Friday, 15 July 2011
MORE DEVELOPMENT IN WONDERLAND
[WARNING: This article is now of no more than literary and/or historical interest. What the Cheshire Cat says here should NOT be relied upon. Read the updates at the foot of this article for later authorities that have significantly changed the legal position in the three years since this article was written.]
In which Alice learns about the hazards of Barn Conversions
[I won’t have time to post any more items on this blog for at least a week, and so I have decided to let you have this rather longer piece to digest while I am otherwise engaged. Now - are you sitting comfortably, children? Then we’ll begin………]
Alice came across Humpty-Dumpty, sitting on a bank next to a heap of rubble, crying his eyes out. This puzzled Alice, because Humpty-Dumpty was completely intact – it was the wall that lay in ruins. In fact, when she looked more closely, she saw it was not just a wall but a complete building which had been knocked down, leaving only part of one wall standing on the far side.
‘What’s the matter?’ asked Alice.
‘Oh, dear me!’ exclaimed Humpty-Dumpty. ‘I employed the Walrus and the Carpenter to carry out my barn conversion, and look what’s happened!’
Alice surveyed the mess, and then she noticed the Walrus and the Carpenter lurking furtively on the other side of the heap of rubble, looking somewhat chastened.
Alice marched up to the guilty pair.
‘What’s been going on here?’ she demanded. ‘Why have you knocked down Humpty-Dumpty’s barn?’
‘Well, you see, it’s like this,’ replied the Walrus. ‘Humpty-Dumpty got planning permission to convert the barn into a house.’
‘And we got the contract to do the job,’ the Carpenter chipped in.
‘Well, when we looked at it, we realised the old barn was structurally unsound,’ the Walrus continued; ‘so we asked the Building Inspector, and he said we should take it down and rebuild it.’
‘So that’s what we started to do,’ added the Carpenter.
‘Then the Planning Officer came along and said we couldn’t rebuild it!’ protested the Walrus.
‘Just a minute,’ said Alice. ‘I don’t understand. You say you got planning permission to convert the barn. Then surely you can continue with the work.’
‘Contrariwise!’ a voice shouted in her ear. It was Tweedledum, who had crept up on Alice unawares, and made her jump.
‘I’m the Planning Officer,’ said Tweedledum.
‘And I’m the Building Inspector,’ said Tweedledee, who had crept up on Alice’s other side, making her jump with fright for a second time.
‘My job,’ Tweedledee continued, ‘is to see that all buildings are soundly constructed to modern standards. This old barn was structurally unsound. It was obvious to me that most of the walls would have to be taken down and replaced with properly constructed walls on good foundations.’
‘Well, yes,’ said Alice. ‘I can see that might be sensible. And so I suppose, before the Walrus and the Carpenter could do the conversion works to produce Humpty-Dumpty’s new home, they had to take down those parts of the original structure that were unsound.’
‘Actually, most of it fell down of its own accord,’ said the Walrus. ‘We took down one wall, and the rest just sort of collapsed like a pack of cards, all except that bit of brick wall over the far side. That bit’s alright. So, I mean, it’ll still be a conversion, won’t it? We’ll rebuild the walls that fell down. It’ll look just like the original when we’ve finished. No problem, squire - er, I mean, Miss.’
‘Contrariwise!’ Tweedledum shouted, with even more emphasis than before.
‘Look, I don’t understand this,’ said Alice. ‘Clearly the intention was to convert the barn, and that must surely involve some rebuilding, especially of those parts of the original structure that weren’t strong enough in their original state. Admittedly, more of the structure came down than was originally intended, but surely it will still be a conversion. It will look pretty much the same as the original structure and, in any case, one wall of the original barn is still standing.’
‘Contrariwise!’ Tweedledum repeated yet again. ‘That wouldn’t do at all. We gave planning permission to convert an existing structure. That structure has now ceased to exist. You can’t say that just part of one wall left standing is still an existing building. If the Walrus and the Carpenter rebuild the barn as a house, they will be producing a new building, and that’s not what we gave planning permission for. It would be a new dwelling in the countryside, and that’s contrary to policy. So there!’
At this, Humpty-Dumpty burst into a renewed bout of sobbing.
‘There, there,’ said Alice. ‘Don’t upset yourself. I’m sure there must be something we can do.’
‘Not really,’ said Tweedledum. ‘We wouldn’t have granted planning permission for a new house in this location. In fact, if he applied for it now, we wouldn’t even give Humpty-Dumpty planning permission to convert an existing barn to a house. We’ve got a new Local Development Framework now, and our policies have changed. We would be looking for some sort of commercial use now, rather than a dwelling. Even when we allowed barns to be converted to residential use, it was only on the basis that an existing old building would be preserved in the landscape rather than being allowed to fall down.’
‘Well, I still don’t think it’s fair,’ said Alice. ‘You had given planning permission for this conversion, and I really don’t see what difference it makes if some of the walls (or even most of them) are actually newly-built replacements of the original walls, so long as a they look the same.’
‘Contrariwise,’ said Tweedledum. ‘What we were doing was giving planning permission exceptionally for conversion of an existing barn to a dwelling, when we wouldn’t normally have given planning permission for a dwelling in that location at all. So the continued existence of the original barn, as the basis of the conversion, was crucial. Once it ceased to exist, there could no longer be a conversion.’
‘Well, suppose the barn had blown down in a gale before the conversion could be carried out,’ Alice mused. ‘That wouldn’t have been the Walrus and the Carpenter’s fault. Surely, if the barn falls down and it’s not the owner’s fault (or his builder’s fault), he can’t be deprived of his planning permission just like that.’
Ha, ha!’ exclaimed Tweedledum. ‘Contrariwise! That’s exactly what happened in Sussex in The Great Storm of 1987. There was this barn which had planning permission for a residential conversion, and it was absolutely flattened by the wind! End of barn - end of planning permission! Ha, ha, ha!’
Tweedledum laughed so violently that Alice thought he would burst.
‘I think that’s mean,’ she said.
‘Yes, well maybe I am mean and nasty. After all, I’m a Planning Officer. But that’s the law; so it’s hard luck on Humpty-Dumpty.’
Alice vaguely recalled a verse her nanny had taught her. How did it go?……….“All the King’s horses and all the King’s men, couldn’t put Humpty-Dumpty’s barn together again.” Well, it went something like that.
After this there didn’t seem to be much more that Alice could do to help the situation. Humpty-Dumpty was inconsolable.
The insufferable Tweedledum puffed himself up and strutted off round the ruins of the barn, looking more self-satisfied than ever. As for Tweedledee, and the Walrus and the Carpenter, they had obviously taken the opportunity to escape any further embarrassment by absenting themselves during Alice’s debate with Tweedledum.
Alice squeezed Humpty-Dumpty’s hand and was planning to creep quietly away as soon as she could. But before she was able to do so, she suddenly noticed a grin that began to appear from nowhere in the tree which stood beside the ruins of the barn. The grin grew steadily larger, followed by a nose and eyes, until Alice could see that it was the grinning face of a cat. The rest of the body slowly appeared, and Alice realised that it was the Cheshire Cat.
‘What do you want?’ asked Alice.
‘I just want to help,’ said the Cheshire Cat. ‘I couldn’t help overhearing, and I know a bit about Humpty-Dumpty’s case, as a matter of fact.’
‘You see,’ he went on ‘it all depends on what the Planning Permission says. I could show you a couple of cases where the demolition or collapse of the barn didn’t lead to the loss of the permission.’
‘Really?’ said Humpty-Dumpty, suddenly brightening up.
‘Yes,’ purred the cat. ‘It really comes down to this - is the development which is being, or has been, carried out so different from the development described in the planning permission that it is not the development authorised by the permission?’
‘Well, I’d say it was the same development, even if the barn were completely demolished and rebuilt,’ replied Alice, ‘provided the new building looked exactly like the old one.’
‘No, that’s not the point,’ the Cheshire Cat insisted. ‘If the planning permission was for a change of use, then there has to be an existing building whose use can be changed. If the building is demolished or falls down, then any existing use rights disappear with it. That was established in Iddenden v. SSE in 1972 [Footnote 1]. So the High Court accepted in Hadfield v. SSE in 1996 [Footnote 2]that where the planning permission was for a change of use, the loss of the building resulted in loss of the planning permission. Tweedledum was right about that.’
‘But doesn’t the grant of planning permission for conversion imply permission to rebuild if necessary?’ Asked Alice.
‘No,’ said the Cheshire Cat. ‘It was established in North Norfolk DC v Long in 1982 [Footnote 3] that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission.’
‘But you said there were cases in which the planning permission had not been lost,’ Humpty-Dumpty objected.
‘Yes, there have been,’ the Cheshire Cat agreed. ‘But they were cases where the planning permission was not for a change of use as such, but for substantial operational development. They were permissions for barn conversions, but they involved so much structural alteration that they clearly went much further than a simple change of use.’
‘Well, then,’ asked Alice, ‘how can you tell the difference?’
‘You have to look at the planning permission itself,’ replied the Cat, ‘and read it very carefully, together with the approved drawings.’
‘What do you mean by that?’ Humpty-Dumpty demanded.
‘Let me give you an example,’ the Cat purred. ‘Take the case of Basildon DC v SSE in 1985 [Footnote 4]. There was a planning permission (obtained on appeal) for converting a stable to a dwelling. The permission included an extension and alterations; so it wasn’t just a planning permission for change of use – it involved operational development. While the work was in progress the frame was blown down in a storm, but the builders just built a replacement and carried on with the development. The Council claimed that this amounted to the erection of a new building and served an enforcement notice. On appeal an Inspector agreed with the appellant that the work was within the scope of the planning permission. So the Council took the case to the High Court, which held that in a case like this (involving operational development), entire rebuilding of the original structure would only be precluded if the planning permission made it clear that the original building must be kept intact. In that case, despite the fact that the development retained no part of the original, the developer had not departed from the terms of the permission (and the approved drawings). No condition had been imposed on the permission requiring retention of the original structure.’
‘So what Humpty-Dumpty needs to do is to see exactly how his planning permission is worded,’ Alice added. ‘And, of course, he needs to look at the conditions in the permission.’
‘Exactly,’ said the Cat. ‘And there have been several appeal decisions which were decided the same way, including one I dealt with myself,’ he added, proudly puffing out his chest.
At that moment another figure came panting up the hill towards the site.
‘It’s the Mock Turtle,’ sighed Humpty-Dumpty. ‘He’s my architect.’
The Mock Turtle arrived breathlessly, carrying an unmanageably large bundle of plans and documents.
‘I’ve just heard from Tweedledee about the barn being taken down. I don’t see what the problem is with Tweedledum. We just have to tell the Walrus and the Carpenter to get on and rebuild it. It’ll look really splendid when it’s finished.’
‘It’s not as simple as that,’ Humpty-Dumpty replied. ‘Have you got the planning permission with you?’
‘Oh, I expect it’s here somewhere,’ said the Mock Turtle, rummaging through the bundle of paper.
‘Yes, here it is,’ he exclaimed, producing a rather crumpled piece of paper from the bottom of the heap. ‘But why do you want it? We know we’ve got planning permission already.’
‘Just let us see it,’ said Humpty-Dumpty, and they all crowded round to read it.
‘There you are,’ said the Cheshire Cat. ‘This gives permission for “Conversion works, alterations and extension of barn to form a dwelling, in accordance with the application and approved drawings”. Now let’s take a look at the conditions.’
He ran his paw down the list of conditions.
‘Well, there’s no condition requiring retention of the barn structure. And look here; there’s a condition requiring approval of all walling and roofing materials, and a condition requiring that construction of this development shall comply in all respects with the approved drawings. That all suggests ‘new build’ to me.’
‘Which of these drawings are the approved drawings?’ asked Humpty-Dumpty, turning to the Mock Turtle.
‘Blessed if I know now,’ the Mock Turtle replied. ‘There have been so many revisions.’
‘Just look for the drawings with the “Approved” stamp on them,’ Alice suggested.
‘And the planning application number,’ added the Cat. ‘You don’t want to confuse the planning application drawings with the drawings approved under the Building Regulations.’
‘Surely they should be the same?’ asked Alice innocently.
The Cheshire Cat did not reply, but just smiled even more than usual.
‘Here we are,’ said the Cat. ‘It will be very helpful to see what the annotations say. Ah, this is useful – “All new brickwork to match existing.” Then over here it says “New window frames in green oak”. In fact there are quite a few references to new work on the drawings, and nothing about retention of any of the existing fabric.’
‘But that doesn’t mean that whole thing is to be rebuilt, does it?’ queried Alice.
‘No,’ replied the Cheshire Cat, ‘but it all helps to indicate that the scheme involved substantial building operations, and that retention of the original structure was not a necessary part of the scheme.’
At this point Tweedledum re-appeared, having been poking about in the rubble on the far side of the site.
‘Well, I suppose you had better start getting this site cleared,’ he said. ‘You won’t want me serving a Section 215 notice on you.’ [Footnote 5]
‘Contrariwise, if I may say so,’ said the Cheshire Cat, grinning more broadly than ever. ‘We’ve just been checking the planning permission. It allows the barn to be reconstructed.’
‘Nonsense,’ said Tweedledum. ‘It’s a barn conversion. We insisted on a structural survey to prove the original structure was sound before we granted planning permission. We wouldn’t have granted permission at all if we thought it was going to fall down. It was an implied condition that the barn would be retained.’
‘There’s no such thing as an implied condition,’ the Cheshire Cat observed [Footnote 6]. ‘So I’m advising Humpty-Dumpty to continue with his development.’
‘Well, he can’t,’ Tweedledum spluttered. ‘I’ll serve an enforcement notice on him.’
‘And I say it’s all perfectly lawful,’ purred the Cheshire Cat.
‘Well, you’ll have to apply for a Lawful Development Certificate, then,’ said Tweedledum.
‘We don’t need one,’ the Cat replied. ‘There’s no doubt about the legal position. The lawfulness of the development derives from the planning permission itself.’
‘Well, we’ll see about that,’ muttered Tweedledum, as he strode off. ‘I’m going to take it up with the Gryphon. He’s the head of our Legal Section.’
Humpty-Dumpty was jumping for joy as Tweedledum disappeared. The Cheshire Cat was still grinning from ear to ear and even Alice couldn’t resist a little skip.
When everyone had calmed down a bit, Humpty-Dumpty turned to the Cheshire Cat and asked, ‘So should we just tell the Walrus and the Carpenter to carry on, or should we apply for a Lawful Development Certificate, like Tweedledum said, just to be on the safe side?’
‘No. As I said, we don’t need a Lawful Development Certificate, but I think it might be a good idea if I were to write to the Planning Department, carefully explaining our position by reference to the terms of the planning permission and drawing their attention to the judicial authorities which I mentioned to you. That ought to convince them that there has been no breach of planning control, and that the reconstruction of the barn is covered by this particular planning permission. In the meantime, I don’t see why the Walrus and the Carpenter shouldn’t be told to carry on with the development. But the Mock Turtle really must keep an eye on them. You do need to make sure they build the new dwelling in strict accordance with the approved drawings.’
With that settled, Alice decided the time had finally come when she could leave. While the Mock Turtle was scrabbling around trying to pick up all his drawings, Alice gave Humpty-Dumpty a farewell hug and waved goodbye to the Cheshire Cat, who was already beginning to do his disappearing trick, leaving only his broad smile behind.
Alice wandered off happily, wondering what new adventures she might have in Wonderland.
[UPDATE: In view of two more recent appeal decisions, and the decision of the Court of Appeal in Williams v SSCLG  EWCA Civ 958, the Cheshire Cat’s remarks are no longer a correct statement of the law. See now a series of posts in this blog starting with “Barn Conversions again” posted on 5 March 2013, and in particular Barn Conversions again (Part 3)” posted on 7 March 2013, plus and a sixth article in this series posted on 1 December 2014.]
Basildon appeared to be authority for the proposition that complete demolition is not ruled out where the approved drawings show that no element of the pre-existing structure would be visible if the development is carried out in the form authorised by the permission. In light of the Court of Appeal decision in Williams, it would appear that this proposition can no longer be relied upon. It is clear that if the description of the development in a planning permission shows that what it is intended to authorise is the conversion or alteration of the pre-existing building, then it is not permissible construe the planning permission as authorising (or as not ruling out) complete demolition and reconstruction of the pre-existing building.]
© MARTIN H GOODALL
1 Iddenden v. Secretary of State for the Environment  1 W.L.R 1433;  3 All E.R. 883; 71 L.G.R. 20; (1973) 26 P. & C.R. 553; 116 S.J. 665; [CA]
2 Hadfield v. Secretary of State for the Environment 1996 E.G.C.S 114
3 North Norfolk District Council v. Long (1983) 267 EG 251;  JPL 45 [CA]
4 Basildon District Council v. Secretary of State for the Environment & Asplin (CO/1391/84. 28/6/1985. Unreported)
5 A notice served under Section 215 of the Town & Country Planning Act 1990 requiring proper maintenance of land adversely affecting the amenity of the neighbourhood. The remedial steps in this case would comprise removal of the building rubble and any other rubbish resulting from the demolition of the building.
6 See Uttlesford District Council v. Secretary of State for the Environment and Leigh  JPL 685 and I’m Your Man Limited v. Secretary of State for the Environment  P.L.C.R. 107