Monday, 9 March 2015

Barn conversions – the new rules re-interpreted


NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

As many readers have discovered, the interpretation of the rules on prior approval of the proposed residential conversion of agricultural buildings has been much more restrictive than we had been led to expect, and it has clearly not reflected ministerial intentions.

This is largely due to the actual drafting of the provisions in Part 3, Class MB of the Second Schedule to the GPDO. These really ought to be amended, but for various reasons ministers have not found an opportunity to do so, other than a minor change in April 2014 to make it clear that the provisions of the NPPF are to be taken into account only so far as they are relevant to the specific matters to which a prior approval application relates (e.g. highways and traffic, noise, site contamination, etc.).

In an attempt to counter the unduly restrictive approach that has been taken, both by LPAs and by the Planning Inspectorate, to Class MB in particular, the government amended their on-line Planning Practice Guidance last week, on 5 March, to explain their view as to how these permitted development rights are intended to operate.

The notes below summarise some of the points that have now been incorporated in the government’s online planning practice guidance.

Limits on building operations

On this topic, the new guidance does actually reinforce the approach which has hitherto been taken in these cases.

The definition of a “building” in Article 1(2) of the GPDO includes “any structure or erection” as well as any part of a building. This may be relevant in the context of the residential conversion of agricultural buildings, as it could in principle include various buildings and structures of unconventional, and perhaps in some cases rather insubstantial, construction. The well-known judicial authorities on what constitutes a building or structure could also be relevant in this context (e.g. Cardiff Rating Authority -v- Guest Keen Baldwin [1949] 1 KB 385, Skerritts of Nottingham v. SSETR (No.2) [2000] 2 P.L.R 102; [2000] JPL 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)).

However, the works permitted under Class MB(b) are restricted to what is reasonably necessary for the building to function as a dwellinghouse, and any partial demolition must also be limited to the extent reasonably necessary to carry out the building operations that are permitted by this class. This imposes a practical constraint on the convertibility of some buildings. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.

In their amended on-line practice guidance, the government has confirmed that it is not the intention of the permitted development right under Class MB(b) to include the construction of new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works to provide for residential use that the building would be considered to have the permitted development right.

In any event, the development under Class MB(b) must not consist of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse, and partial demolition to the extent reasonably necessary to carry out the building operations listed here. Furthermore, the development must not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point.

The inclusion of roofs and walls in the list of items that can be installed or replaced as part of the building operations permitted by Class MB might be thought to allow scope for some significant rebuilding or replacement of the existing fabric, but an appeal decision in Bedfordshire, issued in February 2015, provides clear confirmation that the extent of the proposed building operations must not go beyond what is “reasonably necessary” for the building to function as a dwellinghouse, so that substantial demolition of the building and its effective replacement would be outside the scope of the development that is permitted. This is a factor which will clearly be a material consideration in the consideration and determination of the prior approval application

The strict limitation on the works that may be carried out under Class MB(b), combined with the condition that they must not extend outside the envelope of the pre-existing building, does not allow the creation of any hard surface or other engineering works (such as the laying of gravel) to provide any hard surfaces within the curtilage for the purposes of parking, or the provision of a patio, etc. Nor is there any provision (as there is in Classes M and MA) for permitted development under Part 41, Class B that would allow any such works to be carried out. Furthermore, such works cannot be carried out under Part 1 of the Second Schedule, because such development is specifically excluded by Class MB. Planning permission will therefore be required if it is desired to incorporate any such facilities in the development, and all the usual policy considerations relating to development in the countryside will apply to the determination of such an application.

A further appeal decision in Nottinghamshire also illustrates this point. The inspector in this case held that the proposed barn conversion would involve such major changes and reconstruction as to go beyond the scope of the development permitted by Class MB(b). The building had a metal frame and walls comprising a single metal skin, plus an element of blockwork, and a roof of corrugated asbestos fibreboard. What was required to enable the adaptation of the building for residential use amounted to substantial demolition and reconstruction of the building, plus various physical alterations. This was quite clearly beyond the scope of Class MB(b).

The National Planning Policy Framework

When determining a prior approval application, the LPA must also have regard to the National Planning Policy Framework (issued by the Department for Communities and Local Government in March 2012) so far as relevant to the subject matter of the prior approval, as if the application were a planning application. The words in italics were added to the GPDO with effect from 6 April 2014.

This amendment became necessary because, when determining prior approval applications under Class J, LPAs had been interpreting paragraph N, including the words “as if the application were a planning application”, as giving them a wide discretion to take into account other policy considerations in addition to the short list of criteria set out in Class J. The amendment makes it clear that the only policies in the NPPF that can be taken into account in determining an application for prior approval are those that are relevant to the strictly limited criteria set out in respect of the specified class of development. This has been confirmed and reinforced by appeal decisions, where inspectors have been robust in excluding considerations that go outside those parameters.

This point has been further reinforced by the amendment to the government’s on-line Planning Practice Guidance, which points out that this procedure was amended in April 2014 to make clear that the local planning authority must only consider the NPPF to the extent that it is relevant to those matters on which prior approval is sought, for example, transport, highways, noise etc.

In relation to Classes MA (conversion of an agricultural building to use as a school or nursery) and MB (residential conversion of an agricultural building), in particular, the revised ministerial practice guidance explains in some detail how an LPA should approach the question as to whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use. The practice guidance makes it clear that when an LPA considers location and siting it should not be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant. (This is explained in more detail in the note on rural development policy below.)

Limits on dwelling numbers

Paragraph MB.1(c) provides that the cumulative number of separate dwellinghouses developed within an established agricultural unit must not exceed three. There has been some confusion over the precise interpretation of this provision but, in amending their on-line Planning Practice Guidance on 5 March, the government has made it clear that it was their intention that the total number of new homes (3 dwellinghouses) should not include existing residential properties within the established agricultural unit, unless they were created by the use of this permitted development right on a previous occasion, in which case they would be counted.

The Planning Inspectorate can be expected in future to apply this guidance in determining planning appeals where this point is in issue, in contrast with a previous appeal decision in which one inspector held that the 3-dwelling limit applied to all such dwellings, and was not limited only to the number created under Class MB. The effect of that appeal decision was that any dwellings already in existence on the agricultural unit would count towards this total, so that if there were already three built under previous planning permissions, then no more could be created under Class MB.

The revised ministerial guidance in the government’s on-line Planning Practice Guidance does not, however, resolve the difficulty posed by the drafting of the Order. The interpretation of legislation does not depend on what ministers think it says or would like it to say. The courts may not, therefore, agree with the advice set out in the government’s online practice guidance, if a local planning authority were to challenge this interpretation of the 3-dwelling limit in a future case.

Rural development policy

One of the criteria to be considered by the LPA when determining an application for prior approval of proposed development under Classes MA and MB(a) (both relating to conversion of an agricultural building), but not under Class M, is whether the location or siting of the building makes it impractical or undesirable for the building to change from agricultural use to use as a school or nursery (under Class MA) or to a residential use (under Class MB(a)). This has proved to be a major stumbling block for applicants in obtaining approval of these proposed conversions of agricultural buildings. Ministers did not intend to allow LPAs such broad scope for rejecting proposals for the conversion of agricultural buildings, but the drafting of Classes MA and MB has up to now been interpreted as giving an LPA a considerable measure of freedom to refuse the application on policy grounds. At least half of all such applications for residential conversion under Class MB up to the early part of 2015 are thought to have been refused (and there was anecdotal evidence that there had been an even higher rate of refusal in some areas). Furthermore, by early 2015, 9 out of 10 of the appeals against such refusals had been dismissed by the Planning Inspectorate (a significantly higher proportion than in other types of planning appeal).

This has prompted the government to amend their on-line Planning Practice Guidance to address in particular the issue as to whether the ‘sustainability’ of the proposed development is intended to be a material consideration in determining an application for prior approval of the proposed change to residential use. The revised ministerial guidance makes it clear that the permitted development right does not apply a test in relation to sustainability of location. This is deliberate, as the right recognises that many agricultural buildings will not be in village settlements and may not be able to rely on public transport for their daily needs. Instead, the local planning authority can consider whether the location and siting of the building would make it impractical or undesirable to change use to a house.

The revised practice guidance then goes on to explain what is meant by “impractical or undesirable” for the change to residential use. Impractical or undesirable are not defined in the Order, and the LPA should apply a reasonable ordinary dictionary meaning in making any judgment. “Impractical” reflects that the location and siting would “not be sensible or realistic”, and “undesirable” reflects that it would be “harmful or objectionable”.

When considering whether it is appropriate for the change of use to take place in a particular location, an LPA should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the LPA would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.

There may, however, be circumstances where the impact cannot be mitigated. Therefore, when looking at location, LPAs may, for example, consider that because an agricultural building on the top of a hill with no road access, power source or other services, its conversion is impractical. Additionally, the location of the building whose use would change may be undesirable if it is adjacent to other uses such as intensive poultry farming buildings, silage storage or buildings with dangerous machines or chemicals.

When an LPA considers location and siting it should not therefore be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant.

Adopted policies in the Development Plan are also capable of being a material consideration when determining a prior approval application, but it is clear from the revised ministerial practice guidance that adopted policies on development in the open countryside, development in the Green Belt (where applicable) and sustainable development, especially taking account of the availability or non-availability of easily accessible local services and any generation of car-borne movements that might arise from this will not usually be relevant and are unlikely to be valid reasons for refusal of a prior approval application.

© MARTIN H GOODALL

47 comments:

Anonymous said...

Nice point from Steve Speed (The Planning Jungle) on the issue of whether the sustainability of location should be considered:

'the [new] advice that Class MB "does not apply a test in relation to sustainability of location" contradicts DCLG's "Greater flexibilities for change of use - Report on responses to the consultation" document (link), which states that "The government considers that the prior approval with regard to siting and design provides sufficient safeguards to ensure that development only takes place in sustainable locations and any physical works are appropriate to the surrounding area". In other words, it appears that one interpretation was stated when the introduction of the legislation was being justified, whereas the opposite interpretation is being stated now that the legislation is in force.

Anonymous said...

Whilst some of the guidance is useful some of it is just unhelpful given the actual drafting of the regulations. The number of dwellings is a prime example, it does not specify that the total number of dwellings only includes those under Class MB, but the floor area limit does specify this. So the regulations don't appear to say what ministers would like them to say. A common occurance in recent years, and one that could be easily avoided by properly drafting and checking regulations, especially as most of these anomalies are picked up by professionals (public and private) at consultation stages, yet seam to always make it into the regulations regardless.
Its a daft bit to legislation in anycase, promoting dwellings in unsustainable locations, totally contrary to the key issue of sustainable development that runs through the NPPF....

Anonymous said...

I am very confused !! What does this all mean to PD in an AONB ?

Anonymous said...

This leaves me slightly confused on what is meant by "it is not the intention to include the construction of new structural elements". Most barn conversions that I have been involved with over the past 20 years have required the introduction of some form of new structural elements, ie beams, additional roof members, lintels etc. In most cases the complete roof is removed and replaced with new supporting structure. Will it be the case that the LPA's could refuse an application if just one single structural element is added? Or does it have to read in context with the following sentence "it is only were the existing building is structurally strong enough to take the loading...." So, as long as the primary structure is proven to be strong enough take the additional loading then the addition of any secondary structure would be reasonably necessary for the building to operate as a dwelling house?

Martin H Goodall LARTPI said...

I take the view that the strictures regarding significant structural alterations should apply only to those that are actually development within the meaning of section 55. By section 55(2)(a), the carrying out of works for the maintenance, improvement or other alteration of any building which affect only the interior of the building, or which do not materially affect the external appearance of the building are not be to be taken to involve development of the land. So if any structural alterations necessary to adapt the building for residential use are either purely internal or are such that they will not materially affect the external appearance of the building, there should be no objection to their being carried out.

It might even be arguable that (just to take one example) the entire roof could be taken off in order to carry out the necessary internal works, provided that the same materials are re-used in reinstating the roof to its previous external form and appearance.

Playing devil’s advocate for a moment, it might even be possible to do these works before applying for prior approval of the change of use. If the works do not amount to development, the LPA can hardly complain about them. Nor can it be claimed that development has been begun before the application for prior approval of the change of use, because there has been no development. The change of use will only be ‘begun’ when the building is actually occupied, or is ready for occupation. The trick would be to apply for prior approval of the change of use before the conversion works were fully complete, but after any significant structural strengthening had been completed. On the other hand, any external alterations (which would be development) would have to be postponed until after the prior approval application has run its course.

Although, it is not strictly on this point, there was an enforcement case some years ago where it was held by the High Court that the LPA could not take enforcement action against part-completed alterations until it became clear upon their completion that they had indeed affected the external appearance of the building. In that case, it was clear that when completed the works in question would be exempt under section 55(2)(a), even though in their part-completed state they did at that stage appear to affect the external appearance of the building. I have not had time to look up the case, but will see if I can find it.

But don't treat the remarks above as legal advice! One would need to approach the matter with caution; and careful consideration would have to be given to the precise circumstances of the matter before proceeding down that route.

Martin H Goodall LARTPI said...

Going back to the correpondent who was confused as to how this affects PD in an AONB, it changes nothing. Development is not permitted by Class MB if the building is a listed building or is a scheduled monument, or is within a National Park, an Area of Outstanding Natural Beauty (AONB), a Conservation Area or the Broads or is within a World Heritage Site. It is also excluded where the building is in a site of special scientific interest (SSSI), a safety hazard area or a military explosives storage area.

Sally Rogers said...

Martin,

What would your view be regarding the installation of a floor (many of the barns we are looking at are steel framed weather screens with dirt floors. I have interpreted that this doesnt comply with the legislation because Part MB (i) only allows for the installation or replacement of windows, doors, roofs, or exterior walls, or services. It doesnt mention floors. What is your view?

Anonymous said...

Could someone offer some clarification on Permitted Development for Agricultural Buildings? Following on from Martin's comment re works prior to application for change of use, what is acceptable? Can, for instance, plywood cladding be changed to smarter weatherboard? Can cement fibre board (with or w/o asbestos) be removed and replaced with weatherboard? Can blockwork walls be rendered and painted? Where is the line between changing the external appearance and repair/renewal drawn?

Anonymous said...

I may be missing something but once a house has been permitted under Class MB and then built - what is the position with its PD rights ie for householder extensions and so forth?

Martin H Goodall LARTPI said...

All the householder PD rights that would normally apply under Part 1 of the Second Schedule to the GPDO are entirely excluded from a building converted to residential use under Class MB. This exclusion was effected by amendments to Part 1 itself.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 18 March, if alterations are to be made to an agricultural building before a proposal is made for its residential conversion, those alterations must comply with the relevant terms of Part 6. They must be reasonably necessary for the purposes of agriculture – which may well constrain the nature and scope of the alterations. The precise answer to this query will depend on the circumstances, and on the agricultural justification for those works.

I should perhaps have spelt this out in my earlier comment.

Martin H Goodall LARTPI said...

In answer to Sally Rogers’ query of 18 March, it is true that no mention is made of floors in Class MB. So there may well be opposing views on this point. I would not like to predict what view might be taken by an inspector on appeal in such a situation; I can foresee the possibility of the decision going either way.

John Hampson said...

Dear Martin,
Could you please explain, In that the whole site was not Solely used for an Agricultural use. Meaning all the land and buildings ? The barn has only been used for Agricultural storage and ancillary use. The Larger barn has part change of use Rectrospective for 5 livery stables from 15th August 2013. Does this mean that all the buildings are disqualified from Class MB? Many agricultural units have diversified does this exclude us from class MB. Kind regards, John Hampson.

Anonymous said...

I have a query. Prior approval is about to be obtained for B1-C3 and so too will consent for external works to the building. The LPA considers that implementation has to be sequential - PA first and then implement the pp for the works. There is no mention of residential in the description of development for the works and no condition. On what basis could the LPA insist on this sequence and what action could be taken if we implemented concurrently? A grey area and one we have been debating with the LPA for a while. Interested in your thoughts.

Anonymous said...

In answer to Sally rogers
There is all so no mention of internal walls,internal doors or bathrooms. I think all that is listed is external, typical of planners trying to find anything to refuse, not what I suspect the Government wanted!!

Martin H Goodall LARTPI said...

In answer to the anonymous query of 23 March, - as always, “it depends”, but my initial reaction is that the building works authorised by the planning permission can begin as soon as it is granted (subject to compliance with any pre-commencement conditions). The LPA could impose a condition on this PP making implementation dependent on prior approval of the change of use under Part 3, Class J. However, if they have not done so (or do not do so when they issue the PP for the works) then there would not appear to be any constraint in this regard

There is a strict limitation on the conditions that can be imposed on a prior approval under Part 3, so the sort of condition I have mentioned would have to be imposed on the planning permission for the works, rather than on the prior approval.

Martin H Goodall LARTPI said...

In reply to John Hampson (22 March), the answer to this question depends on the facts, which are not entirely clear from the question. Either the building qualified under Class MB at the relevant date or it did not.

Development is not permitted by Class MB where the site was not used solely for an agricultural use, as part of an established agricultural unit, on 20 March 2013, or if the site was not in use on that date, when it was last in use.

An ‘established agricultural unit’ is defined by paragraph O (as amended in April 2014) as agricultural land occupied as a unit for the purposes of agriculture (in the case of Class MB) on or before 20 March 2013. A ‘mixed’ agricultural and equestrian use would not qualify.

Neil said...

Martin,

Excellent blog as always. I have been a regular visitor to your blog over the last 2 years.

The new GPDO slightly amends the Class MB, it is now Class Q and the wording has been changed ever so slightly, but in my opinion has no new substantial affect on the PD right itself. No doubt you will be nose deep in the GPDO in the coming weeks.

Have you, or anyone reading this blog come across cases where the applicant has applied for part (a) of the agricultural to residential PD right and then following the granting of Prior Approval, submitted a full application for external changes that are more substantial than those allowed under part (b) building operations??

In theory if Prior Approval under (a) has been granted then residential use of the building/land becomes established. Any subsequent full application for external changes would then be subject to the normal development policies, but the LPA could not dispute that residential use has been established/granted.

Arguably this would allow for better homes because the scope for design, layout, use of local palette/colours and materials is increased. Changes could also incorporate PV and solar power and Suds sensitively. Dare I say this is a win-win situation as opposed to a compromised 'conversion'?

Thoughts and opinions welcome.

All the Best

Neil

Martin H Goodall LARTPI said...

There are conflicting appeal decisions as to whether a prior approval application under what was Class MB(a) [now Q(a)] can be made separately from an application under Class MB(b) [now Q(b)]. The argument is that the MB/Q(a) application cannot properly be determined without also considering a Class MB/Q(b) application at the same time. However, I am aware of at least one appeal decision where the Inspector accepted that the former could be made without the latter. I do not have precise details, but presumably it was clear, even in the absence of an application under MB(b), that the building was of substantial construction and was readily capable of residential conversion within the parameters of Class MB without requiring the details that would be provided by an application under MB(b).

I agree with Neil’s suggestion that one could obtain prior approval of the conversion under what is now Class Q(a) in the circumstances I have mentioned, but a Class Q(b) application might also be required where the extent of the necessary building works to give effect to the residential conversion is open to doubt. However, Neil’s suggested scenario might still work even where it proves necessary to obtain prior approval under both Q(a) and Q(b). I see no reason why a planning application could not then be made for more extensive works. As Neil says, the principle of residential conversion would by then have been established, and the applicable policy considerations would be confined to the size of the resulting dwelling in this location. A very substantial enlargement of the building might still be unacceptable in planning terms, but if the applicant’s proposal is not over-ambitious, they might reasonably expect to obtain planning permission for it.

Anonymous said...

As a thought on the question (18th March) regarding works prior to application, isn't it completely justifiable under Permitted Development to turn a barn in to a farm office, decked out with flooring/windows etc including say the installation of toilet facilities. Structural elements could be added to safe-guard the occupants, and external cladding could be added to help weather-proof the building. Surely this would all constitute works permissible for agricultural?

Martin H Goodall LARTPI said...

In answer to the anonymous query of 5 April, if it involves ‘development’ (e.g. any external works), then it would have to comply with the terms of Part 6 (including the need for prior notification, not to mention its being reasonably necessary for the purposes of agriculture on the holding).

Anonymous said...

My observation on comments from 5th and 18th April, together with Martin’s comments on those, is that if any such pre-application works are carried out under Part 6 (i.e.“A(a)…alteration of a building”) then the Class Q development would not be permitted (by virtue of Q.1 (f)) so this does not help, unless you wanted to wait 10 years!

Also in answer to Sally Roger’s comment and Martin’s comment, do floor plans have to be provided to the LPA? In any event a ground floor slab etc. would not be development under s.55(2)(a) and so too a first floor if it didn’t materially affect the external appearance. Maybe another option would be to apply for a single storey scheme and then just install a first floor under s.55(2)(a) again so long as the external appearance didn’t need to change etc. or alternatively apply for PP post PA.

One other point I am scratching my head over is where say you have a building or a range of adjoining/attached buildings that have a total existing floor space exceeding 450sqm. If you applied for PA on just part (i.e. up to 450sqm of existing) there would be a risk of the LPA refusing on grounds of undesirability i.e. with a dwelling being physically attached to a farm building, for obvious reasons. What options are there to get around this?

Is there a risk that actual pre-application demolition of the part not required for the dwelling(s) could be seen as works under Part 6 (i.e.“A(a)…alteration of a building”) and then exclude Class Q on the remaining buildings?

How about not actually demolishing but obtaining PP or PA under Part 11(B.2(b) for demolition of the unwanted part prior to any Class Q PA application and then the LPA would have to have regard to the fact that the applicant has PP/PA for demolition and intends to remove the “undesirable” parts and the LPA could even link a condition on the Class Q PA to the demolition PP/PA to control this?

For this to work the Class Q PA application boundary for the building and curtilage would still have to exclude the surplus parts to be demolished under the PP/PA because by definition the 450sqm limit could otherwise still be triggered (assuming the applicant didn’t want to go ahead and demolish the surplus parts before Class Q PA as for example they may still be valuable to them if the application were to fail and so they might not want to risk/gamble on demolition).

BP

Anonymous said...

I have spent over a year trying to get agricultural to residential change of use and can tell you now that unless you start out with either a stone or brick built barn you stand virtually no chance. My council have told me that they won't pass anything until the government tells them they have to. Annoyingly they gave me flexible business use straight away but it's not my first choice. Don't think going to appeal will help either because the inspectors and inspectorate are worse than the planners ( The Nottingham case you mention sounds like it is mine by the way ). My LPA are now saying that the possible future uses of any other buildings on the farm not just current uses is grounds for refusal on location and suitability, which means they can refuse anything. So don’t kid yourselves about interpretations of the rules because until ministers close all avenues for misinterpretation the planners will reject.

Archie said...

A new opening in a masonry building will require new structure in the form of a lintel (possibly a padstone and re-built / reinforced jambs too), a framed one trimming to the jambs at least (to support the cladding / new windows).

In either case the existing structure is not literally capable of supporting the external works "as is".

However in both cases the work is effectively the replacement of support lost through the permitted demolition and 'must' be allowed otherwise it would not be possible to create the new openings, allowed under the PD, in the first place!

And to be occupied as a dwelling it has to be capable of passing Building Regs ergo the strength and stability lost through the introduction of allowable elements must be replaced.

I have had success with both types and rejections on similar proposals too.

Anonymous said...

Does any one know of any Lawful Development Certificate applications being made for on any Class MB/Q sites? I am struggling to find any LDC cases which seems totally crazy with the amount of proposed schemes across the country. Surely the applicant, bank or buyers of any sites will want the certainty that only a LDC can provide.

BP

David said...

Going back to Neil's question of whether one could apply for further Planning once the PD is approved but not implemented, wouldn't the LPA say the principle wasn't established if it hadn't been implemented and therefore the new application couldn't be registered as alterations.
On a slightly different tack couldn't one implement the PD in a very minimal way and then apply for a replacement dwelling - which couldn't be refused. A thought?

seedspreader said...

Re Anonymous 22n May 2015
It's been a frustrating 2 years, 4 applications,
2appeals but we got prior planning approval to convert a steel clad barn to one single storey dwelling this week.
It was won on an appeal. Good luck

Anonymous said...

Hi Martin,

Have you any experience or views where an LPA is resisting a prior notification due to the close proximity of agricultural livestock buildings (example i refer to is 27 metres to nearest livestock shed using a straw based system, also the imposition of an occupancy condition to alleviate concern in this regard. There are appeal examples, which whilst dismissed, do show the inspectorate considering such a condition / assessment. Any help appreciated. Thanks Andrew, Leicestershire

Martin H Goodall LARTPI said...

In answer to the anonymous query of 24 July, if (as I understand it) this is an application under Class Q for the residential conversion of an agricultural building, one of the issues in respect of which the LPA may wish to consider whether their prior approval will be required is the issue of whether the location or siting of the building makes it impractical or undesirable for the building to change from agricultural use to a residential use. It is clear from the government’s revised planning practice guidance that the close proximity of agricultural livestock buildings could well make this change of use unacceptable, subject obviously to careful consideration of the detailed circumstances of the case.

I cannot comment on the proposed occupancy condition. The imposition of such a condition would appear to be within the power of the LPA under paragraph W(13), as it would seem in the circumstances to be reasonably related to the subject matter of the prior approval, although whether such a condition would effectively address the possible objection to this development on the grounds mentioned would depend on the detailed facts of the matter. I am a little sceptical of an occupancy condition being effective for this purpose, but this would have to be considered in relation to all the relevant circumstances.

Martin H Goodall LARTPI said...

I answer to David’ query of 7 July, the law has changed since Neil posed his question in March and I answered it. It is a useful reminder that posts on this blog and responses to comments are only valid on the day they are posted. It is not practicable to update entries on a systematic basis, and so no reliance should be placed on material posted on the blog for more than a short time after it was published.

The GPDO 2015 (which came into effect on 15 April) now provides that applications for related operational development under Part 3 must be made at the same time as the application for the change of use. The only exception is where no related operational development is required, and so only a change of use is involved.

Bearing this in mind, if someone subsequently decides that they do need to carry out operational development after all as part of the proposed residential conversion, they can no longer make a separate prior approval application for that operational development. The only practical course that would then be open to them would be to make an entirely fresh prior approval application both for the change of use and for the operational development.

If the operational development falls outside the scope of the permitted development that is allowed by the relevant Class of Part 3, a planning application will be required (and may well be refused), although in that case I suggest that the planning application may be confined to the operational development alone, and that reliance may still be placed on the prior approval in respect of the change of use, unless it transpires that it is not physically possible to carry out the change of use without resorting to operational development. This would in any event take the proposed residential conversion outside the scope of the permitted development under Part 3. Such cases, I suspect, are likely to be rare in practice, because if it was clear that the change of use could not be made without significant physical alterations, it is unlikely that prior approval of the change of use would have been given.

Anonymous said...

What a great blog site
I am trying to understand the barn conversion regulation around the size of barn that can be converted. The regulation R.1 (b) (formerly Class 'M' barn conversions to a flexible use) reads:
''(b) the cumulative floor space of buildings which have changed use under Class R within an
established agricultural unit exceeds 500 square metres;''
I am struggling to understand if this means the resulting unit/units must not be greater than 500 sqm or or that the barn to be converted must not be greater than 500sqm especially as they have used the word 'within'. can anyone help with this, are there any clarifications or case law?
Eric Johnson

Martin H Goodall LARTPI said...

The rule is perfectly straightforward. The floorspace within any one agricultural unit converted to other uses under Class R, whether in one go or in several different developments, must not exceed 500 sq m in total. You can do as many of these conversions as you like, but when the total floor area of all the conversions adds up to more than 500 sq m you can’t convert any more. It doesn’t matter what size the pre-existing building was or what size the converted floor area is, provided it doesn’t take the cumulative total of the floorspace converted under Class R over the 500 sq m limit.

Just to throw another pebble in the pond, the drafting of these provisions (in paragraphs R.1(b), R.3(a) and R.3(b)) raises a potential problem of interpretation. They refer, in the past tense, to the cumulative floorspace of buildings which have changed use under Class R. This could be taken to refer to the cumulative floorspace in the buildings that have already changed use before the change of use which is now intended takes place.

If interpreted literally, this could allow the total converted floorspace to exceed the stated limits. Provided the converted floorspace that has already been converted to permitted uses under Class R does not exceed the cumulative limit, then it would appear that a further change of use which would take the cumulative floorspace over the stated limit would not be precluded. In fact, a literal interpretation of these provisions could potentially allow the conversion of an unlimited amount of floorspace, without the need for any prior approval. This cannot have been what was intended, and it seems extremely unlikely that this interpretation would be accepted by local planning authorities, or by planning inspectors or the courts. It is, however, an unfortunate example of the ambiguous drafting of this legislation.

Shelly said...

Hi I was so pleased to hear that seedspreader has been granted planning permission on a steel clad barn. I am just about to submit my plans and would love to view your case online in order to preempt the councils next potential move so I would be ready for them.
Thanks
Shelly

onyx12 said...

Following on from the question about proximity to a livestock and storage building - what if the livestock and farming activities are those of the future occupants of the barn conversion? My clients want to move into the converted barn and run their small farm from there. The Council (possibly the Yorkshire one referred to on page 141 of your excellent book) suggest that there is no way of avoiding the conflict between agricultural activities and the residential amenities of the converted house even though they will be the same people. I suggested a non-severence condition (but not an agricultural occupancy one) and they say we can't do a S106 to achieve this. I can't find an example of a suitable condition. Would a UU for non-severence of the land from the converted barn sent with the PN do the trick?

Anonymous said...

Martin, an excellent blog, thank you. Are you able to offer any guidance on how curtilage is defined with regard to a Class Q conversion. If the building in question is situated among other farm buildings, how is it possible to specify a curtilage relating to that specific building and is there a rule of thumb on size? And am I right in saying that the curtilage of the converted building needs to include both parking and garden / patio?

Martin H Goodall LARTPI said...

I strongly recommend my anonymous enquirer to buy a copy of my book, where this question is answered, as well as many others.

An extremely restrictive definition of ‘curtilage’ is prescribed by paragraph X for the purposes of Class Q. This allows only a very small area of land adjacent to the agricultural building to be included in the permitted change of use. It is confined to:

(i) the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building, or

(ii) an area of land immediately beside or around the agricultural build¬ing no larger than the land area occupied by the agricultural building,

whichever is the lesser.

A development that seeks to include more than this very limited amount of land in the residential conversion will not be permitted development under Class Q. Prior approval applications where a larger area of land has been included have been summarily rejected, and the rejection of the application has been upheld on appeal. If it is felt essential to incorporate a larger area of land in the development than is permitted under Class Q, a planning application will have to be made, which will fall to be determined in accordance with all the policy considerations that apply to such develop¬ments in the countryside.

Martin H Goodall LARTPI said...

In answer, rather belatedly, to Onyx12 (10 December 2015), it really will be ‘a matter of fact and degree’ in such cases. Clearly there will be cases where living conditions would be unacceptable, and others where there would be no problem. I think, though, that one has to take the case of hypothetical future occupiers, rather than the applicants themselves. In other words, the test is an objective one, rather than being personal to the applicants.

Anonymous said...

Martin
I have a barn that was refused permitted development because it was considered equestrian and not considered agricultural.
Is this interpretation correct. It seams wrong to me that it is not a straight forward process to go from agricultural to equestrian so in my eyes equestrian is a step further up the planning ladder however an equestrian barn is not suitable under permitted development how can this be correct.
The land was previously agricultural land and part of a farm which was divided up and sold off back in 1999.
The previous owner of my plot achieved consent to build a stable block and barn for storage but as far as I can see there was no official change of use from agricultural to equestrian. It is considered by my local council that my plot is equestrian.
Welcome any advise.

Martin H Goodall LARTPI said...

It is well-established that equestrian uses are not an agricultural use of the land. It follows that any buildings on the land that are used for that purpose are not agricultural buildings. See paragraph 9.4 in Chapter 9 of my book, “A Practical Guide to Permitted Changes of Use

Bruce Frizzell said...

Martin,

Great blog, one well worth subscribing to.

We have an issue with a Planning Officer (who doesn't these days) whereby she considers the works necessary for conversion under the agricultural PDR to be "beyond what is reasonably necessary for the building to function as a dwelling house"

The proposed works would include:

• the retention of the existing roofing sheets and the existing portal frame,
• the removal of all of the existing walls and replacement with new larch boarding walls,
• the insertion of new windows and doors and
• the construction of a new self-supporting first floor and a new lower ground floor.

Specifically, she advances that the self-supporting first floor would add a new structural element to the building, which the NPPG advises is not the intention of Class Q, as the building should be capable in itself for conversion. Also the engineering/ excavation works to create the lower ground floor would fall outside the works explicitly permitted by Class Q.

Our position and counter argument is that the existing structure can be converted with no new structural elements added to it, our proposed first floor is independent of the structural fabric of the building.

There may be some substance to the argument in relation to the floor, but what is there to stop the occupier setting the floor down at a later date?

P.S. a copy of your book has been ordered.

Anonymous said...

Barn conversions. What defines LDC "de minimis".
Fifteen years ago, we converted a detached barn to a bungalow and we have lived here ever since. We never applied for planning permission but last year we applied for a LDC and were refused. The Inspector dismissed our appeal as the period of non-occupancy exceeded "de minimis".
Our friends and family are widely scattered and we go away on short breaks to visit them. Over the year, we could be away for sixty days. We give the keys to a local girl to come in to check the house and feed the animals every day. She makes herself a cup of tea, eats our biscuits, watches TV, uses the toilet and on occasion stays the night with her boyfriend.
The bungalow is near the road and the LPA could cross the car park to look in the kitchen window and see our our domestic fittings and furniture at any time. In this case, is there any period of non-occupancy?

Martin H Goodall LARTPI said...

In answer to the anonymous query of 10 September, on the facts as stated there does seem to be a question mark over the correctness of this appeal decision. However, if this decision was issued more than six weeks ago, there is nothing now that can be done about it. It is what lawyers call “res judicata” i.e. an issue on which a competent tribunal has adjudicated, and so the inspector’s decision cannot now be questioned or challenged in any way.

If it were not for this fact, I would have agreed with this enquirer that mere absence from the property for up to 60 days would not have been sufficient to amount to discontinuity in the use, provided that personal belongings, clothes and other domestic furniture was left in the property in the meantime. It really comes down to a question as to whether there is continuity in the occupancy, notwithstanding occasional (even repeated) absences. However, as I have pointed out, the Inspector has made his decision on the section 195 appeal, and that is an end of the matter. There is now no way in which this question can be re-opened.

Martin H Goodall LARTPI said...

In answer to Bruce Frizzell (8 September), the question he raises is one on which there continues to be a great deal of controversy, so much so that I can’t reliably answer it. I will be discussing this issue in extensive detail in a new Appendix to the Second Edition of my book (A Practical Guide to Permitted Changes of Use), but until or unless this issue reaches the High Court, I fear that we are not going to get a reliable answer.

My own instinct is to side with Bruce in relation to the development he proposes, but I can well understand that the planning officer may resist it, and in light of the online PPG there is a distinct possibility of an appeal against the refusal of prior approval being dismissed in this case. Maybe Bruce would volunteer to be the guinea pig who takes his case on to the High Court!

Anonymous said...

Hello. Can you tell me whether these development rights have a time limit? I was under the impression that this was a temporary change in the rules? If there is a time limit when is the end date? Thank you

Martin H Goodall LARTPI said...

In answer to the anonymous query of 17 October, there is no deadline for seeking prior approval under Class Q for the residential conversion of an agricultural building. There was originally a deadline (30 May 2016) for the completion of the residential conversion of offices under Class O, but this was lifted earlier this year. There remains a deadline (15 April 2018) for the completion of the residential conversion under Class P of buildings currently or previously used for storage within Use Class B8. (There has been no proposal to lift this deadline.) There will also be a limited window of opportunity under Class PA for the residential conversion of light industrial buildings (from Use Class B1(c)) – a prior approval application cannot be made under Class PA until 1 October 2017, and the prior approval date must be no later than 30 September 2020.

Anonymous said...

Martin,

You stated previously

"The GPDO 2015 (which came into effect on 15 April) now provides that applications for related operational development under Part 3 must be made at the same time as the application for the change of use. The only exception is where no related operational development is required, and so only a change of use is involved."

Is this only in relation to classes C, M, N and Q?

I have a similar situation with an office to resi under Class O.

Prior approval was received for the conversion and a separate planning application was submitted for external alterations which was also approved. However, the informative on the alterations permission says if it is implemented first the Prior Approval application will be invalidated.

Martin H Goodall LARTPI said...

The requirement that an application for the prior approval of both a change of use and of any operational development that is allowed within that Class in Part 3 must be made together applies to all those classes of development where operational development is also allowed by that Class. There is no such provision under Class O, because there is no permitted development for building works or other operational development under that Class.

This is why if operational development is required in connection with a change of use under Class O, the operational development must be the subject of a separate planning application. There is no requirement that such a planning application should be made at the same time as the prior approval application, although there will be a slight saving in the application fee if they are made together.

If we are dealing with an informative, and not a condition in the planning permission, this can have no legal effect, in my opinion. I can see no legal reason why the operational development should not be started before the change of use is actually made, and if you think about it, it is unavoidable that the building works must be completed before the change of use of the building can actually take place. I fear that the planning officers are guilty of some woolly thinking.