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

61 comments:

  1. William Ashley5 April 2018 at 11:45

    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

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  2. 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.

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

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

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  5. William Ashley5 April 2018 at 12:58

    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

    ReplyDelete
  6. 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

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  7. 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).

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  8. 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

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  9. 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.

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  10. Thank you Martin I will check into this in more detail

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  11. 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

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  12. 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?

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  13. 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.

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  14. [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.

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  15. 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!

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  16. 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

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  17. 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.

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  18. Hello
    Only just getting into looking into permitted development - a whole new world out there. We have a 560m2 barn we would like to convert into three or five properties - I am unclear as to whether we could use the whole barn or only 450m2 and then just leave the extra bit as storage? How exactly do you start the whole process, is it best to go to land agent or planning consultant or even architect for advice to start with? Is there a time limit on this PD, I thought I read somewhere it is until June 2019? Also what exactly is the 3 year rule - is that just it has to be completed within 3 years? Sorry so many questions. It is a barn on a 30 acre field.
    Advice very welcome. Thanks Nicky

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  19. Nicky M(30 July) will find the answers to all these questions in the Second Edition of A Practical Guide to Permitted Changes of Use, which can be purchased by clicking on the link in the left-hand margin of the main page. However, bearing in mind that this was published in October 2016, there are some subsequent changes that should be noted, particularly regarding numbers and floorspace limits, to which I have drawn attention in this blog.

    Part only of an agricultural building can, in principle, be converted up to the maximum limit under Class Q, but in such cases questions of noise or contamination often arise, and this has led to a refusal of prior approval in some cases.

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  20. Hi Martin, I have a barn on the land which collapsed under the weight of snow we had twice in March!! Under the old rules I took it that the barn had to be able to sustain its own weight and any works had to be more internal and not structural. Do the relaxed rules allow for works to be done reinstating the structure which has collapsed, seeing as the barn was built back in 1990? Would the fact that the structure was there that long count as a rebuild or a conversion?
    Hope the questions are not to vague!!
    Regards
    S.C

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  21. I have some bad news for S.C. (3 September). The destruction of the building, whether accidental or otherwise, puts an end to any existing use rights and prevents the implementation of any extant planning permission for its conversion to any other use, including any PD right under Class Q.

    The authority for this is Iddenden v SSE [1972] 1 W.L.R. 1433; (1973) 26 P. & C. R. 553. This rule has been applied in a number of barn conversion cases, where planning permission for the residential conversion of the barn took the form of permission for change of use, but was held to be lost upon the complete demolition or destruction of the pre-existing building. (See Hadfield v SSE [1996] E.G.C.S 114.) Where the building is wholly or substantially destroyed, there is no implied permission to rebuild if necessary. (See the judgment of the Court of Appeal in North Norfolk DC v Long (1983) 267 E.G. 251; [1984] J.P.L. 45, which confirmed that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission.) The GPDO in fact specifically precludes reconstruction.

    [See A Practical Guide to Permitted Changes of Use, paragraph A.2 in Appendix A (on page 252 in the Second Edition).]

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  22. Hi Martin,
    Great blog. I would be interested to hear what you think constitutes 'completed' under Class Q? Does it have to be 100% complete within 3 years as per the submitted plans or do the same tests apply as with establishing the 4 year rule in terms of the work being substantially complete. i.e works sufficiently adequate for a change of use to have taken place? Also would it matter if the works carried our where slightly different from the submitted plans even if the works were still compliant with Class Q?

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  23. In answer to James Trewin’s query, the development in question is a change of use (although it often also involves building operations), and so it is only when the change of use takes place that the development is ‘completed’ for the purposes of Class Q. Actual residential occupation is not necessarily required, provided that the position has been reached when the property is ready for immediate occupation.

    James and other readers will find all the details, and answers to many other questions, in A Practical Guide to Permitted Changes of Use, which can be purchase by clicking on the link in the left-hand margin of the main page.

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  24. I have received a comment from ‘Sarah’ which is too long to publish here, but the gist of it was that the building in question had been in agricultural use for over 15 years (up to January 2012) and has not been used for any other purpose since then. (There is an issue with a preclusive condition that may or may not prevent residential conversion, but this was not the point that Sarah was querying.)

    It seems that a planning consultant has advised that the barn must have been in agricultural use up to and including March 2013. With respect to the consultant, this is plainly wrong. The wording of Class Q clearly envisages that the agricultural use may have ceased before March 2013, but in that case there must not have been a change of use of the building to any other use since the date when the agricultural use ceased.

    I have noted before that to disqualify the building from residential conversion under Class Q, any subsequent use must have amounted to a material change of use. Limited or casual use falling short of a material change of use would be regarded as de minimis and would not disqualify the building under Class Q.

    Another canard on which I have also commented more than once is the suggestion on the part of certain LPAs that, in order to qualify under Class Q, the agricultural use must have been continuous right up to the present day. This proposition was even advanced by counsel in a recent planning appeal! There is absolutely nothing in the wording of Class Q that could possibly justify such an interpretation of the legislation.

    It amazes me that more than four years after the GPDO was amended to permit the residential conversion of agricultural buildings, there is still so such widespread misunderstanding of the rules governing such development. It isn’t difficult or complicated, and there really is no excuse for getting it wrong.

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  25. Hi Martin thank you very much for clarifying agricultural use definition.
    I should also add that the planning consultant company claim to be experts
    in gaining Permitted Development!! They rank high in the search engine results.
    Here is the response email:

    Hello Sarah, the building must have been solely in agricultural use on 20 March 2013. That is one of the most basic stipulations in this kind of application. Sorry.

    Thought you would be amazed to see this!!

    Kind regards
    Sarah

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  26. Martin - apologies if this is not the correct place to post this comment. My query relates to Class R (and not Class Q) but I couldn't find a more suitable place for the comment. I was wondering if you have come across any interpretation issues with the wording of Class R.3?

    From what I can see this is generally (in fact, exclusively as far as I'm aware) interpreted as meaning that where the floorspace of the agricultural building that is proposed to have its use changed under class R would not exceed 150sqm then a simple notification procedure is required, but where it would exceed 150sqm then the prior approval process is required. Both are subject to the overall 500sqm limit in R.1(b).

    However class R.3 itself does not appear to support that interpretation in the language it uses. It states that where the cumulative floorspace of the building or buildings which HAVE CHANGED USE (past tense) under class R exceed these limits then the relevant procedure should be followed.

    In a situation where no previous class R changes of use have been carried out on the agricultural unit in question is it not the case, then, that neither the notification procedure nor the prior approval procedure need be followed and, provided that the other limitations of class R are met then the change of use would simply be permitted development? Or have I missed something obvious which clarifies this?

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  27. If Jerry Davies has a copy of my book, A Practical Guide to Permitted Changes of Use, he will find that I have discussed the effect of the use of the past tense (“which have changed use under Class R”) in paragraph 12.2.5 of Chapter 12 (on page 136 in the Second Edition).

    My discussion of this point was confined, however, to the interpretation and application of the cumulative floorspace limits. I did not explicitly consider what effect the use of the past tense in paragraph R.3(1) might have on the requirement either to notify the LPA of the proposed change of use or to make a prior approval application. Jerry has therefore put his finger on a further anomaly that arises from this drafting.

    This is not the only query relating to Class R that has crossed my desk today. One of my colleagues in Keystone Law’s planning law team has drawn my attention to another interpretational difficulty in paragraph R.3. He noted that the LPA needs to be told of the use that is proposed where the floorspace involved does not exceed 150 sq m, but pointed out that the requirement to make a prior approval application does not appear to require that the proposed use should be specified in the prior approval application.

    My answer to Jerry Davies is therefore broadly the same as my conclusion on page 136 of the book, where I observed that the potentially unlimited floorspace that could be converted if a strictly literal interpretation of the legislative wording were to be adopted cannot have been what was intended, and it seems extremely unlikely that this interpretation would be accepted by local planning authorities, or by planning inspectors or the courts. Similarly, I do not believe that one could get away with making change of use under Class R without either notifying the LPA or making a prior approval application (depending on the cumulative floorspace involved).

    In the same way, my reply to my colleague was that where legislative drafting is ambiguous or unclear, both planning inspectors and the courts will often be prepared to read into the legislation an interpretation that gives effect to the apparent or intended effect of the legislation. They tend to give short shrift to legalistic objections based on the absence of explicit wording. I pointed out that in those cases where prior approval is required, the provisions of paragraph W have to be complied with. Paragraph W.(2) requires that the application must be accompanied by a written description of the proposed development. I think it may be argued (and an LPA would probably take this point) that, bearing in mind that Class R only permits a change of use to one of the listed uses at any one time, the written description of the development must necessarily specify the initial use that is proposed. One also has to bear in mind that any subsequent change of use to one of the other permitted uses must be notified to the LPA, which lends weight to this argument.

    So I am reasonably confident that it must be assumed that the initial use that is proposed must be stated in the prior approval application. It would be inadvisable, in my view, to omit or refuse to state the initial proposed use when making a prior approval application under Class R.

    I do nevertheless agree both with Jerry Davies and with my colleague that it would have been preferable if the drafting of paragraph R.3 had been more precise, so as to avoid the ambiguities and anomalies that have been identified. Unfortunately, this far from being the only place in the GPDO where ambiguities, infelicities and lacunae that are to be found.

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  28. Thanks for the response, Martin. I agree that the intention of the drafting was probably not to allow the first change of use under R.3 to be exempt from the notification procedures, but it is a curious use of tense nonetheless. As you say, there are so many of these in the GPDO. It would useful to everyone if a fuller explanation of the intentions of such important documents was issued alongside them, but that's probably too much to hope for. I'm now off to buy a copy of your book!

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  29. Dear Martin.
    Your Blog and others comments are very interesting and informative.
    The problem I have encountered is this.
    It is taken from a recent email to myself form the planning officer dealing with my application:

    You will understand that Planning is policy led. In this instance, the submission is a ‘Q’ Class application for conversion of agricultural buildings to residential use.

    The requirement is that the site is agricultural, or was agricultural on the dates required to comply with the General Permitted Development Order 2015, (GPDO), Class 3, Schedule 2, Class Q.1 (a).
    ‘Q.1 Development is not permitted by Class Q if –
    (a) The site was not used solely for an agricultural use as part of an established agricultural unit –
    (i) On 20th March 2013, or
    (ii) In the case of a building which was in use before that date but was not in use on that date, when it was last in use, or
    (iii) In the case of a site which was brought into use after 20th March 2013, for a period of at least 10 years before the date development under ‘Q’ class begins’

    In addition, I note that the Certificate of Lawful Use granted in 2016, confirmed that the site was not in agricultural use for the 10 years prior to the date of the application..

    It is required that the site subject to this application was in agricultural use as part of an established agricultural unit, on the dates noted. There is no evidence on file to substantiate this requirement.

    The 2016 CLES submission by the applicant, states that the applicants were not employed in agriculture at that date and for the previous 10 years.

    The application does not therefore comply with the requirements of Class Q of the GPDO.

    Is there anything that can be done to alter this ten year cut off period which is stopping a lot of people with a certificate of lawful use, developing the redundant buildings on their sites into much needed housing for their family members.
    Kind regards
    Frederick.T.Smith

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  30. To deal with Frederick Smith's query of 18 September, if it is felt that the LPA has got it wrong, one should appeal against the refusal of prior approval, under section 78 of the 1990 Act (with proper professional advice and support). You have six months in which to do so after the refusal was notified.

    The planning officer in this case seems to have become confused over the wording of Class Q. All that is required is that the building must have been in use either on 20 March 2013 or at some date before that, and that there should not have been a material change of use of the building to some other use after it ceased to be in agricultural use. The requirement for 10 years' use only arises where the agricultural use started after 20 March 2013.

    There is no need for anyone to prove that they gained their main income from that agricultural use. All that is necessary is to show that the use of the building was for the purposes of an agricultural business carried on on that agricultural unit.

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  31. I am trying to assist a farming neighbour who obtained a grant of prior approval for proposed change of use from barn to class C3 residential on the 10th June 2016. He has done little work but did serve a commencement notice on the LA. I have pointed out to him that the consent is dependant on completion of works and the change of use by next June, due to Family illness this is now unlikely to happen. The LPA are saying that as the works were started a new application under GPD order 2015 is now not an option but a full planning application will be required to finish off the works which may or may not be granted. Are there any other options?

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  32. In answer to my unknown correspondent of 9 October, it seems clear that if the building has not been occupied by the expiry of the 3-year time limit or, at the very least, is not ready for immediate residential occupation by that date, the development will no longer be permitted development, notwithstanding the LPA’s prior approval in respect of the change of use and the commencement of the conversion works before that date. The residential conversion of the building would then require full planning permission, but if those works are reasonably near completion by that time, I have previously expressed the view that there would seem to be little excuse for an LPA to refuse planning permission in such circumstances.

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  33. Hi Martin very interesting thanks.

    I ended up here because I am interested in an agricultural building that currently is for sale and already has approval for change of use under Class Q Class C3 to a domestic single dwelling.

    It’s a modern building, steel framed with corrugated metal sides and a corrugated fibre cement roof. The architect who has submitted the plans on his drawings has left the walls and roof in its existing form

    Below are cut a and pastes from the officers report on the approval, the first 2 points where she has obviously cut and paste from the act document, the 3rd being her summary

    i) there is no suggestion that the development would consist of building operations other than - windows, doors, roofs or exterior walls, water, drainage, electricity gas or other services to the extent necessary for the building to function as a dwellinghouse

    (i)(ii) the development would not require the substantial rather than partial demolition necessary to carry out the building operations.

    LPA Summary
    The building is not overly prominent from any public vantage points and the massing and form of the building will be retained. The resulting building retains a utilitarian character with the existing wall and roof materials retained.

    I’m a little confused as to what you can and can’t actually do to make it habitable, single skin corrugated material isn’t really conducive to domestic buildings, but would the expectation be to effectively build and inner envelope and retain the corrugated exterior

    Also I’m confused about what happens with domestic curtilage, the site is 1.8 acres but on the passed submitted plans there is no mention of domestic curtilage, I would want to build a garage but as there is no curtilage would that be construed as being build in the green belt and refused

    I had a chat with the LPA and they seemed more confused than me and said the exterior would probably be covered by building control and the garage would require a full planning application and they couldn’t possibly comment on the outcome.

    Your thoughts would be welcomed

    Thanks
    Martin

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  34. My unknown correspondent of 22 October will find that I have discussed these issues in some detail in Chapter 9 of my first book,A Practical Guide to Permitted Changes of Use.

    Since the Second Edition was published, there has been some clarification of the extent of the building operations that can be carried out as permitted development under Class Q, but it remains the case that the envelope of the building must not be extended in any direction. Hence, I assume, the architect’s proposal to retain the existing cladding. The insulation needed to meet the Building Regs will have to be added inside the existing cladding, although replacement of the existing cladding is not ruled out, provided it respects the existing building envelope in all respects. Any purely internal works are exempted from the definition of development by section 55(2)(a) of the 1990 Act, and this is now confirmed by the revised version of paragraph 105 in the government’s online Planning Practice Guidance.

    So far as the domestic curtilage is concerned, the rules are very restrictive, and the curtilage provided with the new dwelling must not exceed the size of the footprint of the building (or of the part of the building) that is being converted. This point is also made abundantly clear in the text of my book. Everyone should have a copy! (It can be ordered by clicking on the button in the left-hand margin of the main blog.)

    Any additional parking space, car port or garage, etc. will have to be the subject of a separate planning application, and I have given an example on pages 108 to 109 of the Second Edition. Access to the highway may in some cases be permitted development under Part 2 (see paragraph 5.2.9 in Chapter 5), or it may also have to be the subject of a separate planning application.

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  35. I have a question about the extent of external works likely to be allowed under Class Q and in particular modifying the type of roof. Would it be acceptable to replace a mono pitch metal clad roof to a full hip tiled roof (more in keeping with a dwelling) - or will this require full planning permission. The existing roof is structurally sound and the heights would be broadly comparable (albeit slight higher).
    Your thoughts would be appreciated

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  36. The answer to George Shaw’s query is that the rules are very clear and very strict. Paragraph Q.1(g) provides that development is not permitted by Class Q if the development would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point.

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    1. Having read about the restrictions with class Q I totally agree with your view on this. We have a barn locally that has had its roof raised by over 600mm and somehow got through Full Planning permission. Is there anyway of somehow appealing this decision as I see it as a totally illegal build which somehow has been passed flouting the law.

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    2. The key to my unknown correspondent’s question of 21 December is that the building has been granted full planning permission. Where development has been carried out that is unlawful, the LPA has to decide (under the terms of section 172 of the 1990 Act) whether it is ‘expedient’ to take enforcement action against it. It is a well-established principle that an LPA should not take enforcement action ‘willy-nilly’. It must consider the matter objectively and, unless the development is wholly unacceptable in planning terms, the usual practice is to invite the developer to submit an application for retrospective planning permission.

      Retrospective approval of permitted development that required prior approval is not possible, but it is perfectly proper for the developer to seek full planning permission instead. Such an application has to be considered on its planning merits, which must necessarily include the fact that (apart from the 2-foot difference in height) this development would otherwise have been permitted development. Presumably, the LPA felt that there was no proper reason to refuse planning permission in this case, and issued a permission accordingly. I have to say that there would appear to be no basis on which my unknown correspondent can legitimately complain about this.

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  37. Martin, I find this blog to be the most authoritative I have found on the matter of class Q. Thank you. My question relates to a concrete type barn on an established agricultural holding used for the overwintering of cattle and storage of agricultural machinery from 1960 through to the the late 90's. Thereafter, and without any material structural alteration it has been used to overwinter both horses and cattle in deep-litter yards, and to continue to store agricultural machinery, through March 2013 to the present day. The horses were used for domestic purposes. Does its eligibility for class Q remain?

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    1. I cannot give a definitive answer to the question which my anonymous correspondent posed on 14 December without being professionally instructed. However, in answer to the general point that arises in this case, my professional view is that a building is ‘last used for agriculture’ if no material change in the use of the building has taken place since it was previously used (exclusively) for agriculture. This will inevitably be ‘a matter of fact and degree’ in each case, so no definite answer can be given without a careful analysis of the actual facts. The question in this case will therefore be whether the over-wintering of horses in addition to the over-wintering of cattle and the storage of agricultural machinery did or did not constitute a material change of use to a mixed use of agriculture and the keeping of horses. Maybe it did; maybe it didn’t.

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  38. Hi Martin,
    Just reading your reply of 24th October 2018 regarding size of curtilage. You have identified the maximum as ' not exceed the size of the footprint of the building..'. On the Planning Application form it asks for the 'floorspace in sq m' of the conversion. Is the curtilage therefore larger than the floorspace by an area equivalent to that 'lost' to the exterior walls [including the insulation, airspace and inner skin]. ie the difference between 'footprint' and [internal] floorspace ?

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  39. In answer to today’s anonymous question, the envelope of the building must not be enlarged in any way, so the starting point is the exact area of ground (measured externally) covered by the existing building. The curtilage of a building is the area immediately beside or around that building (within the definition set out in paragraph X of Part 3), but it does not include the building itself. Thus if the area covered by the existing building is N square metres, then the permissible extent of the curtilage around (or beside) the converted building will be limited to a maximum of N square metres.

    If you look at paragraph X, it is absolutely clear that it makes no reference to floorspace, but is concerned solely with the
    land area occupied by the agricultural building

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  40. There is a barn locally that is being converted under class Q. The roof level has been raised by approx 700mm and somehow the local authority seems to have allowed this with the rather lame excuse that the developer need to insert insulation. My understanding is that there are no exceptions to increasing the external dimensions of a class q conversion. Is there any way of appealing this and getting the decision reversed as it is an illegal act.

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    1. This is a very similar query to another that was raised in the past week. In this case, it appears that the LPA is prepared to overlook a clear breach of the conditions governing permitted development under Class Q. In itself, this is arguably wrong, but (as I have explained in reply to the other roughly contemporaneous query) the LPA has to decide, under the terms of section 172 of the 1990 Act, whether it is ‘expedient’ to take enforcement action against it. It is a well-established principle that an LPA should not take enforcement action ‘willy-nilly’. It must consider the matter objectively and, unless the development is wholly unacceptable in planning terms, the proper course would be for the LPA to invite the developer to submit an application for retrospective planning permission (as distinct from prior approval under Class Q). However, even this is not mandatory, and if the LPA decides that it would be inappropriate to take enforcement action against the breach, then they need take no action at all, but can simply ignore the breach. Such a decision must be taken on a proper legal basis, but would only be challengeable on Wednesbury grounds.

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  41. Can you please confirm the consequences of not completing the conversion of an agricultural building to a dwelling within 3 years of the approval date

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    1. It is a condition of Class Q that the residential conversion must be completed within three years from the prior approval date. This means that the building must either be occupied as a residence by that date or, at the very least, must be ready for immediate occupation (even if no-one has actually moved in yet). Failing this, the development will not then be permitted development at all. However, as I have pointed out elsewhere, it would be a very unreasonable LPA that would seek to take enforcement action against such a development if by the end of the three-year period it is well-advanced, and perhaps only a few weeks short of final completion.

      Strictly speaking, once the three-year time limit has been passed without the permitted development having been completed, the development would then need full planning permission, and an application for retrospective permission would be required. In the circumstances I have predicated above, I consider that planning permission ought reasonably to be granted.

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  42. I know I'm very late to this conversation.. but just wondered if there has been a change in the wording of class Q recently? It used to state that the building had to be structurally strong enough for conversion (our planning application in 2016 failed on this point - pole barn with corrugated roof)... I know it then changed to stating that the agricultural building had to be 'suitable for conversion'. Has this wording all been removed? Is there more chance now to apply to convert a modern pole barn for residential conversion?

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  43. Class Q was amended in various ways on 6 April 2018, but I think that what my ‘Unknown’ correspondent has in mind is revised advice in paragraph 105 of the government’s online Planning Practice Guidance.

    The fact remains, however, that the agricultural building must be ‘convertible’, so substantial rebuilding is ruled out (as established by the judgment in Hibbitt). Internal structural work is no longer ruled out, because this is not development by virtue of section 55(2)(a) of the 1990 Act. However, there must be a practical limit to the amount of external work (cladding, etc.) that can be carried out within the scope of Class Q.

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  44. When making Class Q applications, I am increasingly having to indicate the retention of large areas of existing cladding in portal frame type agricultural buildings in order not to fall foul of an interpretation of "rebuild". There is then often resistance from planners because of the existing poor or damaged condition of sheets of fibre cement or corrugated steel cladding.
    Where Clients are minded to undertake repairs to their buildings prior to making a Class Q application, I have sought, unsuccessfully, advance reassurance from planners that replacing existing cladding panels with like-for-like products does not constitute development (permitted or otherwise). This seems obvious to me, but I don't which to risk precluding development under Class Q by letting Clients undertake works which planners might later claim was development under Part 6.
    Can you offer any certainty? Case Law?

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    1. My sympathy is entirely with the developers on this issue, but I can’t offer any easy answer from a legal point of view. The High Court judgment in Hibbitt has been widely misinterpreted; all it does is to reiterate that substantial rebuilding is outside the scope of the development permitted by Class Q, no more than that.

      The revised paragraph 105 in the online PPG, on the hand, makes it clear that purely internal structural works are entirely permissible, and do not in fact constitute development, by virtue of section 55(2)(a). So there can be no objection to internal strengthening of the frame, the addition of internal insulation, etc. The building must clearly be capable of conversion without substantial rebuilding, but this does not preclude some structural work of the type I have just mentioned. The PPG no longer calls for the structural strength of the building to be sufficient in itself before conversion commences.

      The actual wording of Class Q clearly does allow the replacement of wall cladding within the scope of the permitted development, especially if the cladding that is to be replaced does not provide structural support as such (as distinct from the function performed by the existing frame of the building).

      Refusal of prior approval should be taken to appeal if it is clear that the refusal of the LPA is unreasonable in all the circumstances.

      The issue of replacing cladding before proceeding with an application for prior approval under Class Q may be potentially problematic in some cases. It rather depends on whether (as a matter of fact and degree) the work involved merely amounts to ‘repairs’ (and is not therefore development) or whether the work is so substantial or so alters the external appearance of the building as to amount to development, in which case (subject to prior notification) it may be PD under Part 6. However, this would then disqualify the building from PD under Part 3.

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  45. Dear Martin,

    I have been following your Blog for many years and found it extremely useful. However the ongoing of misinterpretation of Class Q within the lpa environment only seems to get worse in my experience. I have recently been asked to provide the following details for farm building conversion;

    'a detailed structural appraisal is required to assess the structural stability of the structure. It should include the weights of the proposed roofs and walls. Also, the survey should include the condition of the existing walls and whether they are worthy of being retained (with full justification) and also clearly show which sections of the walls would have to be lost and replaced with new walls. The survey must also include all the existing structural elements that will be reutilised, new and replacement structural elements that will be required to support the converted structure. Finally, a structural appraisal of the foundations existing and proposed would be required in this instance.'

    The building is metal framed with block walls to approx. 2m then metal cladding above and enclosed on all four sides with large agricultural sliding doors. Even the Structural Surveyor I have sent this to for a quote is confused about the level of information we are being asked to provide at the Class Q stage.
    It seems to me that this request goes beyond what is expected by either Class Q of paragraph 105.

    I am also pleased to see above that your interpretation of replacing non-structural cladding on the drawings before development commences should fall within the remit of Class Q. Currently the same Officer who is requesting the structural details has on other applications said that removing the cladding takes the building back to the frame and this is then not a conversion.

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  46. Re: "A prior approval application under Class Q(a) will therefore serve no useful purpose"

    It seems that it might... We have farm buildings nearby where class Q(a) has been sought and approved. The Q(a) decision clearly indicated that they would not meet Q(b) requirements. Work has now started on improvements to these agricultural buildings. This work is presumably in order to reach a state where they should satisfy Q(b). The improvements so far appear to be compatible with their current agricultural use and so are presumably quite legitimate. I assume the strategy was to lock in Q(a) before making an investment in these "agricultural" improvements and then seeking Q(b).

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    1. The developers will find that when they come to make a prior approval application under Class Q(b), this will now be an application in respect of both the change of use and the building operations. Maybe the previous grant of prior approval under Class Q(a) only would be a material consideration in the determination of a fresh application in this case, but if circumstances have changed at all, it is possible that the LPA may now wish to re-open the issues that were previously determined, as these are all issues that fall to be considered under Class Q(b).

      Arguably, prior approval under Class Q(a) should not have been granted in circumstances in which it was clear that the application should have been made under Class Q(b). It seems that some people (both developers and planning officers, and even one or two planning inspectors apparently) have not yet got to grips with the fact that the law has changed fundamentally, and a prior approval application must be made solely under Class Q(b) where building operations will clearly be required to enable the building to be used for residential purposes. In a case of this sort, an application made under Class Q(a) should be refused, unless it is clear that the conversion can be carried out with only internal works, or works that do not materially affect the external appearance of the building. Such cases are likely to be very rare, and the vast majority of applications should now be made solely under Class Q(b) instead.

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  47. Excellent blog! If you get part Q approval for conversion of a barn and then subsequently secure planning permission for conversion of the same barn, does the floor space still count against your part Q total for the holding or can you reuse it for other barns?

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  48. Development carried out under planning permission does not count towards the numerical and floorspace limits under Class Q. There was some ambiguity in the original drafting of the old Class MB, which was later clarified by ministerial advice, and was then resolved by redrafting the wording that is now to be found in Class Q.

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  49. I understand that the site curtilage for a Class Q change of use can be no more than the footprint of the building, however, I cannot find in the wording for this in Planning Portal page for The Town and Country Planning (General Permitted Development) (England) Order 2015 concerning Class Q. Is it to be found in some other document?

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    1. This is set out in paragraph X in Part 3 of the Second Schedule to the GPDO itself (“Interpretation of Part 3”). It contains the following definition:

      “curtilage” means, for the purposes of Class Q, R or S only—
      (a) the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building, or
      (b) an area of land immediately beside or around the agricultural building no larger than the land area occupied by the agricultural building,
      whichever is the lesser;


      [I explained this in paragraph 9.2 of Chapter 9 in A Practical Guide to Permitted Changes of Use.]

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  50. Hi Martin
    Many thanks for your time in producing this blog, could you clarify two points for me please.
    1. does any part of Class Q allow a steel building with no side cladding to be converted to a dwelling.
    2. has the allowance for a structural floor or foundation been relaxed at all.

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    1. The answers to Nichols Pike’s two questions are not straightforward, and both these issues will be extensively discussed in the Third Edition of A Practical Guide to Permitted Changes of Use (due for publication in October/November).

      The key to the first question is the underlying rule that the existing building must [in structural terms] already be “capable of functioning as a dwelling”. What this means is that the building as it stands must be capable of conversion. If it requires such substantial building operations that what is proposed amounts to the construction of a new building, then that falls outside the scope of Class Q. This will inevitably be a question of fact and degree in each case.

      Paragraph 105 of the PPG (as amended last year) does allow for a new floor (and also a mezzanine, subject to the relevant floorspace limits), although new foundations or underpinning are still controversial. My own view is that, up to a point, new foundations and/or underpinning may be acceptable, but I don’t think Planning Inspectors are prepared as yet to accept this.

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  51. Hi Martin. I am confused on the use of the term “existing” when looking at barns to be converted under part q. If you have an existing barn of,say, 700 sq m, could you create three dwellings under part q within that barn providing none of the dwellings created exceed the individual and cumulative floor space limits? Many thanks.

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    1. My answer to this question, relying on decisions not only under Class Q, but also in respect of some other classes in Part 3, is ‘Yes’. The definition of ‘building’ in the GPDO includes part of a building. However, there have been examples of prior approval applications being refused in such circumstances, if the adjoining part of the building remains in active agricultural use, due to possible smell, noise, contamination, etc. which could affect the residential amenity of residents in the new dwelling.

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