Tuesday, 21 November 2017

Prior approval applications under Class Q(a) only


My attention has been drawn to an appeal decision in East Staffordshire [3170228], issued on 3 July 2017, which allowed a prior approval appeal under Class Q(a) only (for the residential conversion of an agricultural building), where it was clear that works under Class Q(b) would also be required. The view was expressed in that decision letter that an application under Class Q(b) could be made at a later date.

The Inspector wrote:

6. The Council’s reason for refusal and evidence focuses on those matters addressed under Class Q(b) in terms of the scale and nature of the works that would be required to convert the building to residential use. However, Class Q.2(2) of the GPDO indicates that an application can be made for the change of use of the building and curtilage only. It is clear from the appellant’s application form and supporting evidence that the application which constitutes this appeal was made on this basis. The appellant has also made it clear that it was always the intention to address matters under Class Q(b) with a separate application.

7. It is evident from the current condition of the building that a further application would be required. However, the GPDO does not state that where building operations are clearly intended or required that a Class Q(a) only application cannot be made. The approach of applying for Class Q(a) only is permissible under the regulations of the GPDO and the appellant can seek approval for the change of use without dealing with building operations. I have therefore considered the appeal on this basis.


I am led to believe that there may have been one or two other appeal decisions to the same effect, but the decision letters I have seen so far do not seem to be on precisely the same point, and so at the time of writing I have only the East Staffs (Uttoxeter) decision to go on.

It has been pointed out to me that my summary of the provisions of Class Q (and of paragraph W) in my first book, A Practical Guide to Permitted Changes of Use (on page 110 in the Second Edition), does not accord with this approach on the part of this inspector (and possibly others?). Nevertheless, having reviewed the legislation, I maintain my stated view on this issue.

The reason for this is that paragraph W.(2)(a) provides in clear terms that the application must be accompanied by a written description of the proposed development, which, in relation to development proposed under Class C, M, N or Q of Part 3 must include any building or other operations. So it is only in relation to those developments where no building operations will in practice be required that a prior approval application may be made under Class Q(a) alone. In light of the wording of paragraph W(2)(a), I really don’t think there can be any scope for making an application solely under Class Q(a) in a case where building operations under Class Q(b) will also be required in order to convert the building for residential use, and an LPA would be fully justified in rejecting a prior approval application made under Class Q(a) alone as invalid in these circumstances (by reference to paragraph W(2)).

If any readers can provide other examples of this Q(a)/Q(b) issue having been considered in other appeals, I would be grateful to have them drawn to my attention, particularly if they contain any explanation or justification for departing from the provision I have quoted from paragraph W(2)(a).

In the meantime, I should record my gratitude to a correspondent for drawing my attention to the East Staffordshire decision, together with other recent appeal decisions on Class Q. I have not named my source, as I have not ascertained whether they would be willing to ‘go public’ in this instance.

UPDATE (22 November): I am grateful to another correspondent for drawing to my attention an appeal decision in North Devon [3146607], issued on 16 July 2016. In his decision letter, the Inspector wrote:

8. Class Q.2 of the GPDO sets out that an application can only be made for: both the change of use and the conversion works; or the change of use only. The application that constitutes this appeal was made for the latter and I am to deal with the appeal on this basis as the GPDO does not state that where building operations are clearly intended that a Class Q(a) only application cannot be made. Therefore, applicants can seek prior approval for the change of use in advance of dealing with the building operations.

I can see why some people (including some inspectors) read the conditions in paragraph Q.2 as if they allow an application to be made under Q(a) alone, even where building operations will be required under Class Q(b). If one goes back to look at the former Class MB in the 2014 amendment order, one finds the same wording, but two inconsistent appeal decisions in Cornwall (one of which asserted that, where building operations would be required, a Class MB(a) application could not be made without a simultaneous application under Class MB(b), and the other accepted that it could) led the government to add the provision in paragraph W(2)(a) in the 2015 Order to which I have drawn attention, which had not previously appeared in paragraph N of the 1995 Order.

Paragraph W(2)(a) was clearly added in the 2015 Order so as to resolve the doubt arising from the wording in Class MB that had led to the two inconsistent decisions on this issue in Cornwall. In the two more recent appeal decisions to which attention has now been drawn [3170228 and 3146607], the Inspectors have both concentrated on the wording of the conditions in paragraph Q.2 regarding prior approval applications, without having paid any attention to paragraph W(2)(a).

I really think that PINS should amend their advice to Inspectors in order to draw attention to paragraph W(2)(a), but if it is the case that PINS are in fact advising inspectors that Class Q(a) applications can be dealt with without an application also being made under Class Q(b) (where building operations will clearly be required in order to convert the building for residential use) then someone in DeCLoG needs to put them right on this, and explain why it was that paragraph W(2)(a) was added to the 2015 GPDO.

© MARTIN H GOODALL

9 comments:

  1. Well, doesn't this just highlight exactly how much the so-called streamlining of planning through permitted development rights is really anything but - especially for hard-pressed council planning departments that don't get any income from processing prior approval applications, but have to deal with all this nonsense.

    I'll share this with our local activists, Martin, and see if we get any hits!

    Matt T, CPRE

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  2. Martin, I still feel you might be missing the point in that the legislation refers to development which is 'proposed'. It is up to the applicant to decide whether they want to propose only the change of use as part of the initial application, or the building works as well, even if an application will need to be determined in relation to both elements before the development can be implemented.
    Gary Mickelborough

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  3. I take Gary Mickelborough's point, but then what was the point of adding paragraph W(2)(a) to the 2015 GPDO ?

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  4. Does anything swing on the fact that the development permitted in Class Q is " 'a' and 'b' " not " 'a' or 'b' ", (or a list of two options with no linking conjunction)...

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  5. The condition in paragraph Q.2(1) starts with the words, “Where the development proposed is development under Class Q(a) together with development under Class Q(b), ……..”, whereas paragraph Q.2(2) applies “where the development proposed is development under Class Q(a) only”, which would seem to answer the query raised by Richard W. The only difference is that in the case of an application under Q(a) only, sub-paragraph (f) of Q.2(1) [design or external appearance of the building] does not apply.

    However, I do not see these words in paragraph Q.2(2) as allowing applicants to make a prior approval application under Class Q(a) if building operations of the type permitted by Class Q(b) will clearly be required in order to convert the building, although before the 2015 GPDO was made, there was clearly scope for interpreting the identical wording of Class MB in the 1995 Order so as to allow the two applications to be dealt with separately. [I have drawn attention to the two appeal decisions in Cornwall under Class MB which came to opposite conclusions on this point - an anomalous position which clearly had to be remedied.]

    In the case of both Class Q(a) and Q(b), the provisions of paragraph W apply in relation to the prior approval application, and (as I have explained above) sub-paragraph (2) in that paragraph requires that in relation to development proposed under Class C, M, N or Q, the written description of the proposed development must include any building or other operations. Note that the reference in W(2)(a) is to [any] development under (inter alia) Class Q, without referring specifically to Q(a) or Q(b). This provision had been entirely absent from paragraph N in the 1995 Order.

    The most generous interpretation that one could therefore put on paragraph W(2) in the 2015 Order is that one could still perhaps make a prior approval application under Class Q(a) only, but that the written description of the proposed development must include any building or other operations which will be required in order to convert the building for residential use. In these circumstances, there would not appear to be any point in confining the application to Class Q(a) only. In fact, after prior approval has been given under Class Q(a) only on the basis of the description in the QA(a) application of the proposed building or other operations, there must be some considerable doubt as to whether, on the basis of that prior approval, it would then be open to the applicant at a later date to make a prior approval application under Class Q(b) in respect of building or other operations which differ to any material extent from the description of the operations.

    This only serves to reinforce my view that a prior approval application must be made under both Class Q(a) and Q(b) simultaneously, except in those rare cases where no building or other operations will in fact be required at all in order to achieve the proposed residential conversion (for example if all the works are purely internal, and are not therefore development by virtue of section 55(2)(a)).

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  6. Hi Martin

    I'm using Q(a) myself to create a fall back position, so I hope, with respect, that you're wrong and the inspectors are right!

    W(2) The application must be accompanied by—
    (a) a written description of the proposed development, which, in relation to development proposed under Class C, M, N or Q of this Part, must include any building or other operations;

    This was done by the applicants
    eg the building works were described, but not applied for.

    To my reading of it, as long as you make your intention clear that you will, at a later date, apply for Q(b) once the change of use is approved and that you also describe the building works required within the Q(a) application, then you have satisfied W(2)(a).

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  7. As I acknowledged in a comment yesterday afternoon, the approach now proposed by my anonymous correspondent is at least arguable, although I am still having difficulty in understanding what practical advantage would be gained by making a prior approval application under Class Q(a) alone (complete with details of any necessary building operations that will be required in order to convert the building to residential use, as required by paragraph W(2)(a)) in circumstances where an application under Class Q(b) will have to be made sooner or later in respect of those same works.

    As to the fallback position that my correspondent seeks to establish, the judgment of the Court of Appeal in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 (on which I blogged on Friday, 29 September) makes it clear that a prior approval application is not necessary in order to establish a fallback position based on PD rights. I would think that the applicant has done enough to establish their intention of using their PD rights to be able to rely on those rights as a fallback position, irrespective of the legal position as to the prior approval application under Class Q(a).

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  8. As a Local Authority Planner, I feel it would be a big shame if revised guidance allows the submission of separate applications. Bearing in mind there is no way of submitting 'b' applications on their own (so the principle will need to be applied for again regardless which causes its own issues), and the structural element and design are clearly a big part of this permitted development right.

    I have to agree with Martin bearing in mind the GPDO should be read as a whole.

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  9. I would like to expand on 'Anonymous' received on 29th November. I think the change in the policy between Q and MB is relevant, in particular the conditions (Q.2).

    Class MB.2 noted: Class MB(b) development is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building, and the provisions of paragraph N of this Part shall apply in relation to that application.

    This clause is not within Class Q, which means there is no provision to apply for a subsequent ‘b’ application (as indicated by anon). It cannot be the Governments intention where that if a Q ‘a’ is granted on its own, and the LPA ignores the need for building operations (where there is a need), then the approval of Q ‘a’ permits the applicant to do whatever with regards to the design. Therefore the Q ‘a’ will need to be re-considered again by Q.2 (1) when applying for a Q ‘b’ application, which doesn’t quite make sense.

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