Monday, March 9, 2015
Barn conversions – the new rules re-interpreted
As many readers have discovered, the interpretation of the rules on prior approval of the proposed residential conversion of agricultural buildings has been much more restrictive than we had been led to expect, and it has clearly not reflected ministerial intentions.
This is largely due to the actual drafting of the provisions in Part 3, Class MB of the Second Schedule to the GPDO. These really ought to be amended, but for various reasons ministers have not found an opportunity to do so, other than a minor change in April 2014 to make it clear that the provisions of the NPPF are to be taken into account only so far as they are relevant to the specific matters to which a prior approval application relates (e.g. highways and traffic, noise, site contamination, etc.).
In an attempt to counter the unduly restrictive approach that has been taken, both by LPAs and by the Planning Inspectorate, to Class MB in particular, the government amended their on-line Planning Practice Guidance last week, on 5 March, to explain their view as to how these permitted development rights are intended to operate.
The notes below summarise some of the points that have now been incorporated in the government’s online planning practice guidance.
Limits on building operations
On this topic, the new guidance does actually reinforce the approach which has hitherto been taken in these cases.
The definition of a “building” in Article 1(2) of the GPDO includes “any structure or erection” as well as any part of a building. This may be relevant in the context of the residential conversion of agricultural buildings, as it could in principle include various buildings and structures of unconventional, and perhaps in some cases rather insubstantial, construction. The well-known judicial authorities on what constitutes a building or structure could also be relevant in this context (e.g. Cardiff Rating Authority -v- Guest Keen Baldwin  1 KB 385, Skerritts of Nottingham v. SSETR (No.2)  2 P.L.R 102;  JPL 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council  EWHC 2161 (Admin)).
However, the works permitted under Class MB(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. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.
In their amended on-line practice guidance, the government has confirmed that it is not the intention of the permitted development right under Class MB(b) to include the construction of new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works to provide for residential use that the building would be considered to have the permitted development right.
In any event, the development under Class MB(b) must not consist 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 partial demolition to the extent reasonably necessary to carry out the building operations listed here. Furthermore, the development must not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point.
The inclusion of roofs and walls in the list of items that can be installed or replaced as part of the building operations permitted by Class MB might be thought to allow scope for some significant rebuilding or replacement of the existing fabric, but an appeal decision in Bedfordshire, issued in February 2015, provides clear confirmation that the extent of the proposed building operations must not go beyond what is “reasonably necessary” for the building to function as a dwellinghouse, so that substantial demolition of the building and its effective replacement would be outside the scope of the development that is permitted. This is a factor which will clearly be a material consideration in the consideration and determination of the prior approval application
The strict limitation on the works that may be carried out under Class MB(b), combined with the condition that they must not extend outside the envelope of the pre-existing building, does not allow the creation of any hard surface or other engineering works (such as the laying of gravel) to provide any hard surfaces within the curtilage for the purposes of parking, or the provision of a patio, etc. Nor is there any provision (as there is in Classes M and MA) for permitted development under Part 41, Class B that would allow any such works to be carried out. Furthermore, such works cannot be carried out under Part 1 of the Second Schedule, because such development is specifically excluded by Class MB. Planning permission will therefore be required if it is desired to incorporate any such facilities in the development, and all the usual policy considerations relating to development in the countryside will apply to the determination of such an application.
A further appeal decision in Nottinghamshire also illustrates this point. The inspector in this case held that the proposed barn conversion would involve such major changes and reconstruction as to go beyond the scope of the development permitted by Class MB(b). The building had a metal frame and walls comprising a single metal skin, plus an element of blockwork, and a roof of corrugated asbestos fibreboard. What was required to enable the adaptation of the building for residential use amounted to substantial demolition and reconstruction of the building, plus various physical alterations. This was quite clearly beyond the scope of Class MB(b).
The National Planning Policy Framework
When determining a prior approval application, the LPA must also have regard to the National Planning Policy Framework (issued by the Department for Communities and Local Government in March 2012) so far as relevant to the subject matter of the prior approval, as if the application were a planning application. The words in italics were added to the GPDO with effect from 6 April 2014.
This amendment became necessary because, when determining prior approval applications under Class J, LPAs had been interpreting paragraph N, including the words “as if the application were a planning application”, as giving them a wide discretion to take into account other policy considerations in addition to the short list of criteria set out in Class J. The amendment makes it clear that the only policies in the NPPF that can be taken into account in determining an application for prior approval are those that are relevant to the strictly limited criteria set out in respect of the specified class of development. This has been confirmed and reinforced by appeal decisions, where inspectors have been robust in excluding considerations that go outside those parameters.
This point has been further reinforced by the amendment to the government’s on-line Planning Practice Guidance, which points out that this procedure was amended in April 2014 to make clear that the local planning authority must only consider the NPPF to the extent that it is relevant to those matters on which prior approval is sought, for example, transport, highways, noise etc.
In relation to Classes MA (conversion of an agricultural building to use as a school or nursery) and MB (residential conversion of an agricultural building), in particular, the revised ministerial practice guidance explains in some detail how an LPA should approach the question as to whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use. The practice guidance makes it clear that when an LPA considers location and siting it should not be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant. (This is explained in more detail in the note on rural development policy below.)
Limits on dwelling numbers
Paragraph MB.1(c) provides that the cumulative number of separate dwellinghouses developed within an established agricultural unit must not exceed three. There has been some confusion over the precise interpretation of this provision but, in amending their on-line Planning Practice Guidance on 5 March, the government has made it clear that it was their intention that the total number of new homes (3 dwellinghouses) should not include existing residential properties within the established agricultural unit, unless they were created by the use of this permitted development right on a previous occasion, in which case they would be counted.
The Planning Inspectorate can be expected in future to apply this guidance in determining planning appeals where this point is in issue, in contrast with a previous appeal decision in which one inspector held that the 3-dwelling limit applied to all such dwellings, and was not limited only to the number created under Class MB. The effect of that appeal decision was that any dwellings already in existence on the agricultural unit would count towards this total, so that if there were already three built under previous planning permissions, then no more could be created under Class MB.
The revised ministerial guidance in the government’s on-line Planning Practice Guidance does not, however, resolve the difficulty posed by the drafting of the Order. The interpretation of legislation does not depend on what ministers think it says or would like it to say. The courts may not, therefore, agree with the advice set out in the government’s online practice guidance, if a local planning authority were to challenge this interpretation of the 3-dwelling limit in a future case.
Rural development policy
One of the criteria to be considered by the LPA when determining an application for prior approval of proposed development under Classes MA and MB(a) (both relating to conversion of an agricultural building), but not under Class M, is whether the location or siting of the building makes it impractical or undesirable for the building to change from agricultural use to use as a school or nursery (under Class MA) or to a residential use (under Class MB(a)). This has proved to be a major stumbling block for applicants in obtaining approval of these proposed conversions of agricultural buildings. Ministers did not intend to allow LPAs such broad scope for rejecting proposals for the conversion of agricultural buildings, but the drafting of Classes MA and MB has up to now been interpreted as giving an LPA a considerable measure of freedom to refuse the application on policy grounds. At least half of all such applications for residential conversion under Class MB up to the early part of 2015 are thought to have been refused (and there was anecdotal evidence that there had been an even higher rate of refusal in some areas). Furthermore, by early 2015, 9 out of 10 of the appeals against such refusals had been dismissed by the Planning Inspectorate (a significantly higher proportion than in other types of planning appeal).
This has prompted the government to amend their on-line Planning Practice Guidance to address in particular the issue as to whether the ‘sustainability’ of the proposed development is intended to be a material consideration in determining an application for prior approval of the proposed change to residential use. The revised ministerial guidance makes it clear that the permitted development right does not apply a test in relation to sustainability of location. This is deliberate, as the right recognises that many agricultural buildings will not be in village settlements and may not be able to rely on public transport for their daily needs. Instead, the local planning authority can consider whether the location and siting of the building would make it impractical or undesirable to change use to a house.
The revised practice guidance then goes on to explain what is meant by “impractical or undesirable” for the change to residential use. Impractical or undesirable are not defined in the Order, and the LPA should apply a reasonable ordinary dictionary meaning in making any judgment. “Impractical” reflects that the location and siting would “not be sensible or realistic”, and “undesirable” reflects that it would be “harmful or objectionable”.
When considering whether it is appropriate for the change of use to take place in a particular location, an LPA should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the LPA would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.
There may, however, be circumstances where the impact cannot be mitigated. Therefore, when looking at location, LPAs may, for example, consider that because an agricultural building on the top of a hill with no road access, power source or other services, its conversion is impractical. Additionally, the location of the building whose use would change may be undesirable if it is adjacent to other uses such as intensive poultry farming buildings, silage storage or buildings with dangerous machines or chemicals.
When an LPA considers location and siting it should not therefore be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant.
Adopted policies in the Development Plan are also capable of being a material consideration when determining a prior approval application, but it is clear from the revised ministerial practice guidance that adopted policies on development in the open countryside, development in the Green Belt (where applicable) and sustainable development, especially taking account of the availability or non-availability of easily accessible local services and any generation of car-borne movements that might arise from this will not usually be relevant and are unlikely to be valid reasons for refusal of a prior approval application.
© MARTIN H GOODALL