Tuesday, 3 April 2018

Class Q revisited


It always seems to take a little time for the dust to settle after an amendment to the GPDO has been made before people begin to get their heads around the changes and what they really mean.

I have now had the chance to review the changes to Class Q in more detail, and have also read some intriguing comments on the Planning Jungle website which suggest that a significant loophole has been created as regards the cumulative total of development that is now permitted under this class.

First, there is an issue that has been a subject of discussion in this blog recently, as to whether a prior approval application can be made under Class Q which relates only to Class Q(a), while postponing to a subsequent application any prior approval application in respect of necessary building operations. Class Q was reworded in the 2015 GDO as made, compared with the wording of Class MB in the 1995 Order, and in my view this was intended to make it clear that a prior approval application could no longer be made under Class Q(a) alone, except in those cases (if any) where no building operations affecting the external appearance of the pre-existing building would be required in order to carry out its residential conversion [or where such building operations will be dealt with by a separate planning application, if they go outside the permissible limits of Class Q(b)]. It seems, however, that some inspectors were nevertheless persuaded that a prior approval application could be made under Class Q(a) alone, even where a subsequent prior approval application would be required under Class Q(b).

One aspect of the further re-wording of Class Q in the latest amendment order, on which I have not previously commented, is a change to the definition of the permitted development that can be carried out under this Class. This now provides that the development permitted is EITHER (a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses), OR (b) development comprising BOTH the change of use permitted by paragraph (a), AND building operations reasonably necessary to convert the building to residential use. Thus Class Q(b) is no longer confined to building operations alone, but embraces the change of use as well as necessary building operations.

A prior approval application under Class Q(a) will therefore serve no useful purpose, except in those rare cases where all the necessary conversion works are purely internal [or where more extensive building operations, beyond the scope of Class Q(b), are intended]. If building operations affecting the external appearance of the property will be required under the terms of Class Q(b), the Class Q(b) application will necessarily include consideration of all the matters listed in paragraph Q.2(1) relating to the change of use, and not simply the one item in sub-paragraph (f) (the design or external appearance of the building). It is therefore clear that an application must be made under Class Q(b) [not Class Q(a)] where building operations within the scope of Class Q(b) will be required, and in accordance with paragraph W(2) this prior approval application must in any event be accompanied by a written description of the proposed development, which must include any building or other operations. It is only if no building operations within the scope Class Q(b) will be required, or if the intended building operations are outside the scope of Class Q(b), so as to require a separate planning application for those works, that a prior approval application under Class Q(a) will be appropriate.

Turning to the number and floorspace limits in the newly substituted paragraph Q.1(b), (c) and (d), the cumulative number of separate larger dwellinghouses (i.e. between 100 sq m and 465 sq m each) developed under Class Q must not exceed 3 within a single agricultural unit. However, the cumulative floorspace of the existing building or buildings changing use to a larger dwellinghouse or dwellinghouses under Class Q must not exceed a total of 465 sq m. So you can’t build three 465 sq m dwellings on the same agricultural unit. The average size of the larger dwellinghouses (if the maximum of three were to be converted) could be no more than 155 sq m, but they might comprise perhaps one at 110 sq m, one at 140 sq m and one at 215 sq m, or any other combination not exceeding 465 sq m in total, and not exceeding a total of three in number.

In the case of smaller dwellinghouses (i.e. not exceeding 100 sq m each) the cumulative number of these developed under Class Q must not exceed 5. But it is important to bear in mind that the total of all dwellinghouses converted under Class Q on the same agricultural unit cannot in any event exceed five. Thus the absolute maximum floorspace that can be converted to residential use is going to be 465 + 400 = 865 sq m, comprising no more than 5 dwellings in total, of which no more than three can exceed 100 sq m in size, and none of them can individually exceed 465 sq m. You can cut the cards whatever way you like, but you cannot create more than 865 sq m of residential floorspace in total (including mezzanine floors) and the maximum number of dwellings you can create cannot exceed five in total. In practice, it seems unlikely that there would be just one large dwelling of 465 sq m and four of 100 sq m; a more likely scenario would be three dwellings totalling 465 sq m in aggregate plus 2 x 100 sq m = 665 sq m.

I don’t think there can be much doubt that this was what was intended by the revised legislation, but I have not addressed the intriguing drafting error that has apparently been identified by Planning Jungle. The way that Part 3 works is that each Class first defines what the permitted development consists of, and then goes on (in paragraph Q.1, in the case of Class Q) to define the circumstances in which development is not permitted. So far so good, and my paraphrase above summarises the provisions of that paragraph. However, at the end of Class Q, there is now a new paragraph, Q.3 - “Interpretation of Class Q”. This defines “larger dwellinghouse” as a dwellinghouse developed under Class Q “which has a floor space of more than 100 sq m and no more than 465 sq m.” It follows that a dwellinghouse with a floorspace greater than 465 sq m falls outside the definition of a “larger dwellinghouse” entirely. But the provisions of paragraph Q.1 refer only to “a larger dwellinghouse or dwellinghouses” [as so defined] and do not place any limitation on the floorspace of any dwellings that do not fall into the definition of either “a smaller dwellinghouse” or “a larger dwellinghouse”. There remains an overall limit of five dwellings in total (not limited or defined by reference to their size), but it is argued by Planning Jungle (and I do not disagree with this, even though I am sure it was not intended by the draftsman) that Class Q as now revised appears to permit up to five dwellings of unlimited size on a single agricultural unit, subject (of course) to their being converted from pre-existing agricultural buildings, within the terms of Class Q.

In fairness, it is acknowledged that there is paragraph Q.1(d), which provides that development is not permitted “if the development under Class Q ……… would result in …….. a larger dwellinghouse or larger dwellinghouses having more than 465 square metres of floor space”. However, as pointed out in Planning Jungle, the reference in paragraph Q.1(d) to “a larger dwellinghouse or larger dwellinghouses” brings us back to the difficulty of the definition in paragraph Q.3, which on the face of it clearly confines the definition of “a larger dwellinghouse” to “a dwellinghouse developed under Class Q which has a floor space of ………. no more than 465 square metres”. Watch out for a further amendment order correcting this anomaly in the fairly near future!

© MARTIN H GOODALL

17 comments:

William Ashley said...

William Ashley Asked

Good to read your comments Martin. Without appearing naive to the new guidance, can you please explain a little more for folk like me.

I’ve converted 2 barns into 3 dwellings under Class Q, one at 200m2 and a further two at 120m2 each, totalling 440m2. With more agricultural barns to convert, am I correct in thinking that the new guidance opens this up for a further two dwellings to total 5.

Could I ask that you explain your comments......465m2+400m2=
865m2 and your other scenario of 465m2 aggregate plus two at 100m2= 665m2.

Monks Green Farm
Mangrove Lane
Hertford
Herts
SG13 8QL
www.monksgreenfarm.net

Martin H Goodall LARTPI said...

I am happy to enlarge on this topic, in answer to William Ashley’s question.

We are dealing here with the amendment of the GPDO itself (which comes into force tomorrow - Friday 6 April). The scope of Class Q is enlarged, so that where previous residential conversions of agricultural buildings have reached or come close to the previous floorspace limit of 465 sq m within that agricultural unit, and/or the previous numerical limit of three dwellings, there will now be scope for further residential conversions within the increased limits, taking into account (of course) the amount of floorspace and number of dwellings previously created under Class Q (and/or under Class MB of the 1995 GPDO).

The drafting of the amendment order is not as clear as one would wish [pause here for various deleted expletives], but the way it works is to allow extra dwellings and extra floorspace, but the limits are not straightforward.

Leaving aside the apparent drafting anomaly relating to the definition of a “larger dwellinghouse” in paragraph Q.3, the revised Class Q allows the creation within a single agricultural unit of no more than five dwellings in total (including those previously created under Class Q or under the former Class MB), but of these five dwellings, no more than three can be “larger dwellinghouses” (i.e. a dwelling that has a floor area of more than 100 sq m). Furthermore, the cumulative floorspace of any such larger dwellinghouses created under Class Q and/or Class MB must not exceed a total of 465 sq m. So the absolute maximum size of a “larger dwellinghouse” is 465 sq m, and if you create a dwelling as large as this, no other larger dwellings can be created on this agricultural holding.

You can, however, create a number of “smaller dwellinghouses” on the same agricultural holding (none of which exceeds 100 sq m in floor area), subject to the overall numerical limit of five dwellings of all sizes on this agricultural unit.

So you can ‘mix and match’ house sizes within these various limits. The absolute maximum floorspace that could be created would comprise one larger dwelling of the largest possible size (465 sq m), and four other dwellings of the smaller type (each up to 10 sq m each). Hence we get to the calculation of 465 + (4 x 100) = 865 sq m.

Any other combination of five dwellings will produce a smaller cumulative floorspace. Hence the example I gave of up to three larger dwellings (the maximum permissible), having a cumulative floorspace between them of 465 sq m, plus two other “smaller dwellinghouses” of up to 100 sq m each (to bring the total number of dwellings up to the permissible maximum of five), giving a total cumulative floorspace in that case of 465 + (2 x 100) = 665 sq m.

A mix of two larger dwellings totalling 465 sq m between them, plus three smaller dwellings of 100 sq m each would provide a total floorspace of 765 sq m, and various other combinations would be possible within the new limits. However, the number and size of dwellings previously created under this PD right in Part 3 may in practice be a constraining factor, as they will have to be taken into account in calculating the total number and cumulative floorspace that can be created in total.

I hope this assists in clarifying the new rules.

Martin H Goodall LARTPI said...

The figure first mentioned above (the previous floorspace limit under Class Q) should, of course have read "450 sq m".

Martin H Goodall LARTPI said...

And the mention in one place of "10 sq m" was, of course, a misprint for "100 sq m".

William Ashley said...

Many thanks Martin for clarifying. I’m off now to work on another application for 2 further dwellings.

Monks Green Farm
Mangrove Lane
Hertford
Herts
SG13 8QL
www.monksgreenfarm.net

Anonymous said...

Martin

Thank you for your useful comments and advice as regards Class Q conversions.

I have a case whereby there is an unlisted barn which may be capable of conversion to a dwelling. However, the main farmhouse (a separate building) is Grade II listed, and is within 30 metres of the barn. Does the barn still benefit from Class Q permitted development rights, or would I need to submit a full planning application? The barn itself is unlisted.

Thanks

Martin H Goodall LARTPI said...

The answer to the anonymous query of 25 April will be found elsewhere in this blog. See “Barns near listed farmhouses” posted on Friday, 15 March, 2013, and the case of Egerton cited there.

Further guidance was given in the case of Burford, on which I commented in a more recent post, “Court considers curtilage” posted on Wednesday, 19 July 2017, emphasising that in order to be within the curtilage of another building not only must the land (or subsidiary building) in question play an essential functional role in relation to the use of the principal building, but it must also form one enclosure with it (applying the rule in Dyer).

The relevant rules are discussed in more detail in my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts” in paragraph 2.2.2 of Chapter 2 (pages 22 to 24 in the Second Edition).

David said...

Hi Martin very interesting thanks.

I ended up here because I am interested in an agricultural building that was in general farm use as a storage building till 1995, the main farm buildings were redeveloped into houses, the land with the agricultural building was left at the side of the field about 75 feet behind the development and sold off with the fields. All the fields are still in agricultural use but the building has been left and not used.

My planning consultant has told me that because of the change in wording I can buy the building, apply using a prior approval application under Class Q(a) to turn it into residential, then apply to replace the building completely with a new house (or a couple). He made it sound quite straight forward, is this incorrect then and actually cannot be done?

Any advice you can give is gratefully received as I was about to make an offer. Thanks

Martin H Goodall LARTPI said...

My answer to David is that it isn’t as straightforward as that. The situation he describes is distinctly ‘iffy’, and he clearly needs expert legal advice before proceeding further. Never accept glib assurances as to what you may be able to do without checking it all out very carefully.

If David does decide to put an offer in, he certainly shouldn't exchange contracts until the true position has been reliably established, and this doesn't just mean asking a planning consultant, or even a conveyancing solicitor; it needs the expert input of an experienced planning lawyer who is familiar with this type of development.

David said...

Thank you Martin I will check into this in more detail

Anonymous said...

Martin

The thread is a fascinating read. Can I ask you to clarify one point for me please.
William Ashley talks about separate barns ie two or more physically separate buildings for future conversion.
Your response talks about dwellings within a single agricultural unit.

Are you saying that if you have 2 separate barns adjacent to each other with one that has a Class Q approved conversion within the limits as previously advised prior to April 18, you are able to apply to convert the second barn, which is currently redundant, under the new guidelines so long as it meets the quantum criteria of area and number of dwellings.
Many thanks

Lee said...

My planning consultant has also said that you can replace barns with new dwellings once prior approval has been obtained.

Is there any basis for this?

Martin H Goodall LARTPI said...

In answer to Lee (27 May), - An entirely new dwelling would require planning permission. As discussed elsewhere in this blog, the existence of a PD right to carry out a residential conversion under Class Q of Part 3 is capable of setting up a fall-back position, but this can’t be taken as automatically giving a green light to replacement of an agricultural barn with a newly erected dwelling. The determination of a planning application for such a development is bound to depend on policy and other material considerations.

Martin H Goodall LARTPI said...

[As I mentioned in another thread, thee has been a glitch in the publication of comments.]

I am not sure that I entirely understand the anonymous question of 16 May. The limits relate to the cumulative number of dwellings created by conversion and to the cumulative total of the floorspace thereby created. These limits refer to the “established agricultural unit” within which the agricultural buildings are located.

Subject to these limits, conversions can be carried out to several different buildings on the same agricultural unit, assuming all other criteria are met. More than one dwelling can be created within each building, subject to the cumulative limits for Class Q development within the agricultural unit not being exceeded in total.

Anonymous said...

I understand that there are specific limits to areas and numbers of dwellings on an agricultural unit - but just what is an “agricultural unit? We still own 15 acres and a barn of our original farm some 12 miles away from where we now farm. It is likely that the barn qualifies for Class Q. We also have a potentially qualifying barn at the present farm. The original barn has been, and is, used mostly for the storage of lesser used farm machinery. It has a superset holding number.

Any idea if this is the same “unit” for the purposes of Class Q? Can’t seem to find any help on this matter anywhere!

Anonymous said...

Great thread and good to see it’s still live (I hope!)
Just what is an “agricultural unit”? We have two separate holdings, with different holding numbers, that are used as a part of a single agricultural business. There are potentially qualifying buildings on both. The units are about 10 miles apart. We were refused permission to excercise our PDs to haul stone from one to another on the grounds that they were not sufficiently close to form a unit for the purpose of a PD in this respect. We didn’t challenge that. We are aware that this is a County level decision whereas Class Q is District level issue.

We can’t find any cases or guidance anywhere and have received lots of contradictory opinion from experts and others on this. Given these things are always “a matter of “interpretation” by individual local planning officers, what approach is best? Is there any precedent that anyone is aware of?

Thanks for great informative blog and comments sections

Martin H Goodall LARTPI said...

There is no easy answer to the anonymous query of 3 July. I attempted to explain the meaning of “agricultural unit” both in A Practical Guide to Permitted Changes of Use (in paragraph B.1.3 of Appendix B - pages 279 – 280 in the Second Edition), and again in The Essential Guide to the Use of Land and Buildings under the Planning Acts (in paragraph 17.1 of Chapter 17 - pages 225 – 226).

“Agricultural unit” is not defined in Article 2(1) of the GPDO, but two definitions are found in the Second Schedule.

Paragraph X in Part 3 of the Second Schedule defines an “established agricultural unit" as “agricultural land occupied as a unit for the purposes of agriculture (and which was in use for that purpose on or before the relevant qualifying date under Classes Q, R and S respectively).

In Part 6, “agricultural unit” is defined in paragraph D.1 as “ agricultural land which is occupied as a unit for the purposes of agriculture, including —

(a) any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or

(b) any dwelling on that land occupied by a farmworker

[I explained in the text the limited effect of the inclusion of agricultural dwellings in this definition.]

I made the point that in quite a few cases an agricultural unit may not necessarily be co-extensive with a single planning unit. This is particularly likely to be the case where a large agricultural enterprise is spread over a number of separate parcels of land, possibly over several whole farms. These may potentially form one agricultural unit, but will constitute several separate planning units, especially where parts of the land comprising the agricultural unit are not contiguous. (See, for example, the decision of the Court of Appeal in Fuller v SSE (1988) 56 P. & C. R. 84; [1988] 1 P.L.R. 1.)

I went on to point out that where references are made in Part 3 to an “established agricultural unit”, this term clearly applies to the entirety of the agricultural enterprise, even if it extends over more than one farm. The only exception to this, I suggested, might occur where separate agricultural holdings certificates have been issued by DEFRA (or by their predecessor, MAFF).

The last point might be the key to the question posed by my correspondent (although my remarks do not constitute legal advice). Where the farms not only have separate agricultural holdings certificates, but are also widely separated geographically, it does seem rather unlikely that they could be seen as forming a single agricultural unit.