Decision of the week

Not an appeal this time, but a decision made by a council which appended some informative notes that caused quite a stir amongst some consultants I know. I have set the notes out in full with my comments.

It’s not often that I come to the defence of an lpa in matters Class Q but I feel the need to here as I think that the council are stating the law correctly and helpfully putting people on notice of falling foul of the law. Let’s look at the notes section by section.

NOTE: This Prior Approval has been considered under Class Q of Part 3 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). It has been permitted on the basis of the site solely being used for an agricultural use as part of an established agricultural unit in line with the requirements of the Order and specifically Class Q.1 (a)-(m).

The Order does not require the local planning authority to consider whether the proposal meets the requirements of Class Q in every part. They are only charged with considering prior approval matters. W(3) says,

(3) The local planning authority may refuse an application where, in the opinion of the authority—

(a) the proposed development does not comply with, or

(b) the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in this Part as being applicable to the development in question.

All that this note does is inform the reader that they have considered the Class Q criteria. Approval of prior approval matters is not the same as the grant of planning permission. A scheme can be approved for the purposes of prior approval and yet not comply with Class Q. In the opinion of this authority the scheme complies with all matters.

It has also been permitted on the basis of the existing structure being converted as per the submitted plans/drawings. The applicant should note that any removal/demolition of the existing structure would render this Prior Notification application incapable of implementation as a conversion and that the requirements of Class Q.1 (a)-(m) should also be met.

This restates W(12)

The development must be carried out—

(a) where prior approval is required, in accordance with the details approved by the local planning authority;

and goes further, by stating in effect that the Order gives planning permission where the conditions and limitations of the relevant Class are met, and one of those is that works are to achieve conversion and are limited to those that are reasonably necessary for that purpose. Not only must the plans be followed, but only limited works are permitted when building in accordance with the plans.

Finally the Prior Notification has been determined based on the current information submitted at the time of the application. In the event that the site is sold on or there is a change in circumstances, any prospective purchaser should check whether the regulations continue to be met, and for the avoidance of doubt should consider the submissions of a further prior notification application if circumstances change.

I read this as a further reminder that the building must qualify at the point of the change of use. It must be an agricultural building at that date, because the Order grants planning permission for the change of use of an agricultural building which paragraph X defines as “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business”. If a farmer having obtained prior approval under Class Q then sells off the land with the barn for the purchaser to develop, there will be no planning permission under Class Q because the building no longer qualifies as an agricultural building.

The Informative note in my opinion does no more than tell us what the Order tells us, and the third part is particularly helpful in that regard. How many conveyancing solicitors would be aware of this very narrow point of law? Or planning solicitors for that matter?

Appeal decision of the week

Issue: Whether a horse use was an agricultural use

Facts: The council decided that the keeping of horses in the barn that was the subject of a Class Q application disqualified the premises for the change of use. The Inspector disagreed and allowed the appeal. The appellant had explained that these animals are retired and spend much of their time outside. Information was provided to show that grazing sheep and horses alongside one another within an organic farming system can assist in grassland management and reducing sheep fatalities due to parasites. 

Quotation: "During my visit I saw nothing to suggest that the horses are being kept for recreational purposes. The animals were unshod and there were no signs of equestrian paraphernalia or feed. I am thus satisfied that the horses are serving an agricultural purpose. Their housing within the building whilst not grazing does not trigger a material change of use to equestrian or a mixed use."

Comments: It is generally accepted that the commercial keeping of horses is not an agricultural use, but sometimes the grazing of horses is agricultural because "grazing of animals" is within the definition of agriculture. In this case, the stabling of horses was an agricultural use because of their therapeutic and beneficial effect on the other animals. The appeal was very well supported in this respect and the presentation paid off. 

Reference: APP/W1145/W/17/3188267

Appeal decision of the week

Issue: How is notification of a decision properly made?

Facts: The prior approval application was made properly and received by the council on 15 September 2017. It is a condition that the development must not begin before the occurrence of one of three criteria, including (c) the expiry of 56 days following the date on which the application was received. The expiry date was 10 November. The planning officer sent an email on the morning of 24 October 2017 which the council said should be considered as its decision to refuse to grant approval for the proposal, and so was in time. The council said in its decision letter that prior approval was required but was refused because the location or siting of the agricultural building made it otherwise undesirable for a change of use to three dwellinghouses, but the email gave less information.

Quotation: It is my understanding that, unlike a decision notice relating to a planning application, there is no required format for one relating to an application for prior approval under the provisions of the GPDO. Saying that, Schedule 2, Part 3, Paragraph W(11)(c) of the GPDO is clear that the Council is required to notify the applicant as to whether prior approval is given or refused. Thus, the Council’s decision on a prior notification application, whether conveyed to the applicant in an email or by way of a formal decision notice, should therefore be able to be reasonably read as either an approval or a refusal... The Council acknowledged during the Hearing that planning decisions are not normally sent out before the end of a period of consultation. It also acknowledged that it is standard practice for the Council to issue planning decisions, including for prior approval applications, by way of a formal decision notice, rather than by way of some text within an email. Moreover, the Council went on to issue a formal decision notice on 21 November 2017, the date that it initially considered was 56 days after it received a valid application. The Council’s appeal statement, at section 2.2, notes that it was on this date that the application was refused by officer’s exercising delegated powers. Furthermore, I was informed during the Hearing that is this decision notice, rather than the email, which appears on the Council’s website.

Comments: The email did not qualify as a proper determination of the application, and the late notice of the decision meant that deemed approval of prior approval matters was granted. It is very important to stress that this does not mean that planning permission is granted. The Inspector was unable to determine the appeal because there was no power to appeal a deemed approval. Permission is granted by the Order, not by planning authorities or Inspectors and the recent case of Keenan v Woking BC in the Court of Appeal (Civil Division) on 16 June 2017 confirms just this point.

Reference: APP/L2820/W/18/3195337

Appeal decision of the week

Issue: hobby farming and mixed use agricultural unit

The appellant sought the change of use of an agricultural building to a single dwelling. She claimed the agricultural site had a Defra agricultural holding number and was used for the keeping of hens, ducks and geese, with the hens producing eggs. The ducks and geese were kept for breeding with surplus stock sold. The appellant stated that land laid down to grass at the site was grown for hay during the summer which was then sold off-site.

The Council presented evidence, undisputed by the appellant, that the building was used as part of the fishing lakes business, providing storage of machinery under planning application Ref 09/00428/FUL, which received planning permission for a single storey lean to extension to existing workshops to provide secure storage for machinery used in the upkeep of the fishery and
its grounds
. Whilst the date of the planning permission falls outside the dates set out in Class Q.1. (a), it demonstrated a historic mixed use of the building within the wider site.

The Inspector concluded:

10. The keeping of hens, ducks and geese; with hens producing eggs, and ducks and geese kept for breeding would fall within the realms of agriculture. However, limited evidence in this regard has been presented, and I only saw a small number of hens on my visit. Given the modest area of land where the hens were kept, I could only describe this as hobby farming, not for the purposes of a trade or business use as part of an established agricultural unit.

12. Livestock holdings describe the land and buildings that people use for keeping livestock, including livestock kept as pets. Therefore, whilst the appellant may have a Defra holding number, this does not indicate that the site was used solely for an agricultural use as part of an established agricultural unit.

Comments: given the poverty of the evidence produced the unsuccessful outcome of the appeal is unsurprising.

Appeal decision of the week

Issue: structural additions

Proposed alterations to the building included the demolition of parts of the building, the construction of an internal wall, the insertion of new doors and windows including roof lights and the cladding of the external walls. Internally a proposed mezzanine floor is proposed over the central section of the building. The building has a steel frame supporting steel roof trusses, blockwork walls and corrugated sheeting to the upper gables and roof. It is constructed on block foundations and the floor is a concrete slab. The appellant advises, following a structural report, that viewed both internally and externally no structural defects were noted.

New internal masonry walls were to be constructed. It also advised that a new internal skin of loadbearing blockwork should be introduced to the external walls, which would require a new foundation. Alternatively, it suggested, the new lining could be formed in structural timber and plywood sheathing. A structural report, which included various technical calculations and an assessment of the ground conditions beneath the slab, concluded that the new lining and internal walls could be constructed on the existing floor slab and no new foundations were necessary.

The report was disputed by the local planning authority based on undisclosed comments by a Building Control Officer, and the Inspector concluded:

"Accordingly based on the information before me I have no firm basis to dispute the appellant’s claim that the works required for the conversion could be built off the existing foundations. There is therefore no compelling reason to conclude that new structural elements would be required. As such the proposal meets the requirements of paragraph 105 of the PPG and therefore also those of paragraph Q.1 of the GPDO."

The appeal was allowed.

Comments: the decision letter did not cover whether the amount of building works exceeded what was "reasonably necessary" and seems to be of a significant scale. The decision letter is dated 7 August 2018 yet the Inspector was still referring to the Guidance on structural additions that was amended in February 2018. The works appear to me to amount to substantial new build, rather that conversion, so the Appellant is fortunate to have been appointed this Inspector.

Appeal reference: APP/R1038/W/18/3200789

Some thoughts on structural additions and the new PPG

The Planning Practice Guidance has been amended with regard to structural additions. When the topic first appeared in the 05 03 2015 revision it said this:

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 with the external works to provide for residential use that the building would be considered to have the permitted development right.

This is what caused councils to start asking for structural reports and to assess the building works against the ability of the building to take the additional loads.

What now appears is this, from the 22 02 2018 revisions:

It is not the intention of the permitted development right to allow rebuilding work which would go beyond what is reasonably necessary for the conversion of the building to residential use. Therefore 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.

For a discussion of the difference between conversions and rebuilding, see for instance the case of Hibbitt and another v Secretary of State for Communities and Local Government (1) and Rushcliffe Borough Council (2) [2016] EWHC 2853 (Admin).

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, which are not prohibited by Class Q.

According to the PPG there is no longer a test for the strength of the building (the words  "Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works …” are gone) and the only test is whether the building is suitable for conversion. The implication I derive from this is that works of strengthening form part of the overall assessment of whether the building is being converted, so that additional works of strengthening is not an issue in its own right any more. Just because those words are no longer there doesn’t mean it isn’t an issue any more. I think that it has reappeared in a different form.

I don't believe that this point has been given any attention, and planning authorities continue routinely to ask for structural reports. I hope that this issue will be considered soon, and if there is an appeal decision it will appear here.