Wednesday, 6 March 2013

Barn conversions again (Part 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.]

The approach taken by the judge in Basildon was also followed in two appeal decisions in the early 1990s. The first of these, dated 14 October 1991, was in Woodspring (T/APP/C/90/V0130/28-29/P6) and related to a case in which planning permission had been granted on 11 July 1989 for “renovation of existing farm buildings and conversion to a two-bedroomed bungalow, barns at Oatlands, Wrington Hill, Wrington”. The farm buildings referred to were a free-standing barn, which was to become the living room of the proposed bungalow, and a range of low agricultural buildings. The latter were built against a stone boundary wall running along Wrington Hill and against another stone wall, at an obtuse angle to the first, which acted as a boundary wall between the appeal site and the adjoining property to the east. None of the conditions attached to the permission related to the retention of any particular part of the fabric of the then-existing buildings.

The planning permission was subsequently varied. The effect of the permission as amended was that, whilst the barn’s walls would remain the same apart from new door and window openings, nothing of the other farm buildings would remain apart from the boundary walls up against which they had been built. Of those walls, the wall along Wrington Hill would be substantially altered by blocking up the original double doors giving vehicular access into one of the buildings and by making five new window openings. The height of both walls would be increased.

In the course of the subsequent works, a 9-metre length of the boundary wall to the east collapsed. It was found to have had no foundations, and its centre was composed of rubble . The remainder of the northern section of this wall, and the wall along Wringon Hill, were then found to be unsafe. The advice of the Council’s Building Inspector was that it would be safer to knock down and rebuild. This work was going on when the enforcement notice was served.

The appeal proceeded on Grounds (b) and (c). The appellants’ case was that the plans made it plain that the LPA could not have envisaged that any of the old farm buildings, other than the free-standing barn would be renovated or converted in any real sense; all that would happen was that part, considerably modified, of the old boundary walls to the north and east would be incorporated in the new structure. In the course of construction it had emerged that these walls were defective; the reconstruction of the defective walls, in such a way that they would be better than the originals, was not such a departure from the permission as to make that permission void, as the LPA had argued.

For the Local Planning Authority it was said that planning permission had been granted for renovation and conversion of existing farm buildings. Once the boundary walls, a major element in the original buildings, had collapsed or been taken down, there was very little left other than the free-standing barn, which could be renovated or converted. Thus the original permission had become null and void. What the appellants were engaged in was the erection of a new dwellinghouse for which planning permission had not been granted.

However the Inspector concluded that if the planning permission was read together with the accompanying plans, as it must be, it was plain that, while permission was expressed to be for renovation of existing farm buildings and conversion.......to a bungalow, the terms “renovation” and “conversion” could only properly be applied to the free-standing barn element of the permission; all the other buildings proposed were either totally new structures, such as the garage and connecting building, or new structures incorporating parts of two existing walls. In these circumstances, the Inspector could not find that the appellants, in rebuilding parts of those walls which were found to be defective and unsafe, had departed in any material way from the planning permission. When they began work on the building they were acting in accordance with the terms of the permission; and when the enforcement notice was issued any deviation from its precise terms which had then occurred should be disregarded as being de minimis. The appeal therefore succeeded on Grounds (b) and (c) and the enforcement notice was quashed.

The South Hams decision (T/APP/C/92/K1128/620967/P6), dated 6 April 1993, was concerned with a development of three holiday lets which had been achieved not by conversion (as originally envisaged) but by rebuilding the former barn. The appeal proceeded on Grounds (b) and (c). In examining these grounds of appeal, the Inspector looked first at the details of the planning permission granted in 1984. The permission consisted of both the notice of approval and the plans which accompanied it. The notice described the development as “conversion”. The inspector noted that no planning definition of this word had been put forward at the inquiry. The Oxford English Dictionary defines “conversion” as a “change in character, nature, form or function”. The permission certainly envisaged a change in function from that of a barn to that of holiday units. However, in the Inspector’s view, the remainder of the definition did not assist in this case.

The next factor to consider was the conditions subject to which the development was to be carried out. Only condition (b) was relevant, and this specified the manner in which the stonework should be constructed. There were no other conditions relating to the manner in which the conversion work was to be carried out, nor conditions requiring the retention of any part of the fabric of the former barn. In the absence of any such conditions, the Inspector considered that condition (b) implied that some rebuilding of the walls of the former barn would be necessary.

Turning to the plans, it was clear that the proposed building containing the holiday units bore little resemblance to the former barn. The Inspector, while he appreciated that the wording of the 1984 notice of approval may have been dictated by the planning policies then in force, considered that the development which was then approved should more correctly have been described as the “re-building” rather than the “conversion” of the barn. In the absence of any condition specifying how the work should be carried out, the Inspector accepted the view put forward on behalf of the appellant that the only practical way of carrying out the conversion was to demolish the walls and rebuild them in accordance with condition (b) of the permission.

Taking all these factors into consideration, the Inspector reached the conclusion that the development had been carried out in accordance with the terms of the 1984 permission, that the completed building was in the form shown on the drawings forming part of the permission and that the manner in which conversion work had been carried out complied with the terms and conditions of the permission. The appeal therefore succeeded and the enforcement notice was quashed.

It is clear from the South Hams appeal decision that the Inspector did not consider that the use of the term “conversion” implied or required the retention of the pre-existing barn structure. The absence of any condition requiring the retention of the pre-existing structure was clearly an important factor in this decision. The only relevant condition was one which specified the manner in which the stonework should be constructed. The Inspector inferred from this that this condition implied that some rebuilding of the walls of the former barn would be necessary.

The Woodspring decision is another example in which terms such as “renovation” and “conversion” were not construed in a disembodied way on their own but were looked at in the context of the permission as a whole, including the approved drawings, to see what the planning permission really authorised (the approach laid down in the Basildon judgment). The Inspector in that case noted in particular that none of the conditions attached to the permission related to the retention of any particular part of the fabric of the pre-existing buildings. The drawings showed that there would be a substantial element of demolition in the course of the authorised development and that a substantial part of the fabric of the pre-existing buildings would be removed.

The Woodspring appeal was also a case in which walls were found to have had no foundations, and were found to be unsafe. Clearly, in order to execute the works which had been authorised, it was necessary that those walls should be taken down and rebuilt. The inspector had described this additional element of demolition as de minimis in the context of the authorised development as a whole.

Notwithstanding the judgment in Basildon and these two appeal decisions, there are two more recent decisions that have taken an opposite approach to this issue, and I will discuss these in the next post.

[UPDATE: In view of two more recent appeal decisions (see the third part of this series, immediately following this post), 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 a sixth article in this series posted on 1 December 2014 dealing with Williams.]

© MARTIN H GOODALL

2 comments:

Anonymous said...

Why was the boundary wall considered as part of the development?
Could the development/permission not be structured to keep the development around the boundary wall to be in line with permitted development rather than the approved scheme?

Martin H Goodall LARTPI said...

As I understand it, the wall in question (although it was on the site boundary) formed part of the structure of the building that was to be converted. I have always assumed that this was why the matter was dealt with in the manner described. If I am wrong about that, then I cannot explain the thinking behind it.