Friday, 8 March 2013
Barn conversions again (Part 4)
One question that sometimes arises in barn conversion cases is whether the development might in reality be a material change of use, rather than primarily operational development. Where substantial building and/or engineering operations are clearly involved, which will produce a significantly different building than that which originally existed I have always taken the view that the use of the completed development will be governed by section 75 of the 1990 Act.
Section 75(2) provides that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and subsection (3) provides that where no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed [i.e. intended].
I appreciate that it could be argued that permission for a barn conversion is not a planning permission “for the erection of a building”, but if substantial operational development is involved which includes major structural works, then this is arguably tantamount to the erection of a building, and I would contend for a purposive interpretation of section 75 in this context. It is in effect a new building (usually a new dwelling) that is being created. In a case of this sort, the planning permission is likely to be worded in a way that is intended to authorise substantial operational development rather than merely authorising a change of use; in fact a ‘change of use’ is rarely if ever referred to in this type of permission, and I suggest that this is because it has always been assumed that the use of the building after completion of the building works depends on the operation of section 75, rather than on any specific authorisation of that use in the planning permission. Indeed, if the planning permission is silent as to any change of use, section 75(2) or (3) can be the only means by which the future use of the building can be said to be authorised.
The relevance of this point is that there is a separate line of judicial authorities that applies to barn conversions that are effectively confined to a material change of use, as distinct from building or engineering operations. It is these judgments to which I want to draw attention in this post. Leaving aside the argument canvassed above, there are planning permissions for barn conversions that clearly refer to the authorised development as a change of use. These are cases in which all or nearly all of the works for the conversion of the barn are purely internal and where only very minor external alterations are made to the building (such as the installation of one or two discreetly designed extra windows).
Where the permission was actually for a change of use, the legal consequences of the building collapsing or being demolished in the course of the conversion (it is usually the former rather than the latter in this type of case – the result of storm damage rather than any structural work being carried out on the building) are markedly different from the position where one is dealing with a planning permission for substantial operational development.
If a building is demolished or falls down, then any existing use rights disappear with it. That was established in 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]. It follows that there is then no use that can be materially changed. In those circumstances any planning permission for change of use has inevitably been lost.
It was established in North Norfolk District Council v. Long (1983) 267 EG 251;  JPL 45 [CA] that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission. A permission that purely authorised a material change of use could not impliedly authorise such reconstruction even where the loss of the original building was entirely accidental.
The High Court accepted in Hadfield v. Secretary of State for the Environment 1996 E.G.C.S 114 that where the planning permission was for a change of use, the loss of the building resulted in loss of the planning permission.
So far as I am aware, it has never been suggested that this line of authorities has any application to cases in which the planning permission authorised substantial operational development rather than simply a material change of use. Numerous appeals, not to mention the Basildon case, have been determined on the basis that the planning permission is not automatically lost if the pre-existing building collapses or is removed; it depends on the precise terms of the planning permission, as discussed in the preceding articles in this series. This, I suggest, demonstrates acceptance of the principle to which I drew attention at the beginning of this post, whereby it is section 75 that authorises the future use of the building, if the barn conversion consists of substantial operational development.
I had intended in this post to discuss the judgment in Williams v. SSCLG  EWHC 3466 (Admin), but I will leave this for Part 5 of this lengthening saga.
[UPDATE: The decision of the Court of Appeal in Williams v SSCLG  EWCA Civ 958, reversing the High Court judgment referred to at the end of this article has now strengthened the presumption against demolition of a barn as part of its ‘conversion’, even as operational development, and it would appear Basildon can no longer be relied upon. The article above should therefore be read in light of a sixth article in this series posted on 1 December 2014 dealing with Williams.]
© MARTIN H GOODALL