Monday, 11 March 2013
Barn conversions again (Part 5)
[WARNING: The High Court decision reported in this article was subsequently overturned by the Court of Appeal. See now Williams v SSCLG  EWCA Civ 958 and the sixth article in this series posted on 1 December 2014 dealing with this Court of Appeal decision.]
The most recent barn conversion case to come before the courts was Williams v. SSCLG  EWHC 3466 (Admin), in which judgment was given on 4 December 2012.
On 2 August 2006, the appellant was granted planning permission on appeal for "alterations, conversion and a roof extension to an existing agricultural building so as to provide 10 stables, a tack room, a feed store, a hay store and an office for full livery........in accordance with the terms of the application.......and the plans submitted with it”. The permission was subject to seven conditions, including:
“2) The exterior of the development hereby approved shall only be constructed in the facing materials specified on the plans hereby approved or in materials which shall previously have been approved in writing by the local planning authority.”
The elevations and floor plan of the building showed that the profile of the old barn would be altered by the construction of an extension along its south east elevation, that its outward appearance would be transformed by the provision of a new roof covering, external walls and doors, that its floor plan would be enlarged and that it was being converted from a barn to a building accommodating 10 horse boxes and their associated tack and feeding rooms, an office and a WC. It was therefore clear that the proposed development also involved the extension, strengthening and renewal of the existing steelwork frame and the provision of new foundations, underslab drainage and sluicing out facilities and a new floor slab.
The deputy judge observed that it was noteworthy that the permission did not contain any condition limiting or directing the building method to be used, the sequence of work that should be employed or the parts of the existing structure that should be retained. It followed that the ordinary and natural interpretation of the permission was that, so long as the surface materials that were used were ones that had previously been approved by the LPA and the overall profile and footprint of the building were constructed so as to provide an exact replica of the building as shown on the approved plans and that it was used in the approved manner, the completed development would conform to the 2006 permission.
In about May 2008, the appellant started work on the development. He removed the old roof covering and the original cladding and blockwork walls. By 6 June 2008, the old barn had been demolished save for the steelwork stanchions and some sheeting and blockwork which were still temporarily in place and which were removed soon afterwards. New steelwork was then added to accommodate the extension that was to be installed and to provide additional support for the new roof and upper floor slab that Mr Williams decided should be added to the development. The ground floor slab and a new mansard roof were then erected and the fitting out work started in September 2008. The structural details were approved by the council’s Building Control department and a building inspector undertook periodic inspections for building control purposes.
Nothing in the permission precluded the use of strengthened steelwork, a completely new set of steel members or a replica steel frame. The approved plans clearly involved the demolition of all or virtually all of the existing structure of the old barn since the external surfaces and the roofing materials, would have to be stripped away, new foundations and drainage and a new floor slab would have to be provided, new steelwork would be needed to accommodate the permitted extension and the existing rusty and weakened steel frame would require renewal, strengthening and replacement. Thus, the implementation of the planning permission would involve both the substantial demolition of the old barn building and the provision of what would be tantamount to a new building in its place.
The LPA’s enforcement officer, on the other hand, had formed the view that the permission, in order to be implemented without breach, required the retention of substantial parts of the old barn. It followed that, on this view, replica new materials could only be sparingly used. The enforcement officer took this view because she considered that the permission was only authorising conversion works which could not by definition involve significant demolition or substantial new-build work. In truth, the deputy judge held, these objections had been disposed of by the approval, no doubt as a result of the balancing exercise which required building design and execution considerations to be balanced against employment and diversification considerations which, in this case, had resulted in a so-called conversion development that had few of the characteristics of a conversion.
The enforcement officer’s view would have been impossible to achieve unless the permission had contained extensive conditions which identified the parts of the old barn that were to be retained and provided details of the new slab, steelwork, drainage and foundations that were needed, a method statement describing how the works were to be carried out and a requirement that any alteration from these approved details had to be approved by the planning officer.
The deputy judge concluded that Mr Williams was permitted to undertake any work that was necessary to create an equine centre which, in its outward appearance and its conditions of use, conformed to the approved plans and conditions contained in the 2006 permission. He could also employ any suitable working method and, if he chose, demolish the old barn and replace it with a replica building constructed of new materials. The overriding requirement was that he had to provide a perfect replica of the approved building.
The deputy judge then went on to consider whether what the permission authorised or required was a “conversion” of the old barn. The LPA contended that this was what was intended by the permission and that this was very different from the unauthorised new building development that was ultimately produced. The LPA also contended that the conversion work that had been authorised involved the retention of a substantial part of the old barn with the consequent incorporation of much of it within the converted building that it contended was to be built.
The judge noted that, as he had already observed, the LPA was in error in describing the authorised development as the conversion of the old barn. It was in fact a composite development that the planning permission described as being: "alterations, conversion and roof extension to an existing agricultural building to provide 10 stables, a tack room, feed store, hay store and office for full livery". It was therefore a mistake to contrast the new building that was produced with a conversion project. The contrast that should have been considered was between the new building that was produced with a new building created in a one-off complex operation to bring an old building into re-use that involved alterations, conversion, extension and change of use.
I confess to having some difficulty in following the deputy judge’s reasoning in the next two paragraphs of the judgment, but it appears that he was in effect saying that the development was described in the way it was so as to bring it within the category of appropriate permitted Green Belt development that had been designed to enable old buildings to be re-used, but that this development was not a conversion in the conventional sense, particularly since its implementation would involve the substantial demolition of the old barn and its almost complete rebuilding using new materials. The development also involved the profile of the old barn being extended significantly, various significant alterations being made that involved the creation of new open areas, a number of windows and the provision of doors and its use being converted from agricultural to mixed agricultural and equine use.
For these reasons, the permitted building was much more like a new building than a converted building. It was not a requirement of the planning permission that the building should be converted nor that any particular part of the old barn should be retained. What was however essential was that the completed building should have the appearance of a complete replica of the permitted development and that it complied in every respect with the design and appearance shown on the permitted plans and provided for in the attached conditions.
The deputy judge also considered whether the old barn had in practice been demolished. Much argument in this appeal was addressed to the question of whether or not Mr Williams' work had involved the demolition of the old barn and, if it had, whether the demolition work had been undertaken within a single operation with the construction work or as a separate and discrete operation that had involved the demolition of the old barn followed by a subsequent and discrete operation that had produced the new building. These considerations were applied to the question of whether the development was one of conversion or, instead, one involving the construction of a new building without planning permission.
This discussion involved an esoteric consideration of whether the demolition of the old barn was an activity which had occurred at all, whether, if the barn had been demolished, it had only been "substantially demolished" [see my own comment at the end], whether demolition or substantial demolition required a separate planning permission and whether whatever had occurred evidenced a substantial departure from the 2006 permission, or the construction of a new building which had not been permitted and whose construction was outside and unrelated to the 2006 permission. The arguments on these conceptual issues were elegantly presented but they had little relevance to the facts of this case. Since they were raised, however, the deputy judge considered them briefly.
The deputy judge found that Mr Williams had undertaken the work carried out on site as one continuous operation and without any obvious demarcation between demolition work and construction or reconstruction work, and in purported implementation of the 2006 permission. The work was carried out with appropriate consultation with, and the involvement of, the council's building control department. As was always intended, the entire structure of the old barn, save for part of the steelwork structure, was demolished and removed. The steelwork structure was added to and part was replaced and the composite steelwork formed in this way was incorporated into the new build as its structural support. Thus, an essential element of the old building remained and was never removed or dismantled. As a matter of plain English, the old barn was not demolished and the resulting building, as well as the building that would have resulted had it been constructed in accordance with the approved plans, was or would have been a new building.
The enforcement officer and the Inspector both described the removal work that took place as "substantial demolition" and the building that had replaced the old barn as being "the construction or tantamount to the construction of a new building". However, substantial demolition or work that is tantamount to demolition is not "demolition" (the deputy judge said) and a building that is tantamount to being a new building is not a new building.
The deputy judge therefore concluded that the old barn was never demolished, at most it was "substantially demolished" since parts of the original steelwork were left in place and were incorporated into the new building. Furthermore, the work of removal, demolition and deconstruction formed an integral part of, and could not have been factually distinguished from, the work of construction or reinstatement. All this work was undertaken by Mr Williams as part of his attempt to implement the 2006 permission and no breach of that permission occurred until the occurrence of the first departure from the approved plans some weeks after the work had started. It would not have been possible to identify the moment in time when the work was transformed from the implementation of the 2006 permission into the implementation of an unauthorised new building.
However, the deputy judge held that none of these considerations had any bearing on whether the breaches particularised in the enforcement notice which were described as the creation of a new building had occurred. The way that the demolition work was carried out showed that the breaches of the 2006 permission that occurred resulted in the construction of a new unauthorised building and that these breaches occurred as part of an unsuccessful attempt to implement the 2006 permission.
As indicated here, the position in this case was complicated by the fact that, quite apart from the alleged demolition of the original building and the alleged creation of an entirely new building, as distinct from a ‘conversion’ (as the LPA claimed), the structure that eventually emerged differed from the design that had been authorised by the permission to such an extent as to constitute a breach of development control.
I am going to gloss over much of the remainder of the judgment, as it involved a rather convoluted discussion regarding precisely what breach of planning control had occurred, whether this was correctly described in the enforcement notice and whether Mr Williams was entitled to remedy the breach by altering the new building rather than being required to demolish it.
In the event, the deputy judge held that the Inspector had erred in law in finding (in relation to the Ground (f) appeal) that the remedy of altering the new building so that it conformed to the terms of the 2006 permission was neither available nor appropriate. In reaching that conclusion, he failed to give effect to sections 173(1), (3), (4)(a) and (5) and 174(1)(a) of the 1990 Act. As a result, he failed to give effect to the only reasonable conclusion that he could have come to which was that the remedy of altering the new building should be imposed in the absence of compelling reasons why that remedy was impractical or incapable of achievement.
The section 289 appeal was allowed on this basis, and the deputy judge ordered that the appeal be remitted to the Secretary of State to reconsider his decision on Ground (f) in the light of this judgment.
The deputy judge added the following overall conclusion. As a result of the Inspector's original appeal decision, Mr Williams had been left in the position of having no building on the site of the old barn with only limited prospects of obtaining planning permission for a new building to be constructed there. This was because any further application would have to be tested against the Green Belt development policies applicable to new buildings. This, he said, was a surprising result since everyone who had been concerned with the future of the old barn had been in agreement that the building was suitable for re-use for commercial purposes. It was obvious that Mr Williams had made a regrettable and expensive mistake in constructing the new building in breach of planning control. However, the policy of enforcement is to place those responsible for breaches of planning control in the position that they would have been in had they not made the sort of mistake that Mr Williams made in this case. In other words, common sense suggested that he should be permitted to rectify his mistake by undertaking alteration work in order to produce the building that everyone had previously accepted was appropriate. In this case, the deputy judge concluded that, as he had found, the law accords with common sense.
I would have to admit to having mixed feelings about this judgment. On the one hand the deputy judge’s commonsense approach to the issue of planning enforcement is refreshing, yet I do have doubts about a judgment which was remarkable for not citing a single judicial authority, and in particular in not referring to the judgment in Basildon (although that case, being unreported, may not have been drawn to the court’s attention). In view of the approach the learned deputy judge clearly took in relation to the issue of “conversion”, the Basildon judgment might have been of some assistance as authority for the conclusion he reached on this issue.
Although the reasoning in this judgment is not as clearly expressed as one might have hoped, the learned deputy judge seems to have eschewed the legalistic approach to the interpretation of the planning permission that is all too often urged on inspectors by LPAs, and which it appears was also contended for by the LPA in this case. The judge’s approach to the interpretation of the planning permission in this case was fully in line with the approach recommended by Macpherson J in Basildon. It is not clear, on the other hand, whether the approved drawings were examined as part of this exercise, in the same way as they were in the Bridgend and Cheshire West & Chester appeal decisions.
One point which does emerge is that the original barn was not completely demolished; its steel frame was retained. This was presumably what the deputy judge had in mind when he referred to the barn having been "substantially demolished", as opposed to its being entirely demolished. This, however, does not entirely dispose of the LPA’s argument that the extent of the demolition was greater than that which the planning permission had authorised.
Another point that emerges in this case is that no-one appears to have suggested that this development should be treated primarily as a change of use (although a change of use was mentioned in passing). This appears to me to be further confirmation, if it were needed, that in a case that involves substantial operational development, it is not appropriate to treat the development as a change of use, and that the judgements in Iddenden , North Norfolk and Hadfield clearly have no application where one is dealing with a planning permission for substantial operational development, even though the use of the converted building will differ in planning terms from its previous use.
So where does this leave us? Well, I am afraid that this latest judgment does not really resolve the issues which have troubled planning inspectors, and occasionally also the courts, for many years now. The root of the problem is the over-precious attitude to barn conversions that is all too often taken by local planning authorities. This is something that cannot be changed by planning inspectors or by the courts; it will require a ministerial initiative to bring about a more liberal approach to barn conversions, in particular to put an end to the rather pointless insistence that the fabric, or at least some identified elements of the fabric, of the pre-existing building must be retained in order for the development to be lawful (with the obvious exception of a building that is a designated heritage asset, whose retention is important per se).
Until or unless policy is changed in this way, I fear that we can expect a continuing flow of barn conversion disputes in the future, against a legal background (so far as construing the precise intention and effect of the relevant planning permissions is concerned) that remains unclear.
© MARTIN H GOODALL