Tuesday, 27 February 2018

Convertibility of agricultural buildings – revised advice

The Housing Ministry (formerly De-CLoG) has at last revised its advice on the convertibility of agricultural buildings under Part 3, Class Q, in the Second Schedule to the GPDO.

Readers will recall that paragraph 105 of the online PPG, as revised in March 2015, stated rather starkly that It is not the intention of this permitted development right to allow rebuilding work which “would go beyond what is reasonably necessary for the conversion of the building to residential use”, so that “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”, but did not enlarge on this gnomic utterance, leaving it open to some rather imaginative interpretation by LPAs.

I had always been clear, and I think it was generally accepted even before this revision to paragraph 105 was made in 2015, that the works permitted under Class Q(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, especially if they are of rather insubstantial construction. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted. (See paragraph 9.7 in Chapter 9 of my first book, A Practical Guide to Permitted Changes of Use - page106 in the Second Edition.)

Unfortunately, quite a few LPAs seized on the revised guidance in March 2015 as an opportunity to refuse prior approval for various residential conversions of agricultural buildings which, in my view, did not involve such extensive work as to take the development outside the scope of Class Q(b), even taking into account that revised guidance.

Internal works were one particular bone of contention, and I argued strongly that such works should be seen as being entirely removed from the definition of development by virtue of section 55(2)(a) in the 1990 Act, so that they did not in any event form part of the development that was permitted by Class Q(b), and were thus not caught by the restrictive wording of paragraph 105 of the PPG.

The Housing Ministry has now at last conceded this point in the following wording, added to paragraph 105 on 22 February: “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.” These are not prohibited by Class Q

In the revised wording of paragraph 105, the Ministry has also referred to the High Court judgment in Hibbitt v SSCLG [2016] EWHC 2853 (Admin) as an example of a discussion of the difference between conversions and rebuilding. However, I have always taken the view that Hibbitt simply confirmed the well understood principle mentioned above. As I put it in a blog post on the convertibility of agricultural buildings on 14 November 2016, it was not even necessary to call in aid the wording of the PPG, as revised in March 2015, in order to interpret the plain words of the GPDO. But I warned that we should be wary of reading more than this into the Hibbitt judgment. What I called “the structural issue” has in effect two limbs. The first is the fundamental point, which was dealt with by Hibbitt (i.e. Does the development consist simply of necessary building operations, or does it comprise substantial demolition and reconstruction of the previous structure?).

The second aspect of this structural issue - the question of how much internal work can be carried out inside the building within the scope of Class Q, which has now been clarified by the latest revision of paragraph 105 last week, was one that I had found it necessary to discuss in great detail, and at great length, in Appendix D to the Second Edition of A Practical Guide to Permitted Changes of Use, but the latest revision of paragraph 105 has now made most of that debate unnecessary.

It is still my view that the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

It is very much to be hoped, however, that the latest revision to paragraph 105 of the PPG will finally put a stop to any further arguments about internal structural works carried out to agricultural buildings before or during their residential conversion under Class Q.