Tuesday, 27 February 2018

Convertibility of agricultural buildings – revised advice


The Housing Ministry (formerly De-CLoG) has at last revised its advice on the convertibility of agricultural buildings under Part 3, Class Q, in the Second Schedule to the GPDO.

Readers will recall that paragraph 105 of the online PPG, as revised in March 2015, stated rather starkly that It is not the intention of this permitted development right to allow rebuilding work which “would go beyond what is reasonably necessary for the conversion of the building to residential use”, so that “it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right”, but did not enlarge on this gnomic utterance, leaving it open to some rather imaginative interpretation by LPAs.

I had always been clear, and I think it was generally accepted even before this revision to paragraph 105 was made in 2015, that the works permitted under Class Q(b) are restricted to what is reasonably necessary for the building to function as a dwellinghouse, and any partial demolition must also be limited to the extent reasonably necessary to carry out the building operations that are permitted by this class. This imposes a practical constraint on the convertibility of some buildings, especially if they are of rather insubstantial construction. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted. (See paragraph 9.7 in Chapter 9 of my first book, A Practical Guide to Permitted Changes of Use - page106 in the Second Edition.)

Unfortunately, quite a few LPAs seized on the revised guidance in March 2015 as an opportunity to refuse prior approval for various residential conversions of agricultural buildings which, in my view, did not involve such extensive work as to take the development outside the scope of Class Q(b), even taking into account that revised guidance.

Internal works were one particular bone of contention, and I argued strongly that such works should be seen as being entirely removed from the definition of development by virtue of section 55(2)(a) in the 1990 Act, so that they did not in any event form part of the development that was permitted by Class Q(b), and were thus not caught by the restrictive wording of paragraph 105 of the PPG.

The Housing Ministry has now at last conceded this point in the following wording, added to paragraph 105 on 22 February: “Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls.” These are not prohibited by Class Q

In the revised wording of paragraph 105, the Ministry has also referred to the High Court judgment in Hibbitt v SSCLG [2016] EWHC 2853 (Admin) as an example of a discussion of the difference between conversions and rebuilding. However, I have always taken the view that Hibbitt simply confirmed the well understood principle mentioned above. As I put it in a blog post on the convertibility of agricultural buildings on 14 November 2016, it was not even necessary to call in aid the wording of the PPG, as revised in March 2015, in order to interpret the plain words of the GPDO. But I warned that we should be wary of reading more than this into the Hibbitt judgment. What I called “the structural issue” has in effect two limbs. The first is the fundamental point, which was dealt with by Hibbitt (i.e. Does the development consist simply of necessary building operations, or does it comprise substantial demolition and reconstruction of the previous structure?).

The second aspect of this structural issue - the question of how much internal work can be carried out inside the building within the scope of Class Q, which has now been clarified by the latest revision of paragraph 105 last week, was one that I had found it necessary to discuss in great detail, and at great length, in Appendix D to the Second Edition of A Practical Guide to Permitted Changes of Use, but the latest revision of paragraph 105 has now made most of that debate unnecessary.

It is still my view that 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.

It is very much to be hoped, however, that the latest revision to paragraph 105 of the PPG will finally put a stop to any further arguments about internal structural works carried out to agricultural buildings before or during their residential conversion under Class Q.

© MARTIN H GOODALL

22 comments:

Charles said...

Martin - very interesting amendment. Where can one find the full revised wording of Paragraph 105? It will certainly clear a lot of misunderstanding going forward. Thank you.

Martin H Goodall LARTPI said...

The online Planning Practice Guidance is notoriously difficult to navigate, and it invariably defeats me. I received a cri de Coeur from a colleague the other day who had wasted ages trying unsuccessfully to find the revised text of paragraph 105.

After I expressed my own frustration, a correspondent (‘Archie’) kindly sent me the following link. Without this, I doubt whether I would ever have found it:


https://www.gov.uk/guidance/when-is-permission-required#agricultural-building-change

[Sorry this doesn't work as a link here - you will have to copy and paste it into your browser.]

I really do wish MHCLG would publish a user-friendly version of the PPG. The present version is simply not fit for purpose, and a cynic might conclude that it had been designed specifically in order to prevent people from discovering its contents!

Anonymous said...

Hi Martin
user-friendly from MHCLG will never happen it would make planning consultants redundant with no grey areas to argue. example= can you or anyone advise me what suitable for the BUILDING to change use means

Charles said...

Martin - this is most useful, thank you. I agree rather a labyrinth.

Martin H Goodall LARTPI said...

Just to pick up a point from the anonymous comment above, “Building” is defined in the GPDO, and Part 3 also refers to “the building and its curtilage” (which in this context is tightly defined).

This is all explained in my first book, A Practical Guide to Permitted Changes of Use. - See paragraph 1.3.1 (pages 5 - 6 in the Second Edition)

Anonymous said...

I would really welcome a detailed interpretation of the textual differences between the previous and amended versions of PPG paragraph 105.
There are subtle differences, quite apart from the added paragraphs, particularly regarding the removal of the reference to "structural elements", which has been a regular get-out for LPAs in the past.

I have inserted below the previous and current (22 February 2018) text for comparison:

Previous Version

Building works are allowed under the change to residential use. The permitted development right under Class Q assumes that the agricultural building is capable of functioning as a dwelling. However, it recognises that for the building to function as a dwelling some building operations which would affect the external appearance of the building , which would otherwise require planning permission, should be permitted. The right allows for the installation or replacement of windows, doors, roofs, exterior walls, water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwelling house; and partial demolition to the extent reasonably necessary to carry out these building operations. It is not the intention of the permitted development right to include the construction of new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works to provide for residential use that the building would be considered to have the permitted development right.

Current Version

Building works are allowed under the right permitting agricultural buildings to change to residential use: Class Q of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, as amended. However, the right assumes that the agricultural building is capable of functioning as a dwelling. The right permits building operations which are reasonably necessary to convert the building, which may include those which would affect the external appearance of the building and would otherwise require planning permission. This includes the installation or replacement of windows, doors, roofs, exterior walls, water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwelling house; and partial demolition to the extent reasonably necessary to carry out these building operations. It is not the intention of the permitted development right to allow rebuilding work which would go beyond what is reasonably necessary for the conversion of the building to residential use. Therefore it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right.

For a discussion of the difference between conversions and rebuilding, see for instance the case of Hibbitt and another v Secretary of State for Communities and Local Government (1) and Rushcliffe Borough Council (2) [2016] EWHC 2853 (Admin).

Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls, which are not prohibited by Class Q.

Martin H Goodall LARTPI said...

In my initial hurry, I had failed to spot the more subtle changes to the wording of paragraph 105 to which my anonymous correspondent has now drawn attention. However, on closer examination, the only substantive change (other than the additional wording to which I drew attention in the blog post above) is the replacement of the words “ Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works to provide for residential use that the building that the building would be considered to have the permitted development right” by the following: “ Therefore it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right.”

This is entirely consistent with the acknowledgement that section 55(2)(a) allows internal works, even if they are of a significant structural nature. The changed emphasis now focuses solely on the extent of any partial demolition and new (external) building operations, while excluding from consideration any issue relating to (purely internal) structural works, and thus ministers now acknowledge that the existing structural strength is not a material consideration with regard to development under Class Q. If, however, the necessary (external) building operations are so extensive that they would fall outside the scope of building operations that are “reasonably necessary to convert the building” to residential use then they fall outside the scope of the development permitted by Class Q..

This is simply a re-statement of the basic principle that is to be derived from the actual words used in the GPDO, and is the same point that was made by the judgment in Hibbitt.

Anonymous said...

Following a Class Q refusal, principally on the grounds of the lack of an internal concrete slab, the Applicant installed an internal ground floor slab, ostensibly to serve the purposes of the building's ongoing agricultural storage use.
A subsequent Class Q application was refused again, this time principally on the grounds that works (being the installation of the slab) had commenced in advance of an approval.
An appeal (ref APP/F2605/W/17/3179670) lodged against the second refusal was dismissed, the Inspector agreeing with the LPA that "The laying of a floor does not fall with the type of works considered reasonably necessary to convert a building to allow it to function as a dwelling permitted by Class Q1(i)(1)(aa). It is clear to me that the conversion relies upon the concrete floor and is development within the definition at section 55(2) of the TCPA as it goes beyond ‘maintenance, improvement or other alteration’ which would be exempted from any requirement for planning. I therefore conclude that the proposal is not permitted development under Schedule 2, Part 3, Class Q(i) of the GPDO."
Whilst I believe that the appeal dismissal was incorrect because it regarded the installation of an internal concrete slab as development, my reading of the amended guidance given in PPG 105 leads me to conclude that a new application should now be successful, all other things being equal, regardless of the motive behind installation of the internal concrete slab.
Any general comments (not specific to the case)?

Anonymous said...

I think the changes are even more extensive than you have mentioned, Martin, with the complete removal of the previous sentence - "It is not the intention of the permitted development right to include the construction of new structural elements for the building."
I read this as a definite move away from a focus on "structure" to a focus on rebuild v conversion (i.e. Hibbitt).
To my mind, this amendment should have the effect of removing the principal grounds for refusing Prior Approval applications to convert portal frame type buildings, especially where the bulk of the existing cladding is proposed to be retained.

Anonymous said...

Martin
What your saying this would exclude all barns that have no exterior walls. But are built so robust that no demolition is required and to infill with glass and lightweight panels that would take 2 men five days is to extensive and not PD, but a barn that has metal cladding all round that may need to be replaced or at least modified to accept double glazed panels,.doors and maybe a new roof is allowed.

Referring to the Hibbitt case I think you will find that the judge refers to the conversion as a whole and comments on the magnitude of work while referring to floors, ceiling. Having spoken to Nick Hibbitt at some length regarding his case it is clear to me and a lot of planning professionals that it was a bad decision the judge even referred to isolated homes in the countryside. I might add that Nick Hibbitts PD application showed no demolition whatsoever the roof was staying and the building had three walls. At the hearing Nick was asked if this ruling goes against you will you appeal to which Nick replied no (finances) therefore Im sure you will agree the judge had a free hand to get all the facts wrong and he did.

Martin H Goodall LARTPI said...

I agree with my anonymous correspondent, although a careful assessment of all the relevant circumstances should be carried out first to ensure that the LPA would have no further excuse for refusing prior approval.

The original appeal decision may well have been open to challenge if proceedings had been started in the High Court at the relevant time. Even before paragraph 105 was amended, I would suggest that the Inspector’s conclusions were wrong in law, and were a misinterpretation of section 55, bearing in mind the wording of section 55(2)(a).

Martin H Goodall LARTPI said...

I think my response to the above comments may appear in the ‘wrong’ order, but in relation to the changes to paragraph 105, I agree that the emphasis on structure has now been entirely removed from this pararaph.

Martin H Goodall LARTPI said...

On the third anonymous comment above, I have always had a good deal of sympathy for Mr and Mrs Hibbitt. I know that they wanted to take the matter on to the Court of Appeal, but the risk as to costs deterred them. I share the misgivings that have been expressed about the High Court judgment in that case, and from some of the remarks the judge made there would seem to be some grounds for wondering how well the judge really understood the law and practice of prior approvals in relation to permitted development.

The fact remains, however, that there must be some buildings that are really not convertible without such major works that these cannot realistically been carried out within the scope of Class Q. The existence of a steel frame but a complete (or almost complete) absence of walls, so that completely new infill with glass and lightweight panels would be required to provide the necessary walls might well be seen as going beyond what is “reasonably necessary” to convert the building for residential use. Both the original and revised versions of paragraph 105 emphasises that Class Q “assumes that the agricultural building is capable of functioning as a dwelling” (i.e. in its pre-existing form the building must be convertible without resort to such major building operations that it would amount in substance to the substantial reconstruction the of the building or the erection of a new building.

Richard W said...

Although of course, MHCLG Practice Guidance cannot amend the statute (and previous DCLG guidance similarly should not have been read as limiting the statute).

Martin H Goodall LARTPI said...

I entirely agree with Richard W. However, as I have pointed out (both in this blog and in my book on permitted changes of use), the actual wording of the GPDO does in itself place a degree of constraint on the extent of the building operations that can be carried out under Class Q, irrespective of any gloss that may have been put on it by MHCLG (or, previously, by De-CLoG).

In a sense, there is consistency between the approach under the GPDO and the interpretation of planning permissions for barn conversions. The permission granted is for the “conversion” of the existing building, not for its demolition and replacement or reconstruction, nor for the creation of what amounts to a new building. In one or two cases, loose wording of a planning permission has been successfully exploited by developers to justify more extensive rebuilding, but most appeal decisions and High Court challenges in such cases have been decided against those developers who were seeking to show that their permission allowed them to carry out a more thoroughgoing reconstruction. [I went into this topic at great length in a whole series of blog posts a few years ago, culminating with the Court of Appeal decision in Williams.]

Anonymous said...

People within this post who are claiming the revisions to the PPG make the process less restrictive are wrong in my opinion, and I hope the revisions are interpreted by inspectors in a common sense manner.

I would imagine most steel portal frame buildings are now no-go's. Prior to the changes, most planning agents submitted structural reports to show these were structurally sound, so not a lot change here. However, I do not think it is possible to suggest most steel portal framed buildings are "already suitable for conversion to residential use", regardless of if they are clad with tin or some timber boarding, and any agent who claims they can retain these elements of the building so that it would constitute a conversion are clutching at straws in my opinion. As soon as development begins, these will be changed and thus result in potential enforcement action.

Anonymous said...

Re the previous comment, I'm on the Agent side and therefore not impartial, but I honestly don't see any difference between a structurally sound brick building and a structural sound clad portal frame building as regards its suitability for conversion.
Each type of building will necessarily require internal wall, roof and floor insulation to comply with Building Regulations, and the insertion (in most cases) of new windows and doors which will inevitably require new structural elements (i.e. lintels).
The fact that a portal frame may be clad in metal, fibre cement or timber seems irrelevant to me. These materials can easily be retained if that is what is required for the proposal to be deemed a conversion by the planners.

Anonymous said...

I totally agree with the comment on the 13/03 ( who's on the agents side) and would like to add that portal frame buildings with no exterior walls (hay barns) are still being approved by some LPAs while others try everything to resist. It really is a post code lottery and it shouldn't be.

Anonymous said...

Surely the obvious fact that a steel portal framed building is structurally robust is the important question. What you infill them with is immaterial because it is the steel frame that is taking the strain.
It is and always has been a farce to maintain that agricultural buildings must be 'capable of conversion'. Any building works to such structures have to meet Building Regulations and therefore will always require fairly extensive works to them in order to comply.
There are crimes being committed against architecture in the awful way many of these buildings are being converted to residential use. They are often ugly and will end up as blots on the landscape. Better to have pushed for such buildings to have been converted with some essence of traditional building materials being used and incorporating energy efficient features.

Anonymous said...

Apologies if this particular query has been discussed previously...it appears that one could make a prior approval application for just development under Q.(a) i.e. change of use only and then if the works the applicant wished to carry out were likely to go beyond those reasonably necessary to convert they could make a full planning application for those works and that application would have to be judged on it's own planning merits. If the principle is accepted by the Q.(a) prior approval then the full application would in affect be akin to a reserved matters application and the LPA would have to consider it on a similar basis against the development plan but accepting the principle of development. Would such works still need to be within the external dimensions so as to retain the CoU permission under Q.(a)? Condition Q.1(h)relating to external dimensions refers to the "development" not being permitted where the "development would result in the external dimensions...." but in this case the "development" is CoU and the CoU itself will not result in any changes to the building dimensions, it is only building operations that could do that so if building operations are granted outside of the GPDO under a separate planning application then presumably there would not be a breach of Q.1(h).

The concept of CoU under PD rights and then a separate full application for building works is sound and used for other classes under Part 3 of the GPDO such as Classes O, P, PA and R etc. so is there any reason why such approach cannot be used under Class Q? Could the LPA still try and refuse on grounds that the works are not reasonably necessary even if that that was the precise reason the full planning application being made or that the works are beyond a conversion when the only assessment the LPA would need to be making is whether the design and external appearance (and maybe scale and layout if building extended) is appropriate in accordance with the development plan.

I also made a comment recently but not sure it uploaded via the mobile friendly website, to the effect that ultimately the government need to go a step further to cut out all of the arguing about conversion or rebuild and as has been muted for office to resi they should just amend Q.(b) to read "...building operations necessary to convert OR REPLACE the building..." because at the end of the day if you had two identical barns in appearance one of which needed rebuilding for practical reasons (whether structural or otherwise) what does it actually matter from a planning point of view if the principle of reusing buildings in otherwise isolated locations has been accepted by the government and it would meet their objectives for increase supply of rural housing whilst minimising landscape impact by using existing built form. If replacement was permitted under Q.(b)the external dimensions and design safeguards are in place under Q.1(h) and Q.2(1)(f) so there is no reason why it would lead to the building A looking any different to building B are the completion of the works. So come on HCLG just bite the bullet and make such amendment and cut out all the nitpicking, uncertainty and costs for everyone.

Martin H Goodall LARTPI said...

In response to the anonymous comment of 28 March, I entirely agree with my correspondent’s first paragraph, and I have made exactly this point in my book, A Practical Guide to Permitted Changes of Use. (See pages 108 – 109 in the Second Edition.)

However, where necessary building operations are confined within the limits of Class Q(b), it remains my view that the wording of the GPDO requires that details of those building operations must be submitted at the same time as the prior approval application in respect of the change of use under Class Q(a). I acknowledge, however, that some Inspectors are still prepared to allow appeals under Class Q(a) alone, in the absence of any details of the building operations that are going to be needed under Class Q(b), notwithstanding the re-wording in the 2015 GPDO which appears to have been intended to rule this out.

Lastly, moving on to the proposal in the final paragraph of my correspondent’s comment, whilst I am not unsympathetic to the view expressed, it is abundantly clear that the government is not prepared to countenance development that would amount to the substantial rebuilding or replacement of the pre-existing building. I don’t see that changing any time soon.

Obi-Wan said...

Just to touch on the 28th of March comments,

"Surely the obvious fact that a steel portal framed building is structurally robust is the important question. What you infill them with is immaterial because it is the steel frame that is taking the strain.

It is and always has been a farce to maintain that agricultural buildings must be 'capable of conversion'. Any building works to such structures have to meet Building Regulations and therefore will always require fairly extensive works to them in order to comply."

I don't think the above comments understand the changes. The PPG no longer requires the building to be structurally sound internally, and in addition, it appears that new external structural alterations are now allowed if you read the amended PPG, which is no longer permissive regarding new structural additions. Therefore it doesn't matter if a steel portal frame isn't structurally sound and this would be a dodgy reason for refusal. Nonetheless, it would be easy for the LPA to argue the proposal isn't a 'conversion'. I note inspectors have also recently taken this view,
https://www.planningresource.co.uk/article/1462209/barn-conversion-works-exceed-permitted-development-right-limits

In addition, in response to the comment "there are crimes being committed against architecture in the awful way many of these buildings are being converted to residential use. They are often ugly and will end up as blots on the landscape." Local Planning Authorities can refuse applications on design and visual appearance grounds, which I'm surprised they do not do more often.

Following the PGG, its very unlikely in my opinion that many steel portal framed buildings will be permitted, despite the amendment order claiming to be more permissive. I think this might be the government publicly claiming to be more permissive, however, sticking up for planning authorities on the other hand. Some interesting and probably contradictory decisions to come from PINS I think.