By Tracy Lovejoy Senior Associate in Irwin Mitchell's Planning Team

Following my colleague, Nicola Gooch’s informative article on the refusal of planning permission for the conversion of a lambing shed into a restaurant and café on Jeremy Clarkson’s  Diddly Squat Farm in West Oxfordshire, this article explores some of the planning rules behind that decision.  It also considers planning implications of farm diversification projects, including the use of agricultural land to offset carbon footprint and to produce the soon to be mandatory biodiversity gain.                                                            

Background and Planning History

Diddly Squat Farm has been owned by Jeremy Clarkson since 2008.  However, in 2019, he took over the operation of the farm and his efforts have been the subject of a TV series.   The farm consists of 400 hectares of land which is used for growing wheat, rapeseed oil and barley for local and export markets.

Since taking over the farm in 2019, Mr. Clarkson has made five planning applications.  The first was for the farm shop and lambing shed.  The farm shop was put forward as a farm diversification project.  There was a condition imposed on the planning permission that restricted sale from the shop to local goods sourced from within a certain radius.

The lambing shed was for the introduction of sheep to the farming enterprise and to rotate the use of the arable land by introducing grazing.  The lambing shed was built in 2020 but it became clear to all involved that the sheep enterprise required a larger number of sheep.  Mr Clarkson entered into a joint venture with a neighbour whereby the sheep would be kept in the neighbour’s shed instead. 

The lambing shed therefore became redundant, hence the application to convert it into a restaurant/café.  The plan was for both the shop and café/restaurant to complement the farming enterprise.  The farm shop would continue to sell the farm’s produce and the café would serve food from the farm as well as other locally produced food.  This would include beef as cattle-rearing was to be added to the farming operation.

Prior to the consideration of the application, the Council had started an enforcement investigation regarding reports that goods were being sold in the farm shop from a radius which was wider than that allowed in the above-named condition, and that the lambing shed was being used as a café/restaurant without planning permission.  These allegations, if made out, would constitute a ‘breach of planning’ as defined in section 171A of the Town and Planning Act 1990 (the ‘1990 Act’) being  the carrying out of ‘development’ without planning permission and a breach of an existing planning condition.  ‘Development’ is defined in section 55 of the 1990 Act as a material change of use or operational, building, engineering or other works.  The farm shop was alleged to be operating in breach of condition while the use of the lambing shed as a restaurant/café would amount material change of use. 

Agricultural use is a bit of an anomaly in planning law and is defined as “horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes”  Section 55 of the 1990 Act  excludes the use of land for agriculture or forestry from the definition of development.  This means that pure agricultural use does not require planning permission. Agricultural buildings, however, require planning permission although permitted development rights, which are a national grant of planning permission, exist for the erection of agricultural buildings of certain dimensions.  There are also permitted development rights to convert redundant agricultural buildings into cafés and restaurants, but the agricultural buildings must have been in actual agricultural use for a specified period before these rights can be relied on.  As the lambing shed in this case was brand new, Mr. Clarkson could not rely on this permitted development right.

Farm Diversification and the Determination of the Application

Farm diversification relates to non-agricultural projects on a farm which are there to supplement the farm’s income and ensure the financial survival of the farm.  An agricultural use can encompass a number of ancillary uses without changing the core lawful use (known as the primary use).  For instance, a building on a farm could be repurposed as a farm shop and that farm shop will remain within the uses which are ancillary to the primary agriculture use, instead of a new retail use, as long as the produce it sells is from the farm.

Farm diversification projects, on the other hand, can change the planning use of a farm.  Farm diversification projects can include holiday units, equestrian development, farm shops and even letting of existing buildings for office, industrial or commercial space.  Countryfile reports that, according to government figures, 62% of farmers in the country operate farm diversification projects. 

Section 38 of the Planning and Compulsory Purchase Act 2004 and section 70 of the 1990 Act, require planning applications to be determined in accordance with the Council’s local development plan unless material planning considerations indicate otherwise.  Material considerations can include factors such as: the impact of the development on surrounding properties, environmental  and highway issues, landscaping and tree issues, consistency of planning decisions, and also  national policy such as the National Planning Policy Framework (the ‘NPPF’) and the National Practice Policy Guidance (the ‘NPPG’).  Also, local plans are generally required to be compatible with the NPPF. 

West Oxfordshire Council’s local plan policies generally support farm diversification projects.  However, they  also  require a  connection between the diversification project to the farm, impose restrictions on the scale of diversification projects and require them to be sensitive and compatible with the surrounding area.    

The application to turn the now redundant lambing shed into a café was made in November 2021.  The decision to refuse was made by the Council’s Uplands Planning Committee on 10 January 2022.  The farm is located within the Cotswold Area of Outstanding Natural Beauty (‘AONB’). AONBs are delegated nationally under section 82 of the Countryside and Rights of Way Act 2000. Planning authorities have a duty, which will often be reflected in their local plan policies, to conserve and enhance the beauty of AONBs.  The site  is also part of the Cotswold’s natural landscape of which the beauty of the dark skies is a substantial part. 

In response to the application, the  landscape officer and several residents stated that the project would harm both the landscape and the tranquillity of the area, something which is specifically referenced in the local plan,.  The landscape officer was  also concerned about the introduction of an isolated lit site into the dark skies of the Cotswold natural landscape.  However, the police wanted sufficient lighting to avoid the restaurant becoming a target for criminal and anti-social activity .

Officers and residents were also concerned about the amount of vehicular traffic and car parking that restaurant/café would attract given the success of the farm shop.  Other people, including the Council’s business development officer, supported the proposal for the potential boost to the economy and the area.

Mr Clarkson seems to, in his article in the Times,  place most of the blame for the refusal of the application on ‘NIMBYs’ which as we all know stands for ‘not in my backyard’ and is a derisory (often unfair) term for people who object to any kind of development near them but who invariably live in some type of built development themselves.  In all seriousness, a kind of divide can occur in rural and/or agricultural  locations between people who live there and appreciate the area for its beauty, peace and tranquillity and don’t want anyone to spoil it on one side and working people, including farmers,  who need to expand, develop and diversify to achieve viability on the other side. 

We are often asked about the importance of public feedback in a planning application.  There is a statutory duty to consult with the public (articles 15 and  33 of Town and Country Planning (Development Management Procedure) Order 2015) and to take into account any representations received.  Public opposition, by itself, is not a valid ground to refuse planning permission (West Midlands Probation Committee v Secretary of State for the Environment, Transport and the Regions (1998) 76 & PCR 589) and a refusal must be based on the local plan or relevant planning considerations. 

Public opinion can provide valuable information about the veracity of the planning issues which have been raised including a practical view out how a proposed development will affect a neighbouring property.  Finally, members of the planning committee and ward councillors are political creatures and subject to their duty to determine planning applications in accordance with relevant planning policies and considerations are not precluded from having in mind  the views of their constituents (EU Plants Ltd v Wokingham Borough Council [2012] EWHC 3305 (Admin) (affirmed on appeal [2013] EWCA Civ 1542).  

The officer was of the opinion in this application that  the proposal to convert the shed into a restaurant/café fell outside of the definition of a farm diversification scheme as defined by local policy.  He also thought that, because of the location, the design, the scale and the nature of the proposed restaurant/café, the development would not be compatible with the existing farming operation or the AONB and would be visually intrusive and harmful. The planning committee followed the officer’s recommendation and the application was refused.

Mr Clarkson’s recourse is an appeal of the decision to the Secretary of State for Levelling Up, Housing and Communities or to redesign and resubmit an application (or abandon the project). 

Farm Diversification Projects and Natural Capital

One way that farmers and related professionals have looked to boost their income is so called ‘natural capital’ needed to combat the effects of climate change. 

The overall need to combat climate change has affected everyone including farmers.  For instance, the basic payment system to farmers is being replaced by the environmental land management scheme.  This means that government subsidies will be based not just on farming but also on managing farming operations in an environmental manner.  This may lead to the reduction of subsidies and additional costs in the management of farms, making farmers financially worse off.  Mr. Clarkson’s argument for the lambing shed was based on the need for more sustainable farming and resting the land from arable farming.  Other measures might include maintaining a peat bog as they are known to be a rich carbon storage facility, planting trees and maintaining habitats such as hedgerows.

In the government’s 2018 25-Year Environment Plan, there was an emphasis on increasing biodiversity.  Biodiversity relates to the diversity of habitats and species, including the protection and creation of habitats.  The duty on developers has been to maintain the current level of biodiversity.  The government decided that this was insufficient to combat climate change and announced a new requirement for developers to produce an increase of biodiversity before they can be granted planning permission.

The statutory requirement is set out in the new Environment Act which amends the 1990 Act.  The plan is that, from 2023, developers will be required to submit biodiversity information with their planning applications which will set out the biodiversity value of the land pre- and post-development and demonstrate a 10% increase.  There will be a condition on planning permissions for most types of development for a biodiversity plan, which would show how this increase will be achieved, to be approved by the Council before the approved development can start.

The preference would be to achieve that increase on the site but, if that is not possible, to achieve it off-site or purchase biodiversity credit from a landowner or developer or the government as a last resort.  The land which to be used for biodiversity creation will be registered on a national biodiversity register.

Opportunities exist for farmers to provide land for the creation of biodiversity, as well as carbon off‑setting and to sell biodiversity credits from land which they are already managing.  This will entail agreements between the developer, the landowner and the local planning authority which can be made under Section 106 of the 1990 Act or the newly proposed conservation covenants between the landowner and a responsible conservation body, which can include the local authority. Both types of agreement will bind the land.  The approved biodiversity plan will need to be in place for at least 30 years.

Using agricultural land to create biodiversity and other measures to combat climate change can take land out of farming which might affect the security of food production. There are local and national policies in place to protect the best agricultural land in the country.   It may also affect whether land will be classed as agricultural under various regimes, including regimes which qualify farmers for government subsidies, or under planning.

Concluding Remarks

Obtaining planning permission for a farm diversification scheme requires careful engagement with experts and the planning authority.  Often developers are faced with a number of considerations including protecting the countryside or designated land like Green Belt or AONBs, protecting food production and dealing with public opinion.  To me, there are clear reasons why the balance is often delicate, but I can understand how frustrating it is to see genuine efforts to diversify brought seemingly thwarted by the system. 

This article first appeared in Property Law Journal.