Saturday, 23 January 2016
Barn conversions – the structural issue (3)
When I wrote my last piece on this topic, I was aware that there are a couple of quotes from Sage v. SSETR  UKHL 22 that might potentially be cited by a local planning authority seeking to argue that internal works do form part of the development permitted by Part 3 of the Second Schedule to the GPDO, but I did not want to lengthen further an already lengthy article, and (for reasons that I will explain below), I am in any event unconvinced that Sage really is relevant to the issue in question here. Nevertheless, my previous correspondent has understandably raised this point with me, and so I have decided that I should after all deal with it in this further article.
My correspondent also commented that, unless the Prudential judgment is contradicted by a subsequent judgment, he would be very wary of concluding that it shouldn’t be given any weight. I certainly would not suggest that the Prudential judgment should be entirely ignored. In fact, readers may recall that I wrote in my previous article that “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.” I hope I made it clear that someone wishing to challenge this view in relation to internal works may well have to be prepared to take it to the High Court (and they might possibly have to go on to the Court of Appeal).
Moving on, then, to Sage, my correspondent drew attention to the following paragraph in the speech of Lord Hobhouse :
“23. When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage’s case. He comes into the first category not the second.”
There are one or two other places in this House of Lords decision where reference is made to internal works, but all of these remarks were made solely in the context of a development that took the form of building operations to create a new dwelling. There was no pre-existing building, and thus no change of use was involved. What the House of Lords had before them was an enforcement case involving the 4-year rule, and the passage quoted above was in my view obiter, in so far as it might relate to a development carried out under planning permission, quite apart from the fact that it did not relate to a material change of use of an existing building.
Lord Hope (in supporting the conclusions of Lord Hobhouse) was persuaded that it made better sense of the legislation as a whole to adopt the ‘holistic’ approach which Lord Hobhouse had described. What this meant, he observed, was that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. “That will be an easy task if the developer has applied for and obtained planning permission” [my added emphasis].
Pausing there, one has to bear in mind the scope of the planning permission granted by Article 3 of the GPDO and by the various Classes in Part 3 of the Second Schedule to the Order. The permission in the case of Class O (and in certain other cases) is solely for a change of use of an existing building. In some other Classes (including Class Q) there is limited permission for building operations, but I continue to maintain that this permission (under Class Q(b)) relates only to those operations that require planning permission, and does not relate to works that are exempted from the definition of development by section 55(2)(a). The context in this case, I would stress, is very different from the context in which enforcement action is in question in relation to section 171B(1).
In his speech in Sage, Lord Hope was clearly focused on the completion of a new building that the developer intended to erect, and on what constituted substantial completion in this context. As Lord Hobhouse put it in paragraph 11, “The point raised by this appeal by the Council to your Lordships' House concerns the construction of section 171B(1) and the starting point of the four-year period — i.e. ‘the date on which the operations were substantially completed’.” The LPA was arguing for a holistic construction, in order to establish whether the building had been substantially completed and, if so, when.
It is also important to understand that Sage was concerned solely with operational development, not with a material change of use. As one of the Law Lords observed, the House was concerned with section 171B(1), not with section 171B(2). The development in question in Sage was the erection of a dwellinghouse which was in the course of construction. It was in this context that Lord Hobhouse observed, in paragraph 19, that “Exception (a) clearly contemplates and involves a completed building which is to be maintained, improved or altered” [my added emphasis].
It is clear that the passage that my correspondent quoted from paragraph 23 is, like the rest of the judgment, focused solely on the unauthorised erection of a new building and on the operations involved in creating and substantially completing that building. By contrast, one is dealing in Part 3 of the Second Schedule to the GPDO primarily with the change of use of an existing building, and also in some cases (as a subsidiary or subordinate, but nevertheless separate, development) with limited building operations that are permitted in connection with that change of use. There seems to me to be no policy reason, and no justification in terms of statutory interpretation, in this context, to ignore or override the words of section 55(2)(a) so as to bring into consideration purely internal works that are for the maintenance, improvement or other alteration of the building (including internal alterations carried out in connection with the permitted change of use under Part 3).
This does not involve disturbing the decision of the House of Lords’ decision in Sage in relation to section 171B(1). It merely emphasises the need to have regard to the context in which that judgment was handed down. We must all be careful not to quote passages from such judgments out of context – a fairly common error, all too frequently committed by counsel in arguing later cases, and even sometimes by judges.
In discussing the points raised both by Sage and by Prudential, my correspondent postulated that if someone has planning permission to erect a house with two bedrooms, then they can erect such a house and then subsequently (i.e. as a separate operation) convert the two bedrooms into three bedrooms (i.e. on the basis that the latter works don’t constitute development), but he argues that you can’t simply erect a house with three bedrooms from the outset (i.e. as a single operation). This may be arguable in relation to the erection of a new house, but not (I suggest) in relation to a change of use.
I did try to run such an argument some years ago on behalf of a neighbouring objector when an authorised change of use of a house to form several flats was carried out in almost exactly this way. Permission had been given to convert the house into several 2-bedroom flats. The developer produced the specified number of flats, but in doing so he sub-divided the bedrooms so that each of the new flats was a 4-bedroom flat. Quite clearly he was converting the property into student lets. I totally failed in my attempts to persuade the LPA to take enforcement action, and I had to admit (at least to myself) that the LPA’s attitude was entirely understandable, because subsequent conversion of each of the flats into 4-bedroom flats would have been entirely lawful, and so it could legitimately be argued by the LPA that in those circumstances it was not ‘expedient’ (in the terms of section 172) to take enforcement action.
Leaving aside the question of expediency in relation to possible enforcement action, I believe it is wrong to think in terms of a planning permission for a change of use as ‘authorising’ any internal works. The development authorised by that permission is simply the making of the material change of use. The internal works required to facilitate that change of use are merely preparatory to the change of use actually being made, which will occur (as a single event) either when the development is occupied for its new use or, at the earliest, when it is finally ready for occupation (see Impey and also Welwyn Hatfield, both quoted in my last article).
So far as the description of the development is concerned (the change of use of the house to use as several 2-bedroom flats in the example I mentioned above), the scope of the authorised change of use might be taken to have been limited in the first instance, by its description, to use as 2-bedroom (not 4-bedroom) flats, but this in itself could not have prevented the later use of any of those flats as 4-bedroom flats. (For examples of the application of this principle, see Wilson v. West Sussex CC  2 Q.B. 764, and East Suffolk CC v. SSE (1972) 70 L.G.R. 803.)
We therefore come back to the point that I made in my previous article. When considering permitted development comprising the change of use of an existing building, it is a conceptual mistake to think in terms of the ‘whole’ development as including the internal alterations required to facilitate the permitted change of use. The development comprises solely the material change of use itself, when it actually occurs. In such a case, any internal works undoubtedly come within the exemption of such works from the definition of ‘development’, by virtue of section 55(2)(a). Neither Sage nor Prudential affects the position in this regard. It follows that the building operations that are permitted by Class Q(b) (and similarly by Classes M(b) and N(b)) are simply those that are listed in that Class, and that they do not include or refer in any way to any internal works to the building.
It is for this reason that I would stoutly maintain that the government’s amended online Planning Practice Guidance of 5 March 2015, stating that it is not the intention of what was then Class MB(b) [now Class Q(b)] to permit the construction of new structural ele¬ments for the building (so that, it is only where the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use that certain building opera-tions would be considered to come within Class Q(b) ) cannot, as a matter of law, be taken to refer to any works that affect only the interior of the building, or which do not materially affect the external appearance of the building.
© MARTIN H GOODALL