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 [1949] 1 KB 385, Skerritts of Nottingham v SSETR (No.2) [2000] 2 P.L.R 102; [2000] J.P.L. 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] 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 [2016] 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
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In embracing the inspectors term 'rebuild' (and then trying to define it at length) Hibbitt creates a rod for itself; rather than consider that the works inovlved to covert an open building to an enclosed building actually require, in the context of the GPDO, for construction of the "building" first; to then be suitable for the conversion. The 'building of a building' rather than the rebuilding, particularly as the parties agred the existing 'structure' was adequate.
ReplyDeleteThis necessity is also beyond the scope of works that are not 'development' under paragpraph 55 of the T&CPA (the material change of the external appearance).
The greatest ambiguity, remains that few if any agri-buildings would pass building regulations for structure as is, and that is without cutting holes in walls that then require structural intervention.
Then there's the matter of loading a roof with finishes and insulation, for example, which requires further structural intervention to support those, internal loads.
Getting a planning officer to see the subtlety between loads that are caused by the internal 'dwelling' requirements as not part of the external works requied of the conversion is another skill entrirely.
I think Archie has a point.
ReplyDeleteThere are aspects of the Hibbitt judgment that are not entirely satisfactory (for example a digression into paragraph 55 of the NPPF which I would respectfullly submit was irrelevant to the issue that was before the Court).
There is clearly a risk that the Hibbitt judgment may be misinterpreted. I agree with this judgment so far as the fundamental issue of "rebuilding" is concerned, but as I have argued in Appendix D in the Second Edition of my book, this should not preclude some (mainly internal) structural alterations, for the reasons that Archie has mentioned.
I fear that further litigation on this point may be unavoidable
Dear All, Having read the various comments that have appeared on this blog re: Class Q, We, as the applicants, now wish to put down the facts of the application for all to see.
ReplyDelete1. The building had a comprehensive structural report proving it was capable of taking the proposed loading to convert it into a dwelling.
2. The roof is made from concrete fibre which was to remain in place, with insulation and plasterboard being applied as appropriate.
3. The back wall of the building comprises steel box profile which was to remain in place. Windows were to be inserted only where appropriate.
4. The rest of the building was be clad in steel box profile sheeting to match the back.
5. The installation of insulated non-structural panels was proposed to form the internal walls to facilitate a dwelling.
Our view was that after reading the guidance, and not demolishing anything, it would have been a "conversion" not a "re-build" as we proposed to install doors, walls and windows etc in line with guidance. The Inspector agreed that all this work would be allowed. However, the Inspector then proceeded to introduce another "test" that did not seem to appear in the guidance for Class Q.
Having conviction that we were right, we gave it a great deal of consideration before proceeding. However, it went against us and as the costs were prohibitive, we simply cannot afford to pursue this any further. We therefore now have no choice but to accept the decision and hope that this judgement does not now affect any other steel framed buildings that could be considered for conversion under Class Q.
Would it not be possible to raise funding for your appeal via some form of crowd funding approach? I personally would be happy, as an owner of an agricultural building, to stump up a few quid to enable people to challenge the somewhat fluid interpretations that councils and planning inspectors appear to take. I am not sure how you could target contributors, but this forum seems an ideal starting point.
ReplyDeleteGood luck.
Generalgo4
ReplyDeleteI read your file from the councils web page and having an appeal pending with exactly the same type of barn i am concerned that the inspector may follow the high courts judgement and refuse. However my council did go well over the 56 days and they have now agreed they did, therefore as "reasonable necessary" is an opinion we think permission crystallised after 56 days this view is also backed by two well renown QCs. I don't know why the wording "reasonable necessary" was even used I can only think it was to give LPAs a reason to refuse, don't lets forget the barn is there its only the use thats changing and it was location and nppf that LPAs used at the beginning until this was addressed.
Anyway regardless how my appeal pans out I will be more then happy to contribute towards an appeal and lets hope Martin has the time to take the case.
I read the judgement. I thought it was talking about four steel uprights and a roof. Having now seen the plans and photos I now see it is more substantial than that which surprised me. I can think of poorer candidate buildings that have been allowed, illegally it seems having seen this judgement.
ReplyDeleteI have been constantly wondering where to draw the line with these cases, with Inspectors increasingly lowering the bar on how much of a building you had to have in the first place before frankly, you are taking liberties. We've seen agents adapt to the flurry of dismissed appeals with structural surveys and having to provide more and more evidence to justify these and it seemed that the tide was turning in favour of more approvals. I'm not sure this case helps much in that respect and it will no doubt cast fresh doubt on where we all sit with these cases.
Personally I have always felt that flimsy buildings should be given short shrift as any reasonable person can make a judgement on what is a proper change of use ( or day say conversion) or or instead actually just building a nice fancy house where others would be told to move on, government 'guidance' aside. If it looks like a duck...
I suspect most LPAs are getting tired of the work these cause for so little reward and are past the point of caring whether they should be allowed to be converted or not. Ministers need to be clear on what they want to happen and make a policy that clearly sets this out, not come up some hash-up regulations that don't help anyone. Having seen the appetite for increasing deregulation however I don't hold out much hope.
This is really interesting stuff. It's really important for property developers (or for that matter anyone in the construction industry!) to be aware of the legal implications of converting various buildings, or even when just renovating. I find your discussion of the Hibbitt judgement very complex, it's good that you don't try to simplify it or gloss over the nuances. And it is so true that every case is different, and whilst some building may require very little internal work, others may need a considerable amount done. Lots to think about here, I will have to go and have this "good read". Thanks for sharing.
ReplyDeleteI have two questions which I fear are remarkably basic, but so far amongst my reading (including a copy of the new book) I haven't come across conclusive answers.
ReplyDeleteThe first is to who in fact is able to apply for Class Q - a country surveyor informed me it required an agricultural holding number, not something I'd seen mentioned anywhere else. Is it only the owner of the land that had seen the building used agriculturally who can apply, or is a subsequent purchaser who has only acquired the building and land for development also eligible?
My other question is a little more on topic here. Class Q seems to stipulate that walls would need to be sturdy enough to bear any cladding. That seems to imply that the cladding was not there as part of the original building, and indeed additional insulation and weatherproofing would seem to be reasonable additions to make a structurally sound building suitable for habitation. My concern is that it seems very specific that the dimensions of the building cannot be altered. If this truly is down to the millimetre, then an addition externally would violate the terms of Class Q. Does this relatively minor increase in external size become a problem in practice? Or would an owner be sensible to, for example, weatherboard a brick structure before applying, to allow himself enough volume to work within for redevelopment?
My thanks in advance for any clarification.
I think I am correct in saying that you can infill a barn structure to form external walls.
ReplyDeleteYou can even carry out repairs prior to application to bring the building upto a standard that can then be 'converted' ?
What about applying for Qa change if use only and then 'proper planning' for the building work
Are these points covered in Martin's book?
I think the crowdfund/kickstarter idea is an excellent one - I'm not sure how you would publicise the enterprise, but you never know; you might just get the funds.
ReplyDeletePlease can someone provide the planning reference number so I can review the plans? Very interesting stuff.
ReplyDeleteIn answer to the anonymous query ('Generalgo4')of 16 November, the question of whether a building qualifies for a permitted change of use under any of the Classes in Part 3 of the Second Schedule to the GPDO is entirely independent of the operation of the 56-day rule. If the development does not qualify, for any reason, then the 56-day rule simply does not operate at all. It follows that even where an LPA fails to notify a decision on the prior approval application within the 56-day period, it can still argue that the development does not in fact qualify as permitted development in any event.
ReplyDeleteWhat the enquirer may have in mind in claiming that the permission has ‘crystallised’ is the judgment in the Orange case, which has no relevance in the present context.
There can be no escape in the present case from the necessity of addressing the structural issue, applying the wording in Class Q. The judgment in Hibbitt will undoubtedly be referred to, although (as I have observed) this judgment should not be too widely interpreted.
In relation to the Hibbitt case itself, the claimants already have solicitors acting for them, and so it would most probably be those solicitors who would take the case forward in the event that Mr & Mrs Hibbitt are able to do so. However, the time for appealing is very short, and my understanding is that an appeal to the Court of Appeal in this case is unlikely.
In answer to T C Kent (17 November), anyone can apply for prior approval under Part 3; it does not have to be the owner. (See paragraph 13.3 on page 143 of the Second Edition of my book.)
ReplyDeleteWhether or not a building was part of an agricultural unit on the qualifying date is a matter of fact and degree in each case. An agricultural holding certificate may be useful as evidence (although this will not necessarily be conclusive), but the absence of such a certificate does not necessarily indicate that the building is not (or was not) part of an agricultural holding. Discussion of this issue (although not the question of an agricultural holding certificate) will be found on pages 96 to 102 in the Second Edition (paragraphs 9.3 and 9.4) and also pages 279 to 280 (paragraph B.1.3 in Appendix B). I am not aware off-hand of any prior approval appeals where the absence of an agricultural holding certificate was raised as an issue.
On the second point, the provisions of Class Q are perfectly clear. 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. This means exactly what it says.
ReplyDeleteMartin In response to your comments regarding PD, I appreciate what you have said however the council's only reason for refusal after 64 days was business related and nothing to do with the barn itself. It was while I was applying for PLUD, PD changed from MB to Q and with the NPPG the council took this new information onboard and then went on to bring the structural and reasonably necessary bit and refused. All in all pretty unfair but lets hope the inspector agrees.
In answer to the further anonymous comment of 17 November, infilling is possible up to a point, but there must inevitably be a question-mark over the permissible extent of such infilling, for example if it were to amount in substance to the creation of a new building, as distinct from the conversion of an existing building. This was in essence the issue that was in dispute in Hibbitt.
ReplyDeleteThere are now quite a few examples, including a number of appeal decisions, which confirm that a planning application for building operations can be made in conjunction with a prior approval application (under various classes in Part 3, including Classes M, O and Q, among others). As pointed out in the Second Edition of my book, the Fees Regulations provide for this, by remitting the fee for the prior approval application where a fee is also paid for a simultaneous planning application relating to the same site.
The principle of changing the use of the building is determined by the planning permission granted by Article 3 of the GPDO, subject to prior approval of certain specified matters in each case. Thus the determination of the planning application will turn solely on the issue of the design and appearance of the building works. Except to the extent mentioned below, the change of use of the building will not then be a material consideration in the determination of the planning application for the building operations. However, one would not expect a decision to be reached on the planning application before the prior approval application is determined. If prior approval is refused, then the change of use will not be permitted development, and this might then be material to the determination of the planning application, depending on the precise nature of the building operations.
I would emahasise that PD under Class Q(a) will still only be possible, if the building is basically 'convertible'. Making a planning application for building operations could only be used to authorise 'additional' operations, where the building is capable of being converted to residential use without the need for complete or substantial rebuilding. It cannot be used to get around the basic problem of the pre-existing building being effectively incapable of conversion under Class Q.
In answer to the request on 18 November for the reference number of the planning appeal that was the subject of the legal challenge in Hibbitt, I regret that I do not have a note of this, and so I have not seen that appeal decision; I have only seen the High Court judgment.
ReplyDeleteMartin, picking up on the reliance issue and the Orange case reference, if an LPA has accepted that a proposal submitted for Prior Notification does meet Class Q and has issued a decision Prior Approval Not Required and conditioned that works must be completed within 3 years, as in the Orange case do you think still think the Law LJ point applies that “it would surely be unjust if the developers' inevitable reliance on the grant could be defeated” in other words even if there has been no change in legislation or site designations etc. the LPA should not be able to change their mind and seek enforcement against any works that they now think are not PD in light of the High Court decision. Obviously an LDC may be a risky option to try and crystalise on some barns now.
ReplyDeleteThere are quite a few steel frames barns that have successfully gone through Prior Approval but yet to be converted and now many developers may be nervous about the lawfulness of the proposals so bearing in mind Orange or any other relevant cases or legislation can they have any reliance at all on the Prior Approval decision despite it not being a LDC?
Following on from my comments made on the evening of 21/11/16 regarding reliance on Prior Approval/Notification decision I think my query relates not only to unimplemented schemes but also to any building subject to a successful decision since 2014 even if it has been implemented or even completed because the completion status makes no difference to the lawfulness. But surely it is reasonable for a developer to rely on a PA/N decision and not have to get a LDC even if there is question mark over lawfulness in light of the High Court decision notwithstanding the fact that the legislation hasn’t changed. All comments welcome!
ReplyDeleteGet the crowfunding going ASAP this needs challenging.
ReplyDelete“Q.(b):…building operations reasonably necessary to CONVERT* the building”
*Convert doesn’t have a legal definition, most people when they think of conversion they think of a traditional building with new windows put in etc. but why does Convert have to mean a light touch adaption just because that is what we are used to.
“Convert” in the context of the GDPO must means doing any works whatsoever that are reasonably necessary to change that building into the use permitted under Q.(a). New walls are permitted under the GDPO and if they are necessary for it to function for the new use then as long as the core structure of the building remains why can’t such adaptions be viewed as part of the change/transformation/conversion of the building. Why automatically assume Convert has limitations and why permit under Q.1(i)(i) “the installation or replacement of…..roofs, or exterior walls” if that isn’t “converision”. A developer is only going to install a new roof or wall if it is required for it to function as a dwelling and that is entirely reasonable for them to do so (because it would be unreasonable to give the occupier an umbrella and coat as an alternative) and that is exactly what the GDPO permits so why is so much emphasis being put on just one word “Convert”.
Officers/inspectors/judges need to take a step back and look at the GDPO as a whole. These cases are starting to be considered more and more like planning applications assessed against policy and whether steel frame barns should be or were intended to be converted but the GDPO is not policy and there is too much judgement being used when as with all permitted development it should be a tick box exercise i.e.:
i) Can new walls and/or roof be installed under the GDPO within the external dimensions = YES
ii) Are those walls and/or roof reasonably necessary for the building to function as a dwellinghouse = YES if without those new walls and/or roof it could not function and it is entirely reasonable for a new wall and/or roof to be used to keep the occupiers warm and dry and prevent fire risk, provide privacy/security etc. (and any other reasonable living requirements such as those set out in building regs).
Ultimately the decision makers should in fact be deciding as to whether or not the new or replacement wall or roof is required and NOT whether is falls within a definition of a “conversion”. This is the angle I think should be run in the courts.
The appeal reference for Hibbitt is APP/P3040/W/16/3142052
ReplyDeleteMartin, I would be interested in your opinion as to where this leaves similar development proposals that have already been granted Prior Approval, but remain unimplemented? Can the LPA now argue that those developments do not meet the qualifying criteria and cannot be undertaken?
ReplyDeleteIt seems to be that Local Authorities and Planning Inspectors, and even the judge in the Hibbitt Case essentially cherry pick out bits from Class Q, and guidance, and over think and overcomplicate it, rather taking all the information as a whole and giving a balanced decision.
ReplyDeleteThe whole idea of not being able to carry out substantial building work is a nonsense. No agricultural building is up to dwelling standard - the permitted works allow this to happen. Most notably the construction of new walls. Therefore open sided buildings, or buildings with limited or sub standard walls must be allowed. If this wasn't the case then the legislation wouldn't exist in the first place, as very few agricultural buildings would comply.
In the Hibbitt Case the implications of new walls being listed as permitted, and why 4 new walls in the case wouldn't be allowed is not discussed in enough detail and for that reason I think it is a bad decision. Just saying the work goes beyond what is allowed is not good enough in my view. There has to be more substance.
Ultimately I think a mistake was made in having part B of Class Q. Full demolition and rebuild should have been permitted, as per the original consultation. Or Q (a) effectively established outline permission, of which demolition might be part of a secondary full application, unless there is merit in keeping the building.
Unfortunately common sense and planning are seldom seen together!
An anonymous correspondent of 21 November has raised an interesting point as to the issue of ‘convertibility’ under Class Q in circumstances where prior approval has been granted for the development, bearing in mind the Orange judgment.
ReplyDeleteMy initial reaction is that Orange is only applicable to a change of circumstances since the prior approval, such as the designation of a conservation area. In such circumstances the court held that the planning permission under Article 3 of the GPDO ‘crystallised’ upon prior approval being granted, so that subsequent designation of a conservation area (for example) would not disqualify the development from being permitted development. By contrast, in the situation postulated by my correspondent, it later transpires that the proposed development does not qualify as permitted development in any event (notwithstanding the grant of prior approval), due to building not being capable of conversion without carrying out development that falls outside the scope of the permitted development allowed by Class Q. This is analogous, in my view, with a situation in which an LPA has granted prior approval, but it subsequently transpires that the building does not qualify for residential conversion under Class Q because the building was not used for agriculture on the qualifying date (or last used for agriculture before that date). In such circumstances, I do not consider that any reliance can be placed on the prior approval, notwithstanding the decision in Orange.
In the same way, I have previously observed that no reliance can be placed on the 56-day rule in such circumstances. If the development does not qualify as PD for any reason, or if it is precluded by operation of law, making a prior approval application cannot alter the position, irrespective of how that application is determined (or not determined).
Where I have some sympathy with my correspondent’s argument is in a case where the development has been completed in reliance on a prior approval, and only after the completion of that development does it transpire (in the light of Hibbitt) that the development did not in fact qualify as PD (because the works for the residential conversion of the building went beyond the scope of the work permitted by Class Q). I still don’t think that Orange would be of any assistance here, but I think there would be a strong argument that it would not be ‘expedient’ under section 172 to take enforcement action in such circumstances, but if an enforcement notice was nevertheless served, I would expect that a section 174 appeal under Ground (a) might well be allowed, provided that the appropriate appeal fee had been paid.
This also answers my correspondent’s further comment of 22 November.
Turning to another anonymous correspondent of 22 November, urging crowd-funding of an appeal to the Court of Appeal in Hibbitt, I regret that the arguments he advances are unlikely to find favour with the court. My understanding (unless any reader knows otherwise) is that Hibbitt will not be going on to the Court of Appeal.
There are a couple of other pending comments on this topic which I will have to deal with later.
I should have added that Planning Jungle have kindly supplied me with a copy of the original appeal decision in the Hibbitt case, and Dominic Heath-Coleman has also provided the appeal reference (quoted above).
ReplyDeleteHaving looked at the drawings for Hibbit, i'd say that the argument over re-building was even more bizarre. The planning officer's comments, indicate a limited understanding of structure and how single-storey framed buildings work.
ReplyDeleteIf the back-wall is being supported by the existing frame, it is not reasonable to conclude that the whole structure is capable of similar finction. You would then line the interior effectively in the same manner as a masonry 'barn'.
If the front wall was already there (supported identically to the exsting rear) then I don't believe it would have gone this far, and even possibly approved orignally, however the only substative change would be the extent of the enclosure, not the nature of the structure, operations or fabric. Although the roof material could be another conundrum too!
oops - that should have said "is it not reasonable..."
ReplyDeleteI'm suggesting that the rebuild argument is falacious, given the rear wall is structurally present and would merely need repeating for the other walls, there is in no sense rebuilding (or new structure, in the primary sense).
How about a planning app to enclose the other end and say 2/3rd's of the front to match, a minor 'material' (visual) alteration to an existing agricultural building. Would the LPA require evidence that this was 'needed'...
If succsessful resubmit the Prior Approval!
The practical facts are that any agricultural building will have been designed to no standard (simply local building practices) or agricultural standards (depending upon its age) BS5502. So no building will immediately meet the requirements of the Building Regulations for conversion and extensive works to insulate, damp proof, and improve strength will necessarily be required.
ReplyDeleteEven the simple operation of inserting a window will require an opening and a lintel above that opening to carry load around it. That lintel is a structural element and that is permitted. Infill of a wall between the steel frame of the open side of a barn requires a foundation, or other ‘structural element’ because even if timber panels are used (e.g. SIPs) those panels as well as the frame must be capable of sustaining wind load.
Therefore whilst the revised PPG of March 2015 was issued with the good intent of clarifying what is and is not suitable for conversion it was in my view drafted with a lack of appreciation of construction and the term ‘structure’. All conversions will require the introduction of structural elements and some (as my example – a window opening requires a lintel) are by necessity necessary to deliver works the GPDO clearly lists and authorises.
I would therefore suggest that the test needs to look at whether the building is capable of conversion without major works that would materially affect the external appearance (e.g. providing enclosure to three sides of a barn because it only has one – a hay shed – that would fail North Somerset Council’s 70% rule which the Local Plan examiner accepted - policy DM45) and whether the structure is capable of being made compliant with the necessary building regulations without unacceptable material change to the external fabric, or complete rebuilding.
This approach would allow the quite extensive works to the interior that Hibbitt suggests the GPDO allows and would enable internal structural works to install, or strengthen a floor for its change of use.
Those internal works could be carried out ahead of a GPDO application provided they either don't affect the external appearance, or comply with works under s55(2)(a).
Charlie
I am sorry for the long delay in publishing Andrew Preston’s query of 23 November. I have had just such a case across my desk this week, and am now looking at this with my colleagues in Keystone Law’s planning law team. In view of the fact that we are now instructed (or are about to be instructed) on that matter, I cannot really comment on the point right now, but there may certainly be some instances (like the case we are now considering) where the LPA alleges that a proposed barn conversion is not in fact PD, despite having previously granted prior approval in respect of this development. I suspect that most cases will boil down to an issue of fact as to the practical convertibility of the building, without resorting to substantial new built development.
ReplyDelete
ReplyDeleteFollowing discussions with my colleagues in Keystone Law’s planning law team, I have now published a post on this issue (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 above to comments on this issue.
We've just had a prior approval refusal under Class Q for a barn conversion for the following reasons:
ReplyDelete1. The introduction of a first floor which is under 450 square metres, however the insertion of the first floor will take the cumulative floor space of the building to just under 900 square metres. Our statement clearly stated that the ground floor was to remain agricultural and the first floor was to be converted to living accommodation. The intention was to keep the ground floor for agricultural storage as the land surrounding the barn will be created into a small holding
2. The insertion of a new ground floor slab requires planning permission as it is considered an engineering operation and is classed as a structural element. Surely as this is an internal operation that is not classed as development?
Any thoughts before we take this to an appeal.
I am now adopting the practice of deleting comments that simply ask for advice on specific cases, but as this may be of interest to other readers, I have decided to respond briefly to it.
ReplyDeleteIf the whole of the enlarged floorspace in the building were to be converted to residential use, this would appear to exceed the floorspace limit referred to in paragraph Q.1(h). However, I note in this case that the ground floor is intended to remain in agricultural use and that only the new first floor would be converted to living accommodation. Assuming that the mezzanine floor can lawfully be installed as part of the PD under Class Q, this might be permissible within the rules, although this would need further consideration before one could be certain of it.
The second reason for refusal appears to raise the same issue as was considered in relation to basement excavations by the recent case of Eatherley v. Camden LBC [2016] EWHC 3108 (Admin). However, in this case, I consider that the installation of the mezzanine floor would be a building operation, rather than an engineering operation. Furthermore this building operation would be purely internal and so, by virtue of section 55(2)(a), it would not be development at all. I have given my reasons elsewhere for concluding that the installation of a mezzanine floor in connection with a residential conversion under Class Q does not fall outside the scope of the PD allowed by Class Q.
Martin - looking forward to your thoughts on the 22nd feb revision to paragraph 105 (Reference ID: 13-105-20180222) of the ppg - it seems some common sense and coommonality has appeared wiht regard to section 55(2)a of the T&CP Act.
ReplyDeleteAnd a lot of 'mostly' enclosed agricultural buildings may be worth resubmitting...
My thanks to Archie for drawing attention to this amendment to the online PPG. I had been expecting this, but had not yet become aware of its publication last week. I will make a point of covering this in the blog as soon as possible.
ReplyDeleteFurther to my note the other day, when I promised to blog on the revised version of paragraph 105 of the PPG, am I the only person who finds that website impossible to navigate? (!!!!!!)
ReplyDeleteI can only get the relevant page to display up to paragraph 099, and although when one asks it to "show all updates" it states that on 22 February 2018 paragraphs 041, 065 and 105 were updated, and new paragraphs 115, 116, 117 and 118 were added, I have yet to find any way in which one can then get those paragraphs to display! (Aaaargh!!!)
I have always found the Planning Practice Guidance pages utterly useless as a source of information, due to the impossibility of finding anything, or any means of searching for it that actually produces the relevant information!
Bring back printed Circulars, I say! You could actually find your way around those.