Monday, 23 January 2012

Barn conversions (2)

[WARNING: This article must now be read in light of the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958. See the updates at the foot of this article for other decisions that have significantly changed the legal position since this article was written.]

In response to my recent piece on barn conversions, Andy Kirby left a comment which I feel deserves a post to itself, rather than being shunted into the usual comments box.

Andy writes: “Clearly the outcome is contingent on the terms of the permission in such cases. Where a full operational development planning permission for 'Conversion works, alterations and extension of barn to form a dwelling' is given it is clear from Barnett that the application plans are incorporated into the permission and there is no need for specific words of incorporation. In those circumstances much will turn on what the plans show, as you identify in your original blog. There you say, on the authority of Basildon, absent any condition to the contrary, the 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 and provided the approved drawings were not departed from. Is that not an overstatement of the situation?

“If it can be reasonably inferred from the plans that something of the original was to be retained then would that not be enough? Moreover, on its face, the permission is for a conversion, not to erect a new building/dwelling. As a matter of logic and plain English that must mean that something of the original must be in situ otherwise there would be nothing there capable of being converted. And at its heart 'conversion' actually means a change, including certain works (which may or may not involve operational development), to a different use. Thus it would make much more sense, and provide clarity, if LPAs recognised what was the primary character of the proposed development and required the application to be expressed as a material change of use of the building which also involved certain specified changes to the structure. On the other hand were they to do so I fear both you and the Planning Inspectorate would have less work!”

I entirely agree with Andy that the actual outcome in any particular case depends on the precise wording of the particular planning permission. However, it is clear from the cited authorities that the intention of the planning permission cannot be ‘inferred’ – it must be clearly spelt out. Thus the mere use of the word ‘conversion’ is not in itself sufficient to imply retention of the original structure if the permission involves operational development – see Basildon, and various inspectors’ decisions to the same effect, but compare Iddenden, where the permission was simply for change of use.

As Andy has recognised, much turns on whether the planning permission is simply for a change of use (with perhaps no more than mainly internal works, and only minimal changes to the external appearance of the building) or whether it is in truth a permission for operational development. It would be wrong, however, to suppose that a barn conversion involving substantial operational development could be seen purely as a change of use or that the planning permission could be so worded as to ‘dress it up’ as a change of use. First of all, the LPA cannot unilaterally change the description of the development - there is judicial authority for this, but the name of the case escapes my memory at the moment; secondly, following completion of the operational development, the use of the converted building will depend not on any express authorisation in the planning permission but upon the operation of section 75 of the 1990 Act. So it is neither necessary nor appropriate to try to turn what is in truth a permission for operational development into a change of use.

If what we are dealing with is in truth operational development, as many barn conversions will be, then the judicial authorities in Basildon and Ashford will apply, and there will be nothing to prevent the demolition and replacement of the pre-existing structure, unless the planning permission expressly so provides in the manner described in those cases.

As regards the approved drawings, I do not accept that these would be enough by themselves to indicate that the pre-existing structure should be retained. Whilst it is clear from Barnett that the drawings are to be read together with the permission, this would not be enough in itself to reverse the effect of the clear rules laid down by Basildon and Ashford. The drawings will show what is intended, but I would not regard any annotations on the drawing (even assuming that they are explicit and unambiguous) as importing an express provision that the existing structure is to be retained. This would require a clear statement to that effect in the permission itself, preferably in the description of the development authorised by the permission, or at the very least by means of an express condition requiring the retention of the existing structure (preferably both).

As the judicial authorities stand at present, failure to specify in clear terms in the planning permission that the pre-existing structure must be retained will leave it open to the developer to demolish and rebuild within the terms of the planning permission (although, as I have indicated before, in the vast majority of cases, loss of the existing structure is entirely unexpected and unintended by the developer). The point of my latest piece and of my previous article on this subject is that an LPA would be wrong to jump to the conclusion in such circumstances that the planning permission has automatically been lost if the original structure has collapsed or been demolished. In a number of cases of which I am aware, including several in which I have been professionally involved myself, the planning permission remained extant and it was perfectly lawful for the developer to continue with the development by reconstructing the demolished building.

Planning officers tend to be fixated on what they had intended and on the planning permission they thought they were granting, rather than on the precise terms of the permission as issued. LPAs must accept, and in disputed cases have been forced to accept, that their intentions count for nothing if they have not succeeded in nailing down the scope of the permission in a manner which expressly requires the retention of the pre-existing structure of the building.

[UPDATE: In view of two more recent appeal decisions, and the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958, the article above should be read in light of the series of 5 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 dealing with Williams.

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.]



Chris Anscombe said...

Of course a barn conversion will generally entail oprational development, but it is primarily a change of use from an agricultural building to a residential building. Such conversions have been permitted in planning policy for many years as an exception to the general strict control over new dwellings in the countryside. Why should this be? I believe the original reason was to enable the retention of attractive old barns as an historical landscape feature but the reality became that it was a way around strict planning controls. Over the years policy was watered down such that the quality of the building became less important and then the Courts decided you didn't even have to keep the original building. For these reasons when I worked in a Cornish LPA in the 1990's we always required a structural survey and a clear indication of the amount of demolition required before a permission could be granted (and only a limited amount of original fabric loss would be permitted) and then imposed a condition to ensure that no more could be removed without consent. If the barn then collapsed the permission could not be implemented. Living in the countryside is not sustainable unless you need to be there. The only sustainable element would be the retention and re-use of a sound building, so you need to be sure that the building will stand up to the change of use!

Martin H Goodall LARTPI said...

I respect Chris’s views, bearing in mind his professional background, and whilst I would not disagree with what he says about the effect of barn conversions in practical terms, and the policy background to these matters, the fact remains that as a matter of law, if the development authorised by the planning permission involves a substantial element of operational development, then the rule in Iddenden does not apply, and the relevant judicial authority is Basildon, which clearly establishes the rule that demolition and reconstruction of the structure is not precluded, unless the planning permission says so in clear terms.

The problem one often encounters with planning officers is that they cannot get their heads around the fact that only a minority of barn conversions are simple changes of use; most of them involve operational development, and the fact that the use of the building will be different in the future does not make it a “change of use” in law. The other problem is that planning officers are so focused on their rural development policies that they entirely fail to appreciate that the legal effect of the planning permission is strictly confined to its precise wording (plus the approved drawings).

Phil Allmendinger said...

Presumably rebuilding the barn rather than simply converting it will bring into play different requirements for footings, insulation, etc. as required by building regulations. The approved drawings will again presumably have been based upon structural requirements for a conversion rather than new build. If so will the new 'barn' actually be that as approved and would not a modification of the original permission be likely?

Martin H Goodall LARTPI said...

Phil raises an interesting point. However, if the outward appearance of the development is unaffected I would not expect that any modification of the planning permission would necessarily be required (and in any event might not be forthcoming). The Building Regs issue would have to be addressed separately by the developer in the circumstances which Phil postulates.

Anonymous said...

We are in a similar but slightly different situation. The barn was granted planning permission over 3 years ago which has then been renewed last year. However the reapproval is still based on the original structural survey which is now over 3 years old. Since the original structural survey the barn has deteriorated but the approved plans don't identify this deterioration so the approval only stipulates repairs based on a 3 year old survey. Does anyone know how long a structural survey is valid for and what this actually means if for example the barn has detiorated so far that it requires more major reconstruction?

Martin H Goodall LARTPI said...

My reaction to the above comment is – be very careful. The object of the survey was to satisfy the planners that the barn could actually be converted. If this is no longer the case, then further renewal of the permission is unlikely. Susbtantially reconstructing the barn, or demolishing and rebuilding it as an exact replica will only be possible if the wording of the existing permission effectively allows this (as discussed in the blog), but if this permission lapses without being implemented, it may be impossible to carry out the proposed development at all, due to the unwillingness of the planners to grant a further permission.

Anonymous said...

I am a lay person, so sorry if this is slightly off topic. My neighbours achieved permission to build a 'barn' and stables because they claim to run a livery yard there. They also have permission for a temporary dwelling for 3 years, which will soon come to an end. I anticipate them then applying for permission to convert the 'barn' (which is already remarkably house-like, including upper storey windows.....). My question is, is there any requirement in law for a barn to be a certain age for conversion to be permitted? - and need there be any evidence it had previously been used to house hay, straw, animals or machinery?

Martin H Goodall LARTPI said...

The short answer to both of these questions is ‘No’. An application to convert the barn to residential use would depend solely on the relevant policy considerations, and would not be influenced by the previous use. However, policies generally discourage this type of development in the countryside, and in order to gain planning permission it would have to come within one of the exceptions to that general policy. The obvious exception which the applicants could seek to exploit here would be an alleged functional need for a permanent residence on site in connection with the stables and livery yard. However, locally adopted policies will in all probability require a strict test of functional need to be met, and paragraph 55 in the NPPF clearly envisages that permission should only be given if a genuine need to provide a dwelling in this location is established. Whilst Annex A to PPS7 has been withdrawn (along with the rest of PPS7), I take the view that a detailed test of functional need on exactly the same lines would still be required in order to comply with paragraph 55 of the NPPF (and with corresponding local policies).

Anonymous said...

I am also a lay person, but am interested in the legalities of "serial" (rather than "cereal") barn conversion. A villager has made a habit of obtaining planning permission for a "barn for hay and machinery" which is then built, usually with cavity wall insulation and a number of other features not normally required for agricultural use. A number of years later application is made for change of use to residential, which is granted. This is leading to what is in effect the development of a mini rural executive housing estate on the edge of a small village. There is no agricultural activity of any sort taking place on the site - the villager in question makes his living as a property developer! Planning permission has just been granted for yet another new access to his plot of land, and the area to which this gives access is being levelled, presumably in preparation for an application for another highly-specified barn for hay and machinery. Despite repeated objections from villagers and the Parish Council, these applications are continually approved. Why? And what can we do to preserve our village from this rash of barn "conversions"?

Martin H Goodall LARTPI said...

This sounds distinctly dodgy. It certainly ought to be pursued vigorously with all the authorities that might be interested in what is going on (and also the press, including perhaps Private Eye!). There seems to be at least a suspicion of corruption here.