The High Court has issued a decision in a Class Q matter that will affect the way in which LPAs will determine such applications in a way that I fear will not be helpful to applicants. I examine in this post the application, the Inspector’s decision and the essence of the High Court judgement, and anticipate the way in which it is going to be used in prior approval applications to refuse applications.
The case is Hibbitt and Another -v- Secretary of State for Communities and Local Government (1) and Rushcliffe Borough Council (2) and was decided on 9 November 2016. The link to the full judgment is here. The Inspector's decision letter can be downloaded here. The original application website including the plans is here.
The building which is the subject of the application was a metal framed modern farm building: a metal frame, corrugated sheet and open sided cattle stall. The size of the barn is 30.5m x 7.96m (243sq.m). It has a maximum height of approximately 5 metres with the lowest eaves at a height of 3.2 metres. It is largely open on three sides and was used to house cattle. The barn is situated between two other large steel framed buildings that house livestock. In order to convert the barn into a dwelling it was contemplated that there would be no demolition and the existing steel frame would be retained in its entirety, as would the roof. The applicant proposed to create external walls from structural infill panels that would have no load-bearing function. Structural evidence was provided that the steel structure and the concrete floor could take all external loads without further strengthening.
Prior approval was refused and the applicant appealed. The Inspector dismissed the appeal and the essence of her decision is contained in paragraph 10:
10. Nevertheless, having regard to the extent of works necessary for the frame and fibre roof to function as a dwelling, a demonstration of the load bearing capacity of the frame alone is insufficient to meet the requirement of part Q in this case. Although I accept that substantial works could fall under the scope of class Q they nonetheless presuppose that the works comprise 'conversion'. In this case, the building before me would not be capable of functioning as a dwelling without the building works outlined above which include the construction of all four exterior walls. This goes well beyond what could reasonably described as conversion, and notwithstanding the re-use of the 6 steel uprights as the main structural element for the building and the retention of the fibre roof, the works described would be so extensive as to comprise rebuilding. I must therefore conclude that the works necessary to create a dwelling from the structure onsite would not fall within the scope of that permissible under part Q. Accordingly, they would not be permitted development under Class Q(b).
The Inspector agreed that it was an agricultural building, that no additional structural works were required, and that the works were reasonably necessary to convert the building.
High Court decision
The High Court upheld her approach in this appeal as being a correct reading of Class Q. The narrow point that the judge has decided is that permitted development given by the Order is the conversion of an agricultural building, not its rebuilding, and so she reached the right decision on the facts before her.
Much of the judgment deals with the respective arguments proposed by each side, but the following extracts indicate the basis of the judge’s decision.
The permission given Class Q(b) reads: (b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwellinghouses) of that Schedule.
This was significant to the judge:
26 The concept of "conversion" is found in the overarching provisions of Class Q (not in Q.1) and it thereby introduces a discrete threshold issue such that if a development does not amount to a "conversion" then it fails at the first hurdle and there is no need to delve into the exceptions in Q.1. It is thus a freestanding requirement that must be met irrespective of anything in Q.1. … on a fair construction of the drafting logic of the Order, the requirement that development amount to a "conversion" is drafted as a separate requirement from these other conditions. In particular (as set out in the second point below) the concept of conversion has inherent limits which delineate it from a rebuild.
27. A conversion is conceptually different to a “rebuild”… In my view it is a matter of legitimate planning judgment as to where the line is drawn. The test is one of substance, and not form based upon a supposed but ultimately artificial clear bright line drawn at the point of demolition… In any event the nub of the point being made by the Inspector, in my view correctly, was that the works went a very long way beyond what might sensibly or reasonably be described as a conversion. The development was in all practical terms starting afresh, with only a modest amount of help from the original agricultural building.
A worrying aspect of the judgment is the court’s reliance on policy to support his interpretation of the GPDO. He referred to paragraph 55 of the Framework (“LPAs should avoid new isolated homes in the countryside…)
30. These considerations militated in favour of only approving clear-cut cases and leaving more marginal cases to the ordinary planning system, and therefore against a wide construction of Class Q such as that advocated for by the Claimants which would permit wholesale circumvention of Paragraph 55. A proper balance was struck between the need for speed and certainty and a fuller evaluation by ensuring that only genuine conversions, and not fresh or re-builds, were automatically cleared. I agree with this analysis.
The judge applied the Planning Policy Guidance paragraph 105:
31 The distinction between a conversion and a rebuild is implicit in paragraph 105 NPPG which states in relation to Class Q that it is not the "… intention of the permitted development right to include the construction of new structural elements for a building". It can be said that one reason for this conclusion is that a development that includes "new structural elements" is one that involves a degree of rebuild and is not a conversion.
This last point seems odd given that the applicant was proposing to use lightweight, non-load bearing panels with which to create the walls. Also, if they were structural elements they would not be permitted development. However, this is just the kind of point that LPAs will repeat.
The essence of the case is that a rebuild (or new build) is not permitted, just the conversion of a building. No tests are laid down to assist future assessment, and so each case remains to be decided in each case.
The judge has however clarified two points that will assist applicants.
1. The sentence in paragraph 105 that reads “The permitted development right under Class Q assumes that the agricultural building is capable of functioning as a dwelling” is not easy to construe. He did not gain much from those words to assist with an interpretation of conversion. This is set out in paragraph 33 of the judgment.
2. The amount of works proposed does not of itself determine whether the works are a rebuild or a conversion. “The first concerns the Inspector's analysis of the weight she attached to the extent of the proposed works. In my view she correctly recognised that the extent of the works was not dispositive [dispositive means determinative - I had to look it up]. In many permitted developments the work might be extensive yet that does not thereby disqualify a development from automatic permission. I also accept her analysis that the extent of the works to be undertaken was one, amongst other, relevant consideration that could assist in forming a judgment whether the works were part of a conversion or were, instead, part of a rebuild or fresh build. I thus accept the analysis that the extent of the works is a relevant but not dispositive consideration.”
The case is overall very unhelpful in that it does no more than uphold an Inspector’s decision on the facts of one case but no doubt parallels will be drawn with this case by LPAs when determining similar proposals. The case does not clarify where or how the line will be drawn between fresh build and conversion in any other case and ultimately creates more shadow than light by elevating the undefined concept of “conversion” in Q.(b) above the relatively straightforward limitations contained in Q.1.