The High Court has delivered two important judgements concerning the extent, and interpretation, of permitted development rights for agricultural building conversions (Class Q) and residential basement extensions (Class A) under the Town and Country Planning (General Permitted Development)(England) Order 2015 ("the GPDO").
Class Q GPDO
The permitted development rights for agricultural building conversions was considered in Hibbitt & Another v Secretary of State for Communities and Local Governments and Rushcliffe Borough Council [2016] EWHC 2853 (Admin). Class Q of the GPDO permits:
"development consisting of:
(a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwelling houses) of the Schedule to the Use Classes Order; and
(b) building operations reasonable necessary to convert the building referred to in paragraph (a) to a use falling within the Class C3 (dwelling houses) of that Schedule."
Except if:
"(1)(i) the development under Class Q(b) would consist of building operations other than – (i) the installation or replacement of – (aa) windows, doors, roofs, or exterior walls, or (bb) water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse; and
(2)(i) partial demolition to the extent reasonably necessary to carry out building operations allowed by paragraph Q.1(1)(i)…"
The case concerned the distinction between 'conversion' building works and 'rebuild' building works from agricultural building to dwellinghouse, and whether the latter was within Class Q(b) (and generally is the distinction necessary).
The case was a challenge of an appeal decision of an inspector following refusal by the council of a notification for prior approval. The agricultural building in question was described bu the inspector as:
"an open sided steel framed structure with a monopitch roof. It has a concrete floor slab and six steel uprights which span to support a corrugated fibre roof, supported on timber cross beams. It is open to two sides with a single skin steel panel to the rear and the long part of one further side. This sits above a concrete panel to around a metre in height. The concrete panel does not appear to be attached to the floor slab."
In dismissing the appeal the inspector found:
"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 be 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 Court found that the inspector was correct. He found that:
- the concept of conversion is found in the overarching provisions of Class Q and if a development "does not amount to a conversion then it fails the first hurdle and there is no need to delve into the exceptions in Q.1";
- a rebuild was not limited to building operations following demolition. The determination of the divide was a matter of legitimate planning judgement. The judge described the test as "one of substance, and not formed based upon a supposed but ultimately artificial clear bright line drawn at the point of demolition" and explained such reasoning by stating:
"There will be numerous instances where the starting point (the "agricultural building") might be so skeletal and minimalist that the works needed to alter the use to a dwelling would be of such magnitude that in practical reality what is being undertaken is a rebuild. In fact a more apt term than "rebuild", which also encapsulates what the inspector has in mind, might be "fresh build" since rebuild seems to assume that the existing building is being "re" built in some way. 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".
Class A GPDO
The permitted development right for residential basement extension was considered in Eatherley v London Borough of Camden [2016] EWHC 3108 (Admin). Class A of the GPDO permits:
"A. The enlargement, improvement or other alteration of a dwellinghouse.
A.1 Development is not permitted by Class A if:
(a) …
(b) as a result of the works, the total area of ground covered by buildings within the curtilage of the dwellinghouse (other than the original dwellinghouse) would exceed 50% of the total area of the curtilage (excluding the ground area of the original dwellinghouse);
(c) the height of the part of the dwellinghouse enlarged, improved or altered would exceed the height of the highest part of the roof of the existing dwellinghouse;
(d) the height of the eaves of the part of the dwellinghouse enlarged, improved or altered would exceed the height of the eaves of the existing dwellinghouse;
(e) the enlarged part of the dwellinghouse would extend beyond a wall which – (i) forms the principal elevation of the original dwellinghouse; or (ii) fronts a highway and forms a side elevation of the original dwellinghouse…"
The question for the Court was whether the engineering works to enable the construction of the basement was part of the works permitted within Class A GPDO. The council had issued a lawful development certificate on the grounds that engineer works were as a matter of law within Class A.
The Court found that significant engineering works for the basement construction (such as excavating a space and supporting the house and its neighbours) could well amount, as a question of face and degree (i.e. a planning judgement), to two activities each of substance. That is the position, even though the latter is necessary to achieve the owner's aim. Class A grants planning permission for only one of the two activities of the development and not the engineering aspect.
Noting the question is a planning judgement, the Court in quashing the lawful development certificate, found that:
"[the council] should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance. The council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement. In other words, if the planning committee had asked itself the right question, it would have needed to assess the additional planning impacts of the engineering works to decide whether they amounted to a separate activity of substance".
Lesson: The significance and scale of the building and engineering works for any agricultural building conversion or basement construction must be carefully considered so as to ensure the proposed development falls within the relevant permitted development rights. Otherwise, express planning permission will be required in order to carrying out the development.
