Friday, 12 February 2016

Amalgamating two or more dwellings


Many readers are no doubt aware that section 55(3)(a) of the 1990 Act declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used. However, there is no provision in the 1990 Act itself dealing with the converse, where two or more separate dwellings are combined to form a single dwelling. In principle, it might well be argued that such an amalgamation of planning units is covered by section 55(2)(f), because this refers to buildings which are used for a purpose of any class specified in the Use Classes Order and (as a result of the amalgamation) the building is being used for other purposes within the same class.

However, the judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 suggested that a change in the character and impact of the use in planning terms might nevertheless amount to a material change of use. This need not be confined simply to the physical or environmental impact of the change, but may also include other factors, such as the loss of a certain type of accommodation or facility that the previous planning unit provided. The Richmond case was concerned with the conversion of a property from seven flats into a single dwellinghouse. It was held that a judgement has to be made as to whether the amalgamation of the planning units has ‘as a matter of fact and degree’ resulted in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

This point had previously been made in the Court of Appeal’s decision in Wakelin v. SSE [1978] JPL 769. That case confirmed that the creation of a new planning unit out of an existing planning unit would not always result in a material change of use, but it may well do so if it is (to use the words of Lord Denning) “not in accordance with good planning policy having regard to the surrounding circumstances”. Wakelin was in fact concerned with the creation of a separate dwelling out of an existing dwelling (now covered by section 55(3)(a)), but it clearly applies (as does Richmond) to other types of use.

Richmond involved the loss of no fewer than six separate residential units, and it was held that the inspector had been wrong to ignore this point in considering the material character and impact of the resulting change of use – in other words, it was not simply the environmental effect of the change that had to be considered but also its effect in relation to planning policies seeking to resist the loss of small residential units. On the other hand, it should be clearly understood that the amalgamation of two planning units, for example by combining two existing dwellings into a single unit, need not automatically be treated as a material change of use amounting to development. This will have to be a matter of objective judgment depending on the particular facts in each case.

It seems that a distinction is to be made between, on the one hand, situations such as those in Wakelin and in Richmond, where a planning unit is either subdivided or amalgamated with another planning unit and, on the other hand, the effect of a change within the planning unit where, both before and after the change, the use or combination of uses falls within one and the same use class. The latter is illustrated by the judgments in Brookes & Burton Ltd v. SSE [1977] 1 WLR 1294 and Eastleigh BC v. FSS [2004] EWHC 1408 (Admin).

I confess that I have always had misgivings about the Richmond judgment, as it does not seem to sit comfortably with section 55(2)(f), but I have explained above how it may be rationalised by arguing that section 55(2)(f) impliedly refers to the use of a single planning unit, whereas in a case such as Richmond one is dealing with two or more pre-existing planning units, so that (the argument would go) section 55(2)(f) does not apply in such a situation.

My reason for discussing the Richmond case now, some 15 years after it was decided, is that a planning inspector in dismissing a recent LDC appeal (under section 195) has relied on Richmond as the basis for the rejection of the lawfulness of the development in question. The appeal had clear similarities with the Richmond case. It involved a six-storey house in Central London that had been divided some time ago into four flats. The amalgamation of the four flats to restore the building to use as a single dwelling would involve the loss of several units of accommodation that the previous planning units provided. The inspector therefore considered, in accordance with Richmond, whether the amalgamation of the planning units would ‘as a matter of fact and degree’ result in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

This necessarily required some consideration of policy issues, including the NPPF and the London Plan, both of which seek significantly to increase the supply of housing in the area. The mix and size of the current residential units in the building was therefore relevant from this point of view, and these were more suited to meeting identified housing needs than a single large dwelling would be. These considerations were sufficient, in light of the judgment in Richmond, to bring about a significant change in the character and impact of the use in planning terms, and thus would constitute a material change of use, and would not therefore be lawful.

© MARTIN H GOODALL

Monday, 8 February 2016

Limiting the scope of a planning permission


At times when I am busy it has occasionally been difficult to write up posts for this blog, and there were times last year when I was very busy indeed. One case which deserved attention was the decision of the Court of Appeal in Wall and others v. Winchester City Council [2015] EWCA Civ 563 [which seems sometimes to be referred to by its name at first instance - as Winchester City Council v SSCLG], in which judgment was given on 17 March 2015.

I don’t propose to rehearse the facts of the case. Its significance lies in its discussion of the limitation of the scope of a planning permission by description. In other words, in the absence of a condition attached to the permission, to what extent does the description in the operative words of the permission have the legal effect of limiting the scope of the permission?

The previous judicial authorities on this issue are well known. They include Wilson v. West Sussex CC [1963] 2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. SSE (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”) which established that the initial use of a development is limited by the description of that development in the operative words of the planning permission that authorises it, but it was clear from those cases that such a description could not prevent the subsequent use of the property for some other purpose within the same Use Class (by virtue of what is now section 55(2)(f) in the 1990 Act). It was subsequently confirmed that in the absence of an express condition attached to the permission, this does not prevent a different use being implemented at a later date, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998] P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685).

The Winchester case related to a travelling show people’s site, and the crucial point is that this is a sui generis use, whereas the use of a single private dwellinghouse (for example) for holiday lets still falls within Use Class C3 in most cases (although there can be exceptions, as previously discussed in this blog – such as Moore v. SSCLG [2012] EWCA Civ 1202). As I have just mentioned, in the absence of a condition preventing this, section 55(2)(f) would normally apply to such a use. The Winchester case is very clearly distinguishable from this situation, because the planning permission authorising the change of use of the site to use as a travelling show people’s site did not merely contain a limitation, but it prescribed the scope of the sui generis use that was authorised. It did not authorise a general caravan site use.

In the judgment, reference is made to the well known case of Wilson (cited above). This established that the description of the development [erection of “an agricultural worker’s dwelling” in that case] limited the purpose to which the planning unit could be put, at least in the first instance. In that case, the court left open the question as to whether a subsequent change in the manner in which the dwelling was used would be a material change of use. In later cases (also cited above) it was established that a limitation by description of the kind in the Wilson case was insufficient, in the absence of an appropriate condition, to prevent the operation of section 55(2)(f). The essential point is that where (as in the Winchester case) the limitation in the description of the authorised development is describing a sui generis use, then a change of use to a wider caravan site use could, as a matter of fact and degree, be a material change of use, as the High Court and CA found it was in the Winchester case (over-ruling the inspector). The other cases cited in Jeremy Sullivan’s judgment all involved sui generis uses.

Nothing in the Court of Appeal’s judgment disturbs the principles applying to dwellings and holiday lets (and/or any other change of use within one and the same use class). In these cases, the rule in I’m Your Man is still fully effective – i.e. if there is no condition, then there is no restriction on any other use within the same use class.

Because Winchester was a case in which the change of use authorised by the planning permission related to a sui generis use, the well known rule in Wilson applied not only to the initial use but to the use of the site without limit as to time and without limit as to the scope of the use. The planning permission authorised only a travelling show people’s site and nothing else.

The position would have been different if the authorised use had in fact fallen into one of the Use Classes identified in the Schedule to the Use Classes Order. If, for example, the planning permission had authorised a specific and limited category of residential use of a building, which would fall wholly within Use Class C3 (dwellinghouses), then whilst the initial use of the building could only have been for the limited category of use specified by the permission, the description of the authorised development would not (absent a relevant condition) have prevented the subsequent use of the building for any other purpose also falling with in Use Class C3.

A residential caravan site does not, of course, come within Use Class C3 (or any other use class) and so a condition was not required in the Winchester case to limit the future use of the site, because the description of the specified sui generis use in the planning permission was sufficient to limit the use of the site to that use and no other. The attempt by the occupiers of the site to call in aid I’m Your Man Limited in this context would appear to have been wholly misconceived.

© MARTIN H GOODALL

Friday, 5 February 2016

Enforcement Notice issued without authority


My attention has been drawn to an appeal decision in Hertfordshire in November 2015 (Ref: 3005612), where an enforcement notice was found to be a nullity because it was issued without proper authority.

One of the first things that was drummed into me in my first job in local government back in 1979 (at Hertsmere Borough Council, as it happens) was that, when taking any action on behalf of the Council, officers should always ask themselves “What is my authority for doing this?” In those days, this usually meant finding the appropriate committee minute authorising the action being taken, but with the increasing use of delegated powers by officers, it is often a question nowadays of checking the Council’s scheme of delegation and ensuring that the officer who purports to have authorised a particular action, such as the service of an enforcement notice, has delegated authority to do so and that the action is taken in the name of that officer.

The usual practice in most authorities to enable officers to exercise delegated powers used to be to designate the Chief Officer in the department concerned as the officer having the relevant delegated power, although other named officers may be given specific delegated powers. There is judicial authority (although I am sorry I haven’t got time to look it up at the moment) that indicates a fairly relaxed attitude on the part of the courts to the actual detail of the exercise of such delegated power. It seems that the courts do not insist that the Chief Officer should personally sign off the action concerned, provided that the action is taken in the Chief Officer’s name by someone acting on instructions within the scope of their own proper responsibilities. The notice should certainly bear the name of the Chief Officer (or other officer) to whom the relevant delegated power has actually been assigned, even if this is only a rubber stamp or a facsimile signature. There must however be an ‘audit trail’ that enables the action to be traced back to that senior officer through a line of reporting, even though that senior officer may not actually have actively instigated the action in question.

The old rule - “Delegatus non potest delegare (a person with delegated power cannot sub-delegate that power) still applies, in the sense that ultimate responsibility must still rest with the officer to whom executive authority has actually been delegated under the council’s scheme of delegation. But provided another officer acting on their behalf and with their knowledge (in a general sense) is acting within the limits of their own responsibilities and reporting obligations, the courts have not been prepared to treat the resulting action as a nullity for want of authority, just because the senior officer did not personally take the formal decision themselves to initiate the action in question.

Where the local planning authority went wrong in the present case was that the council’s officers got into a muddle over recording the delegation of power to issue enforcement notices to the officer by or in whose name this enforcement notice was issued and, when challenged by the appellant’s representative in the appeal, were unable to produce a written record showing that this officer had actually been given the relevant delegated power to issue the enforcement notice. A notice issued without proper authority must be ultra vires and a nullity; it cannot be an enforcement notice at all, and so there was nothing to quash. For the reasons briefly outlined above, the inspector concluded that the notice was a nullity and therefore took no further action in connection with the section 174 appeal against the purported enforcement notice.

The LPA could have had a ‘second bite’ by serving another enforcement notice within 4 years, taking care this time to ensure that it would be issued under properly delegated authority, but in practice, planning permission was granted by the Inspector in a parallel section 78 appeal against the refusal of planning permission, and this no doubt resolves this particular case.

© MARTIN H GOODALL

Monday, 1 February 2016

The 56-day rule – a further example


I am grateful to Greg Dowden of Indigo Planning for passing on to me a copy of a double appeal decision (3065819 and 3133462) in Richmond issued last November, which demonstrates how a local planning authority can come unstuck on the 56-day rule, and the consequences they may then face in terms of costs. The two prior approval applications that were the subject of these appeals were dated 20 October 2014, and each was refused by notice dated 30 December 2014. In each case, the development proposed was change of use from B1(a) to C3 residential to provide two 2-bed dwellings. One application proposed one on-site car parking space and the other proposed two on-site parking spaces.

The Council received the two prior approval applications on 23 October, as acknowledged on their web-site. On 4 November the Council requested revised site plans showing the car parking spaces, and these were provided, after which the Council stated that the applications were accepted as valid on 5 November. On the basis of the date that the Council received the applications, the 56 days would expire on 18 December, whereas if taken from the date when the Council stated that the applications were valid, the 56 days would expire on 31 December. The refusal notices were dated 30 December 2014.

The GPDO does not contain a requirement or provision for applications to be validated, as is confirmed by the Court of Appeal decision in Murrell, but paragraph W(2) lists the information that must accompany an application, including ‘a plan indicating the site and showing the proposed development’ and paragraph W(3) provides that a local planning authority ‘may refuse an application where, in the opinion of the authority the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with any conditions, limitations or restrictions specified in this Part as being applicable to the development in question.’ The Council claimed that whereas they could have refused the application when they considered it did not provide the necessary information, ‘in the spirit of reasonableness an e-mail was sent to the appellant on 4 November 2014’ requesting the site plan showing the car parking. Whilst it appears to be the case that the appellant complied with the request and supplied another site plan, this approach is not what is provided for in the Order, and the Inspector referred again to Murrell, which confirmed that a request for further information does not stop the clock. Whether or not the application did contain the necessary information, as set out in sub-paragraph (2), the choices open to the Council were clear - accept the information or refuse the application under paragraph W(3). [The Council was, of course, entitled to request further information, but still had to determine the application within the 56-day period.]

The council also fell into error in relation to their consultations. They sent out a consultation letter dated 7 November 2014, that is to say after the request for and receipt of, the disputed site plan, stating that “We are writing to advise you that this Council has received the above prior notification on 23 October 2014 and are required to give notice on any adjoining owner or occupier of the proposed development. Any comments must be received within 21 days from the date of this letter i.e. 28/11/2014 because the local planning authority must issue written notice to the developer within 56 days from receipt of the application (31/12/2014) that either prior approval is not required or prior approval is granted, otherwise the developer may proceed”. In the terms of the GPDO (see paragraph W.(11)), the 56 days calculated from the stated date of receipt, 23 October would end on 18 December, not 31 December as stated by the council.

The Inspector noted that there appears to have been some interchangeable use by the Council of the words ‘received’ and ‘valid’ but the wording in the GPDO is clear - “56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority”. The Inspector therefore concluded that the 56 days should be considered as running from the acknowledged date of the Council’s receipt of the applications, 23 October 2014, and expired on 18 December. In the absence of a written notice under paragraph W(11) by that date, the permitted development could now proceed.

The LPA raised two other issues on appeal. The first of these was whether the building was in use within Use Class B1(a) on 29 May 2013, or if it was not in use on that date, when it was last in use before that date. The appellant produced a statutory declaration to which a lease was exhibited, showing that the appeal premises were leased as offices until surrender of the lease in November 2007. The Inspector accepted that Class B1(a) could be taken to be the lawful use of the building. No other use had been shown to have been established or permitted between the surrender of the lease and 29 May 2013. The Council and others had referred to various indications to the contrary, but no firm evidence was submitted, even where this might reasonably have been obtainable by the Council, such as the business rate record. On the balance of probabilities on the information available, the Inspector therefore concluded that the premises in question were in B1(a) office use on 29 May 2013, or when last in use prior to that date, and that the proposed change of use was therefore development that is permitted under Class O.

The other issue raised by the LPA related to transport and highways impacts. The Inspector did not accept the Council’s contentions in this regard, and in any event, having determined that the Council had missed the 56-day deadline for determining the prior approval application, it would not have been open to him to consider any transport and highways impacts of the development [nor could any contamination risks or flooding risks on the site be taken into account by the Inspector in these circumstances].

The Council also suggested various conditions, but since the Inspector had already concluded that the appellant was entitled to go ahead with both developments in any event, there was no basis on which he could attach further conditions in addition to the standard ones contained in Class O. Unilateral obligations under section 106 (relating to the proposed parking arrangements) had been submitted to the Council with the prior approval applications, but they were subject to a proviso that “the obligations in this Deed are conditional upon the receipt from the Council of a written notice that Prior Approval is not required or a receipt from the Council of a written notice giving their Prior Approval”. Neither of these events had occurred and so the Inspector confirmed that these planning obligations under section 106 are not binding on the appellants.

Having got it so comprehensively wrong, the Council can hardly have been surprised that a full award of costs was made against them, although they did their best to resist the costs application. The appellant had sent an e-mail to the Council on 30 December 2014 stating their view that the 56-day period had elapsed, and by return e-mail the Council disagreed with that view, issuing the refusal notice that day. The Council did not agree that the premises were in B1(a) use on 29 May 2013 or when last in use. There were several options open to the appellant after the expiry of what they viewed as the 56-day period, or after the receipt of the refusal notice. First, they could accept the situation as stated by the Council and make a planning application for the proposed development instead. Secondly, they could carry out the development on the basis of their view that the 56 days had elapsed, so that it was now lawful to go ahead with the two developments. Thirdly, they could submit an application for a lawful development certificate for the proposed development, on the basis that the development applied for had become lawful due to the Council's failure to respond within the 56-day statutory period. Finally, they could lodge an appeal against the Council’s purported refusal of prior approval (and also against its failure to determine the application with the 56-day period).

Obviously, a planning application was not a realistic option, and might have been dismissed, quite apart from the expense and delay that would have been involved. The second option would also have carried a significant risk in view of the difference of opinion with the Council, both over the 56-day period and over the qualifying office use, and could well have led to enforcement action being attempted against the appellant. The third option of seeking a lawful development certificate would have been less risky but likely to lead to the same differences of opinion being aired as became the subject of these two appeals, with the possibility of refusal. (Another option referred to by the Council of obtaining a lawful development certificate to show the lawful use at 29 May 2013 would also have resulted in delay.) These appeals were a reasonable response to the situation and the only real option open to the appellant.

The appellant had in fact made continuing attempts to avoid the cost and delay of appeal. This started with the e-mail of 30 December, the response to which was the Council’s assertion that the 56 days was still running followed by the refusal notice. On 24 March 2015 the appellant contacted the Council to again to give them the opportunity to rectify what was seen as an error, but the Council refused. The first appeal was submitted on 3 May 2015 and the appeal in respect of the second development appears to have followed a few months later. It is unclear why this occurred, but possibly in light of the Council continuing to contest the first appeal.

On the procedural matters that the Council alleged were relevant to the costs issue, the Inspector drew attention to his accompanying appeal decision and the reference to the Murrell case, which explained the situation regarding the amount or quality of information submitted for prior approval, it being for the Council to accept it or refuse the application; there is no provision for ‘stopping the clock’ from the operative date of receipt of the application provided that the information is as required under paragraph W(2).

On the substantive grounds, there was a lack of evidence to back counter-claims on the B1(a) use, in the face of the statutory declaration. Parking was a matter that had been accepted by a previous Inspector for what appears larger numbers of domestic users, although the loss of any commercial users would have had an effect, but the dimensions of the parking and access were stated not to have changed.

Ministerial advice on costs in appeals is now set out in the online Planning Practice Guidance (although it largely repeats the basic principles that were previously set out in the well-known costs circular). Among the sins on the part of LPAs that may result in an award of costs are:

• preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations; (The Inspector decided that the LPA’s conduct had had that result in this case.)
• acting contrary to, or not following, well-established case law; (The Murrell case and the GPDO give the procedure for accepting or rejecting information in a prior approval application, but not ‘stopping the clock’.)
• failure to produce evidence to substantiate each reason for refusal on appeal; (In the circumstances of this case, because of the operation of the 56-day rule, this did not arise in this case with regard to transport and highways, and the evidence produced by the LPA in defence of their contrary view of the B1(a) use was lacking.)
• persisting in objections to a scheme or elements of a scheme which the Secretary of State or an Inspector has previously indicated to be acceptable. (Once again this did not in fact need to be addressed in the Appeal Decision, but a previous Inspector had ruled on highway and parking matters for a similar-enough proposal. The appellant had to bring evidence to address this at appeal in case their 56-day claim failed.)
• not reviewing their case promptly following the lodging of an appeal against refusal of planning permission (or non-determination), as part of sensible on-going case management. (The appellant gave the Council numerous opportunities to address the case and avoid the appeal, and these were not taken.)

The Inspector reiterated that the appellant had little viable option but to appeal, having taken all available steps to avoid that state of affairs and had then tried to broker a reason to withdraw it, but to no avail. As a result the appellant had been put to the cost of appeals that should have been avoided, by the Council’s refusal to accept that the 56 days had elapsed and by their persisting with the claim that the proposal was not permitted development [by reason of the disputed B1(a) use] and that it would result in highway impacts. He therefore found that unreasonable behaviour resulting in unnecessary or wasted expense, as described in the Planning Practice Guidance, had been demonstrated and that a full award of costs was justified in both appeals.

I felt it was worth reporting this appeal decision (and the accompanying costs decision) fairly fully, because it is a graphic example of a local planning authority’s failure to appreciate how the 56-day rule operates, and the consequences of missing the 56-day deadline. The costs decision is also in line with similar decisions in other cases, and it behoves LPAs to sit up and take notice, and to ensure that planning officers clearly understand how the prior approval procedure under Part 3 of the Second Schedule to the GPDO actually operates.

© MARTIN H GOODALL

Saturday, 23 January 2016

Barn conversions – the structural issue (3)


When I wrote my last piece on this topic, I was aware that there are a couple of quotes from Sage v. SSETR [2003] UKHL 22 that might potentially be cited by a local planning authority seeking to argue that internal works do form part of the development permitted by Part 3 of the Second Schedule to the GPDO, but I did not want to lengthen further an already lengthy article, and (for reasons that I will explain below), I am in any event unconvinced that Sage really is relevant to the issue in question here. Nevertheless, my previous correspondent has understandably raised this point with me, and so I have decided that I should after all deal with it in this further article.

My correspondent also commented that, unless the Prudential judgment is contradicted by a subsequent judgment, he would be very wary of concluding that it shouldn’t be given any weight. I certainly would not suggest that the Prudential judgment should be entirely ignored. In fact, readers may recall that I wrote in my previous article that “some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument.” I hope I made it clear that someone wishing to challenge this view in relation to internal works may well have to be prepared to take it to the High Court (and they might possibly have to go on to the Court of Appeal).

Moving on, then, to Sage, my correspondent drew attention to the following paragraph in the speech of Lord Hobhouse :

“23. When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage’s case. He comes into the first category not the second.”

There are one or two other places in this House of Lords decision where reference is made to internal works, but all of these remarks were made solely in the context of a development that took the form of building operations to create a new dwelling. There was no pre-existing building, and thus no change of use was involved. What the House of Lords had before them was an enforcement case involving the 4-year rule, and the passage quoted above was in my view obiter, in so far as it might relate to a development carried out under planning permission, quite apart from the fact that it did not relate to a material change of use of an existing building.

Lord Hope (in supporting the conclusions of Lord Hobhouse) was persuaded that it made better sense of the legislation as a whole to adopt the ‘holistic’ approach which Lord Hobhouse had described. What this meant, he observed, was that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. “That will be an easy task if the developer has applied for and obtained planning permission” [my added emphasis].

Pausing there, one has to bear in mind the scope of the planning permission granted by Article 3 of the GPDO and by the various Classes in Part 3 of the Second Schedule to the Order. The permission in the case of Class O (and in certain other cases) is solely for a change of use of an existing building. In some other Classes (including Class Q) there is limited permission for building operations, but I continue to maintain that this permission (under Class Q(b)) relates only to those operations that require planning permission, and does not relate to works that are exempted from the definition of development by section 55(2)(a). The context in this case, I would stress, is very different from the context in which enforcement action is in question in relation to section 171B(1).

In his speech in Sage, Lord Hope was clearly focused on the completion of a new building that the developer intended to erect, and on what constituted substantial completion in this context. As Lord Hobhouse put it in paragraph 11, “The point raised by this appeal by the Council to your Lordships' House concerns the construction of section 171B(1) and the starting point of the four-year period — i.e. ‘the date on which the operations were substantially completed’.” The LPA was arguing for a holistic construction, in order to establish whether the building had been substantially completed and, if so, when.

It is also important to understand that Sage was concerned solely with operational development, not with a material change of use. As one of the Law Lords observed, the House was concerned with section 171B(1), not with section 171B(2). The development in question in Sage was the erection of a dwellinghouse which was in the course of construction. It was in this context that Lord Hobhouse observed, in paragraph 19, that “Exception (a) clearly contemplates and involves a completed building which is to be maintained, improved or altered” [my added emphasis].

It is clear that the passage that my correspondent quoted from paragraph 23 is, like the rest of the judgment, focused solely on the unauthorised erection of a new building and on the operations involved in creating and substantially completing that building. By contrast, one is dealing in Part 3 of the Second Schedule to the GPDO primarily with the change of use of an existing building, and also in some cases (as a subsidiary or subordinate, but nevertheless separate, development) with limited building operations that are permitted in connection with that change of use. There seems to me to be no policy reason, and no justification in terms of statutory interpretation, in this context, to ignore or override the words of section 55(2)(a) so as to bring into consideration purely internal works that are for the maintenance, improvement or other alteration of the building (including internal alterations carried out in connection with the permitted change of use under Part 3).

This does not involve disturbing the decision of the House of Lords’ decision in Sage in relation to section 171B(1). It merely emphasises the need to have regard to the context in which that judgment was handed down. We must all be careful not to quote passages from such judgments out of context – a fairly common error, all too frequently committed by counsel in arguing later cases, and even sometimes by judges.

In discussing the points raised both by Sage and by Prudential, my correspondent postulated that if someone has planning permission to erect a house with two bedrooms, then they can erect such a house and then subsequently (i.e. as a separate operation) convert the two bedrooms into three bedrooms (i.e. on the basis that the latter works don’t constitute development), but he argues that you can’t simply erect a house with three bedrooms from the outset (i.e. as a single operation). This may be arguable in relation to the erection of a new house, but not (I suggest) in relation to a change of use.

I did try to run such an argument some years ago on behalf of a neighbouring objector when an authorised change of use of a house to form several flats was carried out in almost exactly this way. Permission had been given to convert the house into several 2-bedroom flats. The developer produced the specified number of flats, but in doing so he sub-divided the bedrooms so that each of the new flats was a 4-bedroom flat. Quite clearly he was converting the property into student lets. I totally failed in my attempts to persuade the LPA to take enforcement action, and I had to admit (at least to myself) that the LPA’s attitude was entirely understandable, because subsequent conversion of each of the flats into 4-bedroom flats would have been entirely lawful, and so it could legitimately be argued by the LPA that in those circumstances it was not ‘expedient’ (in the terms of section 172) to take enforcement action.

Leaving aside the question of expediency in relation to possible enforcement action, I believe it is wrong to think in terms of a planning permission for a change of use as ‘authorising’ any internal works. The development authorised by that permission is simply the making of the material change of use. The internal works required to facilitate that change of use are merely preparatory to the change of use actually being made, which will occur (as a single event) either when the development is occupied for its new use or, at the earliest, when it is finally ready for occupation (see Impey and also Welwyn Hatfield, both quoted in my last article).

So far as the description of the development is concerned (the change of use of the house to use as several 2-bedroom flats in the example I mentioned above), the scope of the authorised change of use might be taken to have been limited in the first instance, by its description, to use as 2-bedroom (not 4-bedroom) flats, but this in itself could not have prevented the later use of any of those flats as 4-bedroom flats. (For examples of the application of this principle, see Wilson v. West Sussex CC [1963] 2 Q.B. 764, and East Suffolk CC v. SSE (1972) 70 L.G.R. 803.)

We therefore come back to the point that I made in my previous article. When considering permitted development comprising the change of use of an existing building, it is a conceptual mistake to think in terms of the ‘whole’ development as including the internal alterations required to facilitate the permitted change of use. The development comprises solely the material change of use itself, when it actually occurs. In such a case, any internal works undoubtedly come within the exemption of such works from the definition of ‘development’, by virtue of section 55(2)(a). Neither Sage nor Prudential affects the position in this regard. It follows that the building operations that are permitted by Class Q(b) (and similarly by Classes M(b) and N(b)) are simply those that are listed in that Class, and that they do not include or refer in any way to any internal works to the building.

It is for this reason that I would stoutly maintain that the government’s amended online Planning Practice Guidance of 5 March 2015, stating that it is not the intention of what was then Class MB(b) [now Class Q(b)] to permit the construction of new structural ele¬ments for the building (so that, it is only where the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use that certain building opera-tions would be considered to come within Class Q(b) ) cannot, as a matter of law, be taken to refer to any works that affect only the interior of the building, or which do not materially affect the external appearance of the building.

© MARTIN H GOODALL

Monday, 11 January 2016

Barn conversions – the structural issue (2)


After my article on this topic was posted on 4 January, another well-known planning blogger (who, with becoming modesty, does not wish to be named here) kindly drew my attention to R (Prudential Insurance Co Ltd) v. Sunderland City Council [2010] EWHC 1771 (Admin). I will come back to this judgment below, but I want first to analyse carefully the nature of the development involved under Part 3 of the Second Schedule to the GPDO and the precise scope of the planning permission granted by Article 3 in conjunction with the various Classes set out in Part 3.

Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. In Part 3 of that Schedule, this development is specified by the various Classes set out there as “Development consisting of a change of use of a building (or, in some cases, of a building and any land within its curtilage) from a use falling within [a specified Use Class or Classes] to a use falling within [another specified Use Class]”. In certain cases, planning permission is also granted for limited building operations. I will come back to that further permission below.

When considering the planning permission for change of use granted by the various Classes in Part 3, it is important to appreciate that a change of use is a single event; it is not a gradual process or a continuing state of affairs (see Cynon Valley BC v SSW (1987) 53 P. & C. R. 68). Furthermore, it should be firmly borne in mind that, except in those few Classes where some building operations are also permitted, the permission granted is solely for the specified change of use. It follows that a development comprising a material change of use only commences when the change of use itself occurs, and (for the reasons explained in my last article, and further explored below) any incidents, including the commencement of internal alterations, that are preparatory to that change of use are of no legal significance in planning terms.

In the case of a change of use to use as a single private dwellinghouse, it is a prerequisite to such a change of use that the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence (Gravesham B.C. v SSE (1984) P. & C. R. 142). Until that point is reached, no change of use has taken place. The judgment in Impey v SSE (1984) 47 P. & C. R. 157 established that a change of use can take place before the premises are used in the ordinary and accepted sense of the word (for example, where operations have been undertaken to convert premises for residential use and they are then put on the market as being available for letting). (This was subsequently confirmed by the Supreme Court in Welwyn Hatfield BC v. SSCLG [2011] UKSC 15.)

The effect and extent of the planning permission granted by the GPDO can readily be understood by reference to Class O in Part 3 (the residential conversion of offices which have been in use within Use Class B1(a)). The GPDO is completely silent on the subject of the works required to bring about this change of use. Clearly the permission does not extend to any building works to the exterior of the building, or which would materially affect its external appearance, but quite extensive works may be required to the interior (including in may cases the erection of new internal walls, and other structural elements, as well as the installation of bathrooms, toilets, kitchens, and a variety of other features and facilities) in order to enable the authorised change of use to take place. The reason that no provision is made for these in the GPDO is that they do not require planning permission in any event, by virtue of section 55(2)(a). None of the conditions attached to Class O refers to these internal works in any way.

I want to look next at the planning permission granted by Classes M(a)and M(b). Class M(a) grants permission for the residential conversion of a building currently used as a shop (A1) or for the provision of financial or professional services (A2) (or used for certain related uses). Bearing in mind the nature of such premises, it may be unnecessary in some cases to resort to the additional permission granted by Class M(b) for building operations that are reasonably necessary to convert the building to residential use. Existing doors, fenestration and other external features may not need to be replaced or supplemented, so that no external building works need necessarily be carried out in such cases.

Where works affecting the exterior are necessary in order to convert the building to residential use, the only restrictions in Class M that relate to such works are M.1(e), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and M.1(f), which prohibits development consisting of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As discussed above, if a change of use of the building is the only development involved, there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). It cannot sensibly be argued that by also changing some doors and windows, which therefore requires additional prior approval under Class M(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. It seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class M(b).

The conditions in paragraph M.2 include a requirement that where the development proposed is development under Class M(a) together with development under Class M(b), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to a list of matters which include the design or external appearance of the building. But where the development proposed is development under Class M(a) only, prior approval is not then required as to the design or external appearance of the building. This is further confirmation that where building works are necessary under Class M(b), the only additional matter requiring prior approval is the design or external appearance of the building. Clearly the LPA is not concerned in any shape or form with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

I have set out the position in relation to Class O and Class M, in order to examine the planning permission granted by Classes Q(a) and Q(b) in light of the points established in relation to these other Classes of development in Part 3. Class Q(a) grants permission for the residential conversion of a building and any land within its curtilage from a use as an agricultural building, and Class Q(b) grants permission for building operations reasonably necessary to convert the building to residential use.

In the same way as in Class M, the only restrictions in Class Q that relate to the building works authorised by Class Q(b) are Q.1(g), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and Q.1(i) which prohibits development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwellinghouse, and also partial demolition to the extent reasonably necessary to carry out those authorised building operations.

Whilst this restriction is more prescriptive in its details than the corresponding restriction in Class M, there would appear to be no justification for treating purely internal alterations any differently from internal alterations carried out in connection with a change of use made under Class O or under Class M. For this reason, I would argue that even in the case of the residential conversion of an agricultural building there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). There still seems to me to be no basis on which it can be argued that where building works are proposed which require prior approval under Class Q(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. As in the case of Class M, it seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class Q(b).

The conditions in paragraph Q.2 requiring the submission of a prior approval application are in the same terms as in paragraph M.2. discussed above, and so this too confirms that where building works are to be carried out under Class Q(b), the only additional matter requiring prior approval is the design or external appearance of the building, and that the LPA is not concerned in any way with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

We come then, at last, to Prudential Insurance. How, if at all, does this judgment affect the argument? This was a spat between the claimant and a rival developer (Peel Holdings), with the LPA as the unfortunate ‘piggy-in-the-middle’. The claimant was seeking to quash a Lawful Development Certificate granted by the LPA to Peel Holdings in respect of a proposed development that they sought to carry out under an extant planning permission. The planning permission authorised “Conversion of one retail unit into two units, construction of new free-standing entrance canopies and formation of a goods access road at 1 Peel Centre, The Glover, Washington..”

The development of the Peel Centre as a whole had been authorised by an earlier planning permission issued by the Secretary of State under section 77 of the 1990 Act. A condition in that original permission provided that the development permitted should not be used for the retailing of 19 different classes of goods without the prior written consent of the LPA. A section 52 agreement (under the 1971 Act) had been signed some years earlier by Peel Holdings which precluded the sale of the same classes of goods.

The proposed use or development for which the LDC was granted comprised “open A1 retail use and a planning permission dated 11.12.2006 (06/04039/FUL) unfettered by the requirements of the section 52 agreement of 08.08.1988 as amended by the deed of revocation of 14.07.2006.”

The question for the Court was - What did the planning permission in respect of Unit 1, properly interpreted, authorise? The judge had no difficulty in stating straight away that the LPA was authorising the conversion of one shop into two together with, specifically, works to the exterior of the building necessary to achieve that conversion. He observed that the work necessary to achieve the conversion was necessarily to be undertaken both to the interior and exterior of Unit 1. As a matter of interpretation of the planning permission it might be thought obvious, he said, that it was authorising the carrying out of the building activity necessary to put in place what was shown on the two plans and which would result in the conversion of the unit from one shop into two [that is to say, both internal and external buildings works].

The claimant disagreed, relying on the definition of development in section 55(1) and the exemption from that definition provided by section 55(2)(a). Counsel for the claimant accepted that in this case planning permission was required for certain of the building operations which were specified in the planning application. They were the external alterations to Unit 1, the construction of new free-standing entrance canopies and the formation of a goods access road; each clearly constituted operational development within section 55 of the 1990 Act. He submitted, however, that the conversion of Unit 1 into two units was achieved solely by virtue of internal alterations to the building. He submitted that no planning permission was necessary for the internal alterations by virtue of section 55(2)(a). Accordingly, he submitted that, as a matter of interpretation, all that the planning permission in respect of Unit 1 authorised was the physical alterations to the exterior of the building.

The case for Peel Holdings was that "the conversion of Unit 1 into two units" constituted operational development, and that the conversion was inextricably linked with both the interior and exterior alterations to the building. [Note that this development did not constitute or include a material change of use. The judge accepted that the planning permission related to purely operational development. The use of the two new units was in practice governed by section 75.]

The judge accepted that there can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. In his judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, falls within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seemed to him to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. He took the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either ‘Yes’ or ‘No’.

Looked at in this way, there was no doubt in his mind that the proposal for which planning permission was sought in respect of Unit 1 constituted development. The planning permission which was granted authorised the carrying out of the whole of that development. In his judgment, therefore, the planning permission authorised the conversion of Unit 1 into two separate units and it authorised the works necessary to achieve that end.

The planning permission so granted did not limit the use to which the two units could be put. In those circumstances, Peel Holdings submitted, permission was granted for retail uses falling within Use Class A1. On any view of the wording of the planning permission, the permission granted was for retail units i.e. shops. In the absence of a condition limiting the use of the units to certain categories of goods, or a condition limiting that which could be sold, all the uses permitted under class A1 were permitted.

I am afraid I have considerable difficulty with this judgment, and in particular with the conclusion that it would be “wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development” and that “the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole”. This appears to me to be an assertion that is entirely unsupported by any reasoning, and which (although it refers in passing to counsel’s submissions with regard to section 55(2)(a)) makes no attempt to analyse the wording and effect of section 55.

A clear distinction must be made between, on the one hand, the conversational use of the word “development”, which can embrace all aspects of what is colloquially meant by that word in ordinary conversation (and this would undoubtedly include internal works), and on the other hand, the use of the word “development” in the Town and Country Planning Act 1990, which is precisely defined by section 55 and must be construed strictly in accordance with the rules of statutory interpretation. If parliament had intended that “development” should be interpreted more widely in some contexts than in others, it would undoubtedly have legislated accordingly in the 1990 Act (or in a subsequent amendment of that Act). There is nothing in the wording of section 55 to suggest that the effect of section 55(2)(a) only applies to internal works where those works are carried out in isolation, but that when internal works are carried out in conjunction with building operations to the exterior of the building, or which materially affect its external appearance, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the external works. There is similarly nothing in the legislative wording to suggest that when internal works are carried out in conjunction with a material change of use, perhaps in fact in order to facilitate that change of use, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the change of use itself. Such an interpretation would fly in the face of the clear statutory provision contained in section 55(2)(a), and with all due respect, it is not for a High Court judge to attempt to amend statute law, or to ignore its clear meaning and intention by applying a wider more colloquial interpretation to the word “development”.

There were in fact several other grounds of challenge in the Prudential Insurance case, all of which were dismissed, and it is clear that the case turned on the fact that what the LPA had granted was an unlimited planning permission for the creation of two new retail planning units, without any condition restricting the goods that could be sold in each of those two new units. They had failed to repeat the condition in the original planning permission for the development of the Peel Centre (as perhaps they should have done), and so they had been correct in issuing an LDC in the terms that had been sought by Peel Holdings.

In my view, the court’s apparent finding with regard to the scope of the development, in relation to section 55(1) and 55(2), would by itself have merited an appeal to the Court of Appeal, but the dismissal of the other grounds of challenge was less susceptible to challenge, and this no doubt explains why the judgment was not in fact appealed. Whilst this judgment cannot be dismissed as being ‘special to its facts’, the case for the claimant may not have seemed particularly meritorious to the Court when viewed as a whole, being (as I mentioned earlier) a commercial ‘spat’ between rival developers, and as someone once observed “context is everything”.

[Although this judgment was followed by the Court of Appeal in R. (Peel Land and Property Investments Plc) v Hyndburn BC [2013] EWCA Civ 1680, that case turned entirely on other issues (such as the effect of section 75), and the judgment did not discuss section 55 or any suggestion that “development” could embrace internal works in addition to external works or a material change of use. The Court of Appeal did not therefore endorse the view taken in Prudential Insurance on this issue.]

For the reasons I have explained, I do not believe that any weight can be put on the court’s approach in Prudential Insurance to the definition of development in relation to internal works. Some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument, but if or when the matter comes before the court in a future application under section 288, I doubt whether the Court will follow Prudential Insurance when a full and careful analysis is made of the statutory wording and effect of section 55, and in particular section 55(2)(a).

© MARTIN H GOODALL

Monday, 4 January 2016

Barn conversions – the structural issue


Anyone who has ever had to deal with a ‘barn conversion’ (i.e. the change of use of an agricultural building, usually to residential use but sometimes for other purposes) will be well aware of the structural problems that may arise, especially where the pre-existing building proves not to be sufficiently robust to allow conversion without substantial reconstruction and, in the worst case scenario, where the building collapses (or is demolished by well-meaning builders, or destroyed by fire or storm) before the project can be completed.

I have previously discussed these issues at some length in a series of five articles I published in this blog under the title “Barn Conversions again” in March 2013, and in a sixth and final article in December 2014. However, the considerable extension of permitted development rights for various changes of use introduced between May 2013 and April 2015 has given rise to further structural issues that can arise in these cases.

Some classes of permitted development within Part 3 of the Second Schedule to the General Permitted Development Order allow a certain amount of operational development in connection with some, but not all, residential conversions. However, the extent of the building operations that can be undertaken is strictly circumscribed by the terms of the Order. The changes of use in respect of which building operations are also permitted are Class M (formerly IA) (residential conversion of a shop or of premises providing financial or professional services), Class N (residential conversion of an amusements centre or of a casino) and Class Q (formerly MB) (residential conversion of an agricultural building). It is in relation to the last of these that structural issues are most likely to arise, especially if the pre-existing building is of unconventional, and perhaps insubstantial, construction.

In all three cases, the Order permits building operations reasonably necessary to convert the building to residential use (within Use Class C3 - dwellinghouses). In the case of Classes M and Q (but not Class N), development is not permitted if it would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point. In the case of Classes N and Q development is only permitted to the extent that it would consist of the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse. This stipulation is not made in respect of Class M, but in all three classes development demolition is prohibited, other than partial demolition to the extent specified by that Class. The wording varies slightly as between these three classes of permitted development. In the case of Class M, any partial demolition must be reasonably necessary to convert the building to residential use. In the case of Classes N and Q, it must be confined to the extent reasonably necessary to carry out the building operations permitted by that Class (as listed above). A developer under Class M thus has a slightly wider discretion with regard both to the building works carried out and as to the extent of any partial demolition, compared with a developer under Classes N or Q. A prior approval application must, of course, be made in all cases.

These statutory provisions represent the entirety of the legal constraints on the building operations that may be carried out as permitted development under these three Classes in Part 3. However, there is another important factor to be considered. Section 55(2)(a) of the 1990 Act provides that the carrying out, for the maintenance, improvement or other alteration of any building, of works which affect only the interior of the building, or do not materially affect the external appearance of the building, are not to be taken for the purposes of the Act to involve development of the land. It would be excessively legalistic, in my view, to argue that the words “for the maintenance, improvement or other alteration” of the building limit the scope of the works that are covered by section 55(2)(a). In particular I would not accept that the words “or other alteration” are to be construed ejusdem generis with “maintenance” or “improvement”; the purpose of such works may well be much wider than that. Thus I would contend that purely internal works (or works that do not materially affect the external appearance of the building) can be carried out to any building at any time and for any purpose, and that they would not amount to development under the Act provided that the completion of those works does not in itself constitute a material change of use.

Impey v. SSE (1984) 47 P. & C.R. 157 established that actual occupation of the converted building is not required in order for a material change of use to have taken place, if the conversion works have actually been completed. This was confirmed by the Supreme Court in Welwyn Hatfield v. SSCLG [2011] UKSC 15, where the contrary suggestion that had been raised in Backer v. SSE (1984) 47 P. & C.R. 149 was rejected. However, (short of completing the conversion works) any internal works that might be, or might be alleged to be, preparatory to a change of use for which a prior approval application has not yet been made would not constitute an unlawful commencement of the permitted development in the absence of prior approval, nor would they be a breach of planning control.

There may be some readers who are tempted at this point to cite Somak Travel Ltd -v- SSE(1988) 55 P. & C.R. 250, where an internal spiral staircase had been installed. By virtue of section 55(2)(a) this did not itself constitute development, but in this case it was part and parcel of the material change of use (or integral to the change of use) of an upper floor to office use, and so a requirement in the Enforcement Notice to remove the spiral staircase was upheld. The essential point, though, is that this case was concerned solely with the requirements of the enforcement notice. The breach of planning permission comprised only the unauthorised change of use of the upper floor of the building from residential use to use as part of the travel agency business which occupied the ground floor.

It was not alleged, nor did the inspector or the High Court find, that the installation of the internal staircase constituted development in itself. [The unlawful change of use would not have occurred, at the earliest, until all the works necessary for its occupation as an office had been completed.] However, in order to remedy the breach of planning control, i.e. the change of use of the upper floor, the removal of the staircase was seen as a necessary step in the restoration of that floor of the building to residential use. It was for this reason that the requirement in the enforcement notice that the spiral staircase should be removed was upheld by the Court. The case simply confirmed that the requirements of an enforcement notice can go beyond the scope of the breach itself, if the additional steps required to be taken (in this case the removal of the spiral staircase) are a necessary part of remedying the breach so as to restore the premises to their previous use. (This was in line with two earlier cases - Murfitt -v- SSE [1980] JPL 598 and Perkins -v- SSE [1981] JPL 755.) It does not, however, justify calling Somak Travel in aid in an attempt to argue that there are any circumstances in which purely internal works (or works that do not materially affect the external appearance of the building) are not exempted from the definition of development under section 55(2)(a).

Bearing in mind the clear legal effect of section 55(2)(a), it is difficult to reconcile this statutory provision with the statement in the government’s online Planning Practice Guidance, as amended on 5 March 2015, that it is not the intention of what was then Class MB(b) (now Class Q(b)) to permit the construction of new structural elements for the building and, accordingly, that it is only where the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use that certain building opera¬tions would be considered to come within Class MB(b) [Q(b)].

This advice clearly overlooks the fact that (so long as it is confined to purely internal works or works that do not materially affect the external appearance of the building) the installation of new structural elements in the building, such as a new floor, or the addition of a mezzanine floor, structural strengthening, including a new or augmented load-bearing frame, additional or strengthened roof trusses, etc. does not constitute development at all, and is not therefore governed in any way by the scope of the permission granted by Part 3, either in respect of the change of use itself, or in respect of the operational development that is also permitted under Classes M, N and Q. The latter can clearly refer only to any external works, or works that do materially affect the external appearance of the building. There is absolutely nothing in the Planning Acts, or in the GPDO itself, that prevents or inhibits other works within the building and/or which do not materially affect the external appearance of the building, whether they are carried out before, during or after any external works permitted by the GPDO.

The restriction of building operations under Classes N and Q to the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse applies only to the external works permitted by Part 3. It has no application whatsoever to purely internal works, no matter how extensive those may be.

On the other hand, if the existing structure, and the materials from which it is constructed, are so insubstantial that the building would require almost complete demolition and reconstruction in order to meet the requirements of the Building Regulations, then this clearly falls outside the scope of what Part 3 permits (particularly as regards the limited scope of the partial demolition that is permitted). In my book on Permitted Changes of Use, I have cited an appeal decision in Bedfordshire, issued in February 2015 that confirmed this.

There have, however, been other appeal decisions where inspectors would appear to have fallen into error in determining that certain agricultural buildings which comprise, for instance, a steel frame clad with light corrugated sheet, are incapable of conversion within the terms of Class Q. In one case, in August 2015, the proposal was to replace the corrugated sheeting with timber cladding, and a roof of slate. However, the Inspector doubted that the increased weight of the new materials could be carried by the existing steel frame, which was showing signs of corrosion. No structural report had been produced to confirm that the proposed conversion could be based on the existing steel frame, and so he concluded that the conversion could not be carried out within the limited structural parameters of the permitted development allowed by Class Q. A similar decision was reached on very similar grounds in another appeal in September 2015. What both these appeal decisions appear to have overlooked is that the necessary internal strengthening could (and quite probably would) have been carried out under section 55(2)(a), and would not therefore impact in any way on the limited extent of the building operations permitted by Class Q(b).

The two specific examples mentioned above are among a growing number of prior approval appeals that have been dismissed on these or very similar grounds. In our seminar in November, members of Keystone Law’s planning law team expressed their strong disagreement with this approach to the structural issues arising in prior approval cases under Class Q, and our guest speaker Sinclair Johnston agreed with us, and showed examples of structural works that in his view are entirely lawful in accordance with section 55(2)(a). We are all agreed that any future appeal decisions which conclude that the need for internal structural alterations and strengthening of an agricultural building takes the proposed development outside the scope of the development permitted under Class Q would be open to legal challenge in the High Court under section 288 and are liable to be quashed.

At the application stage, I am also aware of one case in which the LPA refused their prior approval on the grounds that internal structural works had been carried out to the building without prior notification having been given under Part 6. They therefore alleged that the agricultural building as it existed at the time of the prior approval application was unlawful, so that permitted development under Part 3 was now ruled out, by virtue of Article 3(5). Bearing in mind the effect of section 55(2(a), this reason for refusal is clearly nonsense.

A practical way forward in future in cases where internal structural works have either been carried out already, or where they will clearly be necessary in order to facilitate the residential conversion of the building, would be to give details of those works as additional information accompanying the prior approval application, so as to demonstrate the practicability of the proposed conversion, while at the same time making it abundantly clear that those internal works do not form part of the application for prior approval because, by virtue of section 55(2)(a), they do not constitute development and do not therefore require prior approval under Part 3. The LPA should then have no excuse for alleging that the proposed development does not comply with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. Nor, in light of the information given by the applicant as to the purely internal works covered by section 55(2)(a), would there be any excuse for alleging that the applicant has not provided sufficient information to enable the authority to establish whether the proposed development complies with those conditions, limitations or restrictions.

© MARTIN H GOODALL