Monday 17 March 2014

Barn conversions - the new rules


NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.


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.

FOOTNOTE (added on 7/8/14): The ‘barn’ (or other agricultural building) does not qualify for conversion under this provision if 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 (or, if the site was brought into use after that date, for ten years before the date the development begins).

A correspondent has queried the fact that nowhere in my articles on this and related topics is the definition of an “agricultural unit” mentioned. I am happy to repair that omission.

By Paragraph 3(N)(7) of the Second Schedule to the GPDO (as substituted by Article 5(8)(c) of the 2014 Amendment Order) “established agricultural unit” means agricultural land occupied as a unit for the purposes of agriculture - (i) for the purposes of Class M, on or before 3rd July 2012 or for ten years before the date the development begins; or (ii) for the purposes of Class MA or MB, on or before 20th March 2013 or for ten years before the date the development begins.

By Paragraph 3(O) of the Second Schedule to the GPDO (inserted by the 2013 Amendment Order), “agricultural building” means a building used for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse, and “agricultural use” refers to such uses. Note particularly that, in order to qualify as an agricultural building, it must have been used for the purposes of a trade or business. Non-commercial use of the building is a disqualification.

However, “agriculture” itself is not defined by the GPDO, and so the definition in section 336(1) of the 1990 Act prevails in the absence of any indication to the contrary. [viz: “Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.”]

[NOTE: If you scroll down to the comments, only 200 are displayed on the page. We are (as of 9 March 2016) up to 202 on this post! If you want to see the latest comments, you will have to click on "Newer comments" at the bottom right-hand corner of the page. The commments on the second page start with an interesting discussion on the 450 sq m floorspace limit.]

© MARTIN H GOODALL

227 comments:

  1. I cannot comment on the case raised by the anonymous enquirer of 8 April without knowing the full facts. However, I have repeatedly pointed out (and have clearly advised in my book, “A Practical Guide to Permitted Changes of Use”) that in order to qualify for development under Class Q, a building must have been have been in solely agricultural use on or before the qualifying date, and that it must not have been used for any different purpose since ceasing to be used for the purposes of agriculture. I have also expressed the view that the agricultural use must (at least nominally) continue up to the time of conversion, rather than having been completely abandoned. As my enquirer recognises, this is a ‘matter of fact and degree’ that must be objectively judged by the decision-maker (the LPA or a Planning Inspector).

    So far as the measurement of the floorspace is concerned, the interpretation clause in the GPDO (Article 2(1)) provides that “floor space” means the total floor space in a building or buildings. I would tentatively suggest that use of the word “in” suggests internal dimensions, but I cannot be certain of this. The definition still leaves an element of ambiguity.

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  2. Is there a time limit for when last in agricultural use...ie in agricultural use over 10 years ago now used only for storage of household items and gardening/horticultural equipment?

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  3. In answer to my anonymous correspondent of 25 April - as I have explained in my book, “A Practical Guide to Permitted Changes of Use”, there are two points to be clarified. First the building must not have been used for any other purpose since the agricultural use ceased, so that it was last used for agriculture (before the qualifying date). On the other hand, the agricultural use must not have been entirely abandoned. It must still subsist, at least nominally, even though the building is no longer used as such.

    The length of time that has elapsed since the barn was last used for agriculture does raise a question as to whether the agricultural use of the barn may in fact have been abandoned. Furthermore, the storage of household items and gardening equipment suggests that the former agricultural use of the barn may have been supplanted by something more in the nature of a domestic use, which is presumably ancillary to the residential use of a nearby dwelling.

    A definitive answer to the question in this particular case would depend on a detailed analysis of all the relevant facts and surrounding circumstances, which could only be carried out on the basis of formal professional instructions.

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  4. I am interested in converting an agri building to a residence. On paper it meets all of the criteria however a newer agri building on the same unit was applied for under permitted development and agreed in 2012. For the former building to qualify for conversion to a residence, would the works on the newer building have to have started or been completed by 20 March 2013?

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  5. In answer to the anonymous query of 13 May, what paragraph Q.1(f) says is that development is not permitted by Class Q if development under Class A(a) or Class B(a) of Part 6 of this Schedule (agricultural buildings and operations) has been carried out on the established agricultural unit since 20th March 2013.

    This clearly relates to the date of the actual development rather than the date of prior notification under Part 6. However, I am not aware of any definition of the term “carried out” in the GPDO. One could argue that this means development which was commenced after 20 March 2013, or one could argue that it refers to development that was not substantially completed until after 20 March 2013. Without looking into the matter further (and any judicial authorities on the question of when development can be said to be ‘carried out’), which I have not got the time to do at present, I am unable to say which of these two interpretations is likely to be accepted if the matter were to be disputed in an appeal or in other proceedings.

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  6. Having been granted prior planning in 2015 and have recently discharged the conditions attached to the development, so I am now applying for a certificate of lawfulness.
    Should the development start and NOT be completed within the 3 year timeframe do I have to apply for an extension to the timeframe?
    Thank you.

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  7. I cannot answer “seedspreader” (27 June) without proper professional instructions, and a full knowledge of the facts. However, as I read the legislation, there is no scope for seeking an extension of time for completion. If the development is not completed within three years then no part of it is permitted development, and the only way forward in that event would be to apply for a full planning permission.

    I apprciate that this question rleated to a bern conversion under Class Q, but I have suggested elsewhere that if the development comprises multiple residential conversions (e.g. under Class O), it would be unreasonable for the LPA to claim that the residential use of those units that had been occupied before the expiry of the three year time limit would therefore become unlawful if the remainder of the development has not been completed by that date.

    If there is clearly a risk that the proposed residential conversion cannot be completed within the three-year time limit, the practical answer would be not to implement the prior approval at all, but to submit instead a fresh prior approval application when the developer is confident that completion of that development could be completed within the 3-year time limit. It might alternatively be possible (although I have not given any detailed consideration to this) that, in the case of a part-completed conversion project, a fresh prior approval application might be made in respect of those units on which a start has not yet been made, provided that the pre-existing use rights have not been lost in the meantime. I would emphasise, however, that this suggestion is speculative, and I am not confident that it would succeeed.

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  8. In your book under section 14.4.16 Other Considerations, you note that an appeal decided in April 2015 where the LPA attempted to argue that a proposal for a residential conversion of an agricultural building (then Class MB) be rejected for the lack of servicing and amenity provision. The Inspector pointed out that under Class MB (now Class Q) Q.2 does not require appellants to provide this information.

    Could you please give the appeal reference number, as i would like to know if the decision for the servicing and amenity of the property (i understand this to include the refuse collection and storage) is excluded from only Class Q's Transport and Highways Impacts of the Development criteria or whether it can be applied across the whole of the GPDO.

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  9. I believe the appeal decision to which this enquirer is referring is 3001465.

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  10. Martin,

    I recently obtained a 'prior approval not required' decision on my application to convert my small barn into a dwelling. As it is quite compact, I am thinking of ways to increase the living space.
    How soon after conversion can I apply for an extension to the building. If it is even possible?
    Secondly, the building has a partial second floor so I have half of the building will a very high ceiling space. Is it possible to put in a mezzanine floor on that side without going through the whole planning route again? perhaps through building regulations?
    Thanks

    Regards
    Tim

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  11. I can’t give ‘free’ legal advice through the medium of this Blog but, in answer to Tim’s query of 10 September, I would simply say that a planning application for an extension can be made at any time. It will be dealt with on its merits, and this would include the consideration of applicable policies about the enlargement of dwellings in the countryside. However, the lawfulness of the change of use to a private residence must now be accepted by the LPA as an established fact, so the only issue for their consideration relates to the actual question of physical enlargement.

    The issue of a mezzanine floor is slightly more problematic. If this were to be done after the change of use has been implemented, there can be no doubt that it would be exempt from the definition of development by virtue of section 55(2)(a), although (as Tim has noted) there would have to be compliance with the Building Regulations. However, if the mezzanine floor is put in as part of the conversion works, a question arises as to whether the intended effect of the permitted development granted by Class Q would include such an addition. I would argue that section 55(2)(a) would apply in any event, but the ministerial advice in the online PPG clearly states that the permitted development is not intended to include any additional structural elements within the building. This has been taken by some people, including some planning inspectors, to preclude the introduction of mezzanine floors. However, I continue to maintain that reliance can be placed on section 55(2)(a). The trouble is that I cannot be confident that this argument would prevail in the event of a dispute with the LPA.

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  12. Where drainage conditions are applied to a successful Claas Q application, must all of the proposed drainage be contained within the new domestic curtilage? It can be difficult to fit a treatment plant, soakaway, and possibly outfall pond within the red line and comply with Building Regs. Which would take precedence?

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  13. In answer to Nathan Dickinson (21 September), my initial reaction is that drainage conditions ought not to be applied to a prior approval under Class Q, bearing in mind that any such conditions must be reasonably related to the subject matter of the prior approval. Drainage conditions would appear to be appropriate only if they are required to deal with identified flooding risks on the site. In the absence of such risks having been identified at the application stage, there would appear to be no justification for a drainage condition.

    Obviously a new dwelling will in any event require appropriate drainage arrangements (which might include a treatment plant, soakaway and possibly an outfall pond). The building operations permitted by Class Q(b) include water, drainage and other services, and so would clearly cover such items.

    It is Class Q(a) (permitting the change of use itself) that refers to the building and its[tightly defined] curtilage. What Class Q(b) permits is building operations reasonably necessary to convert the building referred to in paragraph (a). The development must not result in the external dimensions of the building extending beyond the external dimensions at any point, but drainage works (being underground) would not have this effect, and must by their very nature extend outside the building. Arguably, such building operations need not necessarily be confined within the curtilage.

    The drawings submitted with the prior approval application will presumably have shown the proposed drainage arrangements, and it is a condition of the permitted development that it must be carried out in accordance with the details approved by the LPA (or in accordance with the details provided in the prior approval application, if these details did not relate to any of the matters specifically requiring prior approval). That alone ought to be sufficient authorisation of the drainage works, even if they extend outside the curtilage of the dwelling.

    If the conditions referred to require the approval of the drainage details by the LPA, and the execution of the drainage works “to the satisfaction of the authority” (or words to that effect), a developer who feels that this would be unduly burdensome could apply under section 73 to have the conditions removed, bearing in mind that (absent any identified flooding risk) they would not appear to be relevant to the matters that actually required, and were given prior approval, and so should not have been imposed in any event.

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  14. Martin,

    You have mentioned previously in response to another blog that,
    "Prior approval of permitted development is very unlikely to be accepted as an argument for the grant of planning permission, even for an identical development."

    I have agreed with this response previously, but now, in a scheme to covert a barn into 3nr. dwellings with very limited curtilage because of the size of the original barn, the planning officer is encouraging us to submit an application, in greenbelt, for the same scheme but with increased, and improved, curtilage layout.

    I keep thinking we may come unstuck and possibly jeopardse a potential PD.

    Thanks

    Fergal

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  15. In answer to Fergal (18 October), although the existence of PD rights does not seem to be accepted as a ‘fall-back’ position justifying other development that would not otherwise be acceptable, it has become apparent that ‘associated development’ is possible with planning permission, in conjunction with permitted development. I have drawn attention in this blog to a recent example, and there are other examples that are quoted in the Second Edition of my book, A Practical Guide to Permitted Changes of Use (due out shortly).

    A planning application (for example, for an enlarged garden area, additional parking space, garaging or car port, etc.) may be made at the same time as, or after, a prior approval application for the residential conversion of the building in question. There is no guarantee that planning permission for the extra development will be granted, but the Shropshire appeal I quoted recently did result in permission being granted by the Inspector.

    I am still of the view that planning permission is likely to be refused for a ‘comprehensive’ development embracing a residential conversion that would (in principle) have been permitted development, together with further enlargement of the building and/or other development. So a prior approval application should still be made in respect of the residential conversion itself (within the curtilage permitted under that Class of PD), and a separate planning application should be made for any additional development that may be desired (at the same time as, or after, the prior approval application is submitted). The planning application for ‘associated development’ should not prejudice the determination of the prior approval application in any way, but permission for the additional development could be refused (as it was initially in the Shropshire case referred to above).

    There may be a modest saving in application fees if the prior approval application and planning application are submitted together.

    I would stress the need for proper professional advice before embarking on the course outlined above. Careful professional presentation of the development proposals would be essential in a case of this sort.

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  16. Hi, We are submitting for a Class Q change of use of a 17th century brick built barn. I am trying to find more information on the 'partial demolition' clause. The curtilage of the site includes part of a lightweight, fairly modern agricultural barn to the south that intercepts the roofline of the barn that is to be converted.
    Our hope is that we can apply for partial demolition to remove one bay of this adjoining barn which will allow the proposed dwelling to operate properly without the interfering structure of the adjoining, this small partial demolition would also help significantly in providing daylight to some rooms.

    Otherwise we are making minimal interventions to the brick barn, staying within external detentions, making very minimal openings on only one facade that isn't overlooked, using existing openings where possible etc..

    Many thanks in Advance
    James

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  17. In answer to the query from James Kirkman, I would have to point out that this comment facility is not a suitable channel of communication for dealing with such enquiries. We would need proper instructions; and an email direct to me or to our main office would be the appropriate way of contacting us.

    There is no provision for any demolition of part of a different building in connection with permitted development under Part 3. Any partial demolition of the other barn would have to be dealt with separately.

    It does occur to me to wonder whether the “17th century brick built barn” might in itself be a listed building. If it were, then PD rights under Part 3 would not apply. This is clearly a matter where proper professional advice is going to be required.

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  18. I note that LPAs are now frequently using Hibbitt, or a similarly worded reason based on extent of building operations, as a reason for refusal of Class Q applications, and that refusals seem to be becoming more prevalent.
    I also note that the DCLG "...Rural Planning Review Call for Evidence" document, dated February 2017, states on page 41, para 10.18, that "The Government will also revise planning guidance to clarify for applicants and local planning authorities what constitutes building operations reasonably necessary to convert the agricultural building to residential use within the existing permitted development right".
    Do you have any view on which way this is likely to go (i.e. more or less restrictive), and timescale?

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  19. My own perception is that the restrictive interpretation that some LPAs are adopting in the light of Hibbitt does not reflect ministerial intentions. The wording of the PPG makes it clear that the government certainly does not want a ‘free-for-all’ in relation to operational development under Class Q, but I don’t believe minsters intended that this should be interpreted quite so restrictively as it seems have been since the Hibbitt judgment.

    So I would expect some moderate relaxation in the wording of the PPG and also, in due course, possibly in the wording of Class Q.

    In the meantime, refusals of prior approval based on Hibbitt should be challenged on appeal if they appear unduly restrictive in their interpretation of the legislation. If people find that they are still getting the ‘wrong’ decision from inspectors, someone may have to be prepared to take the issue to the High Court again, although the example of Hibbitt is not very encouraging.

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  20. Anotther Hibbitt- related query: In making Class Q applications that can succeed post-Hibbitt, I am finding that I need to pare down the extent of proposed building operations. The simplest way to do this for a typical "modern" barn is to indicate retention of the existing cladding and roofing materials, which often contain asbestos.
    LPAs seem to take the view that the replacement of these materials goes beyond what is "reasonably necessary" for the conversion, and hence Applicants, at least at this stage of the game, have no option but to leave them in situ, and potentially to disturb them by creating apertures in them, in order to get an Approval.
    No doubt Section 73 applications will follow to replace the materials pre-development, but are LPAs opening themselves up to criticism by effectively demanding the retention of these materials in order to seal their Approval?

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  21. My reaction on reading the anonymous query of 23 February is that removal of asbestos cement cladding from the walls and roof would clearly be a necessary step in order to make the building safe and suitable for residential use. It would therefore seem to me that, in accordance with paragraph Q.1(i)(i), the works involved would consist of “the installation or replacement of............ roofs, or exterior walls”........ “to the extent reasonably necessary for the building to function as a dwellinghouse”, and are therefore permitted by Class Q(b). [However, any alteration to the outer skin of the building must not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any point.)]

    Provided the works proposed do not go further than what is reasonably necessary to replace the asbestos cement cladding (plus internal insulation required to bring the building up to the standards required by the Building Regulations), it does not seem to me that this would amount to the construction of new structural elements for the building. This is subject to the proviso that the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use (i.e. replacement of the asbestos cement cladding). If these criteria are met, I would not see the works as falling foul of the government’s March 2015 revision of the PPG regarding residential conversions under Class Q, nor would they be affected by the judgment in Hibbitt.

    I am bound to say that the approach suggested by my anonymous correspondent appears to me to be unduly cautious.

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  22. Very helpful post. A few questions though that I'd appreciate any help with...

    a) If an agricultural building was not in use on 20th March 2013 as it was being unlawfully used for another use, would the building still benefit from the PD right if its last lawful use was being in use as part of an established agricultural unit?

    b) If the answer to a) is 'yes' on compliance with any enforcement action and resumption of the lawful agricultural use, would the building then benefit from Class Q.1(a)(ii), or would it then comprise a site brought into use after 20th March 2013 under Class Q.1(a)(iii)?

    c) If the answer to a) is 'no', it is presumably the case that a building that was not in use on 20th March 2013 must not have been used at all since any agricultural use ceased, lawful (e.g. intermittent use only(no change of use)/ implementation of temporary PD use)or unlawful?

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  23. The answer to the anonymous query of 5 April is “NO”. If the building has been put to any other use since it ceased to be used for the purposes of agriculture, the PD right under Class Q does not apply. This effectively answers the supplementary questions. The last use of the building must have been its use on or before 20 March 2013 for the purpose of agriculture on an established agricultural unit, and the building must not have been put to any other use since it ceased to be in agricultural use. Any combination of facts that does not fit within this rule disqualifies the building from residential conversion under Class Q.

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  24. Where an agricultural building and land were once part of a much larger "established agricultural unit" which at some time in the past was sold off into different ownerships, which were subsequently farmed by the various new owners, at what point in time can the new smaller units claim to have become new "established agricultural units" in their own right.
    I am aware of a recent case where an LPA has refused a Class Q application because another relatively remote building, in different ownership and farmed separately since around 2005, has already been given Prior Approval and hence (the LPA asserts) has already used up the floor space available to the [historic] established agricultural unit.
    Presumably, by the same token, the owner of the refused building could now scupper the already permitted development by undertaking some fairly minor Part 6 cladding, for example, on his own building.
    This seems a nonsense, but I wonder if anyone has any thoughts on the matter?

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  25. In answer to the anonymous comment of 20 September, paragraph X in Part 3 defines an “established agricultural unit” as agricultural land occupied as a unit for the purposes of agriculture on or before the qualifying date (20 March 2013 in the case of Classes Q and S, 3 July 2012 in the case of Class R). This should occasion no difficulty in identifying the agricultural unit for the purpose of checking whether the floorspace limit has been or will be exceeded, because it is the same date that determines whether or not the use of the agricultural building that is to be converted qualifies for PD under the relevant Class in Part 3.

    The building in question must have been in agricultural use on or before that date on an agricultural unit that was also in existence on the date, and so this enables the relevant agricultural unit to be identified for the purpose of the floorspace limit. If the agricultural unit was later split, this is irrelevant, because the qualification of the building to be converted still falls to be determined on or before the qualifying date, and it is the agricultural unit that existed at that date that is relevant.

    I suppose it could be argued that this might throw up certain anomalies in some circumstances, but it seems clear to me that subsequent splitting of the agricultural unit cannot be used as an excuse for increasing the total amount of residential floorspace that can be created under Class Q within the totality of the larger agricultural unit that existed on 20 March 2013.

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  26. As a rider to the previous comment, if a building in separate ownership but on the same "established agricultural unit" has already been granted Prior Approval under Class Q and has thereby practically used up the available 450m2, but the Permitted Development has not commenced (or indeed is unlikely ever to commence), are other owners of buildings on the same established agricultural unit precluded for three years from gaining approval for their buildings? i.e. can the LPA actually "approve" more than 450m2, but the first one to bring into use and actually use up the available area makes the others unlawful?

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  27. In answer to the anonymous comment of 22 September, it is clear from the wording in paragraphs Q(1)(b) and Q(1)(h) that the floorspace limit applies to the floorspace that is actually converted.

    Whether or not an LPA might conceivably grant prior approval for more than the cumulative total of 450 sq m floorspace within the same agricultural unit is perhaps doubtful, but if this were to occur it would appear to be "first come, first served" so far as implementation is concerned. Once the 450 sq m floorspace limit is reached on that agricultural holding, no further floorspace can be converted (even in the unlikely event of there being unimplemented prior approvals for additional floorspace above that limit).

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