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 [2003] 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 [1963] 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

29 comments:

Adam Roake said...

Hello Martin,

I've read all three of your posts with interest because I suspect my appeal was the September 2015 appeal you refer to in your first post (Orchard Farm Kennington Kent, APP/E2205/W/15/3121631).

We argued on application and at appeal that internal structural work was not development by virtue of section S55(2)(a). The Inspector dismissed our argument as follows:

"In my judgement, works, including demolition, rebuilding and structural alterations would be needed, comprising fundamental changes to many aspects of what are essentially dilapidated agricultural structures. Also it is hard to see how the works involved here to transform these conspicuously neglected buildings, and change their use to residential dwellings, could not but materially affect their external appearance. I do not share the appellant's view that many of the works identified fall within Section 55(2) of the Act, thereby reducing the scope of the works to be considered under Class Q."

I'm not sure why he found it difficult to understand why internal works would not affect the exterior and in any event the LPA and he were satisfied that the proposed external appearance was acceptable but there we are. In essence the Inspector considered that the buildings were so dilapidated that even though about 65% of the existing building fabric could be retained (evidenced by a report from our architect and supported by our engineer, in his view,)the works went beyond the scope prescribed within Class Q.

For various good reasons I haven't taken the matter further as yet. However, it has occurred to me that the effect of the Inspector's decision is that I am at liberty to take the following action. I may carry out whatever maintenance to my building I choose, in order to put it in a state capable of functioning as an agricultural building, including any internal structural strengthening and replacement of any external cladding in materials to match the existing. I might then reapply for Prior Approval, confident that, because the buildings were no longer "essentially dilapidated agricultural structures", Prior Approval would be granted.

It seems totally stupid but I cannot see how the Inspector's decision can be read in any other way. I must be entitled to maintain and repair my buildings, because those works are not development by virtue of S55(2)(a), and doing so cannot somehow exclude me subsequently from exercising my PD rights.

One day I guess someone will challenge but in the meantime it does seem a mess. As you rightly say the NPPG cannot be right in law for the reasons you have given. I would argue further that Class Q(b) PD grants the right to replace walls and roofs, both of which elements would normally be classed as 'structural' by building professionals. In consequence, Class Q(b) specifically allows the replacement of structural elements, whatever NPPG considers the intentions of the its authors. In any event, a thorough pre-application repair of a dilapidated building must have the effect of negating any argument from the LPA on this line.

Adam Roake

Martin H Goodall LARTPI said...

I was not in fact aware of Adam Roake’s appeal in Kent, but it is another example of a proposed barn conversion foundering on this structural issue. The inspector seems to have come to a factual conclusion about the extent of the works involved as they would affect the exterior of the building, and it is difficult to go behind such a finding of fact.

Where I do part company from the Inspector is the passage in which he wrote that “additional extensive strengthening is likely to be required to ensure robustness of construction. Similar observations are made in respect of the roof structures, to ensure they are capable of carrying the necessary loads. I consider these works would go beyond the scope of works specified in the PPG, namely that 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.” Whilst this correctly quotes the online planning practice guidance, it seems to me to fly in the face of section 55(2)(a) of the 1990 Act, and sooner or later someone is going to take issue with this approach in the High Court.

So far as internal works to the existing agricultural building are concerned, such works may be carried out at any time and for any purpose, and (provided they do not materially affect the external appearance of the building) there is no limit under the terms of section 55(2)(a) to the extent of those internal works, which can in principle include major internal structural alterations, such as the strengthening or internal replacement of the frame, provision of a new floor, and so on.

There is just one word of warning here, though. It is important, if the owner wishes later to make a prior approval application in connection with a proposed residential conversion of the agricultural building under Class Q, that the building should still be capable of agricultural use in the meantime, in order to avoid the agricultural use of the building being entirely lost or abandoned. Thus whilst a new concrete floor to replace a previous floor of packed earth might well be unexceptionable, installing a suspended wooden floor is likely to make the building unsuitable for continued agricultural use. It is also important that the internal works should not be so extensive as to bring about a material change of use (see Impey v. SSE (1984) P. & C.R. 157, and Welwyn Hatfield BC v. SSCLG [2011] UKSC 15.)

Needless to say, the disclaimer notice in the Introduction to this blog applies, and these remarks should not be relied upon as legal advice, but are merely to be treated as passing observations.

Anonymous said...

This is very interesting! Thank you to all of you.
So, can this be summarised by saying if you have a knackered old agri building that you suspect might not be considered structurally strong enough, (I have seen some wood worm ridden old sheds which are being offered as potential housing-almost laughable!), there is nothing to stop you making use of the rights you have to maintain your buildings and strengthen it, maybe block all the way up inside if necessary and strengthen the roof so its strong enough to just remove the sheets and replace with felt and slate, or insulated sheet (which many dwellings have anyway!), and maybe concrete the floor (don't forget about insulation though!). You can do all of this, whilst still using it as an agricultural building (keep the hay and machinery in) and THEN apply to use your PD rights to convert it into a dwelling, which would just be a case of a new roof covering, inserting windows and doors where you want them, pulling off the sheeting and applying a coat of render and paint - hey presto, a house! Genius!

Maybe the reasons behind this are that the original consultation on these PD rights suggested complete demolition and rebuild, maybe it is actually
meant to be easy and has actually been suggested to help solve our current housing crisis, the thinking being, if there is a building there anyway, it may as well be someones home!

Martin H Goodall LARTPI said...

In response to today’s anonymous comment, I would say “Yes up to a point”. But I think a degree of caution is needed. Bearing in mind that the carrying out of purely internal works for the “maintenance, improvement or other alteration” of the building is simply not development (section 55(2)(a)), there is no requirement that such works should be reasonably necessary for the purposes of agriculture. However, it is important that any such works should not prevent the continued use of the building for agriculture. As I have pointed out, there are two risks to be guarded against – (1) works that are so extensive that their completion actually brings about a change of use of the building (Impey), or (2) loss or abandonment of the agricultural use, which could prevent the utilisation of any permitted development rights that depend on the continued existence of that agricultural use. This does not imply the need for ‘active’ use of the building for agriculture after 20 March 2013, but there must not be any permanent cessation or abandonment of the agricultural use; the agricultural use must (at least nominally) continue to subsist.

Anonymous said...

Further to my previous post. It would seem there is a limit as to how much existing floor space you can convert.

Not how much floor space you create by adding a second or even third floor to a building.

Anonymous said...

Martin,
I fear one of my posts may have failed to submit correctly.
My original point was to query the wording in your book at the bottom of page 79.

You suggest that Para Q1(h) imposes a limit of 450sq m in residential use.

This would appear to conflict with the wording of Q1(h) which states that no more than 450sq m can 'change use' under Class Q.

I have just seen two barns on same plot 2 x 150sq m
Approved under Class Q with a finished floor area of
620sq m.

It would seem the limit applies to what you 'change' not what you 'create'

Am I right?

Martin H Goodall LARTPI said...

My anonymous correspondent has raised an interesting point in the two queries submitted on 2 February. The restriction in paragraph Q.1 (b) is that “the cumulative floor space of the existing building or buildings changing use under Class Q within an established agricultural unit exceeds 450 square metres”. On reflection, it would seem that this must be taken to refer to existing floorspace in the building, which was in existence before the change of use and the use of which has been changed. However, I agree that this should not be taken to refer to additional floorspace, which having been newly created has not in itself been changed. I therefore agree with my correspondent that, in light of this wording, the creation of additional floorspace (for example by the introduction of a mezzanine floor) should not count towards the cumulative floorspace limit to which paragraph Q.1(b) refers.

Another thought that occurs to me (although it may not be strictly relevant to the interpretation of this legislative provision) is that after a change of use has been made, there would be nothing to prevent someone at a later date from totally reorganising the accommodation, by making extensive internal alterations, including the introduction of one or more mezzanine floors (subject, of course, to compliance with the Building Regulations). Such further internal works would clearly not be development, by reason of section 55(2)(a), and it could certainly not be argued that the additional floorspace provided by this means, quite separately from and independently of any earlier change of use under Class Q, could conceivably be included in the floorspace limit for the purposes of any further residential conversions on the same agricultural holding under Class Q. There would therefore seem to be no logic in arguing that the creation of such extra floorspace at the time of the original residential conversion (which, as I have argued in this and the two preceding blog posts, would not in itself amount to development and would not therefore be part of the development carried out under Class Q) should count towards the cumulative floorspace limit for the purposes of Class Q.

Martin H Goodall LARTPI said...

A further point occurs to me. If extra floorspace is created in the building before the change of use under Class Q is later made, then this floorspace will count towards the cumulative floorspace limit. I would suggest, however, that introducing a mezzanine floor in advance of a prior approval application being made under Class Q would not be advisable in most cases, as it could seriously compromise or prevent the continued agricultural use of the building in the meantime, with the legal consequences that I have discussed in my main blog posts on this topic.

ADAM HARDY said...

Hi Martin
Many thanks for the book, a real good read
I have since obtained permission from barn to dwelling ,however the height of the barn is not sufficient for a second floor.
Could I now apply for planning permission to increase the height,or would I be required to convert to the dwelling prior to submitting the application ?
Thank you

Martin H Goodall LARTPI said...

In reply to Adam Hardy, it is not unusual for an application for planning permission for building works which do not fall within the scope of permitted development to be made at the same time as (or after) a prior approval application in respect of the change of use of the same building. It has occurred most commonly in relation to the residential conversion of offices under Class O (and is mentioned in my book in Chapter 7, at paragraph 7.1 on page 57), but there is no reason why a similar planning application should not be made in connection with a residential conversion of an agricultural building under Class Q.

As I have pointed out in the book, the planning application could not practicably be determined before the determination of the prior approval application, but this is the only constraint so far as the timing of such a planning application is concerned. The principle of the residential conversion is established by the planning permission that is granted by Article 3 of the GPDO (and Class Q in Part 3), subject only to the prior approval that has already been granted in this case. So it is only the additional building operations themselves that now fall to be considered in any planning application for those additional works.

Any planning application that would result in a larger building footprint would fall to be dealt with under the adopted planning policies that are applicable in that area, coupled with the provisions of the NPPF, but it seems unlikely that any fundamental policy objection could be made to an application that simply seeks to increase the height of the building. The relevant considerations in this case would appear to relate solely or mainly to the design and appearance of the building in its altered form.

S.BEECH said...

Martin,
I just wanted to let you know that we have just had our Class Q application for prior determination approved!!
I did the whole process myself, without involving a planning consultant.

My ability to do this successfully, was in no small part due to the advice and guidance contained in your book.

We had a decision on day 41, without any questions or queries being raised. It proves it can be done. Thanks again.

Simon Beech

Martin H Goodall LARTPI said...

It’s good to know that my book is proving useful to readers. I have certainly had some very positive feedback, of which this is the latest example.

Anonymous said...

Hi Martin, have you seen the appeal decision APP/R3325/W/15/3119202? In para 8. The inspector states:

“It is clear that what is proposed includes the raising of the internal floor level of the part of the building intended for conversion to 9.16m AOD. While, in normal parlance, such an alteration would not constitute development, it would without doubt, be a building operation. Most importantly in the context of the appeal, it would not be a building operation falling under the ambit of (i) the installation or replacement of (aa) windows, doors, roofs, or exterior walls, or (bb) water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse”

The inspector has not distinguished whether the raised slab was for structural support for any other works and the inspector is basically saying that ANY internal building operations not listed in Q.1(i) are “development” and do not benefit from PD rights, which I think is complete nonsense.

It is abundantly clear that in drafting Class Q in the GDPO that the DCLG were not concerned with internal works as for instance Q.1(i)(i)(aa) expressly only refers to EXTERIOR WALLS as opposed just “walls” or “interior and exterior walls”. So that implies that DCLG are satisfied that internal building operations are not “development” further backed up by the PPG: “building operations which would affect the EXTERNAL appearance of the building, which would otherwise require planning permission…. 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.

So it is clear to me that any internal building operations can be carried out on the basis that they are not classed as development but then there is a slight grey area with the PPG as that would imply that such internal works can be carried out so long as they are not a NEW STRUCTURAL ELEMENT INTENDED TO TAKE THE LOADING OF ANY EXTERNAL WORKS. Does that then override s.55 or on the basis that the PPG is just guidance and not law should s.55 take precedent? It’s safe to say that such internals works that could lawfully be carried out and not affect the PD rights could include a) an internal structural wall only intended to support internal works such as a first floor or b) a raised ground floor slab that is only intended to support any internal works or uses and not for supporting external works (exterior walls, windows and doors). The inspector in APP/R3325/W/15/3119202 may only correct in their statement if the slab in question was intended to support the exterior works?

BP

Martin H Goodall LARTPI said...

BP’s comment this morning is an important one, and it does illustrate the ‘party line’ that Inspectors are taking, in accordance with the minsterial on-line planning practice guidance (PPG), as revised in March 2015. I happen to think this is wrong in light of section 55(2)(a), but it has to be recognised that anyone wishing to challenge this view is going to have to be prepared to take a trip to the High Court, and that a favourable result cannot necessarily be guaranteed even then.

We have been having discussions about this in the office recently, and it is a topic to which I may return in a future blog post.

Anonymous said...

Further to my comments earlier on 6th April, there is another appeal (APP/Q3305/W/15/3130505) decision that discounts the s.55 argument by stating:

"My attention is drawn to Section 55(2)(a) of The Town and Country Planning Act 1990, as amended. This states that the alteration of any building shall not be taken to involve development of land where it: (i) affects only the interior of the building; or (ii) does not materially affect the external appearance of the building. As a matter of fact, Paragraph MB.1(i) did not stipulate that the
building operations must fall within the definition of development.

Moreover, the fact that a first floor could be inserted without the need for planning permission once the development is complete is not material to my decision on whether the proposals before me would have complied with the provisions of Class MB."

This is just crazy as that means you can't do any internal building operations at all without planning permission! A building operation as defined in the Act can be "other operations normally undertaken by a person carrying on business as a builder" which could include non load bearing stud walls or even anything like a bathroom or fitted kitchen! The affect of what this inspector is implying is that no barns at all could be converted under Class Q (without planning permission for internal works) as all barns involve some form of internal building operations that aren't listed in Q.1(i). The inspector needs to look at the intention of the Class Q and the fact it is only concerned with the ultimate planning affects such as external visual appearance etc.

BP

Martin H Goodall LARTPI said...

I entirely agree with BP. However, it needs someone brave enough to take a punt over this issue in the High Court, preferably with a case that can't be derailed on any other ground.

Even in our own office there is not complete agreement on this issue; my colleague Ben Garbett takes a view very similar to that taken by the Inspector who is quoted in PB's latest comment - namely that "building operations" when used in this context in the GPDO do not necessarily need to amount to development under section 55. I still don't accept this, and Ben and I may well set out our views in a written debate in this blog shortly.

Anonymous said...

At the risk of repeating myself surely is just needs spelling out to the inspectors in black and white that internal building operations (that ordinarily would not be classed as development) must be lawful despite not being listed in Q.1(i) otherwise every single Class Q development in the whole of the country will be unlawful as every development will require an element of internal building operation. The inspectors can’t argue against that.

It would be very useful if DCLG updated the PPG or the GDPO for the avoidance of doubt with a simple statement such as “”buildings operations” as defined in the GDPO excludes any operations under s.55(2)(a)”

BP

Anonymous said...

In the interests of balance, this appeal decision (APP/G1630/W/15/3140166) contradicts those I mentioned above and the inspector, in my opinion, makes the correct logical conclusion in saying:

“Whilst internal works are proposed, including a further floor and internal walls, I am mindful of section 55(2)(a) of the Town and Country Planning Act, 1990. This states that operations involving the maintenance, improvement or other alteration of any building and which affect only the interior of the building should not be taken to involve development of land.

I am satisfied the proposal would utilise the existing steel frame, and there is no compelling evidence to show that the building is not structurally strong enough to take the loading associated with the external works necessary for residential use in accordance with the indications of the Guidance. Whilst the proposed works would be extensive, I find the extent would be reasonably necessary for the building to function as a dwellinghouse, and that they would fall within the terms of the operations set out in paragraph Q.1.(i).”

BP

Martin H Goodall LARTPI said...

I am very grateful to BP for his further contributions to this discussion.

The latest appeal decision to which he draws attention is not inconsistent with decisions that have gone the other way, as this inspector finds as a matter of fact and degree that the proposed development will not infringe the published ministerial practice guidance.

It remains the case that the general approach seems to be restrictive, and whilst ministers could perhaps take the opportunity to clarify their advice in the online PPG, I strongly suspect that this issue is only likely to be resolved by a section 288 application being made in the High Court. Sooner or later, someone is bound to have a go at this.

Anonymous said...

I am considering submitting an application for a LDC for proposed works to an existing barn [that happens to have potential under Class Q]. The LDC application would be for proposed works falling outside of the definition of development under the act by virtue of s.55(2)(a) and would be described as follows:

“The alteration of the existing building by carrying out works to replace the existing internal walls and floors and external walls with new replacement walls and floors that will affect only the interior of the building and will not affect the external appearance of the building.”

If drawings are submitted they would include elevations but the existing and proposed elevations would be the identical (NB: the existing barn is currently fully enclosed with external walls on all elevations).

The application itself would not be related to Class Q, it would just be to prove a point that the works do not constitute development and therefore they would also fall outside of works not permitted under Q.1 of the GDPO. This is on the assume the definition of “development” in Class Q has the same meaning set out in the Act which excludes certain works under s.55(2).

Does the LDC application have to state the reason for the works? The LPA will realise the motive but does it have to be stated? The walls and floors are actually structurally sound but from a practical point of view for installing DPC and insulation, replacement is preferred.

On what grounds could the LPA refuse such an application? Surely they can only judge it on its own merits against s.55(2)(a)?

Anonymous said...

Following on from my comment submitted on 22/06/16 I apologise Martin as I think the answer is in your comment of 16/02/16 to the post "Permitted Development and Outbuildings" explaining that:

"re-erection of the existing walls of a building (even if the building is completely intact prior to the commencement of these works) would require planning permission, because complete* rebuilding goes outside the scope of “maintenance, improvement or other alteration” of the building and is specifically included in the list of works within the definition of “building operations” in section 55(1A). Rebuilding the walls separately, one at a time, would not avoid this."

*Do you think rebuilding infill walls between steel column would be seen as complete? and does s55(1A) undermine the argument for structural work suggested in other posts as falling under s.55(2)(a)?...

Martin H Goodall LARTPI said...

In answer to the anonymous comment of 28 June, any structural work that affects the external appearance of a building, such as infilling walls between steel columns, or replacing existing walls, would almost certainly constitute development under section 55, and would not fall within the exemption under section 55(2)(a). Whilst there is theoretically scope for argument as to whether or not works to the exterior of a building do in fact “materially affect the external appearance of the building”, it is likely that in the vast majority of cases such works will be judged as having that effect, so that in practice they fall outside the scope of the exemption under section 55(2)(a).

Class Q(b) in Part 3 of the Second Schedule to the GPDO permits building operations reasonably necessary to convert an agricultural building to residential use, which may include the installation or replacement of windows, doors, roofs, or exterior walls. However, it is abundantly clear from the government’s on-line planning practice guidance, backed up now by quite a few appeal decisions, that anything in the nature of new structural elements in the building will be judged as falling outside the scope of the development permitted by Class Q(b).

Anonymous said...

Martin, thanks very much for your comments of 29/06/16 in response to my comments. For the avoidance of doubt the building is fully enclosed and the replacement walls under the LDC app would be an exact like for like from an external appearance point of view (the existing and proposed elevations being the same) but I wonder if that would make any difference even if it wasn't the complete rebuilding of the whole building (the steel frame would remain). I guess there is enough case law to risk s55(2)(a) exclusion not applying.

In terms of Class Q these typical infill walls between the main steel frame have been accepted by some inspectors as not being structural and therefore not "construction of a new structural element" but there is contradictory decisions.

It's frustrating the DCLG are considering allowing complete replacement of offices with resi buildings under PD but for barns it is far less flexible.

Assuming the replacement walls weren't excluded under s.55(2)(a) and were not considered PD under Class Q but all other limitations and conditions are met, if a separate full planning application was submitted purely for the works relating to the replacement walls would the LPA have to assess those works just on their own merits against planning policy etc. and not the use and scheme as a whole or have regard to the GDPO? i.e. would such a application be assessed just on the relevant planning matters of the walls such visual impact (of which there is none) or would they need to assess the whole use and consider it as a new building/dwelling in the countryside?

Martin H Goodall LARTPI said...

In answer to the further comment from my anonymous correspondent on 29 June, I would have to disagree that a like-for-like replacement of most or all of the external walls or other external features would necessarily fall within the exemption under section 55(2)(a). The weight of planning decisions is against this. As always, this is bound to be "a matter of fact and degree" in each case (which accounts for apparently inconsistent appeal decisions in different cases).

As regards the contrast between the approach to office conversions under Class O and barn conversions under Class Q, the essential distinction lies in their location – the one in an urban setting, the other in the countryside. It has always been government policy to discourage development in the open countryside (i.e. anywhere outside designated settlement boundaries). The permitted development under Class Q is an exception to this general principle, and so it is not surprising that it is somewhat more restrictive in its scope than Class O. In any case, as matters stand at present, Class O rules out any operational development in connexion with the residential conversion of offices, although the government has announced its intention to permit the demolition and replacement of office buildings under Part 3 at some time in the future.

Martin H Goodall LARTPI said...

Going back to the the anonymous comment of 22 June, I really can’t comment on this suggestion without full professional instructions. However, I have warned previously that this course of action could conceivably result in the loss of the existing use rights in the building, if following the internal works that are proposed it could no longer be used for agricultural purposes. My anonymous correspondent ought not to proceed as he proposes without proper legal advice.

Anonymous said...

Martin, many thanks again for your further comments.

I would be grateful for any comments from you or anyone else on the last paragraph of my 29/06/16 post as to how a full planning application would be dealt with.

Martin H Goodall LARTPI said...

In answer to the latest anonymous comment (30 June), I cannot advise on the actual case without a full knowledge of the detailed facts (and on the basis of full professional instructions), but my immediate reaction is that a full planning application would have to be made for the entire development. This would fall to be dealt with in accordance with all the relevant planning polices (both local and national) regarding development in the open countryside. The fact that there might be some potential for a residential conversion of the building being carried out as PD under Class Q would not be a material consideration in the determination of such an application – this would not represent a ‘fall-back’ position.

Anonymous said...

I also have a barn that I am going to develop under Class Q. It has successfully been through the PN process with the LPA and they have accepted that it meets all the criteria in the GDPO.

In reference to your comments on a full application for other works beyond PD. I want to get planning permission for a separate garage and maybe an extension (and maybe a log burner flue and extended cladding etc. etc.) all of which clearly wouldn’t be PD. Presumably a full application for those elements will be considered purely on their own merits against policy but on the basis they will be linked to a barn that has been accepted as already having planning permission under the GDPO. The fact those elements are not PD is not relevant and the GDPO should not be a material consideration.

Does it then not also follow that if the conversion of barn has been accepted under the GDPO, in particular it is structurally suitable, if the developer wishes to replace an exterior wall for any other reason he has the option to seek consent just for those works under a full application because the principle of conversion has already be accepted.

Thoughts gratefully received.

Martin H Goodall LARTPI said...

The answer to my anonymous correspondent of 6 July is: “It depends”.

I would need formal instructions to be able to give an answer to this question. I can see arguments both for and against. Having got a prior approval under one’s belt, it may be feasible to apply for planning permission to carry out alterations to the building itself that go beyond what is covered by the prior approval, although I would be cautious about carrying out such further alterations before the change of use permitted by the GPDO has taken place. This is not an easy question to answer.