Monday, 11 January 2016

Barn conversions – the structural issue (2)


After my article on this topic was posted on 4 January, another well-known planning blogger (who, with becoming modesty, does not wish to be named here) kindly drew my attention to R (Prudential Insurance Co Ltd) v. Sunderland City Council [2010] EWHC 1771 (Admin). I will come back to this judgment below, but I want first to analyse carefully the nature of the development involved under Part 3 of the Second Schedule to the GPDO and the precise scope of the planning permission granted by Article 3 in conjunction with the various Classes set out in Part 3.

Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. In Part 3 of that Schedule, this development is specified by the various Classes set out there as “Development consisting of a change of use of a building (or, in some cases, of a building and any land within its curtilage) from a use falling within [a specified Use Class or Classes] to a use falling within [another specified Use Class]”. In certain cases, planning permission is also granted for limited building operations. I will come back to that further permission below.

When considering the planning permission for change of use granted by the various Classes in Part 3, it is important to appreciate that a change of use is a single event; it is not a gradual process or a continuing state of affairs (see Cynon Valley BC v SSW (1987) 53 P. & C. R. 68). Furthermore, it should be firmly borne in mind that, except in those few Classes where some building operations are also permitted, the permission granted is solely for the specified change of use. It follows that a development comprising a material change of use only commences when the change of use itself occurs, and (for the reasons explained in my last article, and further explored below) any incidents, including the commencement of internal alterations, that are preparatory to that change of use are of no legal significance in planning terms.

In the case of a change of use to use as a single private dwellinghouse, it is a prerequisite to such a change of use that the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence (Gravesham B.C. v SSE (1984) P. & C. R. 142). Until that point is reached, no change of use has taken place. The judgment in Impey v SSE (1984) 47 P. & C. R. 157 established that a change of use can take place before the premises are used in the ordinary and accepted sense of the word (for example, where operations have been undertaken to convert premises for residential use and they are then put on the market as being available for letting). (This was subsequently confirmed by the Supreme Court in Welwyn Hatfield BC v. SSCLG [2011] UKSC 15.)

The effect and extent of the planning permission granted by the GPDO can readily be understood by reference to Class O in Part 3 (the residential conversion of offices which have been in use within Use Class B1(a)). The GPDO is completely silent on the subject of the works required to bring about this change of use. Clearly the permission does not extend to any building works to the exterior of the building, or which would materially affect its external appearance, but quite extensive works may be required to the interior (including in may cases the erection of new internal walls, and other structural elements, as well as the installation of bathrooms, toilets, kitchens, and a variety of other features and facilities) in order to enable the authorised change of use to take place. The reason that no provision is made for these in the GPDO is that they do not require planning permission in any event, by virtue of section 55(2)(a). None of the conditions attached to Class O refers to these internal works in any way.

I want to look next at the planning permission granted by Classes M(a)and M(b). Class M(a) grants permission for the residential conversion of a building currently used as a shop (A1) or for the provision of financial or professional services (A2) (or used for certain related uses). Bearing in mind the nature of such premises, it may be unnecessary in some cases to resort to the additional permission granted by Class M(b) for building operations that are reasonably necessary to convert the building to residential use. Existing doors, fenestration and other external features may not need to be replaced or supplemented, so that no external building works need necessarily be carried out in such cases.

Where works affecting the exterior are necessary in order to convert the building to residential use, the only restrictions in Class M that relate to such works are M.1(e), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and M.1(f), which prohibits development consisting of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As discussed above, if a change of use of the building is the only development involved, there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). It cannot sensibly be argued that by also changing some doors and windows, which therefore requires additional prior approval under Class M(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. It seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class M(b).

The conditions in paragraph M.2 include a requirement that where the development proposed is development under Class M(a) together with development under Class M(b), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to a list of matters which include the design or external appearance of the building. But where the development proposed is development under Class M(a) only, prior approval is not then required as to the design or external appearance of the building. This is further confirmation that where building works are necessary under Class M(b), the only additional matter requiring prior approval is the design or external appearance of the building. Clearly the LPA is not concerned in any shape or form with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

I have set out the position in relation to Class O and Class M, in order to examine the planning permission granted by Classes Q(a) and Q(b) in light of the points established in relation to these other Classes of development in Part 3. Class Q(a) grants permission for the residential conversion of a building and any land within its curtilage from a use as an agricultural building, and Class Q(b) grants permission for building operations reasonably necessary to convert the building to residential use.

In the same way as in Class M, the only restrictions in Class Q that relate to the building works authorised by Class Q(b) are Q.1(g), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and Q.1(i) which prohibits development consisting 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 also partial demolition to the extent reasonably necessary to carry out those authorised building operations.

Whilst this restriction is more prescriptive in its details than the corresponding restriction in Class M, there would appear to be no justification for treating purely internal alterations any differently from internal alterations carried out in connection with a change of use made under Class O or under Class M. For this reason, I would argue that even in the case of the residential conversion of an agricultural building there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). There still seems to me to be no basis on which it can be argued that where building works are proposed which require prior approval under Class Q(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. As in the case of Class M, it seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class Q(b).

The conditions in paragraph Q.2 requiring the submission of a prior approval application are in the same terms as in paragraph M.2. discussed above, and so this too confirms that where building works are to be carried out under Class Q(b), the only additional matter requiring prior approval is the design or external appearance of the building, and that the LPA is not concerned in any way with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

We come then, at last, to Prudential Insurance. How, if at all, does this judgment affect the argument? This was a spat between the claimant and a rival developer (Peel Holdings), with the LPA as the unfortunate ‘piggy-in-the-middle’. The claimant was seeking to quash a Lawful Development Certificate granted by the LPA to Peel Holdings in respect of a proposed development that they sought to carry out under an extant planning permission. The planning permission authorised “Conversion of one retail unit into two units, construction of new free-standing entrance canopies and formation of a goods access road at 1 Peel Centre, The Glover, Washington..”

The development of the Peel Centre as a whole had been authorised by an earlier planning permission issued by the Secretary of State under section 77 of the 1990 Act. A condition in that original permission provided that the development permitted should not be used for the retailing of 19 different classes of goods without the prior written consent of the LPA. A section 52 agreement (under the 1971 Act) had been signed some years earlier by Peel Holdings which precluded the sale of the same classes of goods.

The proposed use or development for which the LDC was granted comprised “open A1 retail use and a planning permission dated 11.12.2006 (06/04039/FUL) unfettered by the requirements of the section 52 agreement of 08.08.1988 as amended by the deed of revocation of 14.07.2006.”

The question for the Court was - What did the planning permission in respect of Unit 1, properly interpreted, authorise? The judge had no difficulty in stating straight away that the LPA was authorising the conversion of one shop into two together with, specifically, works to the exterior of the building necessary to achieve that conversion. He observed that the work necessary to achieve the conversion was necessarily to be undertaken both to the interior and exterior of Unit 1. As a matter of interpretation of the planning permission it might be thought obvious, he said, that it was authorising the carrying out of the building activity necessary to put in place what was shown on the two plans and which would result in the conversion of the unit from one shop into two [that is to say, both internal and external buildings works].

The claimant disagreed, relying on the definition of development in section 55(1) and the exemption from that definition provided by section 55(2)(a). Counsel for the claimant accepted that in this case planning permission was required for certain of the building operations which were specified in the planning application. They were the external alterations to Unit 1, the construction of new free-standing entrance canopies and the formation of a goods access road; each clearly constituted operational development within section 55 of the 1990 Act. He submitted, however, that the conversion of Unit 1 into two units was achieved solely by virtue of internal alterations to the building. He submitted that no planning permission was necessary for the internal alterations by virtue of section 55(2)(a). Accordingly, he submitted that, as a matter of interpretation, all that the planning permission in respect of Unit 1 authorised was the physical alterations to the exterior of the building.

The case for Peel Holdings was that "the conversion of Unit 1 into two units" constituted operational development, and that the conversion was inextricably linked with both the interior and exterior alterations to the building. [Note that this development did not constitute or include a material change of use. The judge accepted that the planning permission related to purely operational development. The use of the two new units was in practice governed by section 75.]

The judge accepted that there can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. In his judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, falls within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seemed to him to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. He took the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either ‘Yes’ or ‘No’.

Looked at in this way, there was no doubt in his mind that the proposal for which planning permission was sought in respect of Unit 1 constituted development. The planning permission which was granted authorised the carrying out of the whole of that development. In his judgment, therefore, the planning permission authorised the conversion of Unit 1 into two separate units and it authorised the works necessary to achieve that end.

The planning permission so granted did not limit the use to which the two units could be put. In those circumstances, Peel Holdings submitted, permission was granted for retail uses falling within Use Class A1. On any view of the wording of the planning permission, the permission granted was for retail units i.e. shops. In the absence of a condition limiting the use of the units to certain categories of goods, or a condition limiting that which could be sold, all the uses permitted under class A1 were permitted.

I am afraid I have considerable difficulty with this judgment, and in particular with the conclusion that it would be “wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development” and that “the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole”. This appears to me to be an assertion that is entirely unsupported by any reasoning, and which (although it refers in passing to counsel’s submissions with regard to section 55(2)(a)) makes no attempt to analyse the wording and effect of section 55.

A clear distinction must be made between, on the one hand, the conversational use of the word “development”, which can embrace all aspects of what is colloquially meant by that word in ordinary conversation (and this would undoubtedly include internal works), and on the other hand, the use of the word “development” in the Town and Country Planning Act 1990, which is precisely defined by section 55 and must be construed strictly in accordance with the rules of statutory interpretation. If parliament had intended that “development” should be interpreted more widely in some contexts than in others, it would undoubtedly have legislated accordingly in the 1990 Act (or in a subsequent amendment of that Act). There is nothing in the wording of section 55 to suggest that the effect of section 55(2)(a) only applies to internal works where those works are carried out in isolation, but that when internal works are carried out in conjunction with building operations to the exterior of the building, or which materially affect its external appearance, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the external works. There is similarly nothing in the legislative wording to suggest that when internal works are carried out in conjunction with a material change of use, perhaps in fact in order to facilitate that change of use, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the change of use itself. Such an interpretation would fly in the face of the clear statutory provision contained in section 55(2)(a), and with all due respect, it is not for a High Court judge to attempt to amend statute law, or to ignore its clear meaning and intention by applying a wider more colloquial interpretation to the word “development”.

There were in fact several other grounds of challenge in the Prudential Insurance case, all of which were dismissed, and it is clear that the case turned on the fact that what the LPA had granted was an unlimited planning permission for the creation of two new retail planning units, without any condition restricting the goods that could be sold in each of those two new units. They had failed to repeat the condition in the original planning permission for the development of the Peel Centre (as perhaps they should have done), and so they had been correct in issuing an LDC in the terms that had been sought by Peel Holdings.

In my view, the court’s apparent finding with regard to the scope of the development, in relation to section 55(1) and 55(2), would by itself have merited an appeal to the Court of Appeal, but the dismissal of the other grounds of challenge was less susceptible to challenge, and this no doubt explains why the judgment was not in fact appealed. Whilst this judgment cannot be dismissed as being ‘special to its facts’, the case for the claimant may not have seemed particularly meritorious to the Court when viewed as a whole, being (as I mentioned earlier) a commercial ‘spat’ between rival developers, and as someone once observed “context is everything”.

[Although this judgment was followed by the Court of Appeal in R. (Peel Land and Property Investments Plc) v Hyndburn BC [2013] EWCA Civ 1680, that case turned entirely on other issues (such as the effect of section 75), and the judgment did not discuss section 55 or any suggestion that “development” could embrace internal works in addition to external works or a material change of use. The Court of Appeal did not therefore endorse the view taken in Prudential Insurance on this issue.]

For the reasons I have explained, I do not believe that any weight can be put on the court’s approach in Prudential Insurance to the definition of development in relation to internal works. Some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument, but if or when the matter comes before the court in a future application under section 288, I doubt whether the Court will follow Prudential Insurance when a full and careful analysis is made of the statutory wording and effect of section 55, and in particular section 55(2)(a).

© MARTIN H GOODALL

2 comments:

David said...

Hi Martin
With regard to Barn Conversions - The Structural Issue 2.
My client has PNCOU approval under class MB(a) and (b) from 2014 but the detail is very woolly. The plans submitted and approved only show the existing building although the description does refer to new windows, wall cladding and some wall infill. The LPA have said that Planning would be required for a flue for example as it does not currently exist and it would exceed the current envelope. I am retained to do the detailing and implement the work. We need to do some structural works eg to support a new first floor and foundations/slab toe reinforcement for the new external walls. We also want to replace the roof covering rather than retain the cement fibre as stated on the approval and our window treatment also includes balconies (although they do not extend beyond the original envelope).

My client is naturally worried about proceeding with work which may be said by the LPA to contravene the approval. So, bearing in mind your comments about structural works not requiring consent as they are allowed anyway under section 55(1) and 55(2),and on the basis that the original PNCOU approval cannot be removed, I have recommended to my client that we apply for Planning Permission for the alterations to the external appearance only, specifically drawing the LPA's attention to the fact that we are not applying for consent for the structural internal works as they do not require permission but showing them on the drawing anyway. Is anything in my recommendation flawed and do you think this is a sensible approach?

Martin H Goodall LARTPI said...

David’s query could only properly be answered on the basis of full professional instructions. However, what I can say here is that it is a condition of the permitted development under Part 3 that the development must be carried out in accordance with the details approved by the local planning authority, unless the local planning authority and the developer agree otherwise in writing (but as David points out this refers only to external works). So there is scope for resolving any uncertainty about the exterior details by agreement with the LPA. However, any development (such as adding a flue) that goes outside the original building envelope is excluded from the permitted development under Part 3, and so will require its own separate planning permission. It is quite common for an associated planning application submitted either with or after the prior approval application under Part 3.

Replacement of the roof covering and the installation of balconies, etc. will affect the external appearance of the building, so these should have been included in the details for which prior approval was sought under Class MB(b). If this was not done, they may require a separate planning permission.

In principle, internal structural works (provided they do not involve any substantial element of demolition of the existing fabric) should not be of concern to the LPA (by virtue of section 55(2)(a)), but this could potentially become the subject of dispute, bearing in mind the wording of the government’s online planning practice guidance. The issue remains unresolved as matters stand at the moment.

I cannot go further than this without formal instructions.