Tuesday, 21 September 2021

Daft name competition


And the winner is ……….Mr Alexander de Piffle Johnson of London SW1, who came up with the stunningly daft name of “The Department for Levelling Up, Housing and Communities”. Well done Mr Johnson, a cheque (by way of a generous donation to the Conservative Party) is on its way to you, subject to a little something back in the New Year’s Honours List, please.

When it was called the Department for Communities and Local Government, various people (including those in PINS) used to refer to it as “DeCLoG”, a name I delighted to use in this blog. The new name does not so readily lend itself to being turned into an acronym, although I suppose “DeLUge” might be a possibility? So the previous incumbent, Robert Jenrick can now go around Westminster intoning “Après moi, le DeLUge!

Unhelpful and sarcastic suggestions for other acronyms or epithets would be welcome, provided they are printable.

© MARTIN H GOODALL

Thursday, 16 September 2021

Gove IN ; Jenrick OUT


There is little point in speculating on the reasons for Robert Jenrick’s summary dismissal from the cabinet in yesterday’s cabinet reshuffle, although a certain air of sleaziness (no matter how unfair of unjustified it may have been) seemed to hang around him.

Whether Michael Gove is any more clued up about town and country planning, local government or any of the other subjects for which he will now have ministerial responsibility than any of his recent predecessors is a moot point, but he is certainly the most high profile politician to fill this post for some considerable time. He has always struck me as rather an odd-ball, and his recent rather bizarre behaviour has done nothing to dispel that impression.

Gove does at least have a reputation for being effective in getting things done, although it is difficult to identify any particular achievements that he could claim in his most recent role as Chancellor of the Duchy of Lancaster [Cabinet Office Minister] in which he was supposed to play a co-ordinating role across Whitehall to ensure that Bungling Boris’s will (insofar as it could be ascertained from day to day) was done. He retains responsibility for the government’s “levelling up” agenda, which is still no more than a slogan and a hodge-podge of infrastructure projects that will take several years to come to fruition.

I always thought that adding “Housing” to this ministry’s title, and giving it prominence as the first word in that title was an unwise hostage to fortune. 300,000 homes a year still seems to be an unachievable target. Meanwhile, Gove will have a lot of other problems on his ministerial plate, including what to do about the wildly unpopular planning ‘reforms’ that Bungling Boris has decreed and over which ministers and Tory MPs are still arguing furiously. Then there is the question of how to tackle the cladding scandal after five years of inaction following the disastrous Grenfell Tower fire, among several other political hot potatoes.

The man actually responsible for town and country planning will be one of the Parliamentary Under-Secretaries in MHCLG. There may well be a secondary reshuffle today of junior minsters, and it remains to be seen (at the time of writing) who will end up in that role, as what the press will no doubt refer to as the ‘Housing Minister’ or the ‘Planning Minister’. (The same junior minister usually combines both roles.)

So where to now with town and country planning? Frankly, your guess is as good as mine. Bungling Boris appears to be in a particularly gung-ho mood at the moment, and seems to think he can push whatever he wants through parliament. But I still remain profoundly sceptical of the chances of a Planning Bill being introduced until well into the New Year, and what will emerge still remains extremely uncertain. My prediction is that, if it comes forward at all, its provisions are likely to be considerably watered down compared with what was in last year’s White Paper, and it is very unlikely that it will simplify or speed up the planning system in practice.

© MARTIN H GOODALL

Saturday, 31 July 2021

GPDO tidied up (continued)


In my first post on this topic on 20 July, I confined myself to the changes to Part 3 of the Second Schedule to the GPDO (dealing with permitted changes of use).

The changes to Part 4 (temporary buildings and uses) are mainly cosmetic, but one provision that caught my attention is the deletion from paragraph C.1(e) of the reference to Use Class A4 and the substitution of a reference to Class F.2 (local community use). The first point to note is that the removal from paragraph C.1 of the prohibition of a temporary change of use under Class C from use as a drinking establishment (formerly Class A4) to use as a state-funded school (within Class F.1(a)) does not now allow such a temporary change of use, because use as a drinking establishment is now sui generis, and Class C does not permit a change of use from any sui generis use in any event. On the other hand, a temporary change of use to use as a state-funded school from the new local community use (within Class F.2) is specifically excluded from Class C.

In Part 4, Class CA (provision of temporary school buildings on vacant commercial land), the definition of “vacant commercial land” has been changed. This definition previously referred to land which was last used for a purpose falling within Class B1 (business), Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class D2 (assembly and leisure) . The definition now refers to land which was last used for a purpose falling within Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class E (commercial, business and service).

Class D in Part 4 (temporary use of various business premises) is amended, so that the change of use that it now permits is from use as a betting office, a pay day loan shop or hot food takeaway, or from Class E (commercial, business and service) to a flexible use falling within Class E (commercial, business and service), Class F.1(b) (display of art), Class F.1(c) (museum), Class F.1(d) (public library or public reading room) or Class F.1(e) (public hall or exhibition hall).

An additional temporary PD right was introduced in Part 4 during the current covid crisis. This is Class DA (permitting restaurants etc. temporarily to provide takeaway food). As now amended, this permits development consisting of a change of use of a building and any land within its curtilage from use as a drinking establishment, or as a drinking establishment with expanded food provision, or Class E(b) (sale of food and drink mostly for consumption on the premises) or from a mixed use as a drinking establishment and as a café or restaurant, to a use, up to and including 23 March 2022, for the provision of takeaway food. [As I have previously pointed out, a condition in a planning permission that prohibits hot food take-aways still prevents the temporary change of use permitted by Class DA, due to the effect of Article 3(4) of the GPDO.]

One of my complaints when changes were previously made to the GPDO (particularly in 2015) was that there were inadequate transitional and saving provisions. This time, that previous omission has been repaired.

The first transitional provision relates to changes of use which no longer constitute development. Where a change of use of a building or land was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition requiring a prior approval application but, with effect from 1 August 2021, no longer constitutes development because the change is between uses that both now fall within Class E in the UCO, the change of use may proceed notwithstanding any undetermined prior approval application or related appeal proceedings. [In fact, irrespective of this provision, such a change of use can now be made even if there was a previous refusal of prior approval and even if an appeal against the refusal of prior approval was dismissed, because it is simply not development now, by virtue of section 55(2(f). But before anyone gets too excited about this, just remember that the existing use and the new use must both now be within one and the same use class, failing which section 55(2)(f) has no application.]

There is then a transitional provision for development no longer subject to a condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) without being subject to a condition that is the same, or substantially the same, as the previous condition, the development may proceed notwithstanding any non-compliance with the previous condition (but the development must comply with any other condition imposed by the new provision).

Next, we come to a transitional provision for development subject to a new condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) which imposes a new condition which is not the same, or substantially the same, as a condition which applied under the previous provision, then if it began, or a prior approval application was made, before 1st August 2021, the development may proceed irrespective of whether the new condition has been complied with (but the development must comply with any other condition imposed by the previous provision).

Finally, there is a transitional and saving provision for development which is no longer permitted by the GPDO. This applies to development (“protected development”) which was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) but is no longer permitted by the GPDO on or after 1st August 2021, provided that the land or building was in use immediately before 1st August 2021 for a purpose which qualified it for PD under the previous provision. In this case, the GPDO has effect in relation to such protected development up to and including 31 July 2022 as if the amendments made with effect from 1 August 2021 had not been made. This saving extends beyond 31 July 2022 in relation to the processing and determination of any prior approval application made in respect of such protected development on or before 31 July 2022, and also the determination of any appeal proceedings related to such a prior approval application. In the same way, this saving provision applies to the completion of such protected development which began, or in respect of which a prior approval application was made, on or before 31 July 2022, as if the amendments the GPDO that took effect on 1 August 2021 had not been made.

Where this saving provision applies, a reference in the GPDO to a use or use class specified in the Use Classes Order is a reference to the previous version UCO before the 2020 changes to the use classes in that Order. However, where the protected development consists of a change of use of a building under paragraph I(a) of Class I (industrial and general business conversions) in Part 3, as it applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (g) (business uses) of Use Class E (commercial, business and service), the building must not, in the absence of further planning permission, be used for any other purpose within Class E.

Furthermore, where the protected development consists of a change of use of a building under Class S (agricultural buildings to state-funded school or registered nursery) or T (business, hotels etc to state-funded schools or registered nursery) in Part 3, as they applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (f) (registered nurseries etc) of Use Class E, the building must not, in the absence of further planning permission, be used for any other purpose within Class E (including another purpose within Class E(f)).

© MARTIN H GOODALL

Tuesday, 20 July 2021

GPDO tidied up


We have known throughout the past year that the GPDO was going to have to be amended to bring it into line with the changes to the UCO that took effect last September. Transitional provisions saved references in the GPDO to the pre-September Use Classes for the purposes of permitted development. However, these transitional provisions expire at the end of this month, and so it was essential for the government to make appropriate amendments to the GPDO to bring it into line to the revised version of the UCO. This has now been done in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 [SI 2021 No.814], which was made on 7 July, laid before parliament on the 9th and will come into force on 1 August.

The new order makes amendments to the provisions of Parts 1, 3, 4, 7, 8, 11 and 20 of the Second Schedule to the GPDO but, for the moment, I shall confine myself to the changes made to Part 3, dealing with permitted changes of use.

Class A, in its original form permitted a change of use from A3, A4 or A5 to A1 or A2. The right to make this change of use from A4 was later removed. As now amended, Class A will in future permit a change of use from a casino, betting office, pay day loan shop or hot food takeaway to a use falling within Class E (commercial, business and service use), but will still not permit a change of use from a public house, wine bar or drinking establishment. [Change of use from a café or restaurant to some other commercial, business and service use no longer needs its own PD right, because it is no longer development at all.] The PD right under Class A is subject to the condition that, before beginning the development, the developer must notify the LPA in writing of the date on which the use of the building will change. No prior approval application is required.

Class AA, as now re-drafted, will permit a change of use from public house, wine bar or drinking establishment to the same use with expanded food provision and it will also permit the converse change.

Classes B, C, D, E and F are now formally removed from Part 3 (as they have now been rendered redundant).

Class G is amended to reflect last year’s changes to the UCO. It will now permit change of use from a use within Class E to a mixed use for any purpose within that Class and as up to two flats. This Class will also permit a change of use from a betting office or pay day loan shop to a mixed use for any purpose within Class E and as up to two flats.

There is now an added requirement in Class G, before beginning development, to apply for prior approval as to:
- contamination risks in relation to the building,
- flooding risks in relation to the building,
- impacts of noise from commercial premises on the intended occupiers of the development,
- the provision of adequate natural light in all habitable rooms of the dwellinghouses, and
- arrangements required for the storage and management of domestic waste.

Class H is similarly amended to reflect the change to the UCO. It will now permit a change of use from a mixed use for any purpose within Class E and as up to two flats, to a use for any purpose within that Class, and also a change of use from a mixed use comprising a betting office or pay day loan shop and as up to two flats to use for any purpose within Class E. The exclusion in paragraph H.1 is also re-worded to bring it into line with the revised wording of the UCO.

Class I formerly permitted changes of use from B2 or B8 to B1, or from B1 or B2 to B8 (subject to certain floorspace limits). As re-redrafted, it will be limited to the change of use of a building from any use falling within Class B2 to a use within Class B8, subject to a 500 sq m floorspace limit.

Classes J, JA and K are now removed from Part 3.

Class L, which permits a change of use from C3 to C4 and vice versa, remains unchanged.

Class M has been largely replaced by Class MA, but has been retained to deal with certain residential conversions that are not covered by Class MA. As revised, Class M will now permit the residential conversion of a launderette, betting office, pay day loan shop or hot food takeaway, and also the residential conversion of a building in a mixed use combining use as a dwellinghouse with use as a launderette, betting office or pay day loan shop (whether that use was granted permission under Class G or otherwise). Class M(a) permits only a change of use, but Class M(b) permits both the change of use itself and also building operations reasonably necessary to convert the building for residential use. This reflects the current position.

The matters requiring prior approval under Class M previously included the ‘retail impact’ of the proposed residential conversion of the building. No corresponding provision was included in the new Class MA. Thus, (as previously note in relation to Class MA), any general retail impact is no longer a matter with which the LPA can concern itself. Even the impact on the sustainability of a key shopping area is no longer relevant. With one exception, the issue of retail impact has now been similarly removed from Class M, so that it now applies only to the impact on the adequate provision of services of the sort that may be provided by a launderette (but only where there is a reasonable prospect of the building being used to provide such services).

The new Class MA, has been amended even before it had come into force. This change comprises the introduction of a requirement for fire risk assessment to be taken into account in some circumstances. In any such cases, the LPA must approve the fire safety impacts on the intended occupants of the building. (This provision is really too complicated to explain in detail here.) Where the application relates to prior approval as to fire safety impacts, on receipt of the application, the local planning authority must consult the Health and Safety Executive.

Also in Class MA, approval of highways impacts of the development must include particularly the need to ensure safe site access.

Class N is unaffected by the changes to Class 3, rare though residential conversions under this Class may be in practice.

Class O will be replaced with effect from 1 August by Class MA, but the previous amendment regulations provided that any prior approval application under Class O can be made up to 31 July 2021, and Class O will continue to operate after that date where a prior approval application had been made by that deadline. To that extent, Class O remains for the time being in Part 3, but will die a lingering death as Class O applications in the pipeline on 1 August slowly work their way through the system and are subsequently implemented, rather in the same way as the former Class P and Class PA (although the latter has in effect been revived by the introduction of Class MA).

As noted previously, Classes P and PA are now effectively redundant, except as regards the implementation of prior approvals granted under those two Classes. I note that even now there are a few late appeals under these provisions working their way through the system.

Everyone will no doubt breathe a great sigh of relief that no further amendments have been made to Class Q.

As redrafted, Class R will now permit development consisting of a change of use of an agricultural building to a flexible use falling within one or other of Classes B8, C1 or E.

Class S, will no longer permit change of use to use as a registered nursery. So, in future, this Class will permit a change of use only to a state-funded school. The scope of Class T will be similarly limited from now on. The uses from which a change of use can now be made under Class T will be C1, C2, C2A and E.

Similar changes are made to Part 4 (temporary changes of use), but I was rapidly losing the will to live by the time I got to this part of the amendment order, so I’ll leave it there for now.

I should just mention finally that there are transitional and savings provisions that are set out in the Schedule to the amendment order, which preserve for a time the effect of certain PD rights that have now been removed from the GPDO and which provide for the transition between the old and new rules. I will return to these in a later post.

© MARTIN H GOODALL

Thursday, 24 June 2021

Can actual qualification as PD be determined in the context of a prior approval application?


On 29 March, in a blog post on the scope of a prior approval application, I drew attention to a case that was then pending in the High Court which raised this issue of whether LPAs have the power when considering a prior approval application to determine whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. At the time, I did not know the subject matter of the dispute in that case, nor did I know under what Part or Class in the Second Schedule to the GPDO the proposed development was alleged to fall, but I was hoping that the High Court judgment in this case might perhaps help to remove the remaining uncertainty that I had identified with regard to prior approval applications under Part 3, one way or the other.

Unfortunately, my hopes were not to be realised, as it turns out that this case R (Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) was yet another case on agricultural PD under Part 6, so it doesn’t shed any further light on the treatment of prior approval applications under Part 3 (in respect of which the legislative rules differ slightly from those applying to Part 6). It is nevertheless an important judgment for two reasons.

On one reading of the Court of Appeal’s judgment in Keenan v Woking BC, it is possible to conclude that under the terms of Part 6, the LPA does not have the power to determine whether or not a proposed development under that part of Schedule 2 does or does not qualify as permitted development, and the Court of Appeal had stressed that this is so, despite the fact that the guidance in paragraph E14 of Annex E to former PPG7 might have been read as encouraging it to do so. Clearly, however, Keenan is capable of being distinguished, as it has been in Smolas.

The argument in Keenan had been that, as a result of the LPA’s having ignored a Part 6 prior approval application, the applicant had been entitled to proceed with his development in default (under the ’28-day’ rule). This argument was rejected both at first instance and in the Court of Appeal. Keenan ruled conclusively that if a development simply does not qualify as PD in any event, what (if anything) the LPA does in response to a prior approval application in respect of that application cannot make the development lawful. The failure or refusal of the LPA in such circumstances to respond to the prior approval application cannot give rise to a right to proceed with the development in default. The ’28-day rule’ does not come into operation in these circumstances.

What is clear from the judgment in Smolas is that if the LPA concludes that the proposed development does not qualify as PD, it is perfectly entitled to give that as a reason for refusing prior approval. The LPA was not exceeding their powers in dealing with the matter in that way. To that extent the decision in Keenan has been distinguished. In this case, the Council had issued a decision notice that simply stated that Planning Permission would be required for this development because they were not satisfied that the development was reasonably necessary for agriculture on that planning unit. This, the court held, was perfectly lawful. I am bound to say that this appears to me to be an eminently sensible conclusion.

The judgment in Smolas also resolves another issue that has been the subject of debate for some time. Is it lawful for an LPA to determine that their prior approval under Part 6 will be required and to grant or refuse such prior approval at one and the same time? The argument that has sometimes been put forward is that the LPA, having determined that their prior approval will be required should then give the applicant the opportunity to put forward further information in support of their proposed development (in the case of Part 6, as to the siting and design of the development). The counter-argument to this is that if the LPA considers that the application before them already gives them sufficient information to determine the siting/design issue, then they are not obliged to go through any additional procedure, but can decide whether or not to grant prior approval on the basis of the material already before them. The judgment in Smolas confirms that the latter approach is perfectly proper.

In normal circumstances, the appropriate remedy for a developer refused prior approval in this way would be to appeal against that refusal under section 78 of the 1990 Act. In the case of Smolas, however, the court accepted that the argument as to whether or not this was within the LPA’s powers made it necessary for the matter to be pursued by way of an application in the High Court for judicial review under CPR Part 54. However, in the vast majority of cases, an appeal under section 78 would be the only appropriate remedy.

© MARTIN H GOODALL

Friday, 4 June 2021

Planning radicalised – or a ‘damp squib’?


Last year, the government published a controversial and much criticised White Paper on some wide-ranging planning ‘reforms’, which canvassed radical proposals for shaking up the English planning system. There was another fanfare (with the accompanying ballyhoo in the press) when, on the day before the Queen’s Speech last month, the Prime Minister announced with his usual hyperbole that the government was definitely going ahead with these revolutionary changes. The Queen’s Speech duly contained the announcement of a Planning Bill to put these proposals into legislative form.

After that, however, it quickly became clear that the government is in fact nowhere near ready to go ahead with the promised Bill. It emerged in the weeks that followed that as a result of strenuous opposition within Tory ranks, the government is far less determined to press ahead with their planning proposals than the PM made out. Considerable alarm was caused among party loyalists early in May by the loss of control of several councils in the south of the country, as a result of growing public opposition to the perceived threat of development in traditionally Tory-held areas.

For many years, there has been unresolved tension inside the Tory party between the gung-ho free marketeers on the one hand and a more conservationist faction (NIMBYs, if you like) on the other hand. The latter clearly had the upper hand when the Conservatives got back into government in 2010, having campaigned on a policy of ‘localism’, and promising electors that in future they would have local control over development in their area. Eric Pickles, as Secretary of State for Communities and Local Government, immediately set about putting this localism agenda into action, with the abolition of government-imposed Regional Spatial Strategies and the introduction of locally formulated Neighbourhood Plans.

Those of us who had been professionally involved in planning and development for many years did not believe that this new approach could be maintained and, as we expected, ‘localism’ was gradually watered down until, with the publication of last year’s White Paper, it seemed that the last vestiges of ‘localism’ were to be swept away, to be replaced by a radically overhauled planning system which would put an end to local residents’ ability to query and oppose unwanted development in their area. Unsurprisingly, this led to considerable push-back at a local level from Tory councillors and local party members, which in turn led to increasing pressure on backbench MPs to resist these proposals.

The government’s initial reaction was a robust reaffirmation of their determination to push ahead with their proposals, as evidenced by the PM’s statement on the eve of this years’ Queen’s Speech. Then Robert Jenrick (the current Secretary of State) was sent out to ‘reassure’ Tory backbenchers that it wasn’t going to be as bad as all that. This, however, has clearly failed to quell the disquiet in Tory ranks, which has only intensified in light of last month’s worrying local election results. As a result, there have been increasing hints that the government itself is now rowing back from its earlier gung-ho approach to their proposed planning ‘reforms’.

It would not be altogether surprising if the promised Planning Bill does not in fact come forward in the current parliamentary session, despite its announcement in the Queen’s Speech, or if it does that it may be delayed until later in the session. Any expectation, raised by the PM’s pre-Queen’s Speech announcement, that the promised Planning Bill would be introduced almost immediately was clearly misleading. At present, it is not even possible to predict which proposals from last year’s White paper will in fact survive to be included in the Bill. There is now a widespread expectation, even among government supporters, that what may emerge is likely to be a considerably watered-down version compared with the government’s original proposals, which will be much less radical in its effect than the government had hoped.

Even if we set aside speculation about the timing and contents of the Planning Bill, long experience has taught me that it is unwise to get too excited about parliamentary bills when they are first introduced. They usually look very different by the time they get to Royal Assent, mainly due to the government having second and third thoughts as the Bill goes through parliament. Opposition amendments are usually voted down (especially when the government has an 80-seat majority), although in this case, threatened backbench revolts on the government side over the Bill’s contents may persuade the government to back down on some clauses in the Bill if these still prove to be unacceptable to a significant number of their own backbenchers.

So I am prepared to predict that the resulting Planning Act, when it eventually reaches the statute book, is unlikely to work in the way the Prime Minister suggested ahead of the Queen’s Speech. It may become easier to gain planning permission for housing development; but this isn’t guaranteed, and many of the delays and expensive procedural hurdles for developers may continue to hamper the actual delivery of new housing. So my overall conclusion is that those of us in the planning and development sector will just have to “Wait and see”.

UPDATE (21.6.21) : Following the shock result of the Chesham and Amersham byelection last week, it comes as no surprise that backbench Tory MPs are getting even more jumpy about the government's proposed planning 'reforms'. There will clearly be intensified pressure on the government to row back from its more radical proposals, if not to drop them altogether. It seems that ministers are still trying to bluff and bluster their way through this 'noise', but at the very least I would expect some substantial further delay in the introduction of the promised Planning Bill while ministers decide how far they might be able to go in implementing their original proposals. A complete U-turn on the part of the government cannot be ruled out, so don't be surprised if we don't even see the Planning Bill introduced this year.

© MARTIN H GOODALL

Thursday, 27 May 2021

Partial demolition in advance of permitted development


In paragraph 9.4.3 of Chapter 9 in the Third Edition of A Practical Guide to Permitted Changes of Use, I discussed works carried out to an agricultural building in advance of its residential conversion (and in advance of a prior approval application being made under Class Q of Part 3). However, I did not deal in that chapter with the question of partial demolition of the building in advance of such conversion.

The position regarding the entire demolition of a nearby or adjoining building that is physically separate from the subject building is straightforward. In many cases, such demolition will be permitted development under Class B of Part 11 (subject to compliance with the terms set out in Part 11).

However, the position in respect of the demolition of a complete building is wholly different from that applying to the partial demolition (or the demolition of part only) of a building. Although Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168 related to a listed building (and specifically to the provisions of the ‘Listed Buildings Act’ of 1990), the judgment of the House of Lords in that case dealt with the issue of whether the definition of ‘demolition’ includes the demolition of part only of a building, or whether such partial demolition is in fact to be treated as an ‘alteration’.

This point was discussed in the speech of Lord Hope, where he observed on page 183: “According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. I agree therefore with Millett L.J. [1995] 1 E.G.L.R. 167, 169, when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone.” Conversely, therefore, partial demolition (or demolition of part only) of a building amounts to an alteration, rather than ‘demolition’.

The Town and Country Planning (Demolition - Description of Buildings) Direction 2021 (which, by virtue of section 55(2)(g), exempts from the definition of “development” in section 55 the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities) makes it clear that the reference to “building” in that direction does not include part of a building. Furthermore, although Class B in Part 11 of the Second Schedule to the GPDO permits “any building operation consisting of the demolition of a building” subject to certain restrictions and also a requirement for a prior approval application to ascertain whether the approval of the LPA is required as to the method of demolition and any proposed restoration of the site (in addition to certain other requirements), Article 2 of the GPDO provides that, in this Order, “building” includes any part of a building, except [inter alia] in Class B of Part 11. So this permitted development right does not extend to partial demolition (or the demolition of part only) of a building.

Demolition of an entire building can clearly be carried out as permitted development under Class B of Part 11, but partial demolition needs planning permission, but if it is an agricultural building, such partial demolition might possibly be permitted development under Part 6, either within Class A(a) [the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of works for the erection, extension or alteration of a building] or Class B(a) [the carrying out on agricultural land comprised in an agricultural unit, of not less than 0.4 but less than 5 hectares in area, of development consisting of the extension or alteration of an agricultural building], but only where the development is reasonably necessary for the purposes of agriculture within the unit, and subject to a prior approval application being made.

The problem here is that paragraph Q.1(f) specifically rules out permitted development under Class Q of Part 3 if development has been carried out anywhere on the established agricultural unit since 20 March 2013 under Part 6, Classes A(a) or B(a) (or, where the development under Class Q begins after 20 March 2023, within 10 years before the date when development under Class Q begins). So the only partial demolition of the building that could be carried out without jeopardising the PD right under Class Q would be the demolition of internal partitions or other internal features which (provided that any such works affect only the interior of the building or do not materially affect the exterior appearance of the building) would be exempt from the definition of ‘development’ by virtue of section 55(2)(a) of the 1990 Act.

Partial demolition of an agricultural building will only be permitted development under Part 6 if it has been the subject of a prior approval application (and if it meets the agricultural need test). However, partial demolition of an agricultural building without planning permission (whether under Part III of the 1990 Act or under Article 3 and the Second Schedule of the GPDO) would be unlawful. Article 3(5) of the GPDO provides that the permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful. It might conceivably be argued that any unlawful partial demolition of the agricultural building could not have amounted to “building operations involved in the construction of that building”, but this would still appear to me to be problematic. It might, for instance, be argued against this that the building in its current (partially demolished) form results from building works to produce the building in that altered form, and that such building operations were therefore “involved in the construction” of the building to arrive at that altered form.

So the conclusion must be that partial demolition of an agricultural building in advance of its residential conversion without the risk of jeopardising the permitted development right under Class Q of Part 3 can only safely be undertaken under the terms of a planning permission granted under Part III of the 1990 Act. There should be no need in making such a planning application to demonstrate any agricultural or other need for such partial demolition, and there should in most cases be no planning objection to such partial demolition (assuming that the building is not a heritage asset, either designated or undesignated).

It is clear, despite the views expressed by some planning officers, that when a prior approval application under Class Q is submitted, the physical form and condition of the building must be considered as at that date. Where there has been any alteration to the building before the submission of the prior approval application, such as structural strengthening or partial demolition within the building, this will be immaterial if, by virtue of section 55(2)(a), it did not constitute development. Where that alteration (or those alterations) did amount to development under section 55, then it would fall to be considered in the manner outlined above. The point is that any such previous alterations cannot be taken into account by reference to paragraph Q.1(i) (because they do not form part of the development in relation to which the prior approval application is made); they will only be relevant to the question of possible disqualification under Article 3(5) or under paragraph Q.1(f).

Just to ensure that no-one is under any misapprehension, entire demoiltion of the subject building would result in the complete loss of permitted development rights, which can only subsist in respect of an extant building. If the building ceases to exist (for whatever reason), all existing use rights are lost, as is any permitted development right that might otherwsie have attached to that building.

© MARTIN H GOODALL