Monday, 9 July 2018

Further guidance on Class Q


Readers may recall that I drew attention on Tuesday, 3 April (“Class Q revisited”) to changes to Part 3 (Class Q) of the Second Schedule to the GPDO (residential conversion of agricultural buildings) that were made by the latest amendment order, with effect from 6 April 2018.

These changes included the amendment of the definition of development permitted by Class Q which still seem to have passed some people by. The objective of this amendment seems to have been to reinforce those provisions in Class Q that were intended to make it clear that where the residential conversion of an agricultural building involves building operations, the prior approval application must include those building operations.

The drafting of Class Q in the 2015 GPDO differed from the corresponding provisions in Class MB in the 1995 Order, and was obviously intended to make it clear that a prior approval application should embrace both the change of use under Class Q(a) and the building operations under what was then Class Q(b).[

I originally drew attention in a blog post on Tuesday, 21 November 2017 (“Prior approval application under Class Q(a) only”) to a continuing misunderstanding of the 2015 Order that seemed to be widespread, and was even shared by some Planning Inspectors. But quite clearly there was a significant number of readers who were not prepared to accept that applications could no longer be made under Class Q(a) alone, unless no building operations would be required (or, even more unlikely, unless the building operations would fall outside Class Q(b) altogether and would therefore be the subject of a separate planning application).

Since April of this year, there are two alternative prior approval applications – Class Q(a) for change of use only, or Class Q(b) which now embraces both the change of use and associated building operations. Prior approval applications under Class Q should no longer be made under both Class Q(a) and Class Q(b), because this would now involve pointless duplication. Where an application under both Q(a) and Q(b) was required in the past, only a prior approval application under Class Q(b) is now required.

I also explained in my blog post on 3 April the other amendments to Class Q which make it clear that an application under Class Q(b) (but not Q(a)) must be made where building operations relying on permitted development rights will be required. In these circumstances, making an application under Class Q(a) is no longer an option.

This is confirmed by a further revision of Paragraph 105 of the online PPG on 15 June, in light of the changes brought about by the 2018 amendment order in April of this year. The beginning of this paragraph now explains that the permitted development right under Class Q allows either the change of use (a), or the change of use together with reasonably necessary building operations (b) [emphasis supplied].

I won’t re-rehearse the arguments I have put forward earlier in support of my interpretation of the revised wording in Class Q, but it seems that this latest revision to ministerial planning practice guidance does say more or less the same thing.

While we are looking at the PPG, Paragraph 106 (which explains that the PD rights under Class Q are precluded where works to erect, extend or alter a building for the purposes of agriculture under agricultural permitted development rights have been carried out on the established agricultural unit since 20 March 2013) has been corrected by deleting the words: “or the installation of additional or replacement plant or machinery". The intention of the legislation, which paragraph 106 seeks to explain, is to preclude PD under Class Q where permitted development has been carried out since 20 March 2013 under either Class A(a) or Class B(a) in Part 6 of the Second Schedule the GPDO.

The inclusion in previous versions of paragraph 106 of a reference to the installation of additional or replacement plant or machinery was a mistake, because those items fall within the PD allowed by Part 6, Class B(b), which (unlike Classes A(a) and B(a)) is not precluded.

As one reader observed - “and this is meant to represent a simplification of the planning system ?(!!!)

© MARTIN H GOODALL

12 comments:

passerby said...

Looking forward to the Third Edition!

Anonymous said...

Thanks! What I find interesting is the number of planners who insist on the new maximum being 465 sq m. They have also not realised that the new limits also include any new mezzanine levels that you create.

Martin H Goodall LARTPI said...

I am not clear as to whether my anonymous correspondent is suggesting that the floorspace can be larger than 465 sq m, or whether he/she is saying that the 465 sq m limit does include any additional floorspace produced by the insertion of a mezzanine floor. The correct position is the latter, due to paragraph Q.1 (d).

The new provisions work like the old ones - there are two floorspace limits. Under paragraph Q.1 (bb) the cumulative floor space of the existing building or buildings changing use to a larger dwellinghouse or dwellinghouses under Class Q must not exceed 465 square metres, but paragraph Q.1(d) also applies, so that the development under Class Q (together with any previous development under Class Q) within an established agricultural unit must not result in a larger dwellinghouse or dwellinghouses having more than 465 square metres of floor space having a residential use.

In my view, this second limit undoubtedly catches any additional floorspace created by, for example, inserting a mezzanine floor. The effect of these provisions is that the total floorspace of a LARGER dwellinghouse or dwellinghouses on any one established agricultural unit (including additional floorspace created by adding a mezzanine floor or by any similar device within the envelope of the pre-existing building) must not exceed 465 sq m in total.

This does, however, still allow for additional floorspace in the form of SMALLER dwellinghouses and, for the reason I have previously explained in comments on another blog post on this subject on 3 April (Class Q revisited), one LARGER dwellinghouse can be combined with up to four SMALLER dwellinghouses in total, so as to produce a grand total of 865 sq m of residential floorapce within a single agricultural unit. (Other combinations of larger and smaller dwellinghouses are possible, but would produce a smaller cumulative total of residential floorspace.)

Lee said...

Sorry what I meant was...

They all say the maximum under the new revised policy is 465 and not 865

And none of them say that the inclusion of any new mezzanine floors would eat into these figures.

Which is what you say in your kind reply.

Ivan Drago said...

Hi Martin,

Thanks for the update, useful as ever.

Any updates on whether the exclusion of ‘external structural alterations’ in the revised PPG now means both internal and external structural additions are allowable, and LPA’s would rely solely on a consideration of whether the proposal could be described as a ‘conversion’ (Hibbett)?

Thanks

Ivan

Martin H Goodall LARTPI said...

In answer to Ivan Drago – Unfortunately, the latest revision of paragraph 105 in the PPG still does not make it clear precisely where the line is to be drawn between building operations that fall within the scope of Class Q, and those that fall outside it.

What is clear, however, is that MHCLG now accepts that internal works can be carried out, by virtue of section 55(2)(a) of the 1990 Act, and these can include new floors, including mezzanine floor. These works do not in fact form any part of the building operations covered by Class Q(b), because they do not represent development at all (although any extra floorspace created by the addition of a mezzanine will count towards the limitation of the cumulative total floorspace in paragraph Q.1(d)(i)).

The Ministry has also dropped its earlier assertion that it is not the intention of the permitted development right to include the construction of new structural elements of the building [because if these are purely internal they are covered by section 55(2)(a)] and so that they no longer assert that it is only where the existing building is structurally strong enough to take the loading which comes from the external works that the building would be considered to have the permitted development right.

Paragraph 105 still states, however, that 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, 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.

This is derived from the basic principle that the PD right is for the conversion of the building to residential use, and not for its substantial reconstruction. This is the key to the statement that the right assumes that the agricultural building is capable of functioning as a dwelling. As para 105 puts it, 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.

This is the relevance of the Hibbitt judgment, to which the paragraph refers. The judge in that case drew a distinction between “conversion” on the one hand and “rebuilding” on the other.

The problem is that the judgement that has to be made is ‘a matter of fact and degree’, which is entirely dependent on the circumstances of the particular development in question, and there is still a question mark over the extent to which the proposed building operations can be said to be “reasonably necessary necessary for the building to function as a dwelling house”.

Anonymous said...

Just a thought, but I believe it is possible in many instances to convert two houses into one without the need for planning permission. Would it not therefore be allowable to combine two of the smaller 100sqm Class Q coversions into one if needed at some later date or indeeed straight away?

Martin H Goodall LARTPI said...

The short answer to my anonymous correspondent is “No, probably not”.

Amalgamating two or more dwellinghouses used to be thought not to constitute development, but the Richmond case in 2001, followed by the Kensington & Chelsea case in 2016 suggest that the planning impact of such a change would make such an amalgamation a material change of use, which would require planning permission. [See my various blog posts on “Amalgamating two or more dwellings" in 2016 - 2017, where this issue was extensively discussed.]

It seems to me that a similar conclusion might be reached in relation to the amalgamation of two dwellings created by residential conversion of farm buildings under Class Q.

Anonymous said...

Martin
London borough of Bromley have stated at a public enquiry, that the site has to be in existing agriculture use to qualify for PD class Q

Also if the unit has a farm house or another use on it then that is mixed use and again doesn't qualify

Surprising really as Warren farm 15/00472/FLXAG the only class MB/Q that Bromley approved contradicts the above

Martin H Goodall LARTPI said...

I entirely disagree with this assertion on the part of Bromley LBC, and have previously made my view clear in a blog post dated Tuesday, 13 June 2017 under the title “Qualifying use of agricultural building under Class Q”.

As I understand it, this point was baldly asserted by the LPA in a recent appeal, but without any supporting argument to justify their argument. For the reasons explained in my blog post last year, it is clearly nonsense to suggest that the active agricultural use of the building must continue right up to the present.

On the other hand, if there had been a material change of use to another use or to a mixed use combining agricultural use with some other use, then this would disqualify the building from residential conversion under Class Q. This has led some LPAs, in a desperate effort to defeat proposed developments under Class Q, to argue that any other use, no matter how minor, disqualifies the building, on the basis that it must not have been used in any other way whatsoever. This, too, is a nonsense. Minor or casual use (for example for domestic storage) which is de minimis in planning terms, so as not to constitute a material change of use, would not be enough to defeat the PD right, and I am aware of at least one recent appeal decision that confirmed this.

While we are on this topic, I would just mention that, as a ‘non-use’ for planning purposes (see section 55(2)(e)) an agricultural use arguably cannot be ‘abandoned’, although if the building in question were to become totally derelict, and abandoned in the colloquial sense, a question might then arise as to whether it still qualifies, but this remains an open question, which would (as always) depend on its precise facts and the surrounding circumstances, and so would be 'a matter of fact and degree'.

Anonymous said...

Thanks for the useful information Martin.

One question for you regarding 'applying under Class Q (a) only'. Would it be possible to apply under (a) only (to get it in the bank so to speak) and then make a full planning application for any works that are required i.e. a full application rather than an application under Q (b)?

Martin H Goodall LARTPI said...

What my anonymous correspondent suggests might theoretically be possible, but I can foresee that the LPA might in any event wish to be satisfied as to the ‘convertibility’ of the building, even where only a Class Q(a) application is made. I cannot give legal advice in reply to a comment posted here (and so no reliance should be placed on these remarks), but it might be preferable to put in a prior approval application under Class Q(b), with the building operations confined to the minimum that would be necessary to convert the building.

Having obtained this prior approval, one might then make a planning application for building operations that go outside the scope of Class Q. (I have given an example in the Second Edition of A Practical Guide to Permitted Changes of Use of an appeal in Shropshire where the LPA’s refusal of planning permission for the additional development was overturned by the Inspector.) However, it must clearly be understood that a grant of planning permission for the additional development (even on appeal) cannot be guaranteed. Such an application would have to be determined in accordance with the Development Plan. However, what this Shropshire appeal established was that the mere fact that the additional development proposed was not envisaged by Class Q was not in itself a reason for refusal.

In the Shropshire case, the Class Q development was already proceeding, and this seems to have been a factor in the Inspector’s decision. However, it is now well established law that a Class Q PD right (especially where prior approval has been given, although this is not essential if the applicant’s intention to proceed with the development is clear) may well represent a fall-back position against which an application for planning permission can be judged.

It is a moot point as to whether one could rely on the Class Q prior approval for the change of use, so as to confine the planning application to the additional building operations, or whether an application for full planning permission for the entire development should then be made, simply relying on the Class Q prior approval as a fall-back position. Bearing in mind the statutory condition that a development under Part 3 of the Second Schedule to the GPDO must be carried out in accordance with the prior approval (or in accordance with the submitted details where prior approval is waived or where the 56-day rule has operated), I think a full application would probably be necessary.

I do stress, however, that success in adopting this course of action cannot be guaranteed, and expert professional advice on what is actually proposed should be obtained before embarking such a scheme.