Tuesday, 5 March 2013

Barn conversions again (Part 1)

[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.]

Following the pieces I wrote on barn conversions on 15 July 2011 [“More development in Wonderland”] and 23 January 2012 [“ Barn conversions (2)”], I have dealt with two more cases myself, as well as advising on several other problems encountered in the execution of these projects.

As a result of this more recent experience, the advice dispensed by the Cheshire Cat in the first of those earlier blog items is in need of updating. What has become clear is that there is continuing reluctance on the part of local planning authorities, and even on the part of some planning inspectors, to follow the Basildon* judgment to its logical conclusion. [*Basildon BC v. SSE and Asplin 28 June 1985 (unreported)]

In that case, there was a planning permission (obtained on appeal) for converting a stable to a dwelling. The permission included an extension and alterations; so it was not just a planning permission for change of use – it involved substantial operational development. While the work was in progress the frame was blown down in a storm, but the builders built a replacement and carried on with the development. The LPA claimed that this amounted to the erection of a new building and served an enforcement notice. On appeal an Inspector agreed with the appellant that the work was within the scope of the planning permission, but the LPA challenged that decision in the High Court.

The question before the court was whether the inspector was wrong in law as to the nature and scope of the outline permission which had been granted, and secondly whether the building which had been erected fell within the scope of that permission. Macpherson J noted that one should be wary of construing the planning permission as if it were a statute or statutory instrument, and that the specific words used in the planning permission (in that case “improvement and extension” and “extension and alteration”) should not be construed in a disembodied way on their own but should be looked at in company with the documents upon which the permission was granted in order to see what the planning permission authorised. (The documents that can be referred to in order to construe the permission are governed by the decisions in Ashford and in Barnett, as previously discussed in this blog.)

The judge went on to observe that each permission must ultimately be construed as it is and in its own context. He accepted (as later confirmed by Barnett) that the permission had to be construed both by reference to the permission itself and by reference to the approved drawings. The judge particularly noted that there were no conditions requiring retention of any part of the original building onto which the new extension was to be added. It was impossible to state baldly that “improvement and extension” or “extension and alteration” could not, in the circumstances of that case, fit into the scheme which Mr Asplin had planned and which was in effect carried out. The judge confirmed that if the exercise of inspection of the planning permission (in the light particularly of the approved drawings) was performed, then it was clear that the Inspector was justified in concluding that the planning permission did authorise the works which would result in a building as shown in the plans and that it did not indicate anywhere that much, if any, of the original building had to be retained.

In the result, he saw no error of law whatsoever in the Inspector’s analysis of the nature and scope of the permission granted, and he was convinced that the Inspector rightly and fairly extracted from the documents at which he was entitled to look what was the scope and extent of the permission granted in that case.

The judge then turned to the actual execution of the building works. What happened was that Mr Asplin started his works early in 1983. As the plans plainly showed, he set about the construction of an extension which was brand new, and a fundamental alteration of the original building. That this was going to occur was apparent from the plans. Eventually, the old building was stripped down to its wooden framework. If the elements had not taken a hand, that framework would have been incorporated into the building. In fact, a storm came and blew down the framework and it was not rebuilt or refitted; so it was right to say that the present building as it now stood incorporated virtually nothing of the old.

The council conceded that if the frame had not collapsed and had been incorporated into the new building, the development would have been in accordance with the planning permission. The judge observed that it seemed remarkable that non-incorporation of the framework, which would not have been visible externally or internally at all and which evidence did not establish to have contributed much, if anything, to the structural strength of the new thicker walls of the new building, should take those works out of the planning permission granted and into the realms of illegality. On the contrary, in his judgment, “improvement and alteration” in the context of this case comprehended that which was done, and the Inspector was justified and correct to conclude that this was so. To decide otherwise would, in his judgement, not only be wholly unmeritorious but would be wrong.

As I shall explain in a separate post, one or two inspectors have shown a marked reluctance to follow this judgment, but even if there is continuing debate around the interpretation of terms such as “improvement and alteration” or “conversion” (discussed later) there is no doubt that if no part of the pre-existing structure of the barn would be visible if the consented scheme is executed in accordance with the approved drawings, then there cannot really be any objection to the entire removal of that previous building. That much at least is clear from Basildon, and I have persuaded at least one LPA to accept this in a case whose facts were exactly on all fours with Basildon.

In the next post, I will discuss two appeal decisions, in South Hams (T/APP/C/92/K1128/620967/P6) and in Woodspring (T/APP/C/90/V0130/28-29/P6) that followed the same reasoning as the judgment in Basildon. But I should warn you of two more recent appeal decisions, which I will deal with in a further post, which have gone the other way and which seek in effect to distinguish Basildon and take an opposite approach to the issue of ‘conversion’.

[UPDATE: In view of two more recent appeal decisions, 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 "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.]



Evan Owen - Snowdonia said...

In my capacity as consultant to financial services firms I see so many inconsistencies in decisions handed down from the regulators, the Ombudsman and the compensation scheme that baffle me, planning is no different.

Let's call it regulatory arbitrage.

I have followed particular inspectors and found they offer conflicting views within weeks of previous decisions even when using the same circumstances to argue for or against an appellant.

This is worse than an LPA postcode lottery, this is unacceptable service from PINS. But what do you do about it?

My solution would be to have more than one inspector but even then there is no guarantee of consistency so spending a shed (or barn) load of money on an appeal which in logic should follow precedent and be allowed only to find that something odd happens and you have lost and set a new precedent yourself.

Of course the argument is that the Financial Ombudsman Service decides each complaint on its own particular facts and merits, so does the Planning Inspectorate apparently, both allow one person to make a final decision but at least the FOS has a two or even three tier system of checks and balances. Not that this ends in a logical conclusion!

Is it right that a planning inspector can be judge, jury and executioner without any real independent scrutiny?

I deal with planning obligations contained within a legal agreement, these agreements must be lawful and enforceable yet PINS uses inspectors who are not lawyers, they treat the appeal or 'complaint' as a matter to be determined in accordance with planning law instead of English or EU law.

I have been told that there are changes ahead in the way appeals are handled in Wales, I look forward to seeing a system that is quicker and less cumbersome but ultimately it just needs to be consistent, please.

While I am writing, this is just a thought after studying website visitor stats, could your publicly displayed thoughts on all things planning attract attention from your adversary and prejudice the outcome of your next case?

Martin H Goodall LARTPI said...

As we shall see in this current series of posts, there have been some significantly inconsistent appeal decisions regarding barn conversions, and I will be discussing these in the third of this series, which is due to be published tomorrow. In today’s post (which should be published around lunchtime) I will summarise two appeal decisions that were in fact consistent with the Basildon judgment.

I am not sure I would go so far as Evan in criticising inspectors over this, but it is naturally a source of worry for both appellants and planning authorities when apparently inconsistent appeal decisions are issued, especially when they appear to be at variance with judicial authority. Whilst there is always the option of challenging a particular decision in the High Court, it may not be practicable (particularly for an appellant) to risk the costs of doing so. Maybe we need a more affordable legal tribunal to assume the supervisory role currently performed by the High Court.