Monday, 17 March 2014

Barn conversions - the new rules


The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 was made on 10 March, laid before Parliament on 13 March and will come into force on 6 April. This is the long promised amendment to the GPDO that will allow the conversion of agricultural buildings to residential use (‘barn conversions’), and also some additional changes of use of A1 (shops) and A2 office premises. The Order applies to England only.

I will deal in a later post with changes of use of premises currently in use or including a use within Class A1 or A2, and go straight to the one you have all been waiting for – barn conversions.

Among other changes, the Order introduces a new Class MB into Part 3 of the Second Schedule to the GPDO. This new class authorises change of use of a building and any land within its curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). This new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

As predicted, however, this new PD right is hedged around with important exceptions, limitations and conditions. First, development is not permitted by Class MB where the site was not used solely for an agricultural use, as part of an established agricultural unit on 20th March 2013 or, if the site was not in use on that date, when it was last in use before that date. Other agricultural buildings may qualify for residential conversion in future if the site was brought into use after 20 March 2013, and is used for that purpose for ten years before the date the development begins.

The cumulative floor space of the existing building or buildings changing use under Class MB within an established agricultural unit must not exceed 450 square metres, and no more than three separate dwellinghouses can be developed within an established agricultural unit. The 450 sq m limit is absolute, so that once any residential conversions carried out under Class MB have reached the 450 sq m limit, there can be no further such developments within the same agricultural unit.

Furthermore, this change of use is not permitted if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained To avoid ‘winkling’ of agricultural tenants by rapacious farm owners, change of use is also precluded if less than one year before the date development begins an agricultural tenancy over the site has been terminated, and the termination was for the purpose of carrying out development under Class MB, unless both the landlord and the tenant have agreed in writing that the site is no longer required for agricultural use.

The amendment order also prevents this change of use where the erection or extension of agricultural buildings has been carried out under Part 6, Classes A(a) or B(a) of the Second Schedule to the GPDO on the established agricultural unit since 20th March 2013, or within 10 years before the date development under Class MB begins, whichever is the lesser. So you can’t put up new agricultural buildings or extend them and then convert them soon afterwards to residential use.

Although Class MB permits building operations reasonably necessary to convert the building to residential use, it does not allow development that would result in the external dimensions of the converted building extending beyond the external dimensions of the existing building at any given point; so it has to be wholly contained within the envelope of the original building. The type of building operations that are allowed under this heading are listed as the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse; and partial demolition to the extent reasonably necessary to carry out these building operations.

The inclusion of the two items I have put in italics in the preceding paragraph (roofs and exterior walls) seems to allow scope for some significant rebuilding or replacement of the existing fabric, although the reference to partial demolition would seem to indicate that wholesale demolition of the building and its entire replacement is not contemplated by this amendment to the GPDO. It would seem that there is potential here for disputes with LPAs as to the scope of ‘partial’ demolition that can be carried out within this class, and also the extent to which any such partial demotion and rebuilding is “reasonably necessary to carry out these building operations”. I would, however, suggest that it is very unlikely that the new PD right can be exploited in such a way as to build houses on the site of glasshouses or flimsily clad dutch barns and the like. But we shall see.

As confirmed in the Commons a couple of weeks ago, the development permitted by Class MB is specifically excluded on any site that is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class MB is also excluded if the building in question is a Listed Building.

As expected, the new PD right is subject to a prior notification procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use.

I have put the last of these in italics, because it seems to me that this gives the LPA a very wide discretion to resist such changes of use, without having to resort to an Article 4 Direction. The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. I discussed the practical effect of this requirement in relation to office conversions (B1(a) to C3) in a blog post on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). In relation to those conversions, there was some doubt as to whether this requirement had to be read in the context of the three criteria that were to be specifically applied to office conversions, but the inclusion in Class MB of the paragraph I have put in italics [(e) above] suggests to me that the NPPF can be applied on a much wider basis to these barn conversions. In fact, it would seem to turn the whole process into just another type of planning application – a sort of ‘planning permission-lite’.

As regards the building operations permitted by Class MB, this is subject to a separate an additional condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant to the extent that it addresses design issues (in paragraphs 56 to 68).

There is no requirement to have regard to the development plan, so section 38(6) of the 2004 Act does not apply as such, but I have previously discussed, in the blog post mentioned above, the extent to which the reference to the NPPF may to some degree bring the development plan into the equation (due to the references to the development plan contained in the NPPF itself).

Other conditions in the GPDO amendment provide that this class of development is subject to the condition that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or beginning with the date on which the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

There are some consequential amendments to various existing provisions in the GPDO, which I may discuss on another occasion (including information requirements in connection with prior approval applications), but one point of clarification which resolves an issue that has been the subject of discussion, both in this blog and elsewhere, relates to the ability of an LPA to impose conditions on a prior approval (not only under Class MB, but on the other prior approvals under Part 3 governed by paragraph N). A further sub-paragraph has been added:

(11) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.

This confirms that an LPA does have power to impose conditions on a prior approval under Part 3, but the scope of such conditions is limited. Any such conditions must be reasonably related to the subject matter of the prior approval, and cannot therefore be more wide-ranging. There would appear, however, to be some scope for dispute on this issue, and it may become necessary to pursue a section 73 application in some cases, and (if necessary) a section 78 appeal against the refusal of any such an application, coupled with an application for costs where appropriate.

© MARTIN H GOODALL

88 comments:

Anonymous said...

prior approval point (e) - pfffft
back to square 1.

been waiting for your blog on this for ages, so thank you for your continued hard work

Evan Owen - Snowdonia said...

A well written report as always, thank you Martin.

Anonymous said...

Hi,
Does this also impact on the possibility for replacement dwelling for agricultural/forestry buildings?

So if a woodland has a large shed to support the woodland enterprise can this be the basis for development and/or replacement dwelling?

Thanks

Anonymous said...

Hi,
Does this also impact on the possibility for replacement dwelling for agricultural/forestry buildings?

So if a woodland has a large shed to support the woodland enterprise can this be the basis for development and/or replacement dwelling?

Thanks

Anonymous said...

So we can change the walls, change the roof but unable to replace the whole unit !
My barn is located in a flood zone.
Does this mean my GPDO are revoked full stop or with the correct FRA and evacuation plan in place this can be overcome? Maybe the dwelling could be raised say 500mm still keeping within the height of the existing barn.
Barn located close to a 3ft wide stream( never seen it flood even this winter)
Thank you

AndyH said...

Yes thank you for this - I have read the primary document as well but your summary has helped hugely in my understanding of things. I've already had to advise some clients about this.

Anonymous said...

Very helpful report thank you. I assume that agricultural use is the same as the statutory definition for agriculture for planning purposes as defined in the Town and Country Planning Act 1990.

Walter said...

Thanks, Martin.

My initial reading of the new provisions indicates that at the current time, those who have used PD rights under Schedule 2, Part 6, Class A(a) or Class B(a) since 20 March 2013 on the agricultural unit are excluded from using the provision under Class MB, regardless of whether they wish to use the provision for the same building.

If this is the case, a developer who wishes to exercise both sets of PD rights (and has not yet done so) might be sensible to use the provisions under Class MB first, so as not to be excluded later (for 10 years).

In addition, the predicted restriction of 150sqm per dwelling would not appear to apply.

Walter said...

Thanks, Martin

Two thoughts spring to mind:

1) At the current time, developers who have used PD rights on an agricultural unit under Schedule 2, Part 6, Class A(a) or Class B(a) since 20 March 2013 are now excluded from using the new provision under Class MB regardless of which agricultural building they wish to convert to residential use. If this is the case, developers who wish to exercise both sets of PD rights going forward should exhaust the new provisions under Class MB before utilising the existing PD rights for erection/extension/alteration of an agricultural building.

2) The anticipated restriction of 150sqm per dwelling has not been imposed (such that one large dwelling of 450sqm is possible).

Would you agree?

Anonymous said...

Hi Martin,

I question which has bugged me since the inroduction of prior approval for larger home extensions is whether an individual has an opportunity to apply for a lawful development certificate for a proposed development of a larger home extension (ie a 6 metres singel storey rear exension). Surely this cannot be the case as there is an element of judgement involved in such a determination and as such, is not a strict "examination" against the perametes of the the GPOD.

Any help is appreciated.

Walter said...

On reflection from an earlier comment, it would seem that following the new paragraphs A.1(aa) and B2(ca) (of Part 6 of Schedule 2 to the GPDO Class A and Class B), utilising the provision under MB would indeed prevent the otherwise existing PD rights so affected.

Anonymous said...

Martin
if PD for a barn was obtained in 2012 but the barn not fully built by 20/3/13 will it still qualify
thanks

Charlie Shepherd said...

Hi Martin, (excellent blog bye the way)
I own a listed farmhouse with a barn to the rear. Although the barn itself isn't on the listing it has been assumed to be a cartilage building. Would these new P.D. rights apply in this case? I am sure the LPA will insist that any change of use of the barn affects the setting of the listed building, but is that sufficient to refuse?
Thanks
Andrew

Trewin Design said...

Martin,
If the planners, "when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application"; could they refuse on sustainability grounds if the barn was considered isolated? If so would that not discount many barns from using this procedure rendering almost useless?

Anonymous said...

I agree with Martin that there are a number of areas which will be open to interpretation and will only be 'rectified' through appeal cases etc. One particular query I have relates to the floorspace allowance. If the cumulative floorspace of the existing building is 450sq m as a single storey building, is the cumulative floorspace affected if you introduce additional floors.

Anonymous said...

Looking forward to the 6th April when we (along with most other LPAs) will be inundated with prior notifications for barn conversions for which we will receive the princely sum of £80.00 (well I hope we get something). More than the office to resi nonsense, this has the potential to make many an LPA grind to a halt and also probably go into the red. Thanks Nick.

JNH said...

I have previously commented on this blog that I deplore this blurring of the lines between permitted development and development requiring the submission of a planning application. It should be clear to a prospective developer that what he or she proposes to do is development which is, or is not, permitted under PD rights. While I accept there are always going to be matters of interpretation regarding the limitations of PD rights in the legislation, these were previously confined to marginal cases, and the passage of time usually led to a consensus. The recent tinkering with the system means there is more and more subjectivity written into the legislation itself. Instead of a simpler planning system we now have a three tier system, where development may be clearly permitted; permitted provided the planning authority agrees; or, requires a full planning application. We are left in the situation where what is deemed to be permitted development in one local authority area will not be permitted development in another one. For what is purported to be a “general” permitted development right this is ridiculous.

If the government want to make it easier to convert barns to houses (and I make no comment on whether this is a good idea or not) they should change policy to support this, but because they cling to the silly notion that the number of pages in guidance or policy is directly correlated to how complex a system is, they shy away from doing the necessary and have instead implemented policy by shoehorning it into the GPDO instead. Their position appears to be that producing detailed planning policy and guidance is bad and complex, but trying to achieve the same aim by increasing the length and decreasing the certainty of legislation is good. Go figure.

Martin H Goodall LARTPI said...

I simply haven’t got time to answer all the queries that have been posted in response to this item. I suspect that the answers to some of these questions will only be resolved through the appeals process, maybe with a trip to the High Court thrown in as well.

I think we can expect quite a few refusals of prior approval from LPAs for a variety of reasons, including possibly sustainability, although (as someone has pointed out on the RTPI Linked-in discussion forum) this could potentially be applied to a large number of barn conversions in the open countryside, and could well render this change in the rule practically useless – point that one of our commentators above has also made. Only time will tell.

Millicent said...

We have a barn that was built in 2010. We then added a small extension (5m wide x 4m length, built with timber and steel roof, single storey) without permission in 2012. Would this affect our chances of converting the barn to a house under the new laws from 6th of April as the extension is obviously not on the original plans and was built without permission.
Thanks

Martin H Goodall LARTPI said...

In response to the two most recent comments – first, I absolutely and entirely agree with JNH. Secondly, with regard to Millicent’s query, one would have to look at the precise facts (in a little more detail than stated above), but it may well be that the PD right under Part 3 Class MB might not be available in the circumstances. I think Keystone Law would have to be instructed to advise properly on this point if a definitive answer is required.

Anonymous said...

Thanks for a massively informative post.

I have an old stone barn that we would dearly love to change into a family home - would you imagine an early application near the 6th of April would be a good idea, or better to bide my time and see how things settle down?

Anonymous said...

Martin, what provision (if any) has been made for providing a residential curtilage with the new dwellings? All I can see is pd rights to convert barns with no mention of the other matter. While some LPAs may be willing to allow a modest curtilage 'gratis' some developers may well submit plans showing a ridiculously large red line that some LPAs may take exception to. On the face of it while it may be pd to convert the barn, a separate application for planning permission would subsequetly be needed to resolve this issue it would seem?

Anonymous said...

Will this change mean that those that are converting barns/agricultural buildings into deellings will now not be required to provide a bat and protected species survey to the planning authority?

Martin H Goodall LARTPI said...

In response to the anonymous query of 25/3/14 – I cannot answer this question without a detailed knowledge of local circumstances. There may be pros and cons to either of the suggested courses of action. If a prior approval application is delayed for the time being, it may be possible to see how the council deals with other cases, and maybe even to see the outcome of appeals where there is a refusal. On the other hand, if there is a rush of such applications in the district, this might ‘spook’ the council, who might then become much more negative in dealing with further applications of this sort.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 26/3/14 - The new rules (Class MB) refer to “change of use of a building and any land within its curtilage”. So the change of use can extend to the whole or any part of the existing curtilage of the agricultural building (if it has one). However, it would appear that the change of use cannot extend to any additional land outside the bounds of the pre-existing curtilage of the building. (Note that the reference is to the “curtilage” of the building, which is likely to be somewhat smaller than the planning unit of which it forms part.)

Martin H Goodall LARTPI said...

In answer to the anonymous query on 28/3/14 - The LPA does have certain powers to request further information when dealing with a prior approval application, and I can envisage circumstances when a bat survey might be called for. But I have not had time to double-check the Order to see whether and, if so, in what circumstances this information could properly be requested.

Walter said...

Under Part 3 Paragraph N (11) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval. Presumably LPAs could use conditions precedent to satisfy any considered need for bird and bat surveys?

Anonymous said...

will the new change of permitted development rights for farm buildings permit the conversion of steel framed buildings clad with sheeting, or does it only apply to brick built farm buildings?

Anonymous said...

It is very concerning in para 9(b) there is a new definition for curtilage for M, MA & MB only which states it is the lesser of the associated surrounding land or an area no larger than land area occupied by the building.

As an example if you had a 3 unit scheme over an existing two storey building of 450sqm that's a footprint/land area of 225sqm and an average of 75sqm per unit so the average curtilage per unit could not exceed 75sqm which is pretty unreasonable in order to accommodate garden, parking and access. Access and parking needs to be included to make the whole use lawful particularly if the owner wished to borrow against the property as a residential unit.

75sqm would just about suffice for private garden space if it is of a regular shape which is unlikely to be the case working around an old farmyard.

Unless I've missed something I think the government have not thought this through properly. I agree that there needs to be some science behind the curtilage area calculation and it seems sensible to link it to the footprint but they have used the wrong multiple ie. it should be 2 or 3 o4 times the footprint or access and parking should be a separate allowance.

I think this issue could make the majority of these new potential MB sites completely unworkable.

This also brings up another issue with parking - garaging: obviously a new build garage would not be permitted under MB but assuming the LPA did not condition the removal of normal PD rights presumably a new build garage or shed or extension could be built after completion of the scheme if normal resi PD criteria were met and it fell within the curtilage of the MB conversion....?

Sorry one more query/observation!: MB1(b) cumulative floor space of existing building not exceeding 450sqm (presumably floor space is the Gross Internal Area) if a barn had say an existing floor space of 450sqm as a single storey building but had high enough eaves and ridge to fit in an additional floor within the building space making a new total of 900sqm, presumably that would be permitted because the external dimensions won't change and the existing floor space was under 450sqm?

Sorry for the long comment!

Anonymous said...

would the bit about not extending beyond the external dimensions at any given point stop you cladding an existing wall

Martin H Goodall LARTPI said...

In response to Walter’s query of 02/04/14, I would agree that in principle this ought to be possible, provided the test of relevance is met.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 03/04/14, I think it will depend. It might in theory be possible, although it would seem that substantial demolition and replacement of the pre-existing building is not permissible, nor can the new building go outside the envelope of the existing building. These factors are likely to operate as a strong practical constraint where the conversion of thinly clad steel-framed buildings is contemplated.

In practice, the existing cladding may have to be left more or less intact (apart from making new door and window openings), and a layer of internal insulation would then have to be introduced. It would clearly require careful design and a detailed consideration of the new rules, to ensure that the development would come within those rules.

Martin H Goodall LARTPI said...

In answer to the anonymous comment of 03/04/14 regarding the definition of curtilage, this is one of the topics I intend to cover in a forthcoming post on ‘the small print’ in the new PD rules.

Martin H Goodall LARTPI said...

In answer to the anonymous query on 07/04/14, and as mentioned in an a reply to a previous comment, external cladding might well be ruled out, and so internal insulation might be the only way to carry out the conversion. I suppose it might just be possible to add some thin additional covering to the external surface of the wall, but not if it would materially extend the envelope of the building.

Anonymous said...

Does the cumulative number of
dwellings limit of 3 relate
solely to the number of dwellings
developed on a unit under Class MB
or does it relate to the number of
dwellings developed under Class MB
together with those developed through the grant of planning permission ?

Anonymous said...

Previously I have always looked to clad-in open sided barns prior to submitting pd approvals for commercial etc. Presumably the new rules now allow a new wall to be put in an open sided barn as part of the development? (as long as it doesn't go outside the existing area of the building). I have had numerous different opinions on this that the construction of a new external wall would not be allowed. I am of the view that it would be??

Sam Johnson said...

I own an established agricultural workshop, originally a dutch barn, cladded and fitted out in the late 80's, which 3 years ago was granted B2 Industrial use to allow me to repair cars. I still work and maintain my tractors in there as well. I was thinking of making a quarter of the building into a dwelling using block construction behind the cladding. Save for a few windows it would maintain most of its outside appearance. I wonder, would partial conversion be allowed ?

Anonymous said...

Martin,

We have recently been granted permission to convert an agri barn into a permanent dwelling, with an agg tie. This was achieved through a full planning application with all the relevant surveys, drawings, landscaping, highways input etc. etc. etc. We have yet to implement the approval in anyway.

Would we be right in thinking that this new piece of legislation could apply in our instance (understand you don't know the specifics) as we have effectively ticked off almost all of the things they could reject on? We are not changing the size, shape or form of the building, nor are we in an ANOB or NP and total size is below the 450sq m threshold.

Kind regards.

Paul Harvey said...

As we are now into Day 17 of the new MB rights it will soon become clear how LPA's want to deal with these applications (I have 3 which were submitted on Day 1)
It would be helpful to have martin's comments on the following:
1. My clear understanding is that the size limit is 150sq.m x 3 of the EXISTING building/s. If they are tall enough to accommodate more than one floor then the resulting floorspace can be larger accordingly. It might even be possible to lower the ground floor level to achieve more usable space
2. Complete demolition is not permitted but 'partial demolition' is not defined. It might well be possible to work around an existing building stage by stage until all of it has been replaced.
3. The LPA might well refuse to make a decision until details of siting and design have been submitted in which case they run the risk of running out of time and for the development to be absolutely permitted whether they like it or not.
4. If they don't like the resulting permission for Change of Use and are difficult about agreeing the detailed Design it will be open to the applicant to submit a full planning application for a replacement dwelling using the PD position as a valid 'fallback.'

Anonymous said...

If the change of use of the building does not constitute PD under Class MB(a) due to a new access being proposed (thus needing full permission for the COU), could one still apply separately under MB(b) purely for the alterations to the building? i.e. seek full planning permission for the COU and submit a notification for just the alterations? Thanks.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 17/04/14, the relevant wording of the limiting conditions is:

"(b) the cumulative floor space of the existing building or buildings changing use under Class MB within an established agricultural unit exceeds 450 square metres;
(c) the cumulative number of separate dwellinghouses developed within an established agricultural unit exceeds three;


Sub-paragraph (b) (the floorspace limit) clearly applies only to conversions under Class MB, but the omission of any reference to Class MB in sub-paragraph(c) (the numerical limit) suggest that its effect may be intended to be wider, so that any residential units created under planning permission also count towards the maximum of three. Of course, it could just be sloppy drafting, but I think we have to take the wording at face value.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 22/04/14, I can see why opinions differ. This is not an easy question to answer. I think one would have to look at the specific facts in a particular case, and even then there must inevitably be at least an element of doubt as to how the new rules will be applied in practice where a fourth wall would have to be added to an open-sided barn.

Martin H Goodall LARTPI said...

In answer to Sam Johnson (22/04/14), I rather doubt if this building would qualify under the new rules, but we could advise professionally if instructed to do so, and could then look into the possibilities in more detail.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 23/04/14, the important point is that the planning permission has not yet been implemented, so the AOC has not come into effect yet (and will not do so if the PP remains unimplemented). It would therefore seem that use could now be made of the new permitted development rights, although this may not be all plain sailing. The LPA might still find reasons for refusing prior approval, and could impose conditions, although the imposition of an AOC would not appear to me to be in accordance with the spirit of the new rules.

Martin H Goodall LARTPI said...

In answer to Paul Harvey (23/04/14), I regret that I haven’t got time right now to go into each of his points, although I did comment a short time ago, in response to another query, on the suggestion of replacing the walls one at a time in turn – this idea is definitely a non-starter (for the reason previously explained). Some of Paul’s other ideas might work, others might not. It would require careful consideration of specific proposals in a particular case to enable a definite answer to be given.

Martin H Goodall LARTPI said...

In answer to the anonymous comment of 24/04/24, I am pretty sure that sub-paragraph (b) was intended to apply only to conversions under Class MB, subparagraph (a) (although I agree that the wording is not necessarily preclusive of other changes of use in its effect). However, I am not clear as to what advantage would be obtained by seeking to rely on sub-paragraph (b) where full planning permission for change of use has been sought and obtained. One might as well apply for permission for alterations at the same time, in which case these need not necessarily be confined within the pre-existing envelope of the building as they would have to be if relying on the PD rights under Class MB.

Anonymous said...

Martin,
Thanks for your response of 28th April to my query of 17th April re. the 3 dwelling limit.
The definition of 'established agricultural unit' at para O(d) is agricultural land occupied as a unit for the purposes of agriculture.
The only defintion of agricultural land I can find is at D1 of Part 6 which is land in use for agriculture for a trade or business and excludes any dwellinghouse or garden. It seems to me that as the established agricultural unit definition only refers to land, any unit can benefit from up to 3 additional dwellinghouses under Class MB

Paul Barkley said...

I would refer you to an appeal in Norfolk (DCS ref 400-003-379)which relates to an office to residential conversion (but I think the principle would apply to barn conversions)in relation to further information requirements. Essentially the LPA required further information on amenity space and then refused the application. The inspector said that the LPA could only consider those parts of the NPPF which the LPA could consider under the Prior Notification procedure (in that case highways/transport, contamination and flooding).

However I agree that the provision concerning undesirable location of the building being "undesirable" may be a "get out of jail free" card for LPAs as agricultural buildings will generally be in undesirable (i.e. unsustainable) locations

Anonymous said...

What an interesting and useful blog. I am advising a client whose small farm has been established since before 20/03/13. He is now looking to rent out part of the farm for a leisure use. Even though this may create a new planning unit, this doesn't seem to interfere with the rights under Class MB. The agricultural unit would still have been in existence on 20/03/13 and provided the building concerned remains used for agriculture (or, if vacant, last used) then Class MB can be used. I welcome discussion of this point.

Anonymous said...

I still might of missed something since my comment on 3rd April but the restriction on the curtilage size i.e. the extent on the ground to where PD rights will apply to is a show stopper in my opinion.

Unless I have interpreted it incorrectly the curtilage cannot exceed area larger than the "land area occupied by the agricultural building".

The MB prior notification form available on Planning Portal has two boxes for areas I have noticed two recent MB applications submitted to my local LPA and on both application forms the curtilage areas far exceed the floor area of the buildings (cumulative area on form). Even if the LPA miss this and accept the prior notification etc. it won't obviously make the COU to the curtilage lawful if my interpretation is correct.

Apologies if I have missed something but I still think this is a fundamental issue. In practice it will be nearly impossible to include garden, parking and acess etc within the curtilage size limitations.

Regards

BP

Anonymous said...

Paul Barkley's comment of 9 May re what LPA could consider under the Prior Notification procedure is of immediate direct interest as my LPA is insisting on an upfront Ecology Survey before considering my application for Class MB (and have allowed me 14 days unless I withdraw before)! I have said to them that I expected it to be a condition of Prior Approval and await their reply.

Louise Abbott said...

Brilliant blog, can I ask again about curtilage. Do we have to make provisions for parking in the small amount allowed?

Martin H Goodall LARTPI said...

The wording in Part 3 refers to “a building and any land within its curtilage”. I take this to mean the pre-existing curtilage of the building before its conversion. The change of use applies to that building and to the area of land (if any) that formed its curtilage. The change of use cannot extend to land outside that curtilage. So, in my view, parking provision for the residential use, if desired, would have to be made within that space. If additional space (outside the defined curtilage of the building in its pre-existing use as an agricultural building) is required for parking, a planning application would have to be made for that additional change of use.

Defining the curtilage of an individual agricultural building may not be easy in practice. I rather doubt whether De-CLoG’s draftsman thought about that when framing the amendment order to the GPDO. I think some common-sense assumptions will have to be made in particular cases, without taking too legalistic an approach to this issue.

Martin H Goodall LARTPI said...

When answering the previous query, I forgot that paragraph O of Part 3 now gives “curtilage” a special meaning for the purposes of Classes M, MA and MB. It is defined as : -

“(i) the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building, or
(ii) an area of land immediately beside or around the agricultural building no larger than the land area occupied by the agricultural building,
whichever is the lesser.”

Which is very similar to what I had assumed, but at least our enquirer now knows precisely what counts, and what does not.

Anonymous said...

Para O - this is precisely the point I have been trying to make in my comments of 3rd April and 14th May. i.e. in practice with most sites it is not going to be possible to fit in those areas of land required for the unit to function as a residential unit such as:

i) Access drive/road/track
ii) Parking and turning areas
iii) Reasonable sized gardens

These parts of the unit need to be included in the change of use otherwise the unit as a whole will not be completely lawful as residential use. i.e. it won’t be lawful to use an existing agric access track to access such barn conversions unless the track is included in the curtilage for CoU.

The maximum curtilage area that can be included as Permitted Development surrounding the barn(s) is therefore limited to 450sqm i.e. if the total existing total floor space was 450sqm and a single storey agricultural building. 450sqm isn’t too bad to fit in the curtilage ancillary parts if applied to just one dwelling but if for example the total existing floor space of 450sqm was spread over an existing 2 storey barn (i.e. barn land area/footprint of 225sqm) then the max curtilage drops to 225sqm and if you went for three units that equates to an average of 75sqm curtilage per unit was is simply not enough.

Most sites will not be abutting a public highway so either an existing agric track will need CoU or a new track installed and CoU applied to it. If the track is 3m wide by say 50m long that’s 150sqm of your curtilage measurement used up for example.

Furthermore the order only permits Change of Use, it does not permit any works engineering operations or building works within the curtilage, other than those “reasonably necessary to convert the building” and the building operations listed do not include works to create access roads or parking areas or any boundary treatments such a fences and walls.

Unless once the CoU has been implemented standard Part 1 residential Permitted Development rights can be applied? i.e. garden sheds and fences etc could be installed at a later date as long as they are within the curtilage – I’m not sure if Class MB removes these rights? If the rights aren’t removed then surely after the CoU has occurred the barn/dwelling could also be extended?

Regards

BP

Matt Driscoll said...

Apologies Martin, I don't usually post comments on blogs, but your article seems to be the only one online at the moment that is making sense.

I wonder if you, or any of your readers could assist in a query I have on the change of use of a barn to residential dwelling and in particular the Prior Notification Procedure.

As I read the Statutory Instrument, Class MB consists of two parts, the first being the change of use, the second being the building operations relating to that change of use.

Under the conditions (Paragraph MB.2) the requirement for Prior Approval is again split into two parts, (1) for the change of use and (2) for the building operations.

This led me to believe that an applicant could submit an application for prior approval of the proposed change of use of an agricultural building to a dwellinghouse, thus establishing the principle of the change of use. With a second application for prior approval for the building operations following if the LPA have considered prior approval for the change of use is not required. However, all Local
Planning Authorities I have spoken with and the Planning Portal themselves only have an application form for "Prior Approval of Proposed Change of Use of Agricultural Building to a Dwellinghouse
(Use Class C3), and for Associated Operational Development", not allowing for two separate applications.

This has been a matter of some debate in our office, however the legislation isn't clear and I am therefore seeking any opinions on the matter.

Regards

MD

louise said...

Thank you for your previous reply, very helpful. just one more question it states " Development under Class MB is also excluded if the building in question is a Listed Building.". if the barn is not mentioned on the listing of the farm house, with a 40ft driveway/ parking in between does that make the barn listed and not available under MB, or just part of a listing in a curtilage?

Anonymous said...

We have the first determination on a Change of Use under Class MB within our LPA.
The decision is to Refuse on the basis of prior use of the building not being solely agricultural.
Since the LPA state there was evidence of the barn previously being used as stabling it is likely the correct decision in this case, however within the LPA's comments it is also mentioned that logs were stored in the barn.
It would seem, with our LPA at least, a very strict interpretation of agricultural use will be applied.
I wonder how, say, storage of building items may be considered, if they are related to building works within the agricultural unit. Or how about workshop tools used to fix implements or tractors? Are they industrial or agricultural?
Regards, IR.

Martin H Goodall LARTPI said...

The answer to Louise’s question of 6/6/14 is to be found in another post in this blog - Barns near listed farmhouses (Friday, 15 March 2013)

Martin H Goodall LARTPI said...

In answer to Mat Driscoll (13/6/14), the two prior approval applications (for change of use and for building works respectively) are certainly separate applications, and must be individually considered. I haven’t had time to double-check, but I can see no reason in principle why they should be submitted simultaneously. So what Matt Driscoll proposes may well be a feasible approach to take.

Anonymous said...

Dear Martin, thank you for your helpful blog. I wondered whether you could clarify if: an 'agricultural unit' relates to each individual building on a farm or the whole farm. For example, potentially could each building within a farm be converted (as long as it was under the 450sqm threshold and no more than three dwellings) or can you only (through the change of use) create a total of three dwellings within one farm (regardless of how many buildings this involves)? Many thanks

Tim said...

I have just had a Prior Approval application for the conversion of a stone barn to 2 dwellings rejected on the sole grounds that the development would result in the external dimensions being increased by virtue of two flues protruding from the roof plane. No mention that the tin roof would be replaced with slate, increasing the height. Where is the line drawn? It would seem that the LPA can draw it wherever they wish. Needless to say, very disappointed in both the LPA's attitude and the outcome.

Anonymous said...

I have just received prior approval for a Dutch barn in the Mid Devon area ... Seems each council has such varying interpretations on such buildings. The steel structure is open 2 sides and corrugated on the other two yet the council had the foresight to see the buildings potential and permitted development subject to part (b) notification I know I am lucky as the majority of surrounding councils seem to be throwing out any such structure but I hope this gives people confidence to go forward and apply!

Anonymous said...

Interesting case decision on this link. Confirms my concerns regarding the curtilage restrictions:

https://www.dorsetforyou.com/media.jsp?mediaid=194915&filetype=pdf

Regards

BP

Anonymous said...

Hi Martin and other readers. I wonder if anyone has taken the view that prior approval under Part M (commercial)and Part MB (residential) can be done within the same agricultural unit at the same time? For example, 450sqm of residential and 500sqm of B1 use within the same agricultural unit. Views appreciated.
Jane Scott

B Stone said...

Just thought that you would like to know that NDDC have refused an application under MB(A) - stating that two previous barn conversions (converted unlawfully 30 years previously) add to the cumulative number of dwellings developed within the established agricultural unit. This being despite arguments from us that the two (now open market dwellings) are no longer a part of the 'established agricultural unit' - i.e. they were removed from 'agriculture' when converted.

I'd be interested in your thoughts on that... seems like sloppy drafting to me!!!

(Interestingly the LPA decided not to consider the farm-house a 'dwellinghouse' within the same cumulative argument)

So much for the 2014 provisions enabling the creation of more housing supply and enabling rural businesses to diversify. Ha bloody Ha!

Martin H Goodall LARTPI said...

My immediate reaction to the case raised by B Stone is similar to his own. I think the LPA is going out on a limb here. One’s first instinct is to take it to appeal, but the LPA might then dream up some other reasons for opposing this barn conversion. So the result of an appeal would be by no means a foregone conclusion.

I have pointed out previously that this PD right was never intended to give carte blanche for residential development in the countryside. The new rules give LPAs a wide discretion as to whether or not to approve these conversions. Realistically, the prior approval process should be seen as just another kind of planning application.

Martin H Goodall LARTPI said...

With regard to the question raised by Jane Scott (07/07/14), I haven’t got time right now to answer this point myself, but would welcome any comments from readers on the point that Jane has raised.

Martin H Goodall LARTPI said...

The decision referred to above on 30 June does not appear as a link, but it can be copied and pasted into your browser (Ctrl + C, then Ctrl + V), and the planning officer’s report will then be displayed. It is a textbook example of a prior approval application being rejected because it does not meet the criteria set out in Class MB. For this purpose, the curtilage is tightly defined by the Order, and in this case the proposed curtilage went outside the statutory parameters. It was also in an area excluded by the Order (in the vicinity of a pipeline from the Wytch Farm oilfield) and involved too much rebuilding.

Anonymous said...

we have made an enquiry for a barn conversion and been told :

the location is in the Local Plan (Core Strategy) as being an other village, i.e. it has no settlement boundary, in recognition of the few services and facilities on officer. It is therefore considered to be an unsustainable location. Planning policies restrict new residential development in such locations unless specific criteria are met; namely:

•Affordable housing scheme - the application is for a market dwelling
•part of a cluster (policy dm4) - criteria for this are being 150m from a settlement boundary and this site is some considerable distance away
•Necessary for an agricultural use - there is no existing operational business which would require a dwelling in this instance
•High quality design and innovation - the design in such instances needs to be of such a high standard it is award winning
•Only optimum viable use of a heritage asset - the barn, whilst attractive, is not a heritage asset and even if it was, before considering residential, other more appropriate uses, such as business and holiday use, would first need to be considered and assessed via robust marketing and viability information.

On this basis, I do not consider that the conversion of this barn would represent sustainable development and sit comfortably with our established planning policies or the strategy contained in national planning policy. Therefore, should an application be forthcoming, I do not consider that Officer's would be in a position to offer support.


to me this just seems to restate the pre April 14 position. Do local authorities have the right to opt out of the The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 ?

Any views or assistance much appreciated.

Thanks

Martin H Goodall LARTPI said...

The LPA’s power to decide whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use clearly gives them a wide discretion over the matters listed in this query. As this correspondent has discovered, there is still a strong likelihood that an LPA could turn down such a conversion on grounds such as these.

Martin H Goodall LARTPI said...

In answer to the query of 18/06/14 – I’m afraid it’s the latter. The limit applies to the whole farm. (Salami slicing is not permitted!)

Mike said...

LPA in Norfolk is saying that the site has to currently form part of an established agricultural unit. They won't accept (yet) that it is good enough for the site to have last been used for agriculture as part of an agricultural unit and insist that it still has to be part of an established agricultural
unit.
Our site has changed ownership and is obviously not now an established unit. It was not in use on 20th March 2013, but its last use was agricultural.
To quote planning officer "We still read it that even if no longer in use (and we’re not arguing that its last use was agricultural) it still has to be part of an established agricultural unit." and "
We believe the continued reference to an established agricultural unit throughout Class MB shows the Government’s intention for the buildings to be part of such a unit."
Thoughts from anyone?

Anonymous said...

What a lot of great info...just looking through a decision on the Dorset case mentioned previously 30/6, and one of the many reasons for refusal was the rebuild aspect. They go on to say that the "amount of proposed
building operations goes beyond what could be considered reasonable to facilitate a
‘conversion’ of the building and that too great a proportion of the resulting building would
comprise new or replacement external walls, roof, windows and doors,".
My reading of the MB document says that the installation/replacement of windows, doors, roof and external walls is ok, but building operations OTHER than that are at planners discretion.
Have I got the wrong end of the stick here - if not, how can LPAs misread the regs and be allowed to get away with it.

Anonymous said...

Re Mike's comment, we have always found Norfolk LPA to be reasonably "forward thinking" on planning issues. One of our friends has converted several barns to holiday lets and is now being allowed to make these full residential properties. On the other hand a friend of ours has been allowed to turn a "barn" into residential. Yet, the barn has never been used for agriculture and certainly not for the keeping of livestock as outlined in the planning application. There is no consistency and much unfairness about planning, it is no wonder people get very angry. even if they hadn't queried the continual agricultural use, they can then just throw the application out on unsuitability of the site anyway.

Anonymous said...

In reply to Mike's post on 17/7, is your unit just redundant and sitting empty? Can you do whatever is necessary to re-establish the unit? What actually constitutes an established agricultural unit? Does it have to, for instance, be a viable business with accounts?
The grazing of horses, I believe, constitutes agricultural use, but it must be purely grazing as a business, so no private use(?) or riding school. Buildings can't be used to stable horses, store tack, etc, but I guess could be uses to store tractors or pasture cutters as they are linked to the grazing.
This is purely my understanding; someone else may have a different view.

Mike said...

In response - yes this is a redundant and empty building, but it now sits on only just over 0.5ha of pretty poor quality land. It has been sold off from the original small holding. I see no way that you could actually bring it back into an purely agricultural use and make a living out of it. You are correct in that for the term agricultural use’ to be relevant it must be for the purposes of a trade or business – i.e. someone has to be earning a living from agriculture. The original question still remains whether the building has to still be on a working agricultural unit?

Anonymous said...

We have had a reply from our LPA to an initial enquiry made to see how they would view a Prior Notification Application under the new rules. To give some perspective, we have already been granted full planning to convert an existing barn into residential use, but with an agg tie, which is proving a problem to raising finance. The reply has been as follows:

Thank you for your preliminary enquiry received on 18 July 2014.

Unfortunately we are not able to fully assess your previous scheme against the new criteria set out in Class MB of the GPDO as this would equate to the same level of work required to assess fully your application as and when it is submitted. As you can appreciate we are not able to look fully at every scheme prior to it being submitted and make a judgement as to its acceptance against a complex suite of legislation.
There are however a couple of points that we would draw your attention to which other applications have not been found in accordance with. The first is that any associated curtilage cannot exceed the footprint of the building which you are seeking to convert. Secondly the original footprint and fabric of the building cannot be exceeded in any way including the installation of flues or associated chimneys and thirdly the Local Planning Authority is assessing all schemes against the requirements of sustainable development in terms of their location. It is the latter of these three points which we believe your scheme may struggle against as the location would not be one that would automatically be considered as sustainable given the primary reliance of a motor vehicle to reach facilities and services.
Of course if you wish to pursue an application you are entitled to do so and we would consider your scheme fully at this stage against all of the criteria set out in the legislation.

With regards their final point re sustainability, can they refuse on these grounds given they have already granted consent under a previous application?

Also, I understand the curtilage issue but does this mean that existing tracks leading to the barn cannot be used as someone has posted previously?

Re the other point around flues etc, I was under the impression that reasonable conversion was permitted. I cannot see how not allowing a flue is reasonable seeing as to heat a dwelling you will have to have some sort of external chimneys or flues perturbing? Unless you go out via an external wall as opposed the roof?

Great blog by the way!

Koalaboy2 said...

I am a farmer. I have been growing 70acres of cereals for many years but have stopped after the terrible harvest in 2013. My 300 sqM grain store is now redundant and I am considering applying for Permitted Development to change to residential. I would have thought that the legislation was designed for redundant farm buildings so why are bloggers talking about keeping them in agricultural use? My store was last used in 2013 and thats that!

tom thumb said...

In reply to Koalaboy 2 21/7, there are instances where planners have come down hard on those buildings that are not used solely for agricultural use. For instance, someone storing logs in some part of their barn, someone keeping riding tack or someone storing redundant furniture are all possible, if just a little picky, reasons for refusal. I think that's one reason why bloggers are talking about (solely for) agricultural use.

Martin H Goodall LARTPI said...

Prompted by Mike’s query, I have taken another look at the wording of Class MB.

The permitted development authorised by Class MB relates to the change of use of a building and any land within its curtilage, but the disqualifications set out in sub-paragraph MB.1(a) relate to thesite, rather than to the building itself.

If the site was used solely for an agricultural use, as part of an established agricultural unit, on 20 March 2013, the building qualifies (in principle, subject to the other disqualifications in paragraph MB.1) for residential conversion. If the site was last in agricultural use, as part of an established agricultural unit before that date, it still qualifies, but only if the site has not been used for any other purpose since it ceased to be used for agriculture (i.e. the site must either have been in agricultural use, as part of an established agricultural unit, at the qualifying date, or the site must have been entirely disused since ceasing to be used for agriculture before that date).

It is a moot point as to whether a former agricultural building which was put to some non-agricultural use while the site on which it is located remained in agricultural use at the relevant time, as part of an established agricultural unit, would or would not be disqualified. Arguably, if the building itself was in non-agricultural use, then its site (i.e. the land on which it actually stands) cannot be said to have been in agricultural use. I think one has to construe “site” in this context as being one and the same thing as the“ building and any land within its curtilage”, although it is unfortunate that the drafting is not clearer in this regard.

So it comes down to this. Was the building located on an established agricultural unit on 20 March 2013? If not, was its site last used solely for agricultural use, as part of an established agricultural unit, before 20 March 2013, following which this site (i.e. the building and its curtilage) has been entirely disused?

Anonymous said...

Curtilage size constraints do seem to be an issue, if I understand the criteria correctly. For example, if you have a 30 x 10 barn, the total curtilage can only be 300 sqm. That means, if you chose to have an even space all the way around the building, it would only be a whisker over 3m wide. This is barely wide enough to park a car and have reasonable access around it.

PeterX said...

I have just had an MB Prior Approval application refused on the grounds of Domestic use of the building. It was in full time agricultural use until the summer/autumn of 2013 when I sold off some equipment and started storing small amounts of other material there, it is still mainly tools and items used in the maintenance of the unit. But unfortunately the planning department did not even give me the opportunity to prove this, any suggestions?

RG said...

My friend submitted a class MB permitted development application to Horsham District Council on May 6th for conversion of a tractor shed to residential dwelling. They banked his fee and the 56 days elapsed without any queries from the council. Despite requests they have refused to supply a validation certificate some weeks after the 56 days elapsed and are now saying it wasn't in use as an agricultural building on 20 March 2013 although this was never queried within the 56 days. Is my friend entitled to start using the building as residential ? The council are now threatening to take him to court.

Martin H Goodall LARTPI said...

In answer to RG, if the site really was used solely for an agricultural use as part of an established agricultural unit on 20th March 2013 then, in the absence of any notification by the LPA as to whether prior approval is given or refused, the development can be begun upon the expiry of 56 days following the date on which the application was received by the local planning authority.

However, the reference to threatened proceedings suggests to me that there is more to this case than RG has mentioned, and it might in any event be prudent to apply for a Lawful Development Certificate in order to resolve any doubt which might remain, particularly in view of the LPA’s assertion that there was no agricultural use in being on the qualifying date.

Just getting on with the development is an option, but this would be a rather high risk strategy if it turned out that the LPA was right, or if there were any other reasons why the development would in fact be unlawful.

Martin H Goodall LARTPI said...

In answer to Peter X (30/7/14), it entirely depends on whether the site really was used solely for an agricultural use as part of an established agricultural unit on 20th March 2013. What happened after that date is entirely immaterial.

As with the answer I just gave to RG, the LPA was obliged to give notice as to whether prior approval is given or refused within 56 days following the date on which the application was received by them. If their response did not amount to such a notification, then the development can proceed. Here again, though, it might be prudent to apply for a Lawful Development Certificate to make assurance doubly sure.

RG said...

Thanks Martin. So in effect the council do not necessarily have to raise an objection as to the validity of the building as an agricultural dwelling on 20 March 2013 , or any part of para MB.1 within the 56 days ?

Martin H Goodall LARTPI said...

In answer to RG’s further query, I have always taken the view that if the LPA believes that the qualifying criteria are not met, they should notify the applicant to that effect (although there is no legal obligation on them to do so), and they are not then obliged to determine the prior approval application and to give notice as to whether prior approval is given or refused, because the PD right to carry out the conversion simply does not arise in any event. However, an LPA which does this is taking a risk, because if they are wrong in asserting that the PD right does not arise (due to its not meeting the basic qualifying criteria including, in the case of Class MB, agricultural use on 20 March 2013), the applicant would be entitled to proceed with the development on the expiry of 56 days on no notification being given in respect of the prior approval application, provided of course that it did in fact qualify.

There are difficulties that arise from the wording of these provisions. It might be argued that a notice which states that the development does not qualify amounts to notice that prior approval is refused, but this is far from clear.