06th December 2016
High Court clarifies the meaning of ‘conversion’ of an agricultural building to a residential dwelling
In the recently decided case of Hibbitt v Secretary of State for Communities and Local Government  EWHC 2853 (Admin), the High Court considered the meaning of ‘conversion’ under Class Q.
Class Q(a) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GDPO) permits the change of use of a building and any land within its curtilage from use as an agricultural building to a residential dwelling without planning permission. Class Q(b) permits limited building operations reasonably necessary for the conversion. An application must be made to the Local Planning Authority (LPA) for prior approval of both the change of use and the building works.
The Class Q permitted development rights are only available if certain criteria set out in the GDPO are met.
Paragraph 105 of the government’s Planning Policy Guidance (PPG) says that the permitted development right under Class Q assumes that the existing agricultural building is capable of functioning as a dwelling, and is strong enough to bear the load of the development works. It confirms that it is not the intention of Class Q(b) to permit the construction of new structural elements. The PPG does not bind a court, but it will be taken into account.
In Hibbitt the claimants owned a barn which was open on three sides and consisted of concrete foundations, a steel frame and a roof. They sought to convert it into a residential dwelling using the Class Q permitted development rights. No demolition would be necessary, and panels would be used to construct the external walls and ceiling. The LPA (Rushcliffe Borough Council) refused their prior approval application under Class Q, and an appeal against the refusal was dismissed. The inspector considered that, although most of the requirements of Class Q were fulfilled, substantial building works were required which went well beyond what could reasonably be described as a conversion. The claimants applied to the High Court for judicial review of the appeal decision, arguing that as long as the existing structure could bear the load of the development works the work fell within Class Q, and it was unnecessary to consider whether the nature and extent of the works constituted a ‘rebuild’.
The judge dismissed the application for judicial review, saying that the inspector was correct in deciding that the works had gone a very long way beyond what might sensibly or reasonably be described as a conversion. The requirement that the development amounted to a ‘conversion’ was drafted as a separate and freestanding threshold requirement from the other conditions in the GDPO. If a development did not amount to a conversion, then it failed at the first hurdle and Class Q did not apply. The conversion/rebuild distinction could be decided as a matter of legitimate planning judgment by experts. The Class Q category of permitted development defined cases where planning permission was automatically granted without the detailed assessment required under the planning application route. It should therefore only be used for clear cut cases, with marginal cases being left to the ordinary planning system. Finally, the distinction between a conversion and a rebuild was implicit in the PPG.
This case will be of interest to developers who are considering converting agricultural buildings to residential dwellings. Whether a prior approval application under Class Q is merited will depend on making the distinction between whether the work to the building constitutes a conversion or a rebuild. If, as a matter of judgment based on the scale and nature of the works, it is the latter, an application is unlikely to succeed and a full planning application should be made. It remains to be seen whether the decision will be appealed, and whether the High Court’s conservative interpretation of the scope of permitted development rights will be adopted by the higher courts.
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