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

Further guidance on Class Q

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

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

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

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

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

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

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

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

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

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

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

© MARTIN H GOODALL

Prior approval applications under Class Q(a) only

My attention has been drawn to an appeal decision in East Staffordshire [3170228], issued on 3 July 2017, which allowed a prior approval appeal under Class Q(a) only (for the residential conversion of an agricultural building), where it was clear that works under Class Q(b) would also be required. The view was expressed in that decision letter that an application under Class Q(b) could be made at a later date.

The Inspector wrote:

6. The Council’s reason for refusal and evidence focuses on those matters addressed under Class Q(b) in terms of the scale and nature of the works that would be required to convert the building to residential use. However, Class Q.2(2) of the GPDO indicates that an application can be made for the change of use of the building and curtilage only. It is clear from the appellant’s application form and supporting evidence that the application which constitutes this appeal was made on this basis. The appellant has also made it clear that it was always the intention to address matters under Class Q(b) with a separate application.

7. It is evident from the current condition of the building that a further application would be required. However, the GPDO does not state that where building operations are clearly intended or required that a Class Q(a) only application cannot be made. The approach of applying for Class Q(a) only is permissible under the regulations of the GPDO and the appellant can seek approval for the change of use without dealing with building operations. I have therefore considered the appeal on this basis.

I am led to believe that there may have been one or two other appeal decisions to the same effect, but the decision letters I have seen so far do not seem to be on precisely the same point, and so at the time of writing I have only the East Staffs (Uttoxeter) decision to go on.

It has been pointed out to me that my summary of the provisions of Class Q (and of paragraph W) in my first book, A Practical Guide to Permitted Changes of Use (on page 110 in the Second Edition), does not accord with this approach on the part of this inspector (and possibly others?). Nevertheless, having reviewed the legislation, I maintain my stated view on this issue.

The reason for this is that paragraph W.(2)(a) provides in clear terms that the application must be accompanied by a written description of the proposed development, which, in relation to development proposed under Class C, M, N or Q of Part 3 must include any building or other operations. So it is only in relation to those developments where no building operations will in practice be required that a prior approval application may be made under Class Q(a) alone. In light of the wording of paragraph W(2)(a), I really don’t think there can be any scope for making an application solely under Class Q(a) in a case where building operations under Class Q(b) will also be required in order to convert the building for residential use, and an LPA would be fully justified in rejecting a prior approval application made under Class Q(a) alone as invalid in these circumstances (by reference to paragraph W(2)).

If any readers can provide other examples of this Q(a)/Q(b) issue having been considered in other appeals, I would be grateful to have them drawn to my attention, particularly if they contain any explanation or justification for departing from the provision I have quoted from paragraph W(2)(a).

In the meantime, I should record my gratitude to a correspondent for drawing my attention to the East Staffordshire decision, together with other recent appeal decisions on Class Q. I have not named my source, as I have not ascertained whether they would be willing to ‘go public’ in this instance.

UPDATE (22 November): I am grateful to another correspondent for drawing to my attention an appeal decision in North Devon [3146607], issued on 16 July 2016. In his decision letter, the Inspector wrote:

8. Class Q.2 of the GPDO sets out that an application can only be made for: both the change of use and the conversion works; or the change of use only. The application that constitutes this appeal was made for the latter and I am to deal with the appeal on this basis as the GPDO does not state that where building operations are clearly intended that a Class Q(a) only application cannot be made. Therefore, applicants can seek prior approval for the change of use in advance of dealing with the building operations.

I can see why some people (including some inspectors) read the conditions in paragraph Q.2 as if they allow an application to be made under Q(a) alone, even where building operations will be required under Class Q(b). If one goes back to look at the former Class MB in the 2014 amendment order, one finds the same wording, but two inconsistent appeal decisions in Cornwall (one of which asserted that, where building operations would be required, a Class MB(a) application could not be made without a simultaneous application under Class MB(b), and the other accepted that it could) led the government to add the provision in paragraph W(2)(a) in the 2015 Order to which I have drawn attention, which had not previously appeared in paragraph N of the 1995 Order.

Paragraph W(2)(a) was clearly added in the 2015 Order so as to resolve the doubt arising from the wording in Class MB that had led to the two inconsistent decisions on this issue in Cornwall. In the two more recent appeal decisions to which attention has now been drawn [3170228 and 3146607], the Inspectors have both concentrated on the wording of the conditions in paragraph Q.2 regarding prior approval applications, without having paid any attention to paragraph W(2)(a).

I really think that PINS should amend their advice to Inspectors in order to draw attention to paragraph W(2)(a), but if it is the case that PINS are in fact advising inspectors that Class Q(a) applications can be dealt with without an application also being made under Class Q(b) (where building operations will clearly be required in order to convert the building for residential use) then someone in DeCLoG needs to put them right on this, and explain why it was that paragraph W(2)(a) was added to the 2015 GPDO.

© MARTIN H GOODALL

‘Convertibility’ of agricultural buildings

Class Q(a) in Part 3 of the Second Schedule to the GPDO permits the change of use of a building and any land within its [restrictively defined] curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). The wording of Class Q(a) does not refer to “conversion”, but it will clearly be necessary in order to bring about the permitted change of use to carry out various physical works to the building in order to enable this change of use to be made. Certain other Classes of permitted development in Part 3 (such as Class O, relating to the residential conversion of office buildings) do not permit any development comprising building operations, so that the only works that can be carried out within the scope of Class O are purely internal alterations. However, in the case of an office conversion these may be extensive, including new internal walls, new floors in some cases, considerable plumbing and electrical work, and a general re-arrangement of the internal layout of the building. These will all be covered by section 55(2)(a) of the 1990 Act, which exempts such purely internal works from the definition of development.

In the case of the residential conversion of an agricultural building under Class Q, there can in my view, be no objection to similar internal alterations and re-arrangements. In addition, Class Q(b) permits certain building operations, but 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, and paragraph Q.1(i) also precludes development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, the installation or replacement of water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse.

Notwithstanding the very wide definition of a “building” that has been adopted by the courts over the years (see Cardiff Rating Authority v Guest Keen Baldwin [1949] 1 KB 385, Skerritts of Nottingham v SSETR (No.2) [2000] 2 P.L.R 102; [2000] J.P.L. 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)), it has always been clear that the development permitted by Class Q (and by its predecessor, Class MB in the 1995 Order) does not, and was never intended to, authorise the substantial demolition and reconstruction of the pre-existing building, nor does it enable the extensive rebuilding of an insubstantial structure so as to create what would in substance be a new building.

Even before the government amended its online planning practice guidance (PPG) in March 2015, it was clear from appeal decisions that where existing structures, and the materials from which they were constructed, were so insubstantial that the buildings would require almost complete reconstruction in order to meet the requirements of the Building Regulations, the extent of the proposed building operations would inevitably be seen as going beyond the extent of the works that were envisaged by the terms of Class Q(b) [or the former Class MB(b)] as being “reasonably necessary” for the building to function as a dwellinghouse, and could also be sufficient to disqualify the building from residential conversion under Class Q(a). As I put it in A Practical Guide to Permitted Changes of Use: “This imposes a practical constraint on the convertibility of some buildings. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.”; and I have cited (on page 107 in the Second Edition) two appeal decisions issued in January and February 2015 respectively which reached exactly this conclusion.

In light of this, the High Court judgment last week in Hibbitt v. SSCLG [2016] EWHC 2853 (Admin) is unsurprising. It simply confirms this well understood principle. It is not even necessary to call in aid the revised wording of the PPG in order to interpret the plain words of the GPDO. I don’t propose to go into the facts of this case. Suffice it to say that it is over-optimistic to expect that a building comprising a light steel frame supporting a corrugated iron roof, which is largely open to the elements on three sides (except for limited cladding up to a few feet from the ground in some cases) is capable of being converted to residential use without building operations that would be so extensive as to go well beyond the scope of the operations permitted by Class Q, and would amount either to substantial rebuilding of the pre-existing structure or, in effect, the creation of a new building.

For this reason, the excitement and/or consternation (depending on your viewpoint) that Hibbitt seems to have aroused in some quarters appears to me to be misplaced. This judgment does no more than to re-affirm the principle that was clearly to be derived from the wording of Class Q itself, as already applied in a number of prior approval appeals, including the two which I cited in the book.

We should be wary, on the other hand, of reading more than this into the Hibbitt judgment. What I have called “the structural issue” has in effect two limbs. The first is the fundamental point discussed above, which was dealt with by Hibbitt, but the second aspect of this structural issue is the question of how much internal work can be carried out inside the building within the scope of Class Q. It is this latter aspect of the matter that I have discussed in detail in the new Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use. In my view, the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

I don’t propose to re-rehearse here the arguments that are canvassed extensively in my Appendix D. On reflection, the problem stems not so much from the actual wording of the revised PPG, as from an unduly restrictive interpretation of those words by LPAs (and by some inspectors). I believe that in revising the PPG ministers were simply trying to explain the fundamental principle that is now confirmed (if confirmation were needed) by the judgment in Hibbitt. However, taking account of section 55(2)(a), it seems to me that there is still scope, without infringing that basic principle, and without going outside the limitations of Class Q, to carry out internal works that may be quite extensive, even including some structural alterations, provided that these are purely internal. Rather than attempting to enlarge on this proposition here, I will leave it to readers to study Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use.(One reader has already described it as “a good read”!)

UPDATE: Readers may have seen the various comments appended to this post, discussing the effect of this judgment on existing prior approvals. Following discussions with my colleagues in Keystone Law’s planning law team, I have now published a post (16 January 2017) under the title "Can an LPA override a prior approval?” in which I have set out a revised view compared with that expressed in my original reply to comments on this issue.

© MARTIN H GOODALL

STOP PRESS :::: PD rights for residential conversions extended

There has been much speculation as to whether the government would extend the PD right under Class P (for the residential conversion of buildings used for storage within Use Class B8). An absolute deadline for the commencement of residential use required all developments of this type to be completed no later than 15 April 2018, failing which this PD right would lapse.

However MHCLG has now announced a one-year extension of this deadline. I don’t know yet whether the government has laid an amending Order to give effect to this extension, or if not how soon they expect to do so, but they have left this extension of time extremely late, and have no doubt caused much anxiety and inconvenience to property owners and developers by failing to make up their minds earlier about extending this deadline.

In the same announcement, the Ministry has confirmed their intention (which they had previously canvassed) to extend the PD right under Class Q to enable either up to three dwellings to be created on a single agricultural unit (as now), but subject to a slightly increased cumulative floorspace limit of 465 square metres (compared with the previous cumulative limit of 450 sq m), or alternatively up to five dwellings, each of which would be limited to no more than 100 sq m. Within these limits, it seems that developers will be allowed to ‘mix and match’ their development, provided that no more than three of the new dwellings exceed the 100 sq m limit (but still subject to the overall limit of five dwellings).

I think we shall need to see the actual wording of the amendment order to understand exactly how these new limits will work, especially in relation to a combination of larger and smaller dwellings.

The government has also announced a proposed enlargement of PD rights for the erection of agricultural buildings on larger agricultural holdings under Part 6, which will enable buildings of up to 1,000 sq m to be erected (in place of the current limit of 465 sq m). Again, precise details will need to be checked when the amending order to the GPDO is made.

UPDATE (13.3.18): I am grateful to Steve Jupp for pointing out that the amending order is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018 (SI 2018 No.343), which was made on 8 March and takes effect on 6 April.

I haven’t had time yet to get my head round the detailed drafting amendments but, for the purposes of Class Q, a “larger dwellinghouse” is defined as a dwellinghouse developed under Class Q which has a floor space of more than 100 square metres and no more than 465 square metres, and a “smaller dwellinghouse” is defined as a dwellinghouse developed under Class Q which has a floor space of no more than 100 square metres.

Subject to this definition, in the case of a larger dwellinghouse within an established agricultural unit the cumulative number of separate larger dwellinghouses developed under Class Q must not exceed 3; nor must the cumulative floor space of the existing building or buildings changing use to a larger dwellinghouse or dwellinghouses under Class Q exceed 465 square metres. Similarly, in the case of a smaller dwellinghouse within an established agricultural unit, the cumulative number of separate smaller dwellinghouses developed under Class Q must not exceed 5; nor must the floor space of any one separate smaller dwellinghouse exceed 100 square metres.

The development under Class Q (together with any previous development under Class Q) within one and the same agricultural unit must not result in either or both of the following—
(i) a larger dwellinghouse or larger dwellinghouses having more than 465 square metres of floor, and/or
(ii) the cumulative number of separate dwellinghouses exceeding 5.

So far as Class P is concerned, this is now amended so that the PD right under this class is only disapplied if the prior approval date falls on or after 10 June 2019 (so the deadline has been extended for around 14 months) and there is now also a condition that the development must be completed within a period of 3 years starting with the prior approval date.

© MARTIN H GOODALL

Qualifying use of agricultural building under Class Q

I am grateful to Nathan Dickinson for drawing to my attention a problem that seems to have arisen over the interpretation by certain LPAs of the rules relating to the qualification of agricultural buildings for residential conversion under Class Q in Part 3 of the Second Schedule to the GPDO. I explained the rules in Chapter 9 of my book, “A Practical Guide to Permitted Changes of Use” (which can still be ordered by clicking on the link on the left-hand side of this page.).

Paragraph Q.1(a) puts this in the negative. Development is not permitted by Class Q if the site [i.e the building and an area no larger than its footprint] was not used solely for an agricultural use as part of an established agricultural unit on 20th March 2013, or (in the case of a building which was in use before that date but had ceased to be used for agriculture by that date) when it was last in use.

I really don’t think there can be much doubt as to what this means. The building must have been in agricultural use on, or at some date before, 20 March 2013, but it still qualifies if it is no longer used for agricultural purposes, provided it has not been used for any other purpose since ceasing to be used for agriculture. Thus a redundant or disused agricultural building does qualify for conversion under Class Q, but this permitted development right is lost if the building has been put to some other use since it ceased to be used for agriculture.

I can therefore find no justification whatsoever for the bizarre interpretation that Breckland DC (to name just one LPA) has sought to put on Class Q. They have entirely ignored the words of paragraph Q.1(a) and have seized instead on the operative words of Class Q(a), namely “Development consisting of - (a) a change of use of a building and any land within its curtilage from a use as an agricultural building [their emphasis] to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order……..” Thus, they claim, the building has to be in current agricultural use, and they demand that the applicant should demonstrate that this is for a trade or business purpose.

I understand that the Council bases this interpretation on the definition of “agricultural building” in paragraph X, viz: “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business”. This, they seem to assume, means that to be an agricultural building as specified in Class Q(a) the building must now be used for agriculture (and it is not disputed that this necessarily requires that this use is or was commercial, and would not include a use that only amounted to hobby farming). However, if present and continued agricultural use were to be a necessary qualifying criterion, it would render the words of paragraph Q.1(a) entirely otiose. The inclusion in that paragraph of a reference to a building which was in use before 20 March 2013 but had ceased to be used for agriculture by that date was clearly intended to show that the building qualifies if it was last in use for agriculture, but has since been disused.

Clearly, if anyone gets a nonsense decision from any LPA which purports to find that the building in question is disqualified from residential conversion under Class Q because it is not currently in agricultural use, even though it was last used for an agricultural trade or business and was so used on or before 20th March 2013, they should have no hesitation in appealing to the Planning Inspectorate against this decision under section 78, and coupling this appeal with application for an award of costs, bearing in mind that an LPA will be held to have behaved unreasonably if its refusal of planning permission (or in this case prior approval) is based on a misunderstanding or misinterpretation of the law.

© MARTIN H GOODALL

Can PD rights represent a fall-back position?

There have been disputes for a number of years as to whether permitted development rights, such as those for the residential conversion of agricultural buildings under Class Q in Part 3 of the Second Schedule to the GPDO, can be called in aid as a fall-back position where a planning application is submitted for other development on the same site. On 8 September, the Court of Appeal upheld a judgment of the High Court that such PD rights can properly be taken into account as a fall-back position where some alternative form of development is then proposed.

The case in question is Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314, in which the leading judgment was given by Lindblom LJ. The LPA had granted planning permission in this case for the demolition of an existing agricultural barn and of a bungalow on the application site and to construct four detached dwellings, with garages and gardens. In recommending the LPA’s committee to grant planning permission, the planning officer had advised them that, in practical terms, the permitted development rights under Class Q meant that the existing agricultural barn could be converted into three residential units up to a limit of 450 sq m. Furthermore, the existing bungalow within the site could be replaced in accordance with an adopted policy in the Local Plan with a new residential building, provided that it was not materially larger than the existing building. He advised that, taken together, these factors could, in effect, give rise to the site being occupied by a total of four residential units (albeit of a different form and type to that proposed by this application). This, the officer observed, provided a realistic fallback position in terms of how the site could be developed.

The claimant sought to challenge the grant of planning permission on several grounds. He alleged that the planning officer (and hence the council) had misinterpreted the provisions of Class Q; they had wrongly accepted that there was a real prospect of the fallback development being implemented; and they had also misunderstood or misapplied the “presumption in favour of sustainable development” (as defined by paragraph 14 of the NPPF).

Part of this argument turned on the interpretation of the 450 sq m floorspace limit (which, the claimant argued, applied to the entirety of the building in question, and was not confined to the actual floorspace that is actually converted). This argument was rejected both at first instance and by the Court of Appeal. The argument was that an interpretation of the relevant provisions that confined the floorspace limit to the floor area actually converted would render sub-paragraph Q.1(b) of Class Q redundant, because sub-paragraph Q.1(h) already limits the residential floor space resulting from the change of use under Class Q to a maximum of 450 square metres. I confess that I was originally confused myself by the relationship between paragraph Q.1(b) and paragraph Q.1(h), but I then explained the distinction between these two provisions in the Second Edition of A Practical Guide to Permitted Changes of Use (in paragraph 9.6 on page 103).

At first instance, Garnham J. accepted that the council was entitled to conclude that there was a “realistic” fallback. The evidence had established that there had been prior discussions between the council and the planning consultant acting for the site owners. It was crystal clear from that contact that the owners were intending, one way or another, to develop the site. Alternative proposals had been advanced seeking the council’s likely reaction to planning applications. It was in the judge’s view wholly unrealistic to imagine that were all such proposals to be turned down the owner of the site would not take advantage of the permitted development provided for by Class Q to the fullest extent possible. It was not a precondition to the Council’s consideration of the fall back option that the owner had made an application indicating an intention to take advantage of Class Q. There was no requirement that there be a formulated proposal to that effect [my emphasis]. The officer was entitled to have regard to the planning history which was within his knowledge, and the obvious preference of the owners to make the most valuable use it could of the site.

The claimant sought to criticise this approach by reference to Samuel Smith Old Brewery (Tadcaster) v SSCLG [2009] J.P.L. 1326 (at paragraph 21) and R. v SSE, ex p. P.F. Ahern (London) Ltd [1998] Env. L.R. 189 (at p.196). However, Lindblom LJ could not accept that argument. In his view, the officer did not misunderstand any principle of law relating to a fallback development. His advice to the members was sound.

[I would simply add the observation that a prior approval application is not a necessary pre-requisite to establishing a fall-back position, because planning permission is granted in any event by Article 3(1) of the GPDO. In granting prior approval an LPA is not even approving the permitted development as such, but only those matters that specifically require their attention. On the other hand, a prior approval application would clearly be positive evidence of an intention to develop, and would certainly put the fall-back position beyond doubt. In this case, however, there was other evidence that entitled the LPA to conclude that there was a realistic prospect that the PD rights would be exercised if planning permission was not granted for the alternative development that was now proposed, and so a fall-back position had clearly been established.]

The remaining issue was the presumption in favour of “sustainable development”, as interpreted by paragraph 14 of the NPPF. The decision of the Court of Appeal in Barwood Strategic Land LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 provides the answer (and supersedes all previous judgments on this issue). The “presumption in favour of sustainable development” did not apply to the proposal in this case, and the council’s officer did not advise the committee that it did. The instant case was clearly and materially different from Barwood, and the officer’s report had correctly advised on the application of the NPPF as a material consideration in the determination of this application.

The Court of Appeal unanimously upheld Garnham J’s judgment at first instance and dismissed the claimant’s appeal.

© MARTIN H GOODALL

Convertibility of agricultural buildings – revised advice

The Housing Ministry (formerly De-CLoG) has at last revised its advice on the convertibility of agricultural buildings under Part 3, Class Q, in the Second Schedule to the GPDO.

Readers will recall that paragraph 105 of the online PPG, as revised in March 2015, stated rather starkly that It is not the intention of this permitted development right to allow rebuilding work which “would go beyond what is reasonably necessary for the conversion of the building to residential use”, so that “it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right”, but did not enlarge on this gnomic utterance, leaving it open to some rather imaginative interpretation by LPAs.

I had always been clear, and I think it was generally accepted even before this revision to paragraph 105 was made in 2015, that the works permitted under Class Q(b) are restricted to what is reasonably necessary for the building to function as a dwellinghouse, and any partial demolition must also be limited to the extent reasonably necessary to carry out the building operations that are permitted by this class. This imposes a practical constraint on the convertibility of some buildings, especially if they are of rather insubstantial construction. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted. (See paragraph 9.7 in Chapter 9 of my first book, A Practical Guide to Permitted Changes of Use - page106 in the Second Edition.)

Unfortunately, quite a few LPAs seized on the revised guidance in March 2015 as an opportunity to refuse prior approval for various residential conversions of agricultural buildings which, in my view, did not involve such extensive work as to take the development outside the scope of Class Q(b), even taking into account that revised guidance.

Internal works were one particular bone of contention, and I argued strongly that such works should be seen as being entirely removed from the definition of development by virtue of section 55(2)(a) in the 1990 Act, so that they did not in any event form part of the development that was permitted by Class Q(b), and were thus not caught by the restrictive wording of paragraph 105 of the PPG.

The Housing Ministry has now at last conceded this point in the following wording, added to paragraph 105 on 22 February: “Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls.” These are not prohibited by Class Q

In the revised wording of paragraph 105, the Ministry has also referred to the High Court judgment in Hibbitt v SSCLG [2016] EWHC 2853 (Admin) as an example of a discussion of the difference between conversions and rebuilding. However, I have always taken the view that Hibbitt simply confirmed the well understood principle mentioned above. As I put it in a blog post on the convertibility of agricultural buildings on 14 November 2016, it was not even necessary to call in aid the wording of the PPG, as revised in March 2015, in order to interpret the plain words of the GPDO. But I warned that we should be wary of reading more than this into the Hibbitt judgment. What I called “the structural issue” has in effect two limbs. The first is the fundamental point, which was dealt with by Hibbitt (i.e. Does the development consist simply of necessary building operations, or does it comprise substantial demolition and reconstruction of the previous structure?).

The second aspect of this structural issue - the question of how much internal work can be carried out inside the building within the scope of Class Q, which has now been clarified by the latest revision of paragraph 105 last week, was one that I had found it necessary to discuss in great detail, and at great length, in Appendix D to the Second Edition of A Practical Guide to Permitted Changes of Use, but the latest revision of paragraph 105 has now made most of that debate unnecessary.

It is still my view that the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

It is very much to be hoped, however, that the latest revision to paragraph 105 of the PPG will finally put a stop to any further arguments about internal structural works carried out to agricultural buildings before or during their residential conversion under Class Q.

© MARTIN H GOODALL

“Used solely for an agricultural use ……. when it was last in use”

A question was recently raised by a reader, in which they asked about the position where prior approval has been given for permitted development under Class Q, but (before the PD is carried out) the building is sold off separately, thus separating it from the established agricultural holding.

The relevant wording is to be found in paragraph Q.1(a) of Class Q, which lists development that is not permitted by Class Q. This requires the position to be examined on the qualifying date (20 March 2013). If the building was in agricultural use on that date, it qualifies. It also qualifies if it was not in agricultural use on that date, but was in agricultural use when it was last used (before that date). Provided the building has not subsequently been used for any non-agricultural use, it will still qualify for PD under Class Q. It seems to me that there is no requirement that the building must have remained a part of an established agricultural unit after 20 March 2013, so if it has subsequently been sold off and separated from its ‘parent’ agricultural unit after that date, this would not in itself appear to affect the position in any way, provided that the building has not been put to a non-agricultural use at any time since it ceased to be used for agriculture.

That, at least, is the orthodox interpretation of the legislation, but it has raised an interesting point that had not previously occurred to me. The requirement that an agricultural use must have been the last use of the building is set out only in sub-paragraph (ii) of paragraph Q.1(a), which relates to a building that was in agricultural use before 20 March 2013 but was not in use on that date. So if the agricultural use had ceased before 20 March 2013, then the building must not have been used at any time subsequently for any other use. However, under paragraph Q.1(a)(i), a building would qualify for PD under Class Q if it was used solely for an agricultural use as part of an established agricultural on 20 March 2013, but on re-reading paragraph Q.1(a) it appears that the prohibition against the building having been used at any time subsequently for any other use does not apply in that event. The proviso as to the agricultural use being its last use is mentioned only in paragraph Q.1(a)(ii), and would therefore seem to relate solely to a building that had ceased to be in agricultural use before 20 March 2013.

Paragraph Q.1(a) seems in fact to be capable of being interpreted as referring only to the use of the building up to the qualifying date. It must either have been in agricultural use on that date, or (if it was not in agricultural use on that date) it must have been in agricultural use when it was last in use (before that date). On this reading of the legislation, it is irrelevant what use, if any, the building has had at any date after 20 March 2013.

Let me make it absolutely clear that this is not the interpretation of the legislation that has come to be accepted, nor is it the interpretation that I have myself advanced in this blog and in A Practical Guide to Permitted Changes of Use. It is in fact unlikely that the interpretation of paragraph Q.1(a) that I have tentatively put forward above can ever have been intended. But it is an intriguing possibility, nevertheless.

© MARTIN H GOODALL

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

New amendments to the GPDO

I have been keeping a look-out on the UK Legislation website for the expected amendment to the GPDO, searching (not unreasonably) under “General Permitted Development Order”, but MHCLG were too clever for me, and sneaked these amendments out in an SI entitled The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 [2019 No. 907]. These regulations were made on 1 May, laid before parliament on 3 May and will take effect on 25 May. Part 2 of these Regulations sets out the amendments to the GPDO.

Part 1, Class A of the Second Schedule to the GPDO (larger domestic extensions) is amended by omitting the words “until 30th May 2019” in paragraph A.1(g), and by omitting sub-paragraphs (13), (14) and (15) in paragraph A.4, thus making this class of PD permanent. This amendment also removes the requirement for the developer to notify the LPA of the completion of the development.

A new Class of PD has been added to Part 3. This is Class JA, which permits a change of use of a building from a use falling within Class A1 (shops), Class A2 (financial and professional services), or Class A5 (hot food takeaways) or from use as a betting office, pay day loan shop or launderette, to a use falling within Class B1(a) (offices). I don’t propose to comment on the detailed provisions of the new Class of PD here, other than to note that there is a qualifying date of 29 October 2018 for the pre-existing use, and a floorspace limit of 500 sq m. The usual exclusions will apply, and a prior approval application is required in respect of transport and highways impacts, noise impacts from neighbouring commercial and retail premises, and any impact that the development may have on the availability in the area of services of the sort that were provided by the pre-existing use.

In Class M (residential conversion from A1 shops, A2 offices, etc.), A5 take-aways have been added to the pre-existing uses that can be changed to residential, together with a clarification of the retail impact assessment that is required.

There is also a slight clarification of the floorspace limit in Class Q (residential conversion of an agricultural building). This provides that the floor space of any [one] dwellinghouse developed under Class Q must not exceed 465 square metres. I must confess that this is how I already read Class Q (as amended in 2018), so I am not sure why it was thought necessary to insert sub-paragraph (ba). This amendment does not affect the cumulative floorspace that can be developed under Class Q, which for the reason previously explained in this blog may be up to 865 sq m in total (if larger and smaller dwellinghouses are developed in the appropriate combination).

Finally in Part 3, there is a minor updating of paragraph W so that paragraph W.10(b) now refers to the February 2019 version of the NPPF in place of the original (2012) version. The same amendment is made elsewhere in the GPDO where references were previously made to the older version of the NPPF.

Part 4, Class D (temporary use of various business premises) is amended by enlarging the uses to which the use of the specified business premises can be changed to include, in addition to those previously listed, Class D1(a) (the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner), Class D1(d) (the display of works of art (otherwise than for sale or hire)), Class D1(e) (museum), Class D1(f) (public library or public reading room), or Class D1(g) (public hall or exhibition hall). The single period during which the premises can be put to another use under this Class of PD is also extended from 2 years to 3 years.

I have deliberately omitted some of the more obscure amendments made by these Regulations, but will just note finally the amendment to Part 16, Class A (PD for electronic communications code operators), which, as previously promised by the government, now excludes from this Class of PD the installation, alteration or replacement of a public call box. Part 3 of these Regulations also amends the Control of Advertisements Regulations to remove the whole of Class 16 from Part 1 of Schedule 3, which gave deemed consent to advertisements displayed on telephone kiosks. Thus the provision of telephone kiosks now requires planning permission, and the display of any advertisements on them now requires advertisement control consent. No doubt there will be rejoicing in local planning authorities and dismay among telecoms operators and outdoor advertising companies. This could also lead to the removal of many remaining telephone boxes, where advertising revenue can no longer be obtained to support their continued provision (an example, perhaps, of the Law of Unintended Consequences).

[For the avoidance of doubt, I should make it clear that where a prior approval application for the erection, alteration, etc. of a public call box is pending on 25 May, it must continue to be processed and, if refused, an appeal against that refusal can still be made and /or determined after that date. Secondly, a surface of a public call box which was used for displaying an advertisement on or before 24 May 2019 may continue to be used for that purpose.]

© MARTIN H GOODALL

GPDO 2015 - a problem?

NOTE: For completely up-to-date and comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Like most planning professionals, I imagine, I have had my nose buried in the new GPDO since it was published, in an effort to check all the changes (some of them quite subtle) that have been made to this legislation by the new Order. (This, incidentally, explains the relative paucity of posts on this blog in the past few weeks.)

As a result of a question someone asked me (and which I still haven’t answered), I have hit upon a possible problem of statutory interpretation arising from the new GPDO.

Article 8 of the GPDO 2015 revokes all the statutory instruments listed in Schedule 4, including the 1995 Order, and the amendment orders of 2013, 2014 and the most recent amending order of March 2015. One would naturally expect, however, to find a savings provision in the new Order, and Article 8 does indeed contain such a provision. However, the saving in Article 8(2) is solely for the purposes of development specified in Article 6(2) of the March 2015 amendment order, namely in respect only of a temporary change of use, under Class C or Class D of Part 4, of premises used within Use Class A4 (drinking establishments), and certain demolition under what had been Part 31 in the 1995 Order (now replaced by Part 11 in the 2015 Order). There is nothing else to preserve the effect of any of the provisions of the 1995 Order.

Have I missed some obvious general rule, contained elsewhere in the planning legislation? Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way? If not, then it seems to me that the repeal of the 1995 Order and all its amending orders could have two consequences, one which would clearly disadvantage developers and one which could be of benefit to them.

It seems to me that (at least in theory) unless development has actually begun, any planning permission granted by Article 3 of the 1995 Order was revoked with effect from 15 April 2015, even if prior approval had been granted in respect of that development before that date. (Bear in mind that the prior approval is not a planning permission, and does not have the effect of a planning permission; it simply fulfils a condition without which the development could not proceed. The planning permission was actually granted by Article 3.) So does anyone who had intended to carry out development under the 1995 GPDO now have to start again, even if the LPA had notified the developer of their prior approval? If one views each of the 1995 Order (now repealed) and the 2015 Order (effective from 15 April) as being entirely self-contained and mutually exclusive, which in the absence of any relevant saving provision in the 2015 Order would appear to be the case, then this would appear to be the position (as I say, at least in theory) in which a developer could find themselves.

On the other hand, if we take (say) the 3-dwelling limit in the former Class MB and the same limit in the new Class Q (or the floorspace limit under each of those provisions), then arguably any development carried out under Class MB (i.e. commenced before 15 April 2015, even if it has not yet been completed) would not count towards the limits now imposed by Class Q. There is no mention anywhere in the new GPDO, as far as I know (and I really have been through it over and over again with a fine-tooth comb while writing my book on the subject) of development previously carried out under Class MB in the 1995 Order. So, arguably, one could have used up the 3-dwelling limit under Class MB (or the floorspace limit under that class) and still be able to develop another three dwellings under Class Q ! [I appreciate that the ability of the LPA to refuse prior approval because “the location or siting of the building makes it otherwise impractical or undesirable” for the proposed residential conversion might possibly be used as an excuse by an LPA, or even by PINS, to block extra dwellings over and above the three already built under former Class MB, but it is the underlying principle with which I am currently concerned.]

I put these points to my colleagues in Keystone Law’s planning law team, and we all agreed that the apparent result of this legislative change which I have postulated above cannot have been intended by ministers. So far as concerns the apparent revocation of any permission granted by the 1995 Order (even where prior approval has been given in respect of the relevant issues with which it was concerned), the consensus we have reached in the team is that the new GPDO must be construed in accordance with Human Rights legislation, in a way which is compatible with the landowner's rights under Article 1 of the First Protocol, so far as it is possible to do so, and that the permission granted by Article 3 of the 1995 GPDO should not be regarded as having been revoked where prior approval in respect of such a development has been given, bearing in mind the 3-year time limit for commencement under the 1995 Order. We have collectively taken the view that a commonsense approach is required to this issue. Nonetheless, the strict legal position remains uncertain.

We have similarly taken the view that a prior approval application made under the terms of the 1995 Order which has not yet been determined should be treated as an application under the corresponding provision in the 2015 Order and should be processed and determined in accordance with the new rules, with the 56-day rule continuing to run from the day after receipt of the prior approval application by the LPA. This again, however, is a matter of common sense rather than legal interpretation. Planning inspectors in determining planning appeals have certainly taken this approach in recent weeks.

However, as regards the limits on development that were imposed (for example) by Class MB in the 1995 Order, as compared with the same limits imposed by Class Q in the 2015 Order, we take a different view. We have come to the conclusion that it would theoretically be possible to create up to six dwellings within a single agricultural unit – three under Part 3, Class MB in the Second Schedule to the 1995 Order, and another three under Part 3, Class Q in the Second Schedule to the 2015 Order (subject to prior approval under the terms of Class Q). [If my my supposition as to the loss of these permitted development rights if they had not been implemented before the 1995 Order was repealed is in fact correct, these residential conversions would have to have been started before 15 April 2015 in accordance with a prior approval or approvals under Class MB.]

Incidentally, I trust that readers have caught up with the change made in the amending Order made shortly before the consolidating Order itself, which resolved the previous doubt as to whether the 3-dwelling limit applied to all dwellings previously created on the same agricultural unit or only those created as permitted development under the GPDO. That amendment, now carried into the substantive Order, confirmed that it is only dwellings created as permitted development under Class MB of the 1995 Order (and now under Class Q of the 2015 Order) that count towards the 3-dwelling limit.

I would be very grateful if readers could direct my attention to any legislative or judicial authority on the issues I have raised above, and I shall be pleased to publish these as comments on this post.

© MARTIN H GOODALL

Barn conversions – the structural issue

Anyone who has ever had to deal with a ‘barn conversion’ (i.e. the change of use of an agricultural building, usually to residential use but sometimes for other purposes) will be well aware of the structural problems that may arise, especially where the pre-existing building proves not to be sufficiently robust to allow conversion without substantial reconstruction and, in the worst case scenario, where the building collapses (or is demolished by well-meaning builders, or destroyed by fire or storm) before the project can be completed.

I have previously discussed these issues at some length in a series of five articles I published in this blog under the title “Barn Conversions again” in March 2013, and in a sixth and final article in December 2014. However, the considerable extension of permitted development rights for various changes of use introduced between May 2013 and April 2015 has given rise to further structural issues that can arise in these cases.

Some classes of permitted development within Part 3 of the Second Schedule to the General Permitted Development Order allow a certain amount of operational development in connection with some, but not all, residential conversions. However, the extent of the building operations that can be undertaken is strictly circumscribed by the terms of the Order. The changes of use in respect of which building operations are also permitted are Class M (formerly IA) (residential conversion of a shop or of premises providing financial or professional services), Class N (residential conversion of an amusements centre or of a casino) and Class Q (formerly MB) (residential conversion of an agricultural building). It is in relation to the last of these that structural issues are most likely to arise, especially if the pre-existing building is of unconventional, and perhaps insubstantial, construction.

In all three cases, the Order permits building operations reasonably necessary to convert the building to residential use (within Use Class C3 - dwellinghouses). In the case of Classes M and Q (but not Class N), development is not permitted if it would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point. In the case of Classes N and Q development is only permitted to the extent that it would consist of the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse. This stipulation is not made in respect of Class M, but in all three classes development demolition is prohibited, other than partial demolition to the extent specified by that Class. The wording varies slightly as between these three classes of permitted development. In the case of Class M, any partial demolition must be reasonably necessary to convert the building to residential use. In the case of Classes N and Q, it must be confined to the extent reasonably necessary to carry out the building operations permitted by that Class (as listed above). A developer under Class M thus has a slightly wider discretion with regard both to the building works carried out and as to the extent of any partial demolition, compared with a developer under Classes N or Q. A prior approval application must, of course, be made in all cases.

These statutory provisions represent the entirety of the legal constraints on the building operations that may be carried out as permitted development under these three Classes in Part 3. However, there is another important factor to be considered. Section 55(2)(a) of the 1990 Act provides that the carrying out, for the maintenance, improvement or other alteration of any building, of works which affect only the interior of the building, or do not materially affect the external appearance of the building, are not to be taken for the purposes of the Act to involve development of the land. It would be excessively legalistic, in my view, to argue that the words “for the maintenance, improvement or other alteration” of the building limit the scope of the works that are covered by section 55(2)(a). In particular I would not accept that the words “or other alteration” are to be construed ejusdem generis with “maintenance” or “improvement”; the purpose of such works may well be much wider than that. Thus I would contend that purely internal works (or works that do not materially affect the external appearance of the building) can be carried out to any building at any time and for any purpose, and that they would not amount to development under the Act provided that the completion of those works does not in itself constitute a material change of use.

Impey v. SSE (1984) 47 P. & C.R. 157 established that actual occupation of the converted building is not required in order for a material change of use to have taken place, if the conversion works have actually been completed. This was confirmed by the Supreme Court in Welwyn Hatfield v. SSCLG [2011] UKSC 15, where the contrary suggestion that had been raised in Backer v. SSE (1984) 47 P. & C.R. 149 was rejected. However, (short of completing the conversion works) any internal works that might be, or might be alleged to be, preparatory to a change of use for which a prior approval application has not yet been made would not constitute an unlawful commencement of the permitted development in the absence of prior approval, nor would they be a breach of planning control.

There may be some readers who are tempted at this point to cite Somak Travel Ltd -v- SSE(1988) 55 P. & C.R. 250, where an internal spiral staircase had been installed. By virtue of section 55(2)(a) this did not itself constitute development, but in this case it was part and parcel of the material change of use (or integral to the change of use) of an upper floor to office use, and so a requirement in the Enforcement Notice to remove the spiral staircase was upheld. The essential point, though, is that this case was concerned solely with the requirements of the enforcement notice. The breach of planning permission comprised only the unauthorised change of use of the upper floor of the building from residential use to use as part of the travel agency business which occupied the ground floor.

It was not alleged, nor did the inspector or the High Court find, that the installation of the internal staircase constituted development in itself. [The unlawful change of use would not have occurred, at the earliest, until all the works necessary for its occupation as an office had been completed.] However, in order to remedy the breach of planning control, i.e. the change of use of the upper floor, the removal of the staircase was seen as a necessary step in the restoration of that floor of the building to residential use. It was for this reason that the requirement in the enforcement notice that the spiral staircase should be removed was upheld by the Court. The case simply confirmed that the requirements of an enforcement notice can go beyond the scope of the breach itself, if the additional steps required to be taken (in this case the removal of the spiral staircase) are a necessary part of remedying the breach so as to restore the premises to their previous use. (This was in line with two earlier cases - Murfitt -v- SSE [1980] JPL 598 and Perkins -v- SSE [1981] JPL 755.) It does not, however, justify calling Somak Travel in aid in an attempt to argue that there are any circumstances in which purely internal works (or works that do not materially affect the external appearance of the building) are not exempted from the definition of development under section 55(2)(a).

Bearing in mind the clear legal effect of section 55(2)(a), it is difficult to reconcile this statutory provision with the statement in the government’s online Planning Practice Guidance, as amended on 5 March 2015, that it is not the intention of what was then Class MB(b) (now Class Q(b)) to permit the construction of new structural elements for the building and, accordingly, that it is only where the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use that certain building opera¬tions would be considered to come within Class MB(b) [Q(b)].

This advice clearly overlooks the fact that (so long as it is confined to purely internal works or works that do not materially affect the external appearance of the building) the installation of new structural elements in the building, such as a new floor, or the addition of a mezzanine floor, structural strengthening, including a new or augmented load-bearing frame, additional or strengthened roof trusses, etc. does not constitute development at all, and is not therefore governed in any way by the scope of the permission granted by Part 3, either in respect of the change of use itself, or in respect of the operational development that is also permitted under Classes M, N and Q. The latter can clearly refer only to any external works, or works that do materially affect the external appearance of the building. There is absolutely nothing in the Planning Acts, or in the GPDO itself, that prevents or inhibits other works within the building and/or which do not materially affect the external appearance of the building, whether they are carried out before, during or after any external works permitted by the GPDO.

The restriction of building operations under Classes N and Q to the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse applies only to the external works permitted by Part 3. It has no application whatsoever to purely internal works, no matter how extensive those may be.

On the other hand, if the existing structure, and the materials from which it is constructed, are so insubstantial that the building would require almost complete demolition and reconstruction in order to meet the requirements of the Building Regulations, then this clearly falls outside the scope of what Part 3 permits (particularly as regards the limited scope of the partial demolition that is permitted). In my book on Permitted Changes of Use, I have cited an appeal decision in Bedfordshire, issued in February 2015 that confirmed this.

There have, however, been other appeal decisions where inspectors would appear to have fallen into error in determining that certain agricultural buildings which comprise, for instance, a steel frame clad with light corrugated sheet, are incapable of conversion within the terms of Class Q. In one case, in August 2015, the proposal was to replace the corrugated sheeting with timber cladding, and a roof of slate. However, the Inspector doubted that the increased weight of the new materials could be carried by the existing steel frame, which was showing signs of corrosion. No structural report had been produced to confirm that the proposed conversion could be based on the existing steel frame, and so he concluded that the conversion could not be carried out within the limited structural parameters of the permitted development allowed by Class Q. A similar decision was reached on very similar grounds in another appeal in September 2015. What both these appeal decisions appear to have overlooked is that the necessary internal strengthening could (and quite probably would) have been carried out under section 55(2)(a), and would not therefore impact in any way on the limited extent of the building operations permitted by Class Q(b).

The two specific examples mentioned above are among a growing number of prior approval appeals that have been dismissed on these or very similar grounds. In our seminar in November, members of Keystone Law’s planning law team expressed their strong disagreement with this approach to the structural issues arising in prior approval cases under Class Q, and our guest speaker Sinclair Johnston agreed with us, and showed examples of structural works that in his view are entirely lawful in accordance with section 55(2)(a). We are all agreed that any future appeal decisions which conclude that the need for internal structural alterations and strengthening of an agricultural building takes the proposed development outside the scope of the development permitted under Class Q would be open to legal challenge in the High Court under section 288 and are liable to be quashed.

At the application stage, I am also aware of one case in which the LPA refused their prior approval on the grounds that internal structural works had been carried out to the building without prior notification having been given under Part 6. They therefore alleged that the agricultural building as it existed at the time of the prior approval application was unlawful, so that permitted development under Part 3 was now ruled out, by virtue of Article 3(5). Bearing in mind the effect of section 55(2(a), this reason for refusal is clearly nonsense.

A practical way forward in future in cases where internal structural works have either been carried out already, or where they will clearly be necessary in order to facilitate the residential conversion of the building, would be to give details of those works as additional information accompanying the prior approval application, so as to demonstrate the practicability of the proposed conversion, while at the same time making it abundantly clear that those internal works do not form part of the application for prior approval because, by virtue of section 55(2)(a), they do not constitute development and do not therefore require prior approval under Part 3. The LPA should then have no excuse for alleging that the proposed development does not comply with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. Nor, in light of the information given by the applicant as to the purely internal works covered by section 55(2)(a), would there be any excuse for alleging that the applicant has not provided sufficient information to enable the authority to establish whether the proposed development complies with those conditions, limitations or restrictions.

© MARTIN H GOODALL

Class Q – Sustainability of location

Notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there are still some LPAs that seek to resist permitted development under Class Q on the basis of ‘sustainability of location’. I am grateful to my correspondent William Ashley for drawing my attention to an example of this in a recent appeal in Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675].

There was no dispute in this case that the qualifying criteria of Class Q had been satisfied, and the LPA raised no concerns in relation to noise, contamination, flood risk, design or the transport or highways impacts of the proposal. The appeal therefore turned solely on whether or not the location or siting of the building made it otherwise impractical or undesirable for residential use.

The LPA submitted that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The LPA claimed that their view was supported by (undisclosed) legal advice stating that its interpretation of the GPDO was correct as a matter of law, and they relied on paragraph W.10(b) of Part 3 that LPAs must have regard to the NPPF, so far as relevant to the subject matter of the prior approval, as if the application were a planning application. However, the Inspector rejected this narrow approach. The PPG (as updated in March 2015) is clear that Class Q does not apply a test in relation to sustainability of location, given the inherent rural location of agricultural buildings.

His view was that Class Q needs to be seen as part of a wider and more positive approach in considering appropriate opportunities, such as the re-use of rural buildings, to meet housing need in rural areas. This is reflected in paragraph 109 of the PPG as follows. “That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.”

On this basis, the Inspector found that the amended PPG on permitted development rights for the change of use of agricultural buildings, in a specific and defined way, complements the growth agenda advocated in the NPPF rather than necessarily introducing an in-built tension. He was not therefore persuaded that, in applying paragraph W.10(b) with regard to the NPPF, the provisions of paragraphs 108 and 109 of the PPG should be regarded as erroneous and that they should consequently be discounted.

In this particular case the appeal site was readily accessible, services could be made available and it was not truly isolated from other households. The Inspector was also satisfied that there were no agricultural operations or activities taking place nearby that might harm the living conditions of future occupiers. Accordingly, he considered that the location and siting were neither undesirable nor impractical, and so the provisions of Class Q(a) and (b) would be satisfied.

It occurs to me to wonder whether East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. They have just under six weeks left now in which to apply for permission to proceed in the High Court. It all depends what counsel advises, if they are minded to take that course, although I would be surprised if such a challenge were to succeed, particularly bearing in mind the Inspector’s finding that this location was not in fact unsustainable in any event.

© MARTIN H GOODALL

Barn conversions – the structural issue (2)

After my article on this topic was posted on 4 January, another well-known planning blogger (who, with becoming modesty, does not wish to be named here) kindly drew my attention to R (Prudential Insurance Co Ltd) v. Sunderland City Council [2010] EWHC 1771 (Admin). I will come back to this judgment below, but I want first to analyse carefully the nature of the development involved under Part 3 of the Second Schedule to the GPDO and the precise scope of the planning permission granted by Article 3 in conjunction with the various Classes set out in Part 3.

Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. In Part 3 of that Schedule, this development is specified by the various Classes set out there as “Development consisting of a change of use of a building (or, in some cases, of a building and any land within its curtilage) from a use falling within [a specified Use Class or Classes] to a use falling within [another specified Use Class]”. In certain cases, planning permission is also granted for limited building operations. I will come back to that further permission below.

When considering the planning permission for change of use granted by the various Classes in Part 3, it is important to appreciate that a change of use is a single event; it is not a gradual process or a continuing state of affairs (see Cynon Valley BC v SSW (1987) 53 P. & C. R. 68). Furthermore, it should be firmly borne in mind that, except in those few Classes where some building operations are also permitted, the permission granted is solely for the specified change of use. It follows that a development comprising a material change of use only commences when the change of use itself occurs, and (for the reasons explained in my last article, and further explored below) any incidents, including the commencement of internal alterations, that are preparatory to that change of use are of no legal significance in planning terms.

In the case of a change of use to use as a single private dwellinghouse, it is a prerequisite to such a change of use that the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence (Gravesham B.C. v SSE (1984) P. & C. R. 142). Until that point is reached, no change of use has taken place. The judgment in Impey v SSE (1984) 47 P. & C. R. 157 established that a change of use can take place before the premises are used in the ordinary and accepted sense of the word (for example, where operations have been undertaken to convert premises for residential use and they are then put on the market as being available for letting). (This was subsequently confirmed by the Supreme Court in Welwyn Hatfield BC v. SSCLG [2011] UKSC 15.)

The effect and extent of the planning permission granted by the GPDO can readily be understood by reference to Class O in Part 3 (the residential conversion of offices which have been in use within Use Class B1(a)). The GPDO is completely silent on the subject of the works required to bring about this change of use. Clearly the permission does not extend to any building works to the exterior of the building, or which would materially affect its external appearance, but quite extensive works may be required to the interior (including in may cases the erection of new internal walls, and other structural elements, as well as the installation of bathrooms, toilets, kitchens, and a variety of other features and facilities) in order to enable the authorised change of use to take place. The reason that no provision is made for these in the GPDO is that they do not require planning permission in any event, by virtue of section 55(2)(a). None of the conditions attached to Class O refers to these internal works in any way.

I want to look next at the planning permission granted by Classes M(a)and M(b). Class M(a) grants permission for the residential conversion of a building currently used as a shop (A1) or for the provision of financial or professional services (A2) (or used for certain related uses). Bearing in mind the nature of such premises, it may be unnecessary in some cases to resort to the additional permission granted by Class M(b) for building operations that are reasonably necessary to convert the building to residential use. Existing doors, fenestration and other external features may not need to be replaced or supplemented, so that no external building works need necessarily be carried out in such cases.

Where works affecting the exterior are necessary in order to convert the building to residential use, the only restrictions in Class M that relate to such works are M.1(e), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and M.1(f), which prohibits development consisting of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As discussed above, if a change of use of the building is the only development involved, there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). It cannot sensibly be argued that by also changing some doors and windows, which therefore requires additional prior approval under Class M(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. It seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class M(b).

The conditions in paragraph M.2 include a requirement that where the development proposed is development under Class M(a) together with development under Class M(b), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to a list of matters which include the design or external appearance of the building. But where the development proposed is development under Class M(a) only, prior approval is not then required as to the design or external appearance of the building. This is further confirmation that where building works are necessary under Class M(b), the only additional matter requiring prior approval is the design or external appearance of the building. Clearly the LPA is not concerned in any shape or form with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

I have set out the position in relation to Class O and Class M, in order to examine the planning permission granted by Classes Q(a) and Q(b) in light of the points established in relation to these other Classes of development in Part 3. Class Q(a) grants permission for the residential conversion of a building and any land within its curtilage from a use as an agricultural building, and Class Q(b) grants permission for building operations reasonably necessary to convert the building to residential use.

In the same way as in Class M, the only restrictions in Class Q that relate to the building works authorised by Class Q(b) are Q.1(g), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and Q.1(i) which prohibits development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwellinghouse, and also partial demolition to the extent reasonably necessary to carry out those authorised building operations.

Whilst this restriction is more prescriptive in its details than the corresponding restriction in Class M, there would appear to be no justification for treating purely internal alterations any differently from internal alterations carried out in connection with a change of use made under Class O or under Class M. For this reason, I would argue that even in the case of the residential conversion of an agricultural building there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). There still seems to me to be no basis on which it can be argued that where building works are proposed which require prior approval under Class Q(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. As in the case of Class M, it seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class Q(b).

The conditions in paragraph Q.2 requiring the submission of a prior approval application are in the same terms as in paragraph M.2. discussed above, and so this too confirms that where building works are to be carried out under Class Q(b), the only additional matter requiring prior approval is the design or external appearance of the building, and that the LPA is not concerned in any way with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

We come then, at last, to Prudential Insurance. How, if at all, does this judgment affect the argument? This was a spat between the claimant and a rival developer (Peel Holdings), with the LPA as the unfortunate ‘piggy-in-the-middle’. The claimant was seeking to quash a Lawful Development Certificate granted by the LPA to Peel Holdings in respect of a proposed development that they sought to carry out under an extant planning permission. The planning permission authorised “Conversion of one retail unit into two units, construction of new free-standing entrance canopies and formation of a goods access road at 1 Peel Centre, The Glover, Washington..”

The development of the Peel Centre as a whole had been authorised by an earlier planning permission issued by the Secretary of State under section 77 of the 1990 Act. A condition in that original permission provided that the development permitted should not be used for the retailing of 19 different classes of goods without the prior written consent of the LPA. A section 52 agreement (under the 1971 Act) had been signed some years earlier by Peel Holdings which precluded the sale of the same classes of goods.

The proposed use or development for which the LDC was granted comprised “open A1 retail use and a planning permission dated 11.12.2006 (06/04039/FUL) unfettered by the requirements of the section 52 agreement of 08.08.1988 as amended by the deed of revocation of 14.07.2006.”

The question for the Court was - What did the planning permission in respect of Unit 1, properly interpreted, authorise? The judge had no difficulty in stating straight away that the LPA was authorising the conversion of one shop into two together with, specifically, works to the exterior of the building necessary to achieve that conversion. He observed that the work necessary to achieve the conversion was necessarily to be undertaken both to the interior and exterior of Unit 1. As a matter of interpretation of the planning permission it might be thought obvious, he said, that it was authorising the carrying out of the building activity necessary to put in place what was shown on the two plans and which would result in the conversion of the unit from one shop into two [that is to say, both internal and external buildings works].

The claimant disagreed, relying on the definition of development in section 55(1) and the exemption from that definition provided by section 55(2)(a). Counsel for the claimant accepted that in this case planning permission was required for certain of the building operations which were specified in the planning application. They were the external alterations to Unit 1, the construction of new free-standing entrance canopies and the formation of a goods access road; each clearly constituted operational development within section 55 of the 1990 Act. He submitted, however, that the conversion of Unit 1 into two units was achieved solely by virtue of internal alterations to the building. He submitted that no planning permission was necessary for the internal alterations by virtue of section 55(2)(a). Accordingly, he submitted that, as a matter of interpretation, all that the planning permission in respect of Unit 1 authorised was the physical alterations to the exterior of the building.

The case for Peel Holdings was that "the conversion of Unit 1 into two units" constituted operational development, and that the conversion was inextricably linked with both the interior and exterior alterations to the building. [Note that this development did not constitute or include a material change of use. The judge accepted that the planning permission related to purely operational development. The use of the two new units was in practice governed by section 75.]

The judge accepted that there can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. In his judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, falls within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seemed to him to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. He took the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either ‘Yes’ or ‘No’.

Looked at in this way, there was no doubt in his mind that the proposal for which planning permission was sought in respect of Unit 1 constituted development. The planning permission which was granted authorised the carrying out of the whole of that development. In his judgment, therefore, the planning permission authorised the conversion of Unit 1 into two separate units and it authorised the works necessary to achieve that end.

The planning permission so granted did not limit the use to which the two units could be put. In those circumstances, Peel Holdings submitted, permission was granted for retail uses falling within Use Class A1. On any view of the wording of the planning permission, the permission granted was for retail units i.e. shops. In the absence of a condition limiting the use of the units to certain categories of goods, or a condition limiting that which could be sold, all the uses permitted under class A1 were permitted.

I am afraid I have considerable difficulty with this judgment, and in particular with the conclusion that it would be “wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development” and that “the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole”. This appears to me to be an assertion that is entirely unsupported by any reasoning, and which (although it refers in passing to counsel’s submissions with regard to section 55(2)(a)) makes no attempt to analyse the wording and effect of section 55.

A clear distinction must be made between, on the one hand, the conversational use of the word “development”, which can embrace all aspects of what is colloquially meant by that word in ordinary conversation (and this would undoubtedly include internal works), and on the other hand, the use of the word “development” in the Town and Country Planning Act 1990, which is precisely defined by section 55 and must be construed strictly in accordance with the rules of statutory interpretation. If parliament had intended that “development” should be interpreted more widely in some contexts than in others, it would undoubtedly have legislated accordingly in the 1990 Act (or in a subsequent amendment of that Act). There is nothing in the wording of section 55 to suggest that the effect of section 55(2)(a) only applies to internal works where those works are carried out in isolation, but that when internal works are carried out in conjunction with building operations to the exterior of the building, or which materially affect its external appearance, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the external works. There is similarly nothing in the legislative wording to suggest that when internal works are carried out in conjunction with a material change of use, perhaps in fact in order to facilitate that change of use, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the change of use itself. Such an interpretation would fly in the face of the clear statutory provision contained in section 55(2)(a), and with all due respect, it is not for a High Court judge to attempt to amend statute law, or to ignore its clear meaning and intention by applying a wider more colloquial interpretation to the word “development”.

There were in fact several other grounds of challenge in the Prudential Insurance case, all of which were dismissed, and it is clear that the case turned on the fact that what the LPA had granted was an unlimited planning permission for the creation of two new retail planning units, without any condition restricting the goods that could be sold in each of those two new units. They had failed to repeat the condition in the original planning permission for the development of the Peel Centre (as perhaps they should have done), and so they had been correct in issuing an LDC in the terms that had been sought by Peel Holdings.

In my view, the court’s apparent finding with regard to the scope of the development, in relation to section 55(1) and 55(2), would by itself have merited an appeal to the Court of Appeal, but the dismissal of the other grounds of challenge was less susceptible to challenge, and this no doubt explains why the judgment was not in fact appealed. Whilst this judgment cannot be dismissed as being ‘special to its facts’, the case for the claimant may not have seemed particularly meritorious to the Court when viewed as a whole, being (as I mentioned earlier) a commercial ‘spat’ between rival developers, and as someone once observed “context is everything”.

[Although this judgment was followed by the Court of Appeal in R. (Peel Land and Property Investments Plc) v Hyndburn BC [2013] EWCA Civ 1680, that case turned entirely on other issues (such as the effect of section 75), and the judgment did not discuss section 55 or any suggestion that “development” could embrace internal works in addition to external works or a material change of use. The Court of Appeal did not therefore endorse the view taken in Prudential Insurance on this issue.]

For the reasons I have explained, I do not believe that any weight can be put on the court’s approach in Prudential Insurance to the definition of development in relation to internal works. Some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument, but if or when the matter comes before the court in a future application under section 288, I doubt whether the Court will follow Prudential Insurance when a full and careful analysis is made of the statutory wording and effect of section 55, and in particular section 55(2)(a).

© MARTIN H GOODALL