Thursday, 7 March 2013
Barn conversions again (Part 3)
The two more recent appeal decisions that did not follow the Basildon judgment and the appeal decisions in Woodspring and South Hams were, first, in Bridgend in 2005 and then in Cheshire West & Chester in 2012.
The Bridgend decision (APP/F6915/X/05/1183432 and APP/F6915/X/06/1197122) was dated 30 March 2006. This was a section 195 appeal. The development authorised by the planning permission in that case, granted in 2003, was described in the permission as “conversion of redundant barn”. The permission then stated that the Council “as local planning authority, hereby permits the proposed development to be carried out in accordance with the plans (if any) submitted with the said application”. The permission was granted subject to eight conditions. None of those conditions required the retention of any specific part of the pre-existing barn structure.
It was the appellant’s case that there was nothing in the 2003 permission, including its conditions and approved plans, that prohibited him from totally demolishing the former barn and then constructing the dwelling as shown on the approved plans. With regard to the description of the authorised development as “conversion of redundant barn”, the appellant relied on the South Hams decision, where another inspector had commented on the absence of a planning definition of “conversion”. However, the inspector in the Bridgend appeal made no comment on the other findings of the inspector in the South Hams case.
The approach of the inspector in the Bridgend appeal decision appears in fact to have been somewhat at variance with the approach taken by the inspectors in both the South Hams and Woodspring appeal decisions, and even with that of Macpherson J in Basildon DC v. SSE and Asplin. The inspector seems to have focused exclusively on the word “conversion”, observing that it was now widely used in many development plan policies, as well as the Welsh Assembly Government’s ‘Planning Policy Wales’. He noted that the appellant did not produce any examples of “conversion” being interpreted in any planning context as including the total demolition and reconstruction of a building, and he therefore determined that there was no justification for such an interpretation being applied to the inclusion of the word “conversion” in the 2003 permission’s description. It was on this basis that he concluded that there was no justification for such an interpretation being applied to the inclusion of the word “conversion” in the 2003 permission, which he considered to be clear and unambiguous.
The Bridgend decision also turned the absence of a condition requiring the retention of the pre-existing structure on its head, in asserting that none of the eight conditions in the 2003 permission, or the stated reasons for including them, could be interpreted as inferring that total demolition and reconstruction was a possibility. This is completely at variance with the approach taken by Macpherson J in Basildon and by the other two inspectors in the South Hams and Woodspring appeal decisions, where the absence of such a condition was an important factor in determining that total demolition and reconstruction of the building was not ruled out. There is nothing in the reasoning in the Bridgend decision letter which explains this clear inconsistency of approach compared with the previous decisions.
In the Bridgend appeal decision, the inspector disregarded the Basildon judgment on the basis that the facts in that case were not comparable with the facts of the appeal that was before him (and therefore seems to have assumed that it was not of binding authority). The apparent basis for this departure from the principles set out in the Basildon judgment was that the planning permission in the Basildon case involved the improvement and extension of a building. It comprised a fundamental alteration of the original building, and the part that was shown on the approved plans as being retained would not have been visible externally or internally [my emphasis]. It might reasonably be argued that this places undue emphasis on certain passing remarks made by Macpherson J in the course of his judgment in Basildon, while ignoring the underlying principles on which the judgment in Basildon was based. It is quite clear from that judgment that the fact that the authorised development was described in the permission as “improvement and extension” (and also as “extension and alteration”) did not define the scope of the permission.
In the Bridgend appeal decision, the inspector also refers to the facts in the Woodspring appeal decision (also relied upon by the appellant in this Bridgend appeal). The inspector disregarded that decision on the basis that the facts in that case were totally different to the appeal proposal that was before him. He mentions that the inspector in the 1991 appeal concluded that any deviation from the precise terms of the planning permission should be disregarded as being de minimis. This, again, could be said to concentrate on the details of that earlier appeal decision while ignoring the underlying principles on which it was determined.
Notwithstanding these points, the key to the Bridgend decision may have been this passage in the decision letter:
“ It does not follow that because the approved plans do not contain specific descriptions of the parts of the building to be retained that they can be interpreted as authorising total demolition and reconstruction. This interpretation would be inconsistent with the indications on the plan to “take down” the remains of a store and a lean-to roof and pillars, as well as an adjacent shed. It is clear from the existing and proposed floor plan layouts, as drawn, that the approved conversion involves carrying out alterations and extension to the existing building, with the retention of a significant part of the existing building’s structure.”
Thus the inspector was construing the permission in conjunction with the approved drawings (as per Barnett) and found evidence in those drawings of an intention that there should not be entire demolition and reconstruction of the building. As a finding of fact, this would have been difficult to challenge in the High Court.
This brings us to the recent decision in Cheshire West & Chester in which the decision was issued on 23 August 2012. The planning permission granted on 21 January 2010 described the proposal as follows: “To convert and extend existing barn to form one dwelling and erect double detached garage”. The approved drawings show that around 7.2 metres of the eastern section of the pre-existing building, and 4.8m of the western section, were to be removed. Development commenced and the cladding above first floor, roofing materials, the bay on the east elevation, the alterations to the gable to the west, and the three bays to the north elevation were removed.(All this was in accordance with the permission.) The scheme involved the total replacement of the roof structure and alterations to the building’s fenestration. The inspector recorded that both parties agreed that the approved scheme would have included the retention of about 15% of the original external surface area of the pre-existing building within two and five bays to the north and south elevations respectively.
As work progressed it became apparent that the original barn had been built on the floor raft without adequate footings. Having obtained advice from the structural engineer, it was decided to totally demolish the pre-existing building and to start afresh with new foundations to meet with current Building Regulations. It was the appellant’s case that the 2010 permission permitted the demolition and rebuilding of the pre-existing building.
The inspector referred to the decision of the Court of Appeal in Miller-Mead v Minister of Housing and Local Government  2QB 196, which established that any controls or limitations attached to a planning permission need to be clearly and precisely stipulated within the four corners of that permission. If something is not specifically controlled by the planning permission, including any conditions imposed upon it, then, by implication, it is permitted. Conditions cannot be implied into a planning permission (see I’m Your Man v SSE (1999) 77P&CR 251).
The inspector went on to note the importance of the approved plans (as established in Barnett). In the case of a full permission, those plans and drawings describing the building works were part of the description of what has been permitted. The inspector contrasted the case of Basildon (on which the appellant sought to rely) with the instant appeal. In Basildon there was a planning permission for the 'improvement and extension of an existing building'. No conditions were imposed to retain any part of the original structure. However, the planning permission involved operational development that fundamentally altered the original building. The part that was shown on the approved plan as retained would not have been visible [my emphasis]. In the Cheshire appeal, on the other hand, the pre-existing building contained visible features that contributed to the architectural style of the original Dutch barn and were supposed to be incorporated into the new refurbished dwelling. (Pausing there, that does suggest that the Inspector may possibly still have had in mind the D&S statement, notwithstanding his acceptance, in accordance, with Ashford that it could not be called in aid to construe the nature and purpose of the permission.)
The inspector noted that there is no specific definition of the words to ‘convert’ or ‘extend’ in the context of development control, but he observed that it is reasonable to interpret the meaning of these words by looking at The Oxford English Dictionary. It defines the verb to ‘convert’ as to ‘change the form, character, or function of something… adapt a building for a new purpose’. The word ‘change’ is to make or become different, or is a description of a process through which something becomes different. The word ‘extend’ is defined as ‘make something larger in area’. The inspector concluded that, although there was no condition imposed on the permission to retain any part of the pre-existing building, the use of the words to ‘convert and extend’ implied its retention. Taking all of the above points together, the inspector considered that there was nothing within the document’s four corners to support the forcefully put submission that the 2010 permission allows the total demolition and subsequent rebuilding of the pre-existing building. Due to the wording used in the document, it was probable that any member of the public would arrive at the same conclusion.
However, the key passage in this decision appears to be very similar to that in the Bridgend decision which refers to the approved drawings. The inspector noted that at the Inquiry it was agreed that drawing no. 5047/203 revision B was the most important approved plan, as that showed scaled elevations and floor plans. The box giving details of the scheme described it as the ‘redevelopment of Dutch Barn’ and the description was ‘proposed ground and first floor plan and external elevations’. There was no disclaimer on the plan suggesting that it was only for illustrative purposes. The ground floor plan showed a broken line with the following notation: ‘Outline of existing building footprint. One bay removed and ‘new structure inserted into the existing envelope without visible trace’. The outline of this bay was reflected in the first floor plan. There was no other similar illustration. On the south elevation, there was a note saying: ‘Existing steel structure exposed externally. New full height glazing to run behind line of columns and frame the existing structure’. On the north elevation the note said ‘existing & reclaimed brickwork to ground floor’ and the arrow pointed to one section.
The inspector found the approved drawing particularly instructive of the nature, type and scale of the adaptations and alterations required to achieve the conversion of the pre-existing building. When the various details were compared with the sketch view of the south side and the entrance, it was apparent that, in its complete form, the character of the Dutch-style barn, as evidenced in those parts of the building which would be retained, would have been incorporated into the conversion scheme. The notation of the drawings did not support the assertion that the pre-existing building was to be totally demolished and rebuilt. It was clear from the drawing that elements of the original building would remain, consistent with the description of the development.
Even if the conversion scheme was to be achieved by a very a substantial element of rebuilding, the remaining element (15% as agreed by the parties) contained all of the necessary and most important characteristics and architectural features of the Dutch barn that were supposed to visibly remain in a refurbished and improved form. Contrary to the appellant’s submissions, the inspector therefore took the view that this case could be distinguished from Basildon. This was because of the description of the development and those elements of the original building which would remain having the important characteristics of the Dutch barn.
The inspector accordingly found that the total removal of the pre-existing building resulted in a significant and material departure from what was lawfully permitted. Effectively, planning permission was granted to convert and extend the pre-existing building to form a dwelling and the plans showed the nature, type and scale of the building operations involved in that conversion scheme. Irrespective of the fact that no planning condition was imposed upon the 2010 permission requiring the retention of any part of the pre-existing building, there was no justification to support the claim that it granted planning permission for its total demolition and subsequent rebuilding.
As I indicated earlier, I do have some difficulty in reconciling the Bridgend and Cheshire West & Chester appeal decisions with the judgment in Basildon, but I think it can be inferred from these two more recent appeal decisions that if the approved drawings do show the retention of elements of the pre-existing building that are intended to remain visible after the completion of the conversion (in contrast with the position in Basildon, where no part of the retained structure would have been visible), then a developer is unlikely to be successful in claiming that the planning permission did allow the entire demolition and reconstruction of the pre-existing building. To that extent, the Cheshire Cat may have been a little over-optimistic in what he told Humpty Dumpty; a more careful examination of the approved drawings may be required before one can be confident that total demolition of the building is not ruled out.
This still does not dispose of all the points that can arise in these barn conversion cases, so you are in for yet another episode tomorrow!
MARTIN H GOODALL
[ADDENDUM: I should perhaps say that the intention to retain visible elements of the pre-existing building can only be inferred from the approved drawings if those drawings include clearly worded annotations indicating an intention to retain in visible form specific pre-existing features of the original building. The mere fact that the drawings show a building that looks like the original building or which displays visible features seen in the original building would not be enough, in my view, (absent the sort of annotations I have mentioned) to indicate an intention to retain all or part of the pre-existing structure. Without such annotations, the details shown in the drawings could simply propose a replica of the original and cannot by themselves be interpreted as indicating an intention to retain the original structural features per se.
The intention of the annotations on the drawings in the Cheshire West & Chester appeal was in dispute between the parties, but the inspector clearly regarded them as indicating an intention to retain at least some elements of the original structure. - MG]
[UPDATE: The decision of the Court of Appeal in Williams v SSCLG  EWCA Civ 958, now lends judicial authority to the approach take by the inspector in the Bridgend appeal. The article above should be read in light of a sixth article in this series posted on 1 December 2014 dealing with Williams.]