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A cunning plan?

Class Q of the GPDO allows for the change of use of an agricultural building to a dwelling, along with the building operations reasonably necessary to convert the building. In a number of cases concerning rudimentary or dilapidated barns the proposed works have been deemed to go beyond what could reasonably be described as conversion such that they would be so extensive as to comprise rebuilding, thereby falling outside the limits of permitted development. If this has happened to you we have a cunning plan. Here it is:

STEP 1

Take a look at Class R. Class R allows for “a change of use of a building and any land within its curtilage from a use as an agricultural building to a flexible use falling within Class A1 (shops), Class A2 (financial and professional services), Class A3 (restaurants and cafes), Class B1 (business), Class B8 (storage or distribution), Class C1 (hotels) or Class D2 (assembly and leisure) of the Schedule to the Use Classes Order”.

In a case concerning the change of use of a Dutch barn in the Cotswolds to an hotel (DCS Number 400-018-251) the inspector made reference to Hibbitt and another v Secretary of State for Communities and Local Government and another [2016], drawing an important distinction between conversion under Class Q and change of use under Class R. Here is the key bit of the decision:

“As part of the permitted development right, Class Q(b) allows for building operations reasonably necessary to convert the building to a dwelling. The concept of conversion is central to the Hibbitt judgement. This is because the building operations within the permitted development right must be reasonably necessary to convert the building (emphasis added). However, for the purposes of Class R the term “associated operational development” means “building or other operations in relation to the same building or land which are reasonably necessary to use the building or land for the use proposed under Class R.” Unlike in Class Q, the word “convert” is not used.”

In the case before the inspector the council had already confirmed that prior approval was not required. As the inspector pointed out, the development that was subject to the appeal was not for the change of use, nor was it for the construction of a new hotel; it was expressly for the building works that related to implementing the change of use. The council was nonetheless concerned that the works were so significant that it would go beyond what could reasonably be considered to be the conversion of the building. The inspector acknowledged that the works proposed were extensive and would result in new external walls on all four elevations and a new external roof. However, given the nature of the existing building, she could not envisage that works which were significantly more modest than what was proposed would be sufficient to allow the building and land to be used for its intended purpose. The works would not exceed what was reasonably necessary, she held.

Significantly, the inspector ruled that the concept of conversion is not embedded in Class R, noting that there is no specific advice in the PPG as to what, if any, limits there should be on the extent of any associated operational development in a subsequent planning application.

STEP 2

Once you have obtained prior approval for flexible use of your dilapidated barn under Class R, together with planning permission for the associated operational development, see if everybody wouldn’t really have preferred to see conversion to a dwelling, after all.

A cunning plan or cynical exploitation of the system? You decide.

Section 4.3423 of DCP Online concerns Part 3 GPDO changes of use.

Just a cover

The issue of permanence has been discussed in a couple of DCP Blogs – Just kidding around and Permanent markers. Together with another recent case in Staffordshire (DCS Number 400-018-313), the evidence suggests that placing a structure on wheels following enforcement action will not beat the system.

The Staffordshire case concerned a timber-framed car wash canopy which had been mounted on wheels. The inspector noted the canopy was originally a permanent structure. He acknowledged that following the modification it would be a relatively straightforward matter to move the structure within the site, or to dismantle and remove it altogether. However, in terms of the operation of the site, the positioning adjacent to the portacabin and the site drainage was critical, for functional reasons, and for site safety and the stability of the canopy. Without the ability to rest the timber beams on the portacabin, he observed, the canopy would be highly unstable. In his assessment, the positioning of the canopy within the site was, for all practical intents and purposes, fixed such that it would not serve its intended purpose if moved from its present position.

The inspector judged that the mounting on wheels was in effect no more than an expedient carried out in response to the planning history of the site, rather than being indicative of an intention to make the canopy genuinely moveable. Accordingly, he found that the canopy was a building as defined in Section 336(1) of the Town and Country Planning Act 1990 and its erection was a building operation constituting development as defined by Section 55 (1) of the Act. In the absence of any relevant planning permission, he concluded that there had been a breach of planning control.

Sections 4.3112 and 22.112 of DCP Online are relevant to this issue.

No place for a child

The conversion of a maisonette in north London to two flats was allowed at appeal, despite council concern about the loss of family housing, for the unusual reason that the location was unsuitable for raising a family (DCS Number 400-018-332).

Dealing initially with access, the inspector saw that the point of entry to the maisonette was via a long metal staircase which was accessed via a service road at the rear of the retail parade, where there were parked cars, bins and other hazards such as beer kegs. The staircase itself was steep, narrow, unilluminated and exposed to the elements. Secondly, the site was close to a pub which had a smoking area directly adjacent to the access to the maisonette. The inspector shared the appellant’s concern that the smoking area created an unwelcome and intimidating atmosphere particularly in the evenings, and he did not doubt that patrons stood outside drinking, smoking and talking loudly until closing time, a significant source of noise and disturbance.

Even without taking account of other factors, such as the site’s proximity to the North Circular road and other commercial uses at ground floor level, including a bookmaker’s, the existing dwelling was most unlikely to provide a good environment in which to bring up a family, the inspector held.

The inspector concluded that whilst the development would diminish the council’s stock of family dwellings, the amenity of the existing home was so deficient that family occupation was unlikely and could not reasonably be changed to overcome its inherent deficiencies.

Further appeal examples concerning the loss of family housing can be found at section 11.1321 of DCP Online.

If it looks like a duck…

An inspector has dismissed an appeal concerning the extension of a house in the green belt in Bedfordshire, rejecting the appellant’s claim that the proposal entailed partial redevelopment and therefore was not inappropriate development (DCS Number 400-018-287).

The NPPF states that new buildings within the green belt are inappropriate unless, amongst other things, the extension of a building is involved, the inspector recorded. This is provided that it does not result in disproportionate additions over and above the size of the original building. Comparing the size of the original building to the one that would result if the proposal were to go ahead, he found that the additions in both superficial and in volumetric terms would be disproportionate over and above the size of the original building.

The appellant argued that the proposal should be considered against the exception in bullet point 6 of paragraph 89 of the Framework, as partial redevelopment. Paragraph 89, bullet point 6, the inspector noted, describes the partial redevelopment of a previously developed site which would not have a greater impact on the openness of the green belt and the purpose of including land within it than the existing development as an exception to the presumption that the construction of new buildings is inappropriate development.

The inspector took the view, however, that a development of such scale which extends a building sideways, rearwards and upwards from the existing shell should be considered under bullet point 3, as an extension. He pointed out that the proposed development would not re-site the house, nor would it rebuild it; it would not replace its principal walls nor realign its front building line nor relocate its entrance. It would not re-orientate its aspects nor reconfigure its arrangement of rooms off a central circulation area. These factors suggested to him that the proposal did not fall under bullet point 6.

In any event, he noted, the impact of the proposal on the openness of the green belt would be greater. More decisively, the NPPF’s definition of previously developed land excludes land in built-up areas such as private residential gardens, and whilst the site was in the green belt, it was surrounded by houses.

He concluded that the proposed development would be inappropriate development in the green belt.

For further information on house extensions in green belt areas see section 12.632 of DCP Online.

Keeping it simple?

The change of use of a building in Oxfordshire from B1 office use to nine flats under Schedule 2, Part 3, Class O of the GPDO has been allowed notwithstanding that operational development was required to implement the change of use (DCS Number 200-007-297).

The inspector acknowledged that whilst the GPDO makes provision for some operational development as part of the change of some uses to residential, Class O does not. The council took the view that the proposal was not eligible for consideration under the prior approval process and thus could not be considered as permitted development since the required operational development, which included alterations to existing windows and the provision of new ones, was inherent to the change of use. The appellant, on the other hand, whilst acknowledging that some operational development was required, argued that there are no provisions, limitations or conditions within Class O which state that consideration of a change of use in principle cannot be considered.

The inspector recorded that the Planning Practice Guidance recognises that some permitted development rights for change of use allow for limited physical works to carry out the change. However, it also sets out that developers should ensure they have planning permission if necessary. With this in mind he held that an application for a change of use under Class O should not be disqualified on the basis that some operational development is required. Accordingly, he found that it was reasonable to consider the change of use of the appeal property from office to residential under this legislation. Any approval granted would simply mean that the appellant would need to secure planning permission for the operational development required to fully implement the change of use, he reasoned.

He concluded that the proposed change of use constituted permitted development under the provisions of Class O, albeit that some operational development, which would require separate planning permission, would be required to implement it.  

All of which sets us wondering whether it isn’t time to simplify the simplified planning system.

Changes of use under Part 3 permitted development are covered at section 4.3423 of DCP Online.

Nursery school

A children’s nursery in Hertfordshire has had its claim for a certificate of lawfulness for the installation of a new modular building turned down, an inspector finding that the nursery was not a school for the purposes of Class M of Part 7 of Schedule 2 to the GPDO (DCS Number 400-017-867).

Part M, the inspector recorded, grants planning permission for the erection, extension or alteration of a school, college, university or hospital building. He ruled that “In the absence of any clear indication in the GPDO that the definition of “school” should be taken as including all registered nurseries, …. I consider that no such inference should be made.”

The council noted that Class M.1.(g)(i), so far as it concerns schools, college or university buildings, does not apply in any case unless the existing buildings are predominantly used for education. In light of this constraint, it argued that the predominant use of the existing buildings was for childcare, notwithstanding that the premises provided a certain amount of education, including pre-school classes. The inspector observed that, again, there is no clear definition of what the term “education” means in the context of Class M. However, he stated that had he been confident that the term “school” included registered nurseries generally for Class M purposes, he would have concluded that “early years provision” satisfied the relevant requirement.

So, the inspector was satisfied that the nursery was providing education, but nonetheless decided that it was not a school? How does that add up?

Part 7, Class M of the GPDO is set out at section 4.3426 of DCP Online and the planning considerations raised by day nurseries and playgroups are discussed at section 26.334.

Round the houses

An appellant contesting a council’s refusal to grant a certificate of lawful use for the use of land at his house near Bristol as a domestic garden has found himself dealing with a matter which can often fox local planning authorities (DCS Number 400-018-126). A previous Blog How many times?! gives just one example of a council having got it wrong.

Helpfully, the inspector identified the problem and set out the case law, pointing out that it was necessary to consider whether or not planning permission for the change of use was in fact needed. She recorded that section 55(d) of the Act provides that the use of land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such does not constitute development. Therefore, if the appeal land lay within the curtilage of the house its use as a domestic garden did not require planning permission and so was lawful.

The inspector explained that in the absence of any statutory or authoritative definition of the term “curtilage”, the Court of Appeal held in Dyer v Dorset CC [1988] that the term bears its restricted and established meaning connoting a small area forming part and parcel with the house or building which it contained, or to which it was attached. The Oxford English Dictionary definition was endorsed by the court as adequate for most present day purposes, namely: A small court, yard, garth, or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings. The relevant authorities, the inspector continued, were later reviewed by the High Court in McAlpine v SSE [1995] , and three identifiable characteristics of curtilage were defined: firstly, it is confined to a small area about a building; secondly, it must be intimately associated with land that is undoubtedly within the curtilage; and thirdly, physical enclosure is not necessary, but the land needs to be regarded in law as part of one enclosure with the house.

Accordingly, before going on to determine the appeal, the inspector explained that the terms “curtilage” and “domestic garden” are not interchangeable; curtilage defines an area of land in relation to a building, and not a use of land.

Further case law on this subject, together with relevant appeal decisions, can be found at section 4.3444 of DCP Online.

Interesting observations

A householder appealing the refusal of a certificate of lawfulness for a rear extension to his terrace house in southwest London has offered a novel interpretation of the GPDO (DCS Number 400-018-014).

The appellant argued that the definition of rear and side walls is generally taken to apply to the main substance of a building, and that A.1(j)(iii) of Part 1 of Schedule 2 to the GPDO is intended to apply to extensions beyond the original width of the building, such as to the side of an end-of-terrace, semi-detached, or detached property, and not to extensions within the width of a mid-terrace property. The inspector ruled that, “despite these interesting observations”, for the very specific planning purposes of the GPDO, side and rear elevations of the original dwellinghouse are interpreted as any such elevations that form part of that building, irrespective of whether part of the main substance, or whether the building is part of a terrace, an end-of-terrace, semi-detached, or detached.

Good try, but no.

Extensive coverage of the meaning of Part 1 of the GPDO – Development within the curtilage of a dwellinghouse – can be found at section 4.3421 of DCP Online.

Permanent markers

In Just kidding around we reported an appeal case in which the issue of permanence was debated. Here’s another, not dissimilar, but which draws on some different case law. This appeal (DCS Number 200-007-302) concerns an enforcement notice directed at a freight container, sited in a Kent field, which was used for the storage of equipment associated with the cultivation of Christmas trees.

The appellant submitted that the storage container did not require planning permission because it did not amount to development within the meaning of section 55 of the Act. He argued that the placing of it on the land was not a building operation; the container did not rest on any foundations; it was relatively small in size and it was not connected to any utilities. Moreover, it was capable of being moved around the field either on logs or by attaching it to a wheeled container mover and pulling it with a quad bike.

The inspector recorded that relevant case law reveals that there is no single conclusive answer as to what constitutes a building operation. She explained that in Barvis v SSE [1971] three tests are set out; the size of the building or structure, the degree of permanence, and the degree of physical attachment to the land. No one factor is decisive. She also referred to the Woolley Valley case (R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012]) which concerned poultry units mounted on skids so that they could be pulled around the field by a tractor or a 4×4 vehicle when required. In this case the High Court held that the council had erred in law in taking too narrow an approach to the meaning of development. The term ‘building’ in section 336 of the Act has a wide definition which includes ‘any structure or erection’. Additionally, the council had not directed itself correctly in law on the issue of permanence, which has to be construed in terms of significance in the planning context. The poultry units were permanently in their field and there was no limit on the length of time that they would remain there. The ability to move them around the field did not remove the significance of their presence in planning terms. The visual and landscape impact of the units was not affected to any material extent by any periodic changes to their position in the field, the court determined.

Turning to the case before her, the inspector considered that, when viewed in the field against the backdrop of a hedge and new fencing, the size of the storage container was significant in the planning context. It had also not been moved since it was placed on the land and therefore had a permanent character. Whilst it was not physically attached to either the land or any utilities and there was no hardstanding underneath it to support it, she found as a matter of fact and degree that it was a building. Planning permission had not been granted by the council and so the matter alleged in the notice constituted a breach of planning control, she concluded.

More case law on size, permanence and physical attachment can be found at section 4.3112 of DCP Online and there is discussion about whether movable structures are development at section 22.112.

Snow joke

It’s no joke being a farmer in the current wintry weather conditions, so a cold-hearted attitude from the local planning authority is not likely to be met with good humour. Neither is the suggestion that one’s elderly mother should be required to vacate the farmhouse in order to make the dwelling available to the holding likely to be supported by an inspector, as a case in Yorkshire shows (DCS Number 200-007-293).

In this case the inspector noted that the appellant’s family had worked the farm for four generations over a period of some 400 years. The appellant had grown up in the farmhouse, left there when he married and had lived for a number of years with his wife and son in rented accommodation around three miles away, but this arrangement had become untenable. His 77 year old mother retained an active role in the business and lived in the farmhouse. He therefore applied for an additional agricultural worker’s dwelling.

The council recognised that the farm was a well-established business of substantial and expanding scale. However, it suggested that an annex could be provided to accommodate the appellant’s mother such that he and his family could also live in the farmhouse (thereby avoiding the need for a new dwelling). After reviewing the relevant case law set out in Keen v Secretary of State for the Environment and Aylesbury Vale District Council [1996] and Ford and Another v Secretary of State for Communities and Local Government [2007] the inspector determined that functional need is not a simple absolute; it is also necessary to have regard to other material considerations. Whilst mindful that a functional need for accommodation depends on the needs of the enterprise rather than the personal preferences or circumstances of the individuals involved, she reasoned that the appellant’s mother had no intention of leaving the farmhouse in the foreseeable future. Therefore, there was no indication as to whether or when the farmhouse would be likely to become available.

In the absence of any firm evidence to demonstrate that the farmhouse could accommodate the appellant and his family as well as his mother (or that she would be willing to downsize or share her home), and since it would be unreasonable to require the appellant’s mother to leave, the inspector was not persuaded that the existing farmhouse was available. That being so, and taking into account the benefits that would arise from the proposal, she concluded that there was an essential need for an additional dwelling to accommodate a rural worker.

For more on agricultural dwellings see section 9.334 of DCP Online.