Glenshee Pheasantries was informed in a pre-application advice email from a council planning officer that the proposed use of the site, rearing pheasants and patridge for shooting, is accepted to be "agriculture". Based on this advice the appellant purchased the site, did not apply for planning permission and invested a significant sum into starting up the business.
Several months later, Glenshee Pheasantries received another email from the planning officer stating that the council had taken the view that game rearing was in fact not agriculture and that the use of the land for pheasant rearing is a material change of use of the land from agriculture and was a breach of planning control.
When the Glenshee Pheasantries appealed this planning enforcement notice to the DPEA the council put forth a powerful argument.
The council took the view that rearing pheasants should not be considered "agriculture" as they are being commercially reared for sport more so than for food. They provided evidence supporting this position: an article by the Game and Wildlife Conservation Trust which stated that only 37.5% of released pheasants are actually shot and could potentially be eaten, therefore it did not follow from this that the pheasants were produced for food.
The reporter concluded that the scale and activity of rearing pheasants on the site had constituted a material change of use from "agriculture" to mixed use where the non-agricultural activity of rearing pheasants and partridges for sporting purposes formed the dominant part. As this mixed use did not have planning permission, the enforcement notice was upheld by the reporter.
This example serves as a cautionary tale to those who are considering agricultural activity and business developments. Planning policy and legislation in Scotland remains a grey area for many rural development proposals. Our planning team has reviewed a number of proposals recently which could be assumed to be agricultural permitted development, such as fishing huts, equestrian riding arenas, and allotments.
It should be remembered that positive pre-application planning advice is not the same as gaining planning permission. When there is doubt about whether a proposal is within agricultural permitted development rights, consultation with a planning professional is a wise move.