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 ?(!!!)



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)?



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”.