Tuesday, 21 November 2017
Prior approval applications under Class Q(a) only
My attention has been drawn to an appeal decision in East Staffordshire , 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 , 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