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  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  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.]
© MARTIN H GOODALL