Thu, 17 Nov 2016
Hibbitt v Secretary of State for Communities and Local Government  EWHC 2853.
- The High Court has clarified that a “conversion” of an agricultural building can constitute permitted development under Class Q, but a “rebuild” cannot.
- The distinction is a matter of planning judgment, but it is far from clear where the dividing line falls.
The Claimants proposed to develop a 30 metre, steel-framed barn, which was largely open on three sides, on their land at Wysall, Nottinghamshire into a dwelling-house. They sought approval from Rushcliffe Borough Council (“the Council”) arguing that planning permission was not required on the basis that the proposed works constituted a “permitted development”. After the Council refused and an appeal to a the Secretary of State failed, the Claimants applied to the High Court under section 288 Town and Country Planning Act 1990 to quash the decision of the Inspector refusing the appeal.
The Town and Country Planning (General Permitted Development) (England Order 2015 (“the Order”) provides that planning permission should be granted for classes of development that constitute permitted development in Schedule 2. Class Q of Part 3 of Schedule 2 (“Class Q”) permits buildings operations which are reasonably necessary to convert an agricultural building to a dwelling house. Class Q.1 then sets out various restrictions to the general permission granted by Class Q.
Further guidance is provided by §105 of the NPPG. This states that the permitted development right under Class Q “assumes that the agricultural building is capable of functioning as a dwelling.” It further states that:
“It is not the intention of the permitted development right 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 from the external works to provide for residential use that the building would be considered to have the permitted development right.”
The Inspector accepted the Claimants’ submissions that the barn was structurally strong enough to bear the load of the proposed development, and that substantial works could fall under the scope of Class Q. However, she observed that Class Q presupposes that the works comprise “conversion” and found that the proposed development of the barn, which included the construction of all four exterior walls, would be “so extensive as to comprise rebuilding” (quoted at §14).
In his judgment, Green J, notes that there was no dispute between the parties that the barn constituted an “agricultural building” within the meaning of the Order, or that the proposed works were reasonably necessary for the change of use of the building from a barn to a dwelling-house, and that the Inspector accepted these points. He states that the essence of the dispute between the parties was whether the proposed conversion amounted to a rebuild, and whether it would be relevant even if it did amount to a rebuild. In §24, he states:
“The question boils down to (i) whether inherent in the concept of “conversion” is a limit introduced by the concept of a “rebuild”; and (ii) whether even if there is that limit it is already incorporated into Class Q by virtue of the other limitations in the Order.”
While Green J indicates that he found the submissions on behalf of both the Claimants and the Secretary of State persuasive, he found for the Secretary of State and upheld the decision of the Inspector.
Green J held that there is a conceptual difference between a “rebuild” and a “conversion” and that the concept of “conversion” introduces a discrete threshold. His reasons include the fact that the concept of conversion is found in the overarching provisions of Class Q (i.e. not in Q.1). Further, he states that it is inappropriate to look to the dictionary when seeking to define the distinction as the Order was drafted for a professional audience and the distinction should be understood in a planning context.
This judgment will provide some encouragement to local planning authorities seeking to restrict the development of agricultural barns into dwelling-houses. Nevertheless, the distinction between a conversion and a rebuild is indefinite. Green J makes clear that the extent of the works is not decisive. In §34, he states, “In many permitted developments the work might be extensive yet that does not thereby disqualify a development from automatic permission.”
In addition, it seems that no assistance is provided by the requirement in §105 NPPG that, “The permitted development right under Class Q assumes that the agricultural building is capable of functioning as a dwelling”. After considering the meaning of this, Green J concludes, “Ultimately I do not gain very much from these particular words…” (§33). In any event, even if it were possible to establish that an agricultural building was “capable of functioning as a dwelling” this would not be, in itself, decisive. The barn in the present case met the further requirement in §105 NPPG that the “existing building structure is structurally strong enough to take the loading which comes from the external works”, yet the development was still classed as a rebuild rather than as a conversion.
In conclusion, while the High Court has clarified that there is a difference between a conversion of an agricultural building which does not require planning permission and the rebuilding of an agricultural building which does, and that the distinction is a matter of planning judgment, there remains considerable confusion as to where the dividing line falls. It will therefore be very difficult for anyone to predict how Inspectors will view particular developments upon appeal.
This publication was written by Howard Leithead Pupil Barrister at No5 Barristers Chambers.