Friday, 10 March 2017

Barn conversions under Class Q - Sustainability of location

On Friday, 13 May 2016, I published a post on this topic in which I drew attention to the fact that, notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there were still some LPAs seeking to resist permitted development under Class Q on the basis of ‘sustainability of location’. The appeal decision that prompted me to pen that piece was at Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675]. The LPA had attempted to argue that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The appeal was nevertheless allowed, and I speculated that East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. (This rather upset the legal people at East Herts, and I got a tetchy email from them about it.)

The Sawbridgeworth appeal decision was pretty-well judge-proof on this issue, because as a matter of fact and degree the Inspector had found that the location was not unsustainable in any event. Whether the LPA were deliberately spoiling for a fight on this issue or not, they did later find another appeal decision (at Broxbourne Common ) which they decided to take to the High Court. This challenge was heard on 1 February, and judgment was given by Dove J yesterday, 9 March - East Herts DC v. SSCLG [2017] EWHC 465 (Admin). I wrote in my review of forthcoming cases on New Year’s Eve that my money would be on the Secretary of State to win this one, and so it proved.

The dispute, as before, centred around the words of paragraph Q2(1)(e) - “whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within class C3 (dwelling houses)”, and the gloss put on these words by the Secretary of State in the revision of the online PPG published in March 2015. This stated that “The permitted development right does not apply a test in relation to location as it is recognised the many agricultural buildings are not likely to be in villages and are unlikely to rely on public transport for their daily needs.” It suggested that the LPA should therefore judge whether the location and siting of the building would make it impractical or undesirable to change use to a house, and explained that impractical or undesirable are not defined in the regulations but the LPA should apply a “reasonable ordinary dictionary meaning”. Impractical would mean “not be sensible or realistic” and undesirable would mean “harmful or objectionable”, and it emphasised that if the building is in a location “where the local planning authority would not normally grant planning permission for a new dwelling” this is “not a sufficient reason for refusing prior approval”. The developer had argued that if the meaning of these words is to be an ordinary dictionary definition found in the English dictionary this would not refer to planning definitions, so that the use of the word “Harmful” would not automatically mean harmful to the green belt.

The Council, on the other hand, relied on the NPPF (and in particular paragraph 55). The planning officers considered that the location of the building was in an unsustainable location and no significant enhancement would be achieved by the conversion. They had reviewed the changes made to the PPG, in terms of what is meant by impractical or undesirable for the change to residential use, but remained of the view that the site was undesirable, in that it would be harmful and objectionable to allow a change of the use of the building to residential in a fundamentally unsustainable location. The Council therefore refused the prior approval application on the grounds that: “the proposal would create an isolated dwelling in the countryside away from key services and infrastructure such as public transport, schools and shops. The location of the building is undesirable for use falling within Class C3(dwelling houses) of the Schedule to the Use Classes Order and it would result in an unsustainable form of development contrary to the provisions of the National Planning Policy Framework.”

In the appeal that followed, the LPA contended that there was conflict between the PPG’s guidance and the terms of the Order. It was contended that the guidance could not alter the proper interpretation of the 2015 Order. The Council had sought legal advice as to whether its interpretation of this matter was correct as a matter of law. The advice received stated that as a matter of law, the GPDO requires the Council, when considering whether or not to grant prior approval for the conversion of an agricultural barn to a dwelling, to take into account all policies of the NPPF that would ordinarily be relevant to the question of the practicality or desirability of allowing such development in whatever location is proposed. They therefore argued that paragraphs. 108 and 109 of the PPG (which suggested that an LPA must exclude such policies of the NPPF from consideration) were wrong. For that reason the Council had taken account of the NPPF in determining this prior approval application, as required by the Order.

In allowing the appeal, against this decision, the Inspector pointed out that the Planning Practice Guidance (PPG) provided the most up-to-date guidance on the interpretation of Class Q and she had attached substantial weight to paragraphs 108 and 109 of this document. In the appeal, the Council had contended that the proposal would create an isolated dwelling in the countryside, and that the location of the building was unsustainable. On this basis, the Council stated that the building is undesirable for a use falling within Class C3. However, in the Inspector’s view, the PPG makes it clear that it does not apply a test in relation to the sustainability of the location. As such, she could not agree with the approach adopted by the Council in terms of the sustainability issues raised in relation to paragraphs 49 and 55 of the NPPF. The Council claimed that there was a conflict between the PPG and the requirements of the Order. However, in the Inspector’s view there is no conflict between the general presumption in favour of sustainable development set out within the NPPF and the very clear guidance identified at paragraphs 108 and 109 of the PPG in relation to this part of the GPDO. In light of all the evidence, it could not therefore be argued that it would be impractical or undesirable to convert the building to residential use.

Whilst the PPG spoke in terms of “sustainability” of location it was agreed between the parties at the hearing before the Court that in truth what is being addressed in paragraph 108 is “accessibility” of location, both in terms of the generation of travel demand and distances to work, services and facilities and also in terms of the ability to obtain access to destinations by choice of modes of travel and in particular slow modes. This concept is of course a key ingredient in the much broader multi-faceted concept of sustainable development.

Counsel for the Secretary of State drew the judge’s attention to the Explanatory Memorandum to the GPDO at the point when the class was introduced. He submitted, based on the Explanatory Memorandum, that the purpose of introducing this class of permitted development was to promote the provision of new homes. Thus he submitted that the interpretation of the term “undesirable”, and the application of the NPPF, had to be undertaken bearing in mind that the purpose of introducing this class of permitted development was to enable the change of use of agricultural buildings to dwellings in circumstances where permission might not be granted pursuant to a conventional application. On this point, having considered the provisions of the Explanatory Memorandum, his lordship was satisfied that the purposes of the creation of this new permitted development right was clearly to “deliver more homes” and to increase housing supply. The outcome which the legislation has in mind is clear and is intended to lead to the development of residential uses in locations which would not ordinarily be contemplated by the undiluted application of, for instance, policies in the NPPF relating to location.

Turning to the meaning of the term “undesirable” in this context, the judge was satisfied that it is a word that calls for an exercise of planning judgment. He had reached that conclusion since it is an adjective with a potentially broad meaning and purview, used within the context of an approval process in planning legislation. The planning judgment to be made arises in the context of the qualified entitlement that Class Q creates. Given that conclusion, an error of law could only arise if that planning judgment were affected by one of the traditional public law grounds of challenge.

The assessment of location, as distinct perhaps from other aspects of the desirability of location such as the impact of odour or dust from adjacent developments, has to be examined through the prism of the purpose of the legislation. To apply to the Class Q prior approval process, in making this planning judgment, the policies of the NPPF with the same rigour in respect of accessibility of residential development as would be applied to an application for planning permission for residential use would have the potential to frustrate the purpose of the introduction of the class, namely to increase the supply of housing through the conversion of agricultural buildings which by definition will very frequently be in the open countryside. Thus whilst accessibility is not an irrelevant consideration when considering paragraph Q2(1)(e), the bar in relation to the test of unacceptable inaccessibility will necessarily be set significantly higher than it would in the context of an application for planning permission.

His lordship did not consider that this approach to the exercise of the planning judgment of what may be “undesirable” about the location of the agricultural building in the context of Class Q is in any way undermined by the reference within paragraph W(10)(b) to the requirement for the local planning authority to have regard to the NPPF when considering a prior approval application “as if the application were a planning application”. That application of the NPPF must be undertaken in the context of a proper understanding of the test being considered, namely in this case undesirability of location. It is in the context of an understanding of paragraph Q2(e) that the NPPF must be applied. The NPPF cannot be applied so as to frustrate the purpose of identifying the class of permitted development in the first place.

He therefore concluded that the PPG, in paragraphs 108 and 109, reflects this approach. These paragraphs helpfully explain that there is no specific requirement within paragraph Q2(1) in relation to accessibility of location, and also that the fact that an agricultural building is in a location where planning permission would not normally be granted for accessibility reasons will not amount to a sufficient reason for refusing prior approval. Both of those observations are apposite and reflect the approach to requiring a far stronger objection on accessibility grounds than would be required to resist a planning application, for the reasons which have already been set out above.

The judge specifically rejected the LPA’s argument that, by virtue of paragraph 55, the location of the agricultural building to be converted was in a location which was unacceptable for accessibility reasons, and that the application of paragraph 55 to the location leads to the conclusion that the proposal should be refused. In essence this argument was the equivalent of an argument that the prior approval should be refused because the agricultural building was in a location where the LPA would not normally grant planning permission for a new dwelling on accessibility grounds. That was a contention which was contrary to the guidance in paragraphs 108 and 109 which, for the reasons he had already given, his lordship accepted is consistent with sensible parameters for the exercise of the planning judgment required. It followed that the Inspector was entitled, as she did in her decision letter, to conclude that the Council’s objections based on paragraph 55 of the NPPF could not be maintained. Having rejected that contention, the Inspector was entitled to form the view that it could not be argued that “it would be impractical or undesirable to convert the building to residential use”.

It followed that the Inspector was entitled to form the conclusions which she did. Her rejection of the LPA’s argument that paragraph 55 of the NPPF should be applied with full rigour to this prior approval in forming her planning judgment on whether the change of use of this agricultural building was in an “undesirable” location, was clearly open to her and reflected the particular context in which her judgment had to be reached.

In the appeal, an application for the costs of the appeal was made on behalf of the developer, on the basis that the LPA had ignored the “precise and specific” PPG guidance and continued to take decisions contrary to earlier appeals where their views had been rejected. The Inspector had made an award of costs for this reason. On this basis, her decision on the costs application was also unassailable. Having reached the justifiable conclusions which she did, and having disagreed with the approach of the Council for entirely proper reasons, she was entitled to form the view in reliance upon earlier appeal decisions of a like nature that the Council’s refusal in the present case was one which was unreasonable and that costs should be awarded.

The Council’s challenge to both the appeal decision and the costs decision was accordingly dismissed.

Bearing in mind that a number of similar planning appeals had already been allowed where LPAs had sought to resist permitted development under Class Q on grounds similar to those canvassed by East Herts in this case, applying the very clear ministerial guidance in paragraphs 108 and 109 of the PPG, it is hardly surprising that the Council lost this appeal, with costs, and that their challenge to that decision in the High Court then failed. East Herts have, however, done us all a favour by putting an end to any lingering doubts that LPAs may have had on this issue.



RichardW said...

Slightly frustrating however that in dismissing the case the Courts did not appear to squarely answer East Herts main point - that a policy statement (the NPPG) cannot modify a statutory requirement para W). C'est la vie.

Martin H Goodall LARTPI said...

In answer to Richard W (13 March), the High Court judgment in this case did suggest that the online PPG 'overrides' the provisions of the GPDO. All the PPG does is to clarify the intention and meaning of Class Q in relation to the matters that require prior approval. LPAs were clearly misinterpreting the wording of the GPDO regarding their determination as to whether the location or siting of the building makes its residential conversion impractical or undesirable. The courts quite correctly give some weight to ministerial guidance in relation to the operation of such legislative provisions. The East Herts judgment accordingly confirms that “sustainability of location” is not a matter that can properly be included in the LPA's determination as to whether the proposed development is impractical or undesirable.

Martin H Goodall LARTPI said...

There is a crucial "not" missing from the first line of my comment of 15 March. The High Court judgment in E. Herts did NOT suggest that the PPG 'overrides' the provisons of the GPDO. It simply clarified the mattter as explained.

Peter said...

This may be a large 'leap' however we are finding that one particular local authority seems to be now using the 'unsustainable location' argument for refusing barn conversion applications (not the Class Q apps) does this mean there is mileage in using the East Herts argument in contesting the LA's reasoning for unsustainable location?



Martin H Goodall LARTPI said...

If I have understood Peter’s comment of 8 May correctly, this relates to barn conversions that do not qualify for permitted development under Class Q, and for which a full application for planning permission has therefore been made.

If that is so, then I am afraid that the revised ministerial advice regarding ‘sustainable location’ published in March 2015, and the East Herts case are of no assistance. This is of relevance only to the determination of prior approval applications under Class Q. Planning applications for barn conversions, on the other hand, are subject to consideration against all the usual criteria regarding development in the open countryside, including those set out in paragraph 55 of the NPPF. It is unsurprising, therefore, that LPAs frequently refuse planning permission in these cases by reason (among other things) of ‘unsustainable location’.