Monday, 14 November 2016
‘Convertibility’ of agricultural buildings
Class Q(a) in Part 3 of the Second Schedule to the GPDO permits the change of use of a building and any land within its [restrictively defined] curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). The wording of Class Q(a) does not refer to “conversion”, but it will clearly be necessary in order to bring about the permitted change of use to carry out various physical works to the building in order to enable this change of use to be made. Certain other Classes of permitted development in Part 3 (such as Class O, relating to the residential conversion of office buildings) do not permit any development comprising building operations, so that the only works that can be carried out within the scope of Class O are purely internal alterations. However, in the case of an office conversion these may be extensive, including new internal walls, new floors in some cases, considerable plumbing and electrical work, and a general re-arrangement of the internal layout of the building. These will all be covered by section 55(2)(a) of the 1990 Act, which exempts such purely internal works from the definition of development.
In the case of the residential conversion of an agricultural building under Class Q, there can in my view, be no objection to similar internal alterations and re-arrangements. In addition, Class Q(b) permits certain building operations, but paragraph Q.1(g) provides that development is not permitted by Class Q if the development would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and paragraph Q.1(i) also precludes development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, the installation or replacement of water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse.
Notwithstanding the very wide definition of a “building” that has been adopted by the courts over the years (see Cardiff Rating Authority v Guest Keen Baldwin  1 KB 385, Skerritts of Nottingham v SSETR (No.2)  2 P.L.R 102;  J.P.L. 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council  EWHC 2161 (Admin)), it has always been clear that the development permitted by Class Q (and by its predecessor, Class MB in the 1995 Order) does not, and was never intended to, authorise the substantial demolition and reconstruction of the pre-existing building, nor does it enable the extensive rebuilding of an insubstantial structure so as to create what would in substance be a new building.
Even before the government amended its online planning practice guidance (PPG) in March 2015, it was clear from appeal decisions that where existing structures, and the materials from which they were constructed, were so insubstantial that the buildings would require almost complete reconstruction in order to meet the requirements of the Building Regulations, the extent of the proposed building operations would inevitably be seen as going beyond the extent of the works that were envisaged by the terms of Class Q(b) [or the former Class MB(b)] as being “reasonably necessary” for the building to function as a dwellinghouse, and could also be sufficient to disqualify the building from residential conversion under Class Q(a). As I put it in A Practical Guide to Permitted Changes of Use: “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.”; and I have cited (on page 107 in the Second Edition) two appeal decisions issued in January and February 2015 respectively which reached exactly this conclusion.
In light of this, the High Court judgment last week in Hibbitt v. SSCLG  EWHC 2853 (Admin) is unsurprising. It simply confirms this well understood principle. It is not even necessary to call in aid the revised wording of the PPG in order to interpret the plain words of the GPDO. I don’t propose to go into the facts of this case. Suffice it to say that it is over-optimistic to expect that a building comprising a light steel frame supporting a corrugated iron roof, which is largely open to the elements on three sides (except for limited cladding up to a few feet from the ground in some cases) is capable of being converted to residential use without building operations that would be so extensive as to go well beyond the scope of the operations permitted by Class Q, and would amount either to substantial rebuilding of the pre-existing structure or, in effect, the creation of a new building.
For this reason, the excitement and/or consternation (depending on your viewpoint) that Hibbitt seems to have aroused in some quarters appears to me to be misplaced. This judgment does no more than to re-affirm the principle that was clearly to be derived from the wording of Class Q itself, as already applied in a number of prior approval appeals, including the two which I cited in the book.
We should be wary, on the other hand, of reading more than this into the Hibbitt judgment. What I have called “the structural issue” has in effect two limbs. The first is the fundamental point discussed above, which was dealt with by Hibbitt, but the second aspect of this structural issue is the question of how much internal work can be carried out inside the building within the scope of Class Q. It is this latter aspect of the matter that I have discussed in detail in the new Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use. In my view, the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.
I don’t propose to re-rehearse here the arguments that are canvassed extensively in my Appendix D. On reflection, the problem stems not so much from the actual wording of the revised PPG, as from an unduly restrictive interpretation of those words by LPAs (and by some inspectors). I believe that in revising the PPG ministers were simply trying to explain the fundamental principle that is now confirmed (if confirmation were needed) by the judgment in Hibbitt. However, taking account of section 55(2)(a), it seems to me that there is still scope, without infringing that basic principle, and without going outside the limitations of Class Q, to carry out internal works that may be quite extensive, even including some structural alterations, provided that these are purely internal. Rather than attempting to enlarge on this proposition here, I will leave it to readers to study Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use.(One reader has already described it as “a good read”!)
UPDATE: Readers may have seen the various comments appended to this post, discussing the effect of this judgment on existing prior approvals. Following discussions with my colleagues in Keystone Law’s planning law team, I have now published a post (16 January 2017) under the title "Can an LPA override a prior approval?” in which I have set out a revised view compared with that expressed in my original reply to comments on this issue.
© MARTIN H GOODALL