Continuing our look at the government’s consultation paper on the proposed streamlining of the planning application process, the government wants to encourage a shift in the way local authorities approach validation. Under Article 29 of the Development Management Procedure Order, local authorities are required to publish a local list of information requirements. However, the current legal status of the local list has led to too many local planning authorities taking a ‘tick box’ approach to information requirements, with a lack of consideration being given as to whether the information being requested is genuinely necessary to validate the type of application in question.

Paragraph 193 of the NPPF clearly states that local planning authorities should only request supporting information that is relevant, necessary and material to the application. The government is determined that this principle should apply to every piece of information requested by the authority. I have already drawn attention [in a post dated 21 December 2012] to the provision in the Growth and Infrastructure Bill that paves the way for this change in the rules. In subsequently discussing the point, I was inclined to agree that this might not make a lot of difference in practice, but now that we have seen the detailed changes that are proposed it seems that there is real determination on the part of the government to cut through the red tape.

The government is also proposing to amend the DMPO to make it clear that, where an LPA requests an item of information on its local list, both the applicant and the LPA must give full consideration to whether the information in question is really necessary and meets the tests set out in the new Section 62(4A) in the 1990 Act. This new subsection in the 1990 Act will be the benchmark against which any dispute between the parties as to the validation of a planning application will be tested. (LPAs beware! You could be at serious risk at to costs in such circumstances. This really is going to be a game changer.)

So Article 29 of the DMPO is to be amended in line with the new Section 62(4A) to provide that information requests should be reasonable having regard to the nature and scale of the proposed development, and that information requests should relate to matters that it is reasonable to think will be a material consideration in the determination of the application.

I have previously drawn attention to the damaging effect of the Newcastle case in preventing an appeal against non-determination where the LPA refuses to accept that a valid application has been received. This will change, and I will deal in the next post with the detailed proposals for the right to challenge information requests.

© MARTIN H GOODALL

As I mentioned in my last item discussing the government’s consultation paper on the proposed streamlining of the planning application process, the paper includes some detailed proposals on the right to challenge information requests.

The government thinks it is right that, where a local authority persists in refusing to validate a planning application on the grounds of purportedly insufficient information requested under the provisions of Section 62(3) of the 1990 Act, the applicant should have recourse to the planning appeals system (thus, at last, reversing the effect of the Newcastle judgment). Until that case was decided in the High Court in 2009, applicants could, after the expiry of the 8-week (or 13-week) period, appeal against non-determination under Section 78 of the Act. The Newcastle case put a stop to that, but the government agrees that some form of redress through the planning appeals system should be possible where there is a genuine impasse between an applicant and an LPA over the information required to validate a planning application.

The government is concerned that the reinstated right of appeal should be a last resort, but in practice it always was viewed in that way by developers and their advisers. Developers would much prefer an amicable settlement of any differences over these issues, but the availability of the appeal procedure (with the risk of costs that it carries with it) should prove to be a salutary discipline to persuade LPAs that they can no longer get away with the sort of nonsense over the validation of applications which we have so often suffered in recent years.

As an adjunct to the restoration of the right of appeal, the government also proposes the introduction of a new and simple procedure whereby an applicant informs the LPA in writing, setting out why it thinks the information requested by the authority to validate the application is not necessary. The LPA will have to respond to the applicant within the statutory time period for determining the application (or within 7 working days, if the statutory time period has already expired), either by validating the application or issuing a non-validation notice. The service of a non-validation notice (or failure to do so by the deadline) can then form the basis of a subsequent appeal. The DMPO will be amended accordingly, so as to allow applicants once again to appeal against non-determination under Section 78.

So it will work like this - where an applicant has informed the LPA in writing why it thinks the information requested is unnecessary, and the LPA has either issued a non-validation notice or failed to reply within the timescale set out, and the statutory time period for determination of the application had passed, an applicant will then be able to appeal against non-determination. Hopefully, these very welcome changes will restore sanity at last to the validation and registration of planning applications.

There is one other change canvassed in the consultation paper. This relates to the content of decision notices. The requirement to provide a summary of reasons for a grant of planning permission and of the relevant policies considered has caused a disproportionate amount of litigation on the part of third party objectors trying to overturn planning permissions on the grounds that this requirement has not been met by the LPA. It is a bureaucratic burden for LPAs, and so the government proposes to remove this statutory requirement. Article 31 of the DMPO will be amended accordingly.

This will not affect the requirement to give full reasons for each condition attached to a planning permission, nor will it remove the need to provide full reasons for refusal where planning permission is refused.

This consultation paper really has proved to be a breath of fresh air blowing through the corridors of power, and deserves the warmest welcome. I cannot recall such a thoroughly sensible set of proposals for real reform of the planning system for a very long time.

© MARTIN H GOODALL

Not only are there firm proposals for amendment of primary and subordinate legislation to simplify the planning application process (as described in recent posts in this blog), but the government has also announced that it is to take a further look at what Nick Boles has called “unnecessary technical regulations that are no longer needed”.

My colleague David Brock has blogged on this within the past few days, and rather than repeating what he wrote, I would refer readers to David’s blog, which can be accessed by clicking on the link of the left-hand side of this page.

My only reservation about this latest announcement is that it appears to reveal something of a scatter-gun approach on the part of ministers to the business of de-regulation. Getting rid of red tape is very welcome, but the way it is being done suggests a somewhat disorganised and uncoordinated approach to the issue. Nevertheless, so long as the various changes result in the removal of obstacles to the submission, validation and timely determination of planning applications, then this is all to the good.

© MARTIN H GOODALL

Everyone is familiar with the prior notification procedure under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order (erection of a building and other operational development on an agricultural unit of 5 ha or more), but it should not be forgotten that, in order to qualify as permitted development under this part of the GPDO, the building in question must also be “reasonably necessary for the purposes of agriculture within that unit”.

The question as to whether or not a particular building is reasonably necessary for the purposes of agriculture is not one for determination by the LPA; it is purely a matter of fact and degree – either the test is met or it is not. It is an entirely objective test. However, existing government guidance (in the still extant Annex E to the old PPG7) does encourage LPAs to state their opinion if they believe that the building in respect of which they have received prior notification is not reasonably necessary for the purposes of agriculture. The important point to be borne in mind is that any such opinion has no binding effect. The mere statement of such an opinion cannot in itself disqualify development from being permitted development within Part 6 (Class A). On the other hand, there will clearly be an onus on the developer, if their right to erect the building as permitted development is challenged, to prove on the balance of probability that the objective test of reasonable necessity is in fact met.

An LPA may easily fall into a trap if it forms the opinion that the building is not reasonably necessary for the purposes of agriculture and then (as a result of that) fails to respond to the application it has received within the mandatory 28-day period. If the LPA is objectively correct in its view that the building does not meet the qualifying criterion, then it is not under an obligation to respond to the prior notification application within 28 days or at all. However, if it turns out that the LPA was wrong about the test of reasonable necessity, then a failure to respond to the notice within the 28-day time limit will allow the developer to proceed with the erection of the building without any further input from the LPA, and in particular without obtaining the LPA’s approval of its siting or design.

One point which is abundantly clear is that a building will not qualify under Part 6 (Class A) if the agricultural activity has not yet started or is being conducted purely or mainly as a hobby. Paragraph D.1 in Part 6 of the GPDO clearly states that, for the purposes of Part 6, “agricultural land” means land which, before development permitted by this part is carried out, is land in use for agriculture for the purpose of a trade or business (i.e. there must be an existing agricultural use and this must be a business, not a hobby). So a building cannot be erected as permitted development under Part 6 where the agricultural enterprise has not yet started, and it cannot be erected if the agricultural activity amounts to no more than ‘hobby farming’.

Thus the ‘chicken and the egg’ question can be easily answered in relation to this particular issue – the ‘chicken’ (the agricultural enterprise, conducted on a commercial basis) must come first. Only then can the ‘egg’ (a new agricultural building or buildings) follow, and only if the ‘reasonably necessary’ test is met, as well as the other criteria laid down in Class A of Part 6.

The need to meet the objective test of reasonable need for the building does not necessarily imply a requirement to prove that the agricultural unit is commercially viable. However, the issue of the viability of the agricultural unit cannot be entirely ignored, because if there is no viable agricultural business being carried on, then there may be some doubt as to whether the site falls within the definition of “agricultural land” at all, as explained above, and it might reasonably be argued that it shows that the building in question is not reasonably necessary for the purposes of agriculture. This is not to say that it is essential to be able to demonstrate the commercial viability of the agricultural enterprise, but if the agricultural enterprise is not (currently) viable, it may in those circumstances be difficult to show on an objective basis that the building is reasonably necessary for the purposes of agriculture within that unit.

Unfortunately, it is impossible to lay down any hard and fast rule in relation to these points. All I can say is that the developer does need (if challenged) to be able to demonstrate on the balance of probability that the objective test as to the building’s being reasonably necessary for the purposes of agriculture within that unit was met at the time when it was erected. The commercial viability of the agricultural unit may well be a factor in relation to this question, although viability might not be the determinative factor in the circumstances of a particular case. I suggest, for instance, that whereas the test formerly proposed by the now withdrawn Annex A to PPS7 (in relation to demonstrating a need for a new agricultural dwelling) insisted on existing viability being proved by at least three years’ accounts, the ‘reasonably necessary’ test for other agricultural buildings does not appear to require such a stringent criterion to be applied. Future or potential viability might suffice to satisfy the test, so long as it can be shown that there is a reasonable basis for anticipating this, sufficient at least to demonstrate on the balance of probability that the proposed agricultural building can properly be said to be reasonably necessary for the purposes of agriculture within that unit.

© MARTIN H GOODALL

The government’s intention to allow change of use from office use (within Use Class B1) to residential (Class C3) has caused a certain amount of concern and controversy, although property professionals are suggesting that the take-up of these new permitted development rights may not be so great as the government may be hoping, or as planning authorities and their officers seem to fear.

This is just one of a number of proposed changes to the GPDO that also include allowing agricultural buildings to be used for other purposes (but not for residential use) and increasing the amount of floorspace that can be changed between business use (B1) and storage use (B8) and from general industrial use (B2) to B1 or B8.

However, unless I have missed something, it seems that the statutory instrument to give effect to these changes has not yet been made and laid before parliament, nor does a draft statutory instrument seem to have been published. The intention is that the new provisions should come into effect this Spring (a usefully elastic season!), but the government seems to have jumped the gun by telling LPAs that if they want to claim exemption from the amendment order, they must apply to De-CLoG by no later than 22 February. This could well prove to be unlawful, and I suggest that some LPAs might wish to consider the possibility of challenging the legality of this apparently extra-statutory procedure!

In the absence (as yet) of a draft statutory instrument, we have only the statements of ministers and De-CLoG press releases to go on, plus the recent letter from De-CLoG’s Chief Planner, Steve Quartermain to local authorities as a guide to the contents of what will no doubt become the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2013. The core provision, presumably as an extension to Part 3 of the Second Schedule to the GPDO, will be the right to change the use of an office (Class B1(a)) to use as one or more dwellings. Exactly how many dwellings could be created in any particular office building is a point that may or may not become clear when we see the actual legislation. What is clear, though, is that any external alterations to the building will not be permitted development.

The new rights will initially be available only for a period of three years. The government will consider towards the end of that period whether they should be extended indefinitely. This new PD right will be subject to “a tightly drawn” prior approval procedure, which will cover significant transport and highway impacts, and development in areas of high flood risk, land contamination and safety hazard zones.

As mentioned above, local authorities are to be given an opportunity to seek an exemption for specific parts of their locality. However, exemptions will only be granted in exceptional circumstances, where local authorities demonstrate clearly that the introduction of these new permitted development rights in a particular area will lead either to the loss of a nationally significant area of economic activity or to substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring.

If they consider that a specific part of their area should be exempted from this change, and that it meets either of these two criteria, LPAs have been invited to request an exemption from the new PD rights within the next fortnight (!) The fact that this will be a high hurdle to surmount is emphasised by the Chief Planner’s insistence that this measure is seen as an important contribution to assisting the economic well-being of the country and this is reflected in the high thresholds they are setting, which (it is claimed) recognise that any loss of commercial premises will be accompanied by benefits in terms of new housing units, additional construction output and jobs. These benefits (they say) are potentially very substantial and are likely to be felt at the local authority level and wider.

This does seem to be a very strange way to go about introducing an important change in planning legislation, and De-CLoG could yet prove to have tripped themselves up by the rather odd procedure they appear to have adopted in promulgating these changes.

© MARTIN H GOODALL

Andy Ward submitted a comment in response to my post on "Permitted development - office to residential". It goes well beyond the subject-matter of my original post, but nevertheless deserves an airing, and so I have decided to give it a post of its own.

Andy Ward writes: We know this idea of a change of use as Permitted Development from B1(a) to C3 has been kicking around since just after the election, but this still smacks of something thought about over a couple of pints and a bag of crisps last weekend; but something as important as supplying enough homes of the types people want and need requires more than this.

It's yet another sticking plaster solution to the chronic undersupply of housing in this country. New Homes Bonus has been a joke for a start - I'd love to see a statistic for how much of the money handed out under that scheme relates to dwellings approved before the New Homes Bonus came into effect or, for that matter, some statistics to see how New Homes Bonus relates (or doesn't) to any change in the housing supply figures in individual LPA areas. (Lots of LPAs I deal with - if not most - steadfastly refuse to take account of New Homes Bonus in their decision making!)

Slightly changing the subject, one league table I'd like to see is one for housing supply, since the majority of LPAs I come across don't have 5 years, and so many still seem to have trouble getting the calculation right. There are also plenty who still see a 5.1 year supply as an oversupply that must be corrected.

Let's also not forget the proportion of current supply being delivered as affordable housing - a successful overall housing supply would see the need for and supply of affordable housing diminishing, not growing.

Then there's the steadily increasing proportion of rented properties in the market. Yes, we need more rented properties per se, to increase choice and flexibility, but it remains the case that most people want to own their own home. (I don't hold much truck with those who say home ownership is a luxury and should not be pandered to, that rent is the way forward - let all those who think that be the first to give up their homes and rent for the rest of their lives.)

Sadly, I see no change for the next 5-10 years because the problem of anti-development sentiment is endemic and the politicians either refuse to recognise it or are afraid to deal with it. Hence, an undersupply of hundreds of thousands of houses is being tackled by trying to add a few thousand flats as a result of office conversions in the next 3 years.

ANDY WARD

[I see exactly what Andy means. However, so far as housing supply is concerned, the full force of the NPPF will be felt by LPAs from the end of next month, and those unable to demonstrate a 5-year (+) supply of housing land are going to lose appeals on unallocated sites. In fact, where an LPA has a record of under-delivery, they will be required to have not simply a 5% margin but a 20% margin (in effect a 6-year supply). Some inspectors are applying a robust approach to this issue when judging the soundness of Core Strategies, and LPAs who find themselves in this position may not be able to prevent the housing development they have been seeking to resist. - MHG]

The decision of the Lib Dem-controlled Eastleigh Borough Council to grant planning permission for a 1,400-home development on a green field site in the borough has become an issue in the Eastleigh by-election. But the row only serves to make the opposing candidates look silly, and will do nothing to persuade the electors to come out and vote for politicians who seem unable to rise above petty political point scoring.

What is puzzling about this row is that it is the local Tories (including a neighbouring Tory MP) who are making a fuss about the planning decision, yet in reality the Council (irrespective of which party is in control) had no choice but to approve this application, because of nationally-imposed policies put in place by Tory Communities Secretary Eric Pickles, and enthusiastically supported by the Tory Planning Minister, Nick Boles.

The plain fact is that under the National Planning Policy Framework (published by the coalition government in March of last year), local planning authorities are required to identify in their Core Strategies more than a 5-year supply of housing land in their areas, failing which they must either release more land for development or face losing appeals against their refusal of permission for such developments.

Eastleigh Borough Council does not have a 5-year housing land supply. So it cannot comply with the NPPF. Furthermore, it is clear both from the NPPF and from previous appeal decisions around the country that the council would not be allowed to ‘wait and see’ while its emerging Local Development Framework approaches eventual adoption. The council’s officers recognised this and frankly advised in their committee report that a refusal of planning permission could not be justified. They therefore recommended that the application should be approved, and the elected members very sensibly accepted that recommendation.

In the circumstances, and as an entirely neutral observer, I find it bizarre that local Tories have seized on this planning decision as a stick with which to hit out at their Lib-Dem by-election opponent.

I am politically agnostic, and I don’t give a damn who wins the Eastleigh by-election, but politicians cannot expect to be taken seriously by the electorate if they try to make political capital out of a perfectly neutral and objectively-reached planning decision, which was in effect forced on the local council by the current coalition government through its nationally-imposed policies. It does not seem to me that there is any advantage to be gained by either the Tory or the Lib-Dem candidate in feuding over this decision. It only serves to make them look petty and small-minded, and confirms the suspicions of all too many of us that none of them deserves our votes.

[UPDATE: If anyone has any doubts about the wisdom of Eastleigh BC's decision to grant planning permission in this case, they have only to read the Tewkesbury judgment (see the next item on this blog) to appreciate that Eastleigh had no practical choice in the matter.]

© MARTIN H GOODALL

Today’s judgment in Tewkesbury BC v. SSCLG [2013] EWHC 286 (Admin) is a sharp reminder to LPAs that they have not been let off the hook by the changes brought about by the Localism Act and the NPPF. Ministers pretended that these changes would give much greater local control over planning proposals, but those of us familiar with the planning system who took the trouble to read and understand the legislation and the revised ministerial policy documents realised that nothing much had changed, and so the judgment in Tewkesbury comes as no surprise, although it may have been a bitter disappointment to Tewkesbury Borough Council’s elected members.

The key to the development management process remains section 38(6) of the 2004 Act. The starting point for consideration of any application must be the development plan. There is a presumption that any decision to grant or refuse permission should be in accordance with the plan, but that presumption can be rebutted if material considerations indicate otherwise. The weight to be given to a development plan will depend on the extent to which it is up-to-date. A plan which is based on outdated information, or which has expired without being replaced, is likely to command relatively little weight.

Since March 2012 the material considerations that need to be taken into account have included the National Planning Policy Framework, which replaced many of the previous policy statements. Paragraphs 47 and 49 of the NPPF provide:

"47. To boost significantly the supply of housing, local planning authorities should:

- use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

- identify and update annually, a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …"

"49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

So the need to ensure a five-year supply of housing land is of significant importance. After the NPPF, if such a supply cannot be demonstrated, relevant policies are to be regarded as out of date, and therefore of little weight, and there is a presumption in favour of the grant of planning permission (which may be rebuttable, but nevertheless carries considerable weight). All of this should now be well understood by local planning authorities. An authority which is not in a position to demonstrate a five-year supply of housing land should be well aware that there is a real risk that appeals against the refusal of planning permission will be granted, and the award of costs against the council could follow.

As the judge made clear, however, this is not to say that the absence of a five-year housing land supply will always be conclusive in favour of the grant of planning permission; the absence of such a supply is merely one consideration required to be taken into account, albeit an important one.

In the Tewkesbury case, the inspector reached four important conclusions. The first was that if the developers' appeals were rejected, it would be impossible for Tewkesbury to meet the identified need for housing within the next five years. The second was that even if the appeals were allowed and the developments took place, there would still be a shortfall against projected need. The third was that, because allowing the appeals would still leave a shortfall, this could not prejudice the other choices to be made in the development plan process. As the inspector put it, other than allowing the appeals there was no other credible way of providing a 5-year housing land supply. The fourth conclusion was that it was Tewkesbury's own delay, with the consultation draft development plan option only having been issued in December 2011, after the expiry of the existing pre-2004 Act plan, which had created the current policy vacuum.

The effect of these conclusions was that even if full weight was given to the emerging core strategy, in the inspector's view the core strategy proposals were not capable of meeting the identified housing need, and therefore could not rebut the presumption in favour of development as a result of the absence of a five-year housing land supply. At the invitation of the council, the inspector went on to consider the effect of the Localism Act 2011 on the approach to be adopted, but concluded that there was nothing in the Act to alter the long established requirement for a five-year housing land supply, both before and after publication of the NPPF.

The LPA also attempted to argue that the release of the appeal sites in advance of the emerging Core Strategy was premature. However, this argument was readily dismissed in view of the very early stage the council had reached with its draft core strategy, coupled with the fact that releasing these sites would make very little difference to the outcome of the local plan-making process.

It was also contended by the LPA that it was wrong to assess the five-year housing need by reference to the figures in the draft Regional Strategy, when that strategy is to all intents and purposes a dead letter. However, the assessment of housing need was a matter for the inspector to determine based on the evidence before him. Secondly, the fact that the Regional Strategy will not be implemented does not necessarily invalidate what it has to say about the projected need for housing land [my emphasis]. Thirdly, this was the material that the parties put before the inspector, there being (on Tewkesbury's own case before the inspector) nothing better. Fourth, it appears that Tewkesbury accepted at the inquiry that it was unable to demonstrate a five-year housing supply, so that paragraph 71 of PPS3 [now replaced by paragraphs 47 and 49 of the NPPF] applied. And fifth, the inspector concluded that it was very unlikely that Tewkesbury could deliver a five-year housing land supply whichever figures were used.

The Localism Act unmasked

One of the major planks in Tewkesbury’s case was that the Localism Act 2011 has fundamentally changed the approach to planning and has given, or was intended to give, LPAs a much greater say in deciding what development should be allowed to occur in their areas. An obvious weakness in this argument was Tewkesbury’s inability to point to any specific provision in the Act itself which supports this contention. They were driven back instead on an attempt to place reliance on various ministerial statements and glosses on the Act, such as the ‘Plain Language Guide’ to the Act. Unsurprisingly, this got short shrift from the court. The judge did not accept that the effect of the changes in the Act was to eliminate the role of the Secretary of State in determining planning applications opposed by local planning authorities or to abolish long-standing principles and policies such as the need for a five-year housing land supply as the means of resolving the tension between individual planning applications and the more extended timescale needed for the formulation and adoption of local development plans. Nor in his judgment did various statements of policy (both formal and informal) suggest otherwise.

Regional strategies were to be abolished under the provisions of the Localism Act, but there was nothing in the Act to suggest that relevant national policies would no longer apply, or that the Secretary of State would no longer perform his function in determining planning appeals, applying the same principles and policies as before. In particular, the policies relating to a five-year housing land supply were expressly reaffirmed in the NPPF. It cannot sensibly be suggested, therefore, that those policies were intended to be swept away.

Tewkesbury complained to the court that if this was so, then the fanfare which accompanied the Act would not have been justified, as the actual transfer of power to local authorities would be illusory. His lordship observed drily that whether or not that is so was not for him to say, although if it were, he did not suppose that it would be the first time that more has been claimed for a legislative reform than has actually been delivered (!) In any event, this is not a consideration which can affect the true meaning of the Act. It remains necessary to identify with some precision the legislation and the policy statements relied upon in order to consider their true meaning. It is not sufficient to refer in general terms to essentially political statements as to the intended or supposed nature of legislative or policy changes.

So, in case anyone was still in any doubt about it, the Localism Act (as I have said before) changed nothing, so far as the fundamentals of the development management system are concerned. All it did was to provide the machinery for removing the regional strategies, thus leaving a major gap in strategic planning, which the duty of neighbouring LPAs to co-operate goes nowhere near filling. But the housing need is still there, and all LPAs must carry out a Strategic Housing Market Assessment, which is likely to throw up much the same sort of figures at the local level as the old regional strategies. Local councillors will soon learn, if they have not appreciated the truth already, that there is no escape from the need to provide significant extra housing in their areas.

© MARTIN H GOODALL

Following the pieces I wrote on barn conversions on 15 July 2011 [“More development in Wonderland”] and 23 January 2012 [“ Barn conversions (2)”], I have dealt with two more cases myself, as well as advising on several other problems encountered in the execution of these projects.

As a result of this more recent experience, the advice dispensed by the Cheshire Cat in the first of those earlier blog items is in need of updating. What has become clear is that there is continuing reluctance on the part of local planning authorities, and even on the part of some planning inspectors, to follow the Basildon* judgment to its logical conclusion. [*Basildon BC v. SSE and Asplin 28 June 1985 (unreported)]

In that case, there was a planning permission (obtained on appeal) for converting a stable to a dwelling. The permission included an extension and alterations; so it was not just a planning permission for change of use – it involved substantial operational development. While the work was in progress the frame was blown down in a storm, but the builders built a replacement and carried on with the development. The LPA claimed that this amounted to the erection of a new building and served an enforcement notice. On appeal an Inspector agreed with the appellant that the work was within the scope of the planning permission, but the LPA challenged that decision in the High Court.

The question before the court was whether the inspector was wrong in law as to the nature and scope of the outline permission which had been granted, and secondly whether the building which had been erected fell within the scope of that permission. Macpherson J noted that one should be wary of construing the planning permission as if it were a statute or statutory instrument, and that the specific words used in the planning permission (in that case “improvement and extension” and “extension and alteration”) should not be construed in a disembodied way on their own but should be looked at in company with the documents upon which the permission was granted in order to see what the planning permission authorised. (The documents that can be referred to in order to construe the permission are governed by the decisions in Ashford and in Barnett, as previously discussed in this blog.)

The judge went on to observe that each permission must ultimately be construed as it is and in its own context. He accepted (as later confirmed by Barnett) that the permission had to be construed both by reference to the permission itself and by reference to the approved drawings. The judge particularly noted that there were no conditions requiring retention of any part of the original building onto which the new extension was to be added. It was impossible to state baldly that “improvement and extension” or “extension and alteration” could not, in the circumstances of that case, fit into the scheme which Mr Asplin had planned and which was in effect carried out. The judge confirmed that if the exercise of inspection of the planning permission (in the light particularly of the approved drawings) was performed, then it was clear that the Inspector was justified in concluding that the planning permission did authorise the works which would result in a building as shown in the plans and that it did not indicate anywhere that much, if any, of the original building had to be retained.

In the result, he saw no error of law whatsoever in the Inspector’s analysis of the nature and scope of the permission granted, and he was convinced that the Inspector rightly and fairly extracted from the documents at which he was entitled to look what was the scope and extent of the permission granted in that case.

The judge then turned to the actual execution of the building works. What happened was that Mr Asplin started his works early in 1983. As the plans plainly showed, he set about the construction of an extension which was brand new, and a fundamental alteration of the original building. That this was going to occur was apparent from the plans. Eventually, the old building was stripped down to its wooden framework. If the elements had not taken a hand, that framework would have been incorporated into the building. In fact, a storm came and blew down the framework and it was not rebuilt or refitted; so it was right to say that the present building as it now stood incorporated virtually nothing of the old.

The council conceded that if the frame had not collapsed and had been incorporated into the new building, the development would have been in accordance with the planning permission. The judge observed that it seemed remarkable that non-incorporation of the framework, which would not have been visible externally or internally at all and which evidence did not establish to have contributed much, if anything, to the structural strength of the new thicker walls of the new building, should take those works out of the planning permission granted and into the realms of illegality. On the contrary, in his judgment, “improvement and alteration” in the context of this case comprehended that which was done, and the Inspector was justified and correct to conclude that this was so. To decide otherwise would, in his judgement, not only be wholly unmeritorious but would be wrong.

As I shall explain in a separate post, one or two inspectors have shown a marked reluctance to follow this judgment, but even if there is continuing debate around the interpretation of terms such as “improvement and alteration” or “conversion” (discussed later) there is no doubt that if no part of the pre-existing structure of the barn would be visible if the consented scheme is executed in accordance with the approved drawings, then there cannot really be any objection to the entire removal of that previous building. That much at least is clear from Basildon, and I have persuaded at least one LPA to accept this in a case whose facts were exactly on all fours with Basildon.

In the next post, I will discuss two appeal decisions, in South Hams (T/APP/C/92/K1128/620967/P6) and in Woodspring (T/APP/C/90/V0130/28-29/P6) that followed the same reasoning as the judgment in Basildon. But I should warn you of two more recent appeal decisions, which I will deal with in a further post, which have gone the other way and which seek in effect to distinguish Basildon and take an opposite approach to the issue of ‘conversion’.

© MARTIN H GOODALL

The approach taken by the judge in Basildon was also followed in two appeal decisions in the early 1990s. The first of these, dated 14 October 1991, was in Woodspring (T/APP/C/90/V0130/28-29/P6) and related to a case in which planning permission had been granted on 11 July 1989 for “renovation of existing farm buildings and conversion to a two-bedroomed bungalow, barns at Oatlands, Wrington Hill, Wrington”. The farm buildings referred to were a free-standing barn, which was to become the living room of the proposed bungalow, and a range of low agricultural buildings. The latter were built against a stone boundary wall running along Wrington Hill and against another stone wall, at an obtuse angle to the first, which acted as a boundary wall between the appeal site and the adjoining property to the east. None of the conditions attached to the permission related to the retention of any particular part of the fabric of the then-existing buildings.

The planning permission was subsequently varied. The effect of the permission as amended was that, whilst the barn’s walls would remain the same apart from new door and window openings, nothing of the other farm buildings would remain apart from the boundary walls up against which they had been built. Of those walls, the wall along Wrington Hill would be substantially altered by blocking up the original double doors giving vehicular access into one of the buildings and by making five new window openings. The height of both walls would be increased.

In the course of the subsequent works, a 9-metre length of the boundary wall to the east collapsed. It was found to have had no foundations, and its centre was composed of rubble . The remainder of the northern section of this wall, and the wall along Wringon Hill, were then found to be unsafe. The advice of the Council’s Building Inspector was that it would be safer to knock down and rebuild. This work was going on when the enforcement notice was served.

The appeal proceeded on Grounds (b) and (c). The appellants’ case was that the plans made it plain that the LPA could not have envisaged that any of the old farm buildings, other than the free-standing barn would be renovated or converted in any real sense; all that would happen was that part, considerably modified, of the old boundary walls to the north and east would be incorporated in the new structure. In the course of construction it had emerged that these walls were defective; the reconstruction of the defective walls, in such a way that they would be better than the originals, was not such a departure from the permission as to make that permission void, as the LPA had argued.

For the Local Planning Authority it was said that planning permission had been granted for renovation and conversion of existing farm buildings. Once the boundary walls, a major element in the original buildings, had collapsed or been taken down, there was very little left other than the free-standing barn, which could be renovated or converted. Thus the original permission had become null and void. What the appellants were engaged in was the erection of a new dwellinghouse for which planning permission had not been granted.

However the Inspector concluded that if the planning permission was read together with the accompanying plans, as it must be, it was plain that, while permission was expressed to be for renovation of existing farm buildings and conversion.......to a bungalow, the terms “renovation” and “conversion” could only properly be applied to the free-standing barn element of the permission; all the other buildings proposed were either totally new structures, such as the garage and connecting building, or new structures incorporating parts of two existing walls. In these circumstances, the Inspector could not find that the appellants, in rebuilding parts of those walls which were found to be defective and unsafe, had departed in any material way from the planning permission. When they began work on the building they were acting in accordance with the terms of the permission; and when the enforcement notice was issued any deviation from its precise terms which had then occurred should be disregarded as being de minimis. The appeal therefore succeeded on Grounds (b) and (c) and the enforcement notice was quashed.

The South Hams decision (T/APP/C/92/K1128/620967/P6), dated 6 April 1993, was concerned with a development of three holiday lets which had been achieved not by conversion (as originally envisaged) but by rebuilding the former barn. The appeal proceeded on Grounds (b) and (c). In examining these grounds of appeal, the Inspector looked first at the details of the planning permission granted in 1984. The permission consisted of both the notice of approval and the plans which accompanied it. The notice described the development as “conversion”. The inspector noted that no planning definition of this word had been put forward at the inquiry. The Oxford English Dictionary defines “conversion” as a “change in character, nature, form or function”. The permission certainly envisaged a change in function from that of a barn to that of holiday units. However, in the Inspector’s view, the remainder of the definition did not assist in this case.

The next factor to consider was the conditions subject to which the development was to be carried out. Only condition (b) was relevant, and this specified the manner in which the stonework should be constructed. There were no other conditions relating to the manner in which the conversion work was to be carried out, nor conditions requiring the retention of any part of the fabric of the former barn. In the absence of any such conditions, the Inspector considered that condition (b) implied that some rebuilding of the walls of the former barn would be necessary.

Turning to the plans, it was clear that the proposed building containing the holiday units bore little resemblance to the former barn. The Inspector, while he appreciated that the wording of the 1984 notice of approval may have been dictated by the planning policies then in force, considered that the development which was then approved should more correctly have been described as the “re-building” rather than the “conversion” of the barn. In the absence of any condition specifying how the work should be carried out, the Inspector accepted the view put forward on behalf of the appellant that the only practical way of carrying out the conversion was to demolish the walls and rebuild them in accordance with condition (b) of the permission.

Taking all these factors into consideration, the Inspector reached the conclusion that the development had been carried out in accordance with the terms of the 1984 permission, that the completed building was in the form shown on the drawings forming part of the permission and that the manner in which conversion work had been carried out complied with the terms and conditions of the permission. The appeal therefore succeeded and the enforcement notice was quashed.

It is clear from the South Hams appeal decision that the Inspector did not consider that the use of the term “conversion” implied or required the retention of the pre-existing barn structure. The absence of any condition requiring the retention of the pre-existing structure was clearly an important factor in this decision. The only relevant condition was one which specified the manner in which the stonework should be constructed. The Inspector inferred from this that this condition implied that some rebuilding of the walls of the former barn would be necessary.

The Woodspring decision is another example in which terms such as “renovation” and “conversion” were not construed in a disembodied way on their own but were looked at in the context of the permission as a whole, including the approved drawings, to see what the planning permission really authorised (the approach laid down in the Basildon judgment). The Inspector in that case noted in particular that none of the conditions attached to the permission related to the retention of any particular part of the fabric of the pre-existing buildings. The drawings showed that there would be a substantial element of demolition in the course of the authorised development and that a substantial part of the fabric of the pre-existing buildings would be removed.

The Woodspring appeal was also a case in which walls were found to have had no foundations, and were found to be unsafe. Clearly, in order to execute the works which had been authorised, it was necessary that those walls should be taken down and rebuilt. The inspector had described this additional element of demolition as de minimis in the context of the authorised development as a whole.

Notwithstanding the judgment in Basildon and these two appeal decisions, there are two more recent decisions that have taken an opposite approach to this issue, and I will discuss these in the next post.

© MARTIN H GOODALL

The two more recent appeal decisions that did not follow the Basildon judgment and the appeal decisions in Woodspring and South Hams were, first, in Bridgend in 2005 and then in Cheshire West & Chester in 2012.

The Bridgend decision (APP/F6915/X/05/1183432 and APP/F6915/X/06/1197122) was dated 30 March 2006. This was a section 195 appeal. The development authorised by the planning permission in that case, granted in 2003, was described in the permission as “conversion of redundant barn”. The permission then stated that the Council “as local planning authority, hereby permits the proposed development to be carried out in accordance with the plans (if any) submitted with the said application”. The permission was granted subject to eight conditions. None of those conditions required the retention of any specific part of the pre-existing barn structure.

It was the appellant’s case that there was nothing in the 2003 permission, including its conditions and approved plans, that prohibited him from totally demolishing the former barn and then constructing the dwelling as shown on the approved plans. With regard to the description of the authorised development as “conversion of redundant barn”, the appellant relied on the South Hams decision, where another inspector had commented on the absence of a planning definition of “conversion”. However, the inspector in the Bridgend appeal made no comment on the other findings of the inspector in the South Hams case.

The approach of the inspector in the Bridgend appeal decision appears in fact to have been somewhat at variance with the approach taken by the inspectors in both the South Hams and Woodspring appeal decisions, and even with that of Macpherson J in Basildon DC v. SSE and Asplin. The inspector seems to have focused exclusively on the word “conversion”, observing that it was now widely used in many development plan policies, as well as the Welsh Assembly Government’s ‘Planning Policy Wales’. He noted that the appellant did not produce any examples of “conversion” being interpreted in any planning context as including the total demolition and reconstruction of a building, and he therefore determined that there was no justification for such an interpretation being applied to the inclusion of the word “conversion” in the 2003 permission’s description. It was on this basis that he concluded that there was no justification for such an interpretation being applied to the inclusion of the word “conversion” in the 2003 permission, which he considered to be clear and unambiguous.

The Bridgend decision also turned the absence of a condition requiring the retention of the pre-existing structure on its head, in asserting that none of the eight conditions in the 2003 permission, or the stated reasons for including them, could be interpreted as inferring that total demolition and reconstruction was a possibility. This is completely at variance with the approach taken by Macpherson J in Basildon and by the other two inspectors in the South Hams and Woodspring appeal decisions, where the absence of such a condition was an important factor in determining that total demolition and reconstruction of the building was not ruled out. There is nothing in the reasoning in the Bridgend decision letter which explains this clear inconsistency of approach compared with the previous decisions.

In the Bridgend appeal decision, the inspector disregarded the Basildon judgment on the basis that the facts in that case were not comparable with the facts of the appeal that was before him (and therefore seems to have assumed that it was not of binding authority). The apparent basis for this departure from the principles set out in the Basildon judgment was that the planning permission in the Basildon case involved the improvement and extension of a building. It comprised a fundamental alteration of the original building, and the part that was shown on the approved plans as being retained would not have been visible externally or internally [my emphasis]. It might reasonably be argued that this places undue emphasis on certain passing remarks made by Macpherson J in the course of his judgment in Basildon, while ignoring the underlying principles on which the judgment in Basildon was based. It is quite clear from that judgment that the fact that the authorised development was described in the permission as “improvement and extension” (and also as “extension and alteration”) did not define the scope of the permission.

In the Bridgend appeal decision, the inspector also refers to the facts in the Woodspring appeal decision (also relied upon by the appellant in this Bridgend appeal). The inspector disregarded that decision on the basis that the facts in that case were totally different to the appeal proposal that was before him. He mentions that the inspector in the 1991 appeal concluded that any deviation from the precise terms of the planning permission should be disregarded as being de minimis. This, again, could be said to concentrate on the details of that earlier appeal decision while ignoring the underlying principles on which it was determined.

Notwithstanding these points, the key to the Bridgend decision may have been this passage in the decision letter:

“ It does not follow that because the approved plans do not contain specific descriptions of the parts of the building to be retained that they can be interpreted as authorising total demolition and reconstruction. This interpretation would be inconsistent with the indications on the plan to “take down” the remains of a store and a lean-to roof and pillars, as well as an adjacent shed. It is clear from the existing and proposed floor plan layouts, as drawn, that the approved conversion involves carrying out alterations and extension to the existing building, with the retention of a significant part of the existing building’s structure.”

Thus the inspector was construing the permission in conjunction with the approved drawings (as per Barnett) and found evidence in those drawings of an intention that there should not be entire demolition and reconstruction of the building. As a finding of fact, this would have been difficult to challenge in the High Court.

This brings us to the recent decision in Cheshire West & Chester in which the decision was issued on 23 August 2012. The planning permission granted on 21 January 2010 described the proposal as follows: “To convert and extend existing barn to form one dwelling and erect double detached garage”. The approved drawings show that around 7.2 metres of the eastern section of the pre-existing building, and 4.8m of the western section, were to be removed. Development commenced and the cladding above first floor, roofing materials, the bay on the east elevation, the alterations to the gable to the west, and the three bays to the north elevation were removed.(All this was in accordance with the permission.) The scheme involved the total replacement of the roof structure and alterations to the building’s fenestration. The inspector recorded that both parties agreed that the approved scheme would have included the retention of about 15% of the original external surface area of the pre-existing building within two and five bays to the north and south elevations respectively.

As work progressed it became apparent that the original barn had been built on the floor raft without adequate footings. Having obtained advice from the structural engineer, it was decided to totally demolish the pre-existing building and to start afresh with new foundations to meet with current Building Regulations. It was the appellant’s case that the 2010 permission permitted the demolition and rebuilding of the pre-existing building.

The inspector referred to the decision of the Court of Appeal in Miller-Mead v Minister of Housing and Local Government [1963] 2QB 196, which established that any controls or limitations attached to a planning permission need to be clearly and precisely stipulated within the four corners of that permission. If something is not specifically controlled by the planning permission, including any conditions imposed upon it, then, by implication, it is permitted. Conditions cannot be implied into a planning permission (see I’m Your Man v SSE (1999) 77P&CR 251).

The inspector went on to note the importance of the approved plans (as established in Barnett). In the case of a full permission, those plans and drawings describing the building works were part of the description of what has been permitted. The inspector contrasted the case of Basildon (on which the appellant sought to rely) with the instant appeal. In Basildon there was a planning permission for the 'improvement and extension of an existing building'. No conditions were imposed to retain any part of the original structure. However, the planning permission involved operational development that fundamentally altered the original building. The part that was shown on the approved plan as retained would not have been visible [my emphasis]. In the Cheshire appeal, on the other hand, the pre-existing building contained visible features that contributed to the architectural style of the original Dutch barn and were supposed to be incorporated into the new refurbished dwelling. (Pausing there, that does suggest that the Inspector may possibly still have had in mind the D&S statement, notwithstanding his acceptance, in accordance, with Ashford that it could not be called in aid to construe the nature and purpose of the permission.)

The inspector noted that there is no specific definition of the words to ‘convert’ or ‘extend’ in the context of development control, but he observed that it is reasonable to interpret the meaning of these words by looking at The Oxford English Dictionary. It defines the verb to ‘convert’ as to ‘change the form, character, or function of something… adapt a building for a new purpose’. The word ‘change’ is to make or become different, or is a description of a process through which something becomes different. The word ‘extend’ is defined as ‘make something larger in area’. The inspector concluded that, although there was no condition imposed on the permission to retain any part of the pre-existing building, the use of the words to ‘convert and extend’ implied its retention. Taking all of the above points together, the inspector considered that there was nothing within the document’s four corners to support the forcefully put submission that the 2010 permission allows the total demolition and subsequent rebuilding of the pre-existing building. Due to the wording used in the document, it was probable that any member of the public would arrive at the same conclusion.

However, the key passage in this decision appears to be very similar to that in the Bridgend decision which refers to the approved drawings. The inspector noted that at the Inquiry it was agreed that drawing no. 5047/203 revision B was the most important approved plan, as that showed scaled elevations and floor plans. The box giving details of the scheme described it as the ‘redevelopment of Dutch Barn’ and the description was ‘proposed ground and first floor plan and external elevations’. There was no disclaimer on the plan suggesting that it was only for illustrative purposes. The ground floor plan showed a broken line with the following notation: ‘Outline of existing building footprint. One bay removed and ‘new structure inserted into the existing envelope without visible trace’. The outline of this bay was reflected in the first floor plan. There was no other similar illustration. On the south elevation, there was a note saying: ‘Existing steel structure exposed externally. New full height glazing to run behind line of columns and frame the existing structure’. On the north elevation the note said ‘existing & reclaimed brickwork to ground floor’ and the arrow pointed to one section.

The inspector found the approved drawing particularly instructive of the nature, type and scale of the adaptations and alterations required to achieve the conversion of the pre-existing building. When the various details were compared with the sketch view of the south side and the entrance, it was apparent that, in its complete form, the character of the Dutch-style barn, as evidenced in those parts of the building which would be retained, would have been incorporated into the conversion scheme. The notation of the drawings did not support the assertion that the pre-existing building was to be totally demolished and rebuilt. It was clear from the drawing that elements of the original building would remain, consistent with the description of the development.

Even if the conversion scheme was to be achieved by a very a substantial element of rebuilding, the remaining element (15% as agreed by the parties) contained all of the necessary and most important characteristics and architectural features of the Dutch barn that were supposed to visibly remain in a refurbished and improved form. Contrary to the appellant’s submissions, the inspector therefore took the view that this case could be distinguished from Basildon. This was because of the description of the development and those elements of the original building which would remain having the important characteristics of the Dutch barn.

The inspector accordingly found that the total removal of the pre-existing building resulted in a significant and material departure from what was lawfully permitted. Effectively, planning permission was granted to convert and extend the pre-existing building to form a dwelling and the plans showed the nature, type and scale of the building operations involved in that conversion scheme. Irrespective of the fact that no planning condition was imposed upon the 2010 permission requiring the retention of any part of the pre-existing building, there was no justification to support the claim that it granted planning permission for its total demolition and subsequent rebuilding.

As I indicated earlier, I do have some difficulty in reconciling the Bridgend and Cheshire West & Chester appeal decisions with the judgment in Basildon, but I think it can be inferred from these two more recent appeal decisions that if the approved drawings do show the retention of elements of the pre-existing building that are intended to remain visible after the completion of the conversion (in contrast with the position in Basildon, where no part of the retained structure would have been visible), then a developer is unlikely to be successful in claiming that the planning permission did allow the entire demolition and reconstruction of the pre-existing building. To that extent, the Cheshire Cat may have been a little over-optimistic in what he told Humpty Dumpty; a more careful examination of the approved drawings may be required before one can be confident that total demolition of the building is not ruled out.

This still does not dispose of all the points that can arise in these barn conversion cases, so you are in for yet another episode tomorrow!

© MARTIN H GOODALL

[ADDENDUM: I should perhaps say that the intention to retain visible elements of the pre-existing building can only be inferred from the approved drawings if those drawings include clearly worded annotations indicating an intention to retain in visible form specific pre-existing features of the original building. The mere fact that the drawings show a building that looks like the original building or which displays visible features seen in the original building would not be enough, in my view, (absent the sort of annotations I have mentioned) to indicate an intention to retain all or part of the pre-existing structure. Without such annotations, the details shown in the drawings could simply propose a replica of the original and cannot by themselves be interpreted as indicating an intention to retain the original structural features per se.

The intention of the annotations on the drawings in the Cheshire West & Chester appeal was in dispute between the parties, but the inspector clearly regarded them as indicating an intention to retain at least some elements of the original structure. - MG]

One question that sometimes arises in barn conversion cases is whether the development might in reality be a material change of use, rather than primarily operational development. Where substantial building and/or engineering operations are clearly involved, which will produce a significantly different building than that which originally existed I have always taken the view that the use of the completed development will be governed by section 75 of the 1990 Act.

Section 75(2) provides that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and subsection (3) provides that where no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed [i.e. intended].

I appreciate that it could be argued that permission for a barn conversion is not a planning permission “for the erection of a building”, but if substantial operational development is involved which includes major structural works, then this is arguably tantamount to the erection of a building, and I would contend for a purposive interpretation of section 75 in this context. It is in effect a new building (usually a new dwelling) that is being created. In a case of this sort, the planning permission is likely to be worded in a way that is intended to authorise substantial operational development rather than merely authorising a change of use; in fact a ‘change of use’ is rarely if ever referred to in this type of permission, and I suggest that this is because it has always been assumed that the use of the building after completion of the building works depends on the operation of section 75, rather than on any specific authorisation of that use in the planning permission. Indeed, if the planning permission is silent as to any change of use, section 75(2) or (3) can be the only means by which the future use of the building can be said to be authorised.

The relevance of this point is that there is a separate line of judicial authorities that applies to barn conversions that are effectively confined to a material change of use, as distinct from building or engineering operations. It is these judgments to which I want to draw attention in this post. Leaving aside the argument canvassed above, there are planning permissions for barn conversions that clearly refer to the authorised development as a change of use. These are cases in which all or nearly all of the works for the conversion of the barn are purely internal and where only very minor external alterations are made to the building (such as the installation of one or two discreetly designed extra windows).

Where the permission was actually for a change of use, the legal consequences of the building collapsing or being demolished in the course of the conversion (it is usually the former rather than the latter in this type of case – the result of storm damage rather than any structural work being carried out on the building) are markedly different from the position where one is dealing with a planning permission for substantial operational development.

If a building is demolished or falls down, then any existing use rights disappear with it. That was established in Iddenden v. Secretary of State for the Environment [1972] 1 W.L.R 1433; [1972] 3 All E.R. 883; 71 L.G.R. 20; (1973) 26 P. & C.R. 553; 116 S.J. 665; [CA]. It follows that there is then no use that can be materially changed. In those circumstances any planning permission for change of use has inevitably been lost.

It was established in North Norfolk District Council v. Long (1983) 267 EG 251; [1984] JPL 45 [CA] that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission. A permission that purely authorised a material change of use could not impliedly authorise such reconstruction even where the loss of the original building was entirely accidental.

The High Court accepted in Hadfield v. Secretary of State for the Environment 1996 E.G.C.S 114 that where the planning permission was for a change of use, the loss of the building resulted in loss of the planning permission.

So far as I am aware, it has never been suggested that this line of authorities has any application to cases in which the planning permission authorised substantial operational development rather than simply a material change of use. Numerous appeals, not to mention the Basildon case, have been determined on the basis that the planning permission is not automatically lost if the pre-existing building collapses or is removed; it depends on the precise terms of the planning permission, as discussed in the preceding articles in this series. This, I suggest, demonstrates acceptance of the principle to which I drew attention at the beginning of this post, whereby it is section 75 that authorises the future use of the building, if the barn conversion consists of substantial operational development.

I had intended in this post to discuss the judgment in Williams v. SSCLG [2012] EWHC 3466 (Admin), but I will leave this for Part 5 of this lengthening saga.

© MARTIN H GOODALL

The most recent barn conversion case to come before the courts was Williams v. SSCLG [2012] EWHC 3466 (Admin), in which judgment was given on 4 December 2012.

On 2 August 2006, the appellant was granted planning permission on appeal for "alterations, conversion and a roof extension to an existing agricultural building so as to provide 10 stables, a tack room, a feed store, a hay store and an office for full livery........in accordance with the terms of the application.......and the plans submitted with it”. The permission was subject to seven conditions, including:

“2) The exterior of the development hereby approved shall only be constructed in the facing materials specified on the plans hereby approved or in materials which shall previously have been approved in writing by the local planning authority.”

The elevations and floor plan of the building showed that the profile of the old barn would be altered by the construction of an extension along its south east elevation, that its outward appearance would be transformed by the provision of a new roof covering, external walls and doors, that its floor plan would be enlarged and that it was being converted from a barn to a building accommodating 10 horse boxes and their associated tack and feeding rooms, an office and a WC. It was therefore clear that the proposed development also involved the extension, strengthening and renewal of the existing steelwork frame and the provision of new foundations, underslab drainage and sluicing out facilities and a new floor slab.

The deputy judge observed that it was noteworthy that the permission did not contain any condition limiting or directing the building method to be used, the sequence of work that should be employed or the parts of the existing structure that should be retained. It followed that the ordinary and natural interpretation of the permission was that, so long as the surface materials that were used were ones that had previously been approved by the LPA and the overall profile and footprint of the building were constructed so as to provide an exact replica of the building as shown on the approved plans and that it was used in the approved manner, the completed development would conform to the 2006 permission.

In about May 2008, the appellant started work on the development. He removed the old roof covering and the original cladding and blockwork walls. By 6 June 2008, the old barn had been demolished save for the steelwork stanchions and some sheeting and blockwork which were still temporarily in place and which were removed soon afterwards. New steelwork was then added to accommodate the extension that was to be installed and to provide additional support for the new roof and upper floor slab that Mr Williams decided should be added to the development. The ground floor slab and a new mansard roof were then erected and the fitting out work started in September 2008. The structural details were approved by the council’s Building Control department and a building inspector undertook periodic inspections for building control purposes.

Nothing in the permission precluded the use of strengthened steelwork, a completely new set of steel members or a replica steel frame. The approved plans clearly involved the demolition of all or virtually all of the existing structure of the old barn since the external surfaces and the roofing materials, would have to be stripped away, new foundations and drainage and a new floor slab would have to be provided, new steelwork would be needed to accommodate the permitted extension and the existing rusty and weakened steel frame would require renewal, strengthening and replacement. Thus, the implementation of the planning permission would involve both the substantial demolition of the old barn building and the provision of what would be tantamount to a new building in its place.

The LPA’s enforcement officer, on the other hand, had formed the view that the permission, in order to be implemented without breach, required the retention of substantial parts of the old barn. It followed that, on this view, replica new materials could only be sparingly used. The enforcement officer took this view because she considered that the permission was only authorising conversion works which could not by definition involve significant demolition or substantial new-build work. In truth, the deputy judge held, these objections had been disposed of by the approval, no doubt as a result of the balancing exercise which required building design and execution considerations to be balanced against employment and diversification considerations which, in this case, had resulted in a so-called conversion development that had few of the characteristics of a conversion.

The enforcement officer’s view would have been impossible to achieve unless the permission had contained extensive conditions which identified the parts of the old barn that were to be retained and provided details of the new slab, steelwork, drainage and foundations that were needed, a method statement describing how the works were to be carried out and a requirement that any alteration from these approved details had to be approved by the planning officer.

The deputy judge concluded that Mr Williams was permitted to undertake any work that was necessary to create an equine centre which, in its outward appearance and its conditions of use, conformed to the approved plans and conditions contained in the 2006 permission. He could also employ any suitable working method and, if he chose, demolish the old barn and replace it with a replica building constructed of new materials. The overriding requirement was that he had to provide a perfect replica of the approved building.

The deputy judge then went on to consider whether what the permission authorised or required was a “conversion” of the old barn. The LPA contended that this was what was intended by the permission and that this was very different from the unauthorised new building development that was ultimately produced. The LPA also contended that the conversion work that had been authorised involved the retention of a substantial part of the old barn with the consequent incorporation of much of it within the converted building that it contended was to be built.

The judge noted that, as he had already observed, the LPA was in error in describing the authorised development as the conversion of the old barn. It was in fact a composite development that the planning permission described as being: "alterations, conversion and roof extension to an existing agricultural building to provide 10 stables, a tack room, feed store, hay store and office for full livery". It was therefore a mistake to contrast the new building that was produced with a conversion project. The contrast that should have been considered was between the new building that was produced with a new building created in a one-off complex operation to bring an old building into re-use that involved alterations, conversion, extension and change of use.

I confess to having some difficulty in following the deputy judge’s reasoning in the next two paragraphs of the judgment, but it appears that he was in effect saying that the development was described in the way it was so as to bring it within the category of appropriate permitted Green Belt development that had been designed to enable old buildings to be re-used, but that this development was not a conversion in the conventional sense, particularly since its implementation would involve the substantial demolition of the old barn and its almost complete rebuilding using new materials. The development also involved the profile of the old barn being extended significantly, various significant alterations being made that involved the creation of new open areas, a number of windows and the provision of doors and its use being converted from agricultural to mixed agricultural and equine use.

For these reasons, the permitted building was much more like a new building than a converted building. It was not a requirement of the planning permission that the building should be converted nor that any particular part of the old barn should be retained. What was however essential was that the completed building should have the appearance of a complete replica of the permitted development and that it complied in every respect with the design and appearance shown on the permitted plans and provided for in the attached conditions.

The deputy judge also considered whether the old barn had in practice been demolished. Much argument in this appeal was addressed to the question of whether or not Mr Williams' work had involved the demolition of the old barn and, if it had, whether the demolition work had been undertaken within a single operation with the construction work or as a separate and discrete operation that had involved the demolition of the old barn followed by a subsequent and discrete operation that had produced the new building. These considerations were applied to the question of whether the development was one of conversion or, instead, one involving the construction of a new building without planning permission.

This discussion involved an esoteric consideration of whether the demolition of the old barn was an activity which had occurred at all, whether, if the barn had been demolished, it had only been "substantially demolished" [see my own comment at the end], whether demolition or substantial demolition required a separate planning permission and whether whatever had occurred evidenced a substantial departure from the 2006 permission, or the construction of a new building which had not been permitted and whose construction was outside and unrelated to the 2006 permission. The arguments on these conceptual issues were elegantly presented but they had little relevance to the facts of this case. Since they were raised, however, the deputy judge considered them briefly.

The deputy judge found that Mr Williams had undertaken the work carried out on site as one continuous operation and without any obvious demarcation between demolition work and construction or reconstruction work, and in purported implementation of the 2006 permission. The work was carried out with appropriate consultation with, and the involvement of, the council's building control department. As was always intended, the entire structure of the old barn, save for part of the steelwork structure, was demolished and removed. The steelwork structure was added to and part was replaced and the composite steelwork formed in this way was incorporated into the new build as its structural support. Thus, an essential element of the old building remained and was never removed or dismantled. As a matter of plain English, the old barn was not demolished and the resulting building, as well as the building that would have resulted had it been constructed in accordance with the approved plans, was or would have been a new building.

The enforcement officer and the Inspector both described the removal work that took place as "substantial demolition" and the building that had replaced the old barn as being "the construction or tantamount to the construction of a new building". However, substantial demolition or work that is tantamount to demolition is not "demolition" (the deputy judge said) and a building that is tantamount to being a new building is not a new building.

The deputy judge therefore concluded that the old barn was never demolished, at most it was "substantially demolished" since parts of the original steelwork were left in place and were incorporated into the new building. Furthermore, the work of removal, demolition and deconstruction formed an integral part of, and could not have been factually distinguished from, the work of construction or reinstatement. All this work was undertaken by Mr Williams as part of his attempt to implement the 2006 permission and no breach of that permission occurred until the occurrence of the first departure from the approved plans some weeks after the work had started. It would not have been possible to identify the moment in time when the work was transformed from the implementation of the 2006 permission into the implementation of an unauthorised new building.

However, the deputy judge held that none of these considerations had any bearing on whether the breaches particularised in the enforcement notice which were described as the creation of a new building had occurred. The way that the demolition work was carried out showed that the breaches of the 2006 permission that occurred resulted in the construction of a new unauthorised building and that these breaches occurred as part of an unsuccessful attempt to implement the 2006 permission.

As indicated here, the position in this case was complicated by the fact that, quite apart from the alleged demolition of the original building and the alleged creation of an entirely new building, as distinct from a ‘conversion’ (as the LPA claimed), the structure that eventually emerged differed from the design that had been authorised by the permission to such an extent as to constitute a breach of development control.

I am going to gloss over much of the remainder of the judgment, as it involved a rather convoluted discussion regarding precisely what breach of planning control had occurred, whether this was correctly described in the enforcement notice and whether Mr Williams was entitled to remedy the breach by altering the new building rather than being required to demolish it.

In the event, the deputy judge held that the Inspector had erred in law in finding (in relation to the Ground (f) appeal) that the remedy of altering the new building so that it conformed to the terms of the 2006 permission was neither available nor appropriate. In reaching that conclusion, he failed to give effect to sections 173(1), (3), (4)(a) and (5) and 174(1)(a) of the 1990 Act. As a result, he failed to give effect to the only reasonable conclusion that he could have come to which was that the remedy of altering the new building should be imposed in the absence of compelling reasons why that remedy was impractical or incapable of achievement.

The section 289 appeal was allowed on this basis, and the deputy judge ordered that the appeal be remitted to the Secretary of State to reconsider his decision on Ground (f) in the light of this judgment.

The deputy judge added the following overall conclusion. As a result of the Inspector's original appeal decision, Mr Williams had been left in the position of having no building on the site of the old barn with only limited prospects of obtaining planning permission for a new building to be constructed there. This was because any further application would have to be tested against the Green Belt development policies applicable to new buildings. This, he said, was a surprising result since everyone who had been concerned with the future of the old barn had been in agreement that the building was suitable for re-use for commercial purposes. It was obvious that Mr Williams had made a regrettable and expensive mistake in constructing the new building in breach of planning control. However, the policy of enforcement is to place those responsible for breaches of planning control in the position that they would have been in had they not made the sort of mistake that Mr Williams made in this case. In other words, common sense suggested that he should be permitted to rectify his mistake by undertaking alteration work in order to produce the building that everyone had previously accepted was appropriate. In this case, the deputy judge concluded that, as he had found, the law accords with common sense.

I would have to admit to having mixed feelings about this judgment. On the one hand the deputy judge’s commonsense approach to the issue of planning enforcement is refreshing, yet I do have doubts about a judgment which was remarkable for not citing a single judicial authority, and in particular in not referring to the judgment in Basildon (although that case, being unreported, may not have been drawn to the court’s attention). In view of the approach the learned deputy judge clearly took in relation to the issue of “conversion”, the Basildon judgment might have been of some assistance as authority for the conclusion he reached on this issue.

Although the reasoning in this judgment is not as clearly expressed as one might have hoped, the learned deputy judge seems to have eschewed the legalistic approach to the interpretation of the planning permission that is all too often urged on inspectors by LPAs, and which it appears was also contended for by the LPA in this case. The judge’s approach to the interpretation of the planning permission in this case was fully in line with the approach recommended by Macpherson J in Basildon. It is not clear, on the other hand, whether the approved drawings were examined as part of this exercise, in the same way as they were in the Bridgend and Cheshire West & Chester appeal decisions.

One point which does emerge is that the original barn was not completely demolished; its steel frame was retained. This was presumably what the deputy judge had in mind when he referred to the barn having been "substantially demolished", as opposed to its being entirely demolished. This, however, does not entirely dispose of the LPA’s argument that the extent of the demolition was greater than that which the planning permission had authorised.

Another point that emerges in this case is that no-one appears to have suggested that this development should be treated primarily as a change of use (although a change of use was mentioned in passing). This appears to me to be further confirmation, if it were needed, that in a case that involves substantial operational development, it is not appropriate to treat the development as a change of use, and that the judgements in Iddenden , North Norfolk and Hadfield clearly have no application where one is dealing with a planning permission for substantial operational development, even though the use of the converted building will differ in planning terms from its previous use.

So where does this leave us? Well, I am afraid that this latest judgment does not really resolve the issues which have troubled planning inspectors, and occasionally also the courts, for many years now. The root of the problem is the over-precious attitude to barn conversions that is all too often taken by local planning authorities. This is something that cannot be changed by planning inspectors or by the courts; it will require a ministerial initiative to bring about a more liberal approach to barn conversions, in particular to put an end to the rather pointless insistence that the fabric, or at least some identified elements of the fabric, of the pre-existing building must be retained in order for the development to be lawful (with the obvious exception of a building that is a designated heritage asset, whose retention is important per se).

Until or unless policy is changed in this way, I fear that we can expect a continuing flow of barn conversion disputes in the future, against a legal background (so far as construing the precise intention and effect of the relevant planning permissions is concerned) that remains unclear.

© MARTIN H GOODALL

A recent investigation by the Daily Telegraph has drawn attention to the shadier side of town and country planning. I suspect that full-blown bribery is still fairly rare in this country, although if you read Private Eye’s “Rotten Boroughs” column you may well suspect that unethical conduct is rather too prevalent in local authorities around the country.

Outright bribery and corruption may be comparatively rare, but there is strong anecdotal evidence that there has been a sort of ‘low level’ corruption in the planning system for many years – one councillor doing a favour for another councillor or for his family and friends. It seems to go on in rather too many councils. Declaring an interest and withdrawing from the discussion makes no difference, as Councillor X can usually rely on Councillor Y to make sure the scheme in which Councillor X has declared an interest goes through anyway.

What is new (at least to me) is councillors doing this for ‘consultancy fees’. Frankly, this comes too close for comfort to outright bribery, and may well cross the line of criminality. When this sort of thing is going on, alarm bells begin to ring very loudly. I am no great fan of the Daily Torygraph, but I think they are on to something here.

But there is really no need for developers and landowners to employ shady PR companies, local councillors or serving local government officers to advise them how to get planning permission. There are plenty of legitimate planning consultancies whose full-time paid staff are perfectly capable of advising on the planning process and who can steer development proposals through the planning system. The development management system is complex and bureaucratic, but it is not an arcane mystery, and doesn’t need unqualified wheeler-dealers or Mr Fix-its to get planning permission for largely undeserved fees. If you employ a proper planning consultant (usually a chartered town planner or possibly a chartered surveyor or architect) to act for you, you will get a proper professional job done, and will have a better chance of achieving a successful development than is likely if you go to the sort of charlatans that the Daily Telegraph investigation has uncovered.

I strongly suspect that local councillors who are alleged to be offering their services as ‘consultants’ know a lot less about the planning system than they claim. Nothing can beat the professional experience and expertise of a legitimate planning professional who works full time in that capacity. Landowners and developers would be well advised to steer clear of amateurs, moonlighters and part-timers.

There certainly needs to be some tightening up of the system so far as the conduct of councillors and local government officers is concerned. It is easier to deal with the case of local government officers than that of councillors. Officers’ terms of employment should already preclude any ‘moonlighting’, and if they do not do so, the nationally settled standard terms of employment should be amended to ensure that officers cannot engage in any other paid work, or act in any other capacity, whether paid or unpaid, which could involve them in doing anything that might give rise to a conflict of interest. Breach of such a condition of employment should be regarded as gross misconduct leading to summary dismissal.

It is perhaps arguable that councillors (or council candidates) whose professional or business activities could give rise to conflicts of interest should be disqualified from being elected members of councils which exercise a development management function, although it would admittedly be very difficult to know precisely where to draw the line when determining whether professional or business activities might or might not give rise to conflicts of interest. Too strict a rule could be detrimental to the local democratic process.

Even if there is no blanket disqualification of this sort, there should be a strict rule that no councillor should communicate in any way with any other councillor or officer in a case where any conflict of interest could arise. What constitutes a ‘conflict of interest’ should be widely defined, and should go somewhat beyond those interests that are currently required to be declared. What I am suggesting is that simply declaring an interest would not be enough; a vow of complete silence would have to be observed at all stages during which a planning application is in the system.

There really need to be strict sanctions to enforce this discipline, and here we come across a problem created by the present government. There was just such a system in place until the coalition government came to power. However, they scrapped the established Standards Board regime, which had ensured there was a centrally prescribed model code of conduct and standards committees with the power to suspend a local authority member, plus a central standards board to ensure uniform compliance throughout the country with prescribed standards of conduct. The government may come to regret having removed this essential disciplinary machinery.

© MARTIN H GOODALL

If you follow not only the main entries on this blog but also the published comments, you may have noticed a couple of mentions of the judgment in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin) which related to a dispute as to whether a barn adjacent to a listed farmhouse was itself listed by virtue of its being within the curtilage of the farmhouse at the time when the farmhouse was listed.

If the barn was within the curtilage of the farmhouse when it was listed, then the barn as a curtilage building is also listed. Subsequent separation of the barn from the curtilage of the listed farmhouse cannot alter the barn's listed status. The question that arises, however, is whether the barn really was within the curtilage of the farmhouse either at the time of listing or at all.

Readers may begin to think I have a fixation about barns, but I just seem to get these sort of problems coming across my desk. In addition to a couple of such cases in which I have been asked to advise, I am aware of several other examples of this query being raised around the country.

Before one looks at the issue of whether or not the barn was in the curtilage of the farmhouse at the time of listing, it is necessary first to consider whether the barn was even within the same planning unit as the farmhouse. It is well understood that a farmhouse is not an agricultural building and cannot therefore be erected as permitted development under Part 6 of the Second Schedule to the GPDO. A farmhouse is by nature and purpose a single private dwellinghouse, and as such the dwelling and the land occupied with it as part and parcel of the same planning unit (usually just the garden and maybe also some form of forecourt) necessarily falls within Use Class C3. This is not an agricultural use.

The precise extent of the planning unit is to be determined by reference to the test laid down by Bridge J (as he then was) in Burdle v. SSE [1972] 3 All ER 240; 24 P&CR 174. The basic rule is that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.

In quite a few cases, the farmhouse (together with the land occupied with it – i.e. the garden) is separate from the neighbouring farm both physically and functionally, and it therefore constitutes a separate planning unit, falling (as mentioned above) wholly within Use Class C3. As a separate private dwelling, the occupation and use of the farmhouse for exclusively residential purposes cannot be said to be ancillary or incidental to the use of any of the neighbouring land. Equally, the neighbouring farm is not ancillary or incidental to the residential use and occupation of the farmhouse.

It is well settled law that the use of one planning unit cannot be ancillary to the use of any other planning unit (see Westminster City Council -v- British Waterways Board [1984] 3 All ER 737). It follows that a building within one planning unit cannot have a primary/ancillary relationship (in terms of its use) with a building on a separate planning unit, even if immediately adjoining. This alone would preclude a building in one planning unit being within the curtilage of a building in a different, though adjoining, planning unit.

This alone would be sufficient to negative any suggestion that any building that is in practice outside the confines of the planning unit comprising the farmhouse and its domestic garden is within the curtilage of the farmhouse. However, there is clear judicial authority to show that, even if the farmhouse and the nearby farmyard had been within one and the same planning unit, a barn standing in the nearby farmyard may not in any event have been within the curtilage of the farmhouse either at the time of the listing or at all.

Bearing in mind the purely residential or domestic use of the farmhouse, one has to examine in that light the relationship (if any) to the house that any of the buildings in the farmyard might have had.

According to the Oxford English Dictionary the ‘curtilage’ of a building is :

“a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings”.

The practical interpretation of the term which is most widely accepted and applied is the following passage from the judgment in Sinclair-Lockhart’s Trustees v. Central Land Board (1950) 1 P&CR 195 :

“The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.”

In most cases, any nearby barn will not at any time have served the purpose of the farmhouse in any necessary or useful way. Its function will have related solely to farming activities, and it would not in any way be associated with the residential use of the farmhouse. Thus such a barn does not even meet the basic Sinclair-Lockhart test, nor does it conform to the dictionary definition, if it is not attached to the dwellinghouse, but is physically and functionally separate from it, not forming (or being regarded by the law) as forming one enclosure with the farmhouse and not being within the area attached to and containing the dwellinghouse. Neither such a barn nor any other building in the farmyard could be described as ‘outbuildings’ of the farmhouse, if they were devoted solely to agricultural or other non-domestic uses.

More recent judgments on the definition of ‘curtilage’ generally do no more than reiterate the basic rule set out in Sinclair-Lockhart’s Trustees. They have repeatedly stressed the need for the alleged curtilage to have a functional relationship with the dwellinghouse, which must necessarily be related to its residential use or associated domestic activities.

This brings us to the judgment of Sullivan J (as he then was) in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin).

The judge noted the physical layout of the farmhouse and the other buildings in question in that case. From a date prior to the listing of the farmhouse in 1984, the farmhouse was enclosed by a wall. The other buildings (including ‘Mill Barn’ and the ‘Old Granary’) were located on the other side of that wall. ‘Mill Barn’ was some distance from the farmhouse. Beyond these and two other buildings to which the judge referred, there were a number of larger agricultural buildings which stretched away further to the west.

It had been contended that the curtilage of the farmhouse was not defined by the wall on its western and southern sides, but extended so as to incorporate Mill Barn and the Old Granary. However, the judge observed that there was no readily discernible feature which might serve to define the curtilage to either the west or the south of the farmhouse other than the wall, and it had been accepted in argument that the curtilage could not extend so as to include the whole of the farm. The question therefore was: if the curtilage of the farmhouse was not defined to the south by the wall, then where did it end? In answer to that, it had been submitted that the curtilage would include the large agricultural buildings further to the west of the four buildings referred to.

Sullivan J did not accept the submission that either those buildings, or the group of four buildings including Mill Barn, were within the curtilage of the farmhouse. In 1984 there was a clear distinction between the farmhouse and its curtilage and the farmyard with its buildings, which included Mill Barn. The judge accepted that there will not necessarily be such a physical distinction in each and every case, but on the evidence of the aerial photograph and the Ordnance Survey, there was such a distinction in that case.

This view was reinforced by evidence as to the use and function of the Old Granary and Mill Barn in 1984. The two barns were always used in conjunction with the farming activities carried on at the farm. Thus, it could be seen that in 1984 Mill Barn and the Old Granary were not being used for purposes that were ancillary to the use of the farmhouse as a dwellinghouse; they were being used for the purposes of the general farming enterprise which was being carried on at Jews Farm. They, and the agricultural buildings to the west, were being used for agricultural purposes. They were not being used, for example, to garage the farmer's car, to store his domestic items, as a children's playroom, staff quarters etc.

The alternative submission was that the farmhouse was not simply a dwellinghouse; it was the hub from which the agricultural business at Jews Farm was being conducted. The judge readily accepted that the farm was being run from the farmhouse in 1984, but the whole of the farm, and all the agricultural buildings upon it, could not sensibly be regarded as being within the curtilage of the farmhouse on that account. The primary use of the farmhouse was as a house. The farm, as a whole, was not listed, the farm house [original emphasis] was listed, and its curtilage, as a house, was clearly defined by the wall which separated the residential use within the wall from the agricultural use that was being carried on in the agricultural buildings, including Mill Barn, and in the fields beyond.

For these reasons, although the whole of Jews Farm, including the farmhouse and all the agricultural buildings, including Mill Barn, was in common ownership when the farmhouse was listed in 1984, the listed farmhouse and its residential curtilage was both physically separated from, and functionally distinct from, the agricultural land and buildings on the other side of the wall. The fact that they were all constituent parts of the same farming enterprise at Jews Farm did not mean that Mill Barn, or any of the other agricultural buildings beyond the wall, were within the curtilage of the farmhouse.

In giving judgment, Sullivan J considered the decision in A-G (ex rel Sutcliffe) v Calderdale B.C. [1982] 46 PCR 399. It had been held in that case that there were three factors to be considered when identifying the curtilage of a building. These were: (1) the physical 'layout' of the listed building and the structure, (2) their ownership, past and present, and (3) their use or function, past and present. Stephenson LJ had said in that case: "Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage. So when the terrace was built, and the mill was worked by those who occupied the cottages, and the millowner owned the cottages, it would have been hard, if not impossible, to decide that the cottages were outside the curtilage of the mill." In that case the cottages were physically linked to the mill.

In this judgment, Sullivan J considered all three of the factors promulgated in Calderdale. However, he expressly rejected a submission that the defendant local planning authority had considered only the second factor, ownership (and had wrongly concluded that the farmhouse and Mill Barn were not in common ownership in 1984), and that they had failed to address the first and the third factors mentioned in Calderdale. Sullivan J clearly did not accept that historical association alone would be sufficient to allow the land or buildings in question to be regarded as being within the curtilage of the farmhouse itself. The functional relationship (if any) of the land and buildings in question with the farmhouse at the material date (1984) was clearly the ultimate determining factor, even when the other two factors were also taken into account.

I am not the first person to draw attention to this judgment. The Legal Director of English Heritage wrote an article under the title “Legal Developments – Curtilage and Farm Buildings”, in which he referred to the Taunton Deane case. As he observed: “The key point of interest was the way the judge approached function and use.” The author concluded: “Although the layout of the buildings, their distance apart and the existence of physical boundaries between them were also factors in this decision, it is hard to see why this functional distinction (a farmhouse being a dwelling and farm buildings being agricultural) would not weigh heavily in all farm cases, even where the buildings were very much closer and no boundaries between them existed. In this case it could also be argued that non-domestic agricultural buildings attached to the farmhouse are not protected by listing either.”

I have drawn attention to this matter because I have come across several examples of planning officers assuming that a barn situated close to a listed farmhouse was thereby also listed by virtue of its being within the curtilage of the farmhouse. There may be a few cases where this is so (if the barn really was in domestic use at the time of listing), but for the reasons explained above, and as very clearly demonstrated in the Taunton Deane case, there will be many cases in which the barn in question has never been within the curtilage of the farmhouse and so is not itself listed.

© MARTIN H GOODALL

My colleague David Brock has posted an important note on his blog regarding the requirement in section 66 of the Listed Buildings Act to pay special regard to the desirability of preserving the setting of a listed building. A similar requirement is to be found in section 72 of the same Act, which calls for special regard to be paid to the desirability of preserving or enhancing the character or appearance of a conservation area.

David draws attention to the decision of the High Court in East Northants DC, English Heritage and National Trust v. SSCLG and Barnwell Manor Wind Energy Ltd [2013] EWHC 473 (Admin). Although this case related to a wind farm proposal, and the press has concentrated on that aspect of the matter, the case has important implications in relation to material considerations generally, as David explains in his note.

David’s piece can be accessed by clicking on the link in the left-hand column on this page.

While on this point, in yesterday’s piece about barns near listed farmhouses I had been tempted to go on to discuss the issue of the setting of the listed building, which could clearly arise where it is proposed to carry out a barn conversion or other development close to a listed farmhouse.

I don’t propose to discuss the E Northants case in this context (as David has already covered this in his recent blog post), but I have one or two observations to make on this topic.

Clearly a development which can be seen within a view of a listed building lies within the setting of that listed building. It cannot therefore be disputed that such a development could potentially affect the setting of the listed building. However, in approaching an assessment of the impact (if any) of the proposed development on the setting of the listed building there are two principal factors to be taken into account. First, the architectural quality or interest of the listed building itself is a material consideration in assessing the setting of that building. The nature and character of the listed building is clearly an important factor in judging its setting. Secondly, it is necessary not only to consider the listed building itself but also the nature and appearance of the existing surroundings of the listed building immediately prior to the proposed development being carried out.

There are bound to be some listed buildings (particularly if they are Grade II), where the setting of the listed building is unlikely on an objective view to be as sensitive as it would be in the case of a listed building of greater interest and/or of a higher grade. To put it simply, the same development in the vicinity of Hampton Court Palace would, by virtue of the character and quality of that listed building itself, have a far greater impact on the setting of that Grade I listed building compared with the impact that the same development would have on the setting of an unexceptional Grade II listed building such as a typical rural farmhouse. This is not to dismiss the issue of the setting of such a listed building as a material consideration, but it indicates that the setting of the listed building must be judged by reference to the character and quality of the listed building itself, rather than being considered in the abstract.

It is also important in judging the setting of the listed building, and in assessing the impact (if any) of the new development on that setting, to take full account of the contemporary context and of the way in which the setting of the listed building has changed over time. I can think of quite a few farms around the country where the majority of the older farm buildings have been removed and replaced with large modern ‘industrial’ style buildings over the past 50 years or so, producing a setting that is very different from the original farmyard ambience, with its traditional agricultural barns and cart sheds.

This twentieth century development, producing a typical complex of modern ‘industrial-style’ agricultural buildings, many of them metal-framed or concrete-framed and metal-clad, will have had a major impact on the historical setting of a listed farmhouse in such cases. But it is this existing setting against which the further impact (if any) of the newly proposed development is to be judged. It may also be relevant, for example, in terms of the materials with which the new development is to be constructed and in terms of its bulk and massing, that the proposed new development does not have any significant impact on the listed farmhouse when viewed in context with the other modern agricultural structures which form the existing setting of the listed house.

Ministerial advice, as now set out in the NPPF, endorses the approach to this issue explained in the preceding paragraphs. Paragraph 128 makes it clear that in determining applications, it is relevant to consider the significance of any heritage assets affected, including any contribution made by their setting. It is necessary to consider whether the relevant heritage asset is of any great significance in itself, and whether its setting makes any great contribution to the character and appearance of the listed building, especially if modern ‘industrialised’ agricultural buildings now form that setting. Paragraph 128 goes on to advise that the level of detail should be proportionate to the assets’ importance and no more than is sufficient to understand the potential impact of the proposal on their significance. The judgment that paragraph 129 of the NPPF calls upon an LPA to make must take these factors into account, and this would be entirely in accordance with section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

When I have had time to study the E Northants case in more detail, I may return to this topic. Even while writing this post I have received an email from a planning consultant with whom I work frequently, raising further questions about that judgment in relation to some of the earlier cases on the issue of material considerations. The implications of the case clearly need further thought, as David Brock has indicated.

© MARTIN H GOODALL

We had an in-house seminar last month between our planning law team and our colleagues in the property law team on CIL and other issues that are of current concern (including assets of community value) and it is clear that people are only now beginning to wake up to the implications of CIL. My colleague David Brock presented an extremely enlightening paper on this topic, but rather than stealing his thunder I will leave it to him to comment on these issues on his own blog.

However, quite incidentally, I received only a few days later some thoughts on this same subject from a good friend of mine in the planning profession, with the suggestion that I might like to publish them here. So, with due acknowledgement, I am happy to do so.

First, there are just a couple of preliminary points I ought to explain. It is reckoned that only about 70% of local planning authorities in England will actually adopt CIL. Some have already done so, but the ‘deadline’ that the majority have chosen to work to is April 2014. In Wales (where my correspondent mainly practises), I understand that 6 April 2014 is the standard date set for CIL to come into effect.

My correspondent writes:

As we move closer to the CIL regs taking effect (6 April 2014 – only just over a year away now as I write), their implications on the overall planning contributions payable on a particular scheme come more sharply into focus, particularly as I happen to be working on a proposal, the contributions in respect of which, will be dramatically altered post-CIL. In order to simplify the explanation, it is probably best if I provide an example. In doing so, I will focus entirely on housing contributions in order to simplify matters.

Current Situation

Take a local planning authority with an up-to-date development plan (in the context of legislative requirements, rather than economic realities) and SPG covering s.106 contributions. The administrative area spans affluent commuter suburbs through to deprived towns. SPG seeks contributions to a variety of infrastructure projects, with the most financially significant being transport and education. It recognises the economic disparity across the borough and discounts the contribution in the identified deprived areas by up to 50%.

Post-CIL Requirement

The local planning authority has published its Preliminary Draft Charging Schedule, in which, with the support of a report by the District Valuer, it reduces the CIL contribution to “Zero” in the economically deprived areas. This is an outcome that I would not criticise, as it recognises an economic reality.

The Proposal

The scheme, which will incorporate approximately 300 new residential units, will, if determined prior to the effective date, attract a combined highways and education contribution that is likely to be in excess of £500,000, whereas, post that date, the contribution will be zero, providing the CIL Charging Schedule remains as currently proposed.

Discussion

On the face of it, uncertainty over the final version of the CIL Charging Schedule means that it could be a risky strategy to delay submission of the planning application until its determination would take place post the adoption of the CIL. However, I can think of a number of ‘ploys’ that would negate the risk. For example, negotiate the s.106 later this year and then just don’t sign it until a clear picture emerges regarding CIL charging. If you’re going to be worse off by delaying, then sign. If you’re going to better off under CIL, then delay and renegotiate the s.106.

Reg 123(3) is quite specific, in that determinations made on or after the effective date cannot take account of pooled planning obligation contributions where 5 or more contributing obligations have already been entered into which provide for the funding or provision of that project, or type of infrastructure [Reg 123(3)(b)(ii)]. When counting the number of such obligations, it is from the date that the Regs came into force: 6th April 2010. In my estimation, it is highly unlikely that any local planning authority will not have entered into at least 5 obligations in respect of highways and education during that period.

Some may argue that such a strategy is not required, for if the economic situation in the deprived area is so bad that it is reasonable to set the CIL contribution at zero, then make a viability case and have the contribution reduced accordingly. However, Boy George in his budget announced a “Help to Buy” scheme, the first element of which commences on the 1st April 2013 and, it is estimated, will support 74,000 new home buyers. While the second element, starting in January 2014, is estimated to support £130 billion of high loan-to-value mortgages. The outcome of this is that most of the house price pundits, including the RICS, are predicting at least the possibility of another housing price bubble. In that context, what weight can you really expect to be afforded to your valuers’ carefully constructed historic comparables?

In addition, and we’ve all been here (or why introduce CIL in the first place?), even if you try negotiating with the local planning authority in respect of a reduced contribution, what guarantee do you have that they will respond meaningfully prior to the submission of a planning application? And even if they do respond, it doesn’t mean that they, or one of the funding recipients, won’t change their minds later.

From a landowner’s or developer’s perspective, the decision is easy; delay submitting the planning application for 6 to 9 months and avoid the consultants’ fees while, in the instance outlined above, saving approaching £100,000 a month. Even planning lawyers have months when they don’t earn that much!

The real irony of this situation is that the circumstances in which such a delay is going to prove financially beneficial are only likely to apply in deprived areas where an up-to-date CIL Charging Schedule is expected significantly to reduce planning contributions. Yes, the very localities that would undoubtedly benefit most from the economic uplift that the construction industry provides!

Solution?

Is an emerging CIL Charging Schedule a material planning consideration? It is most certainly an ‘elephant in the room’, but can it be used as a simple expedient to reduce or remove the planning contribution towards infrastructure costs? To my mind it is, and should be. For, in reality, only the foolish or poorly advised will, in the circumstances outlined above, seek to obtain a planning permission prior to the effective date. The outcome of which will be that those areas that would benefit most from the economic stimulus occasioned by the construction industry, will have that stimulus delayed - possibly for far longer than 6 to 9 months due to the focus of the major house builders being on ready-to-go sites in affluent areas where turnover is greater and any increase in house prices is likely to be more readily apparent. Such implications are undeniably material to town planning and therefore, I would argue, a material planning consideration.

The difficulty is, will the local planning authority concur? Possibly not, and by the time you’ve argued your case before an Inspector, the opportunity has been lost and your client has run up a further bill in the process.

So, we have a dilemma with no obvious solution. That is unless government recognises the situation and publishes guidance to the effect that emerging CIL Charging Schedules are a material planning consideration that are to be taken into account when agreeing s.106 infrastructure contributions. It should also be made clear that failure by the local planning authority to do so would constitute unreasonable behaviour, thereby raising the spectre of costs being awarded on appeal. However, if it is going to have any beneficial impact, such guidance needs to be published in the very near future.

Unfortunately, for practitioners in Wales, while CIL is not a devolved matter, appeal costs are. As a result they are stuck in the last century with what was, in England, Circular 8/93. Therefore, ‘the spectre of costs being awarded on appeal’ is more reminiscent of a toothless grin when directed at a Welsh local planning authority!
_________________________

This is only one of the nightmare scenarios that are going to face developers and their professional advisers with the advent of CIL. The particular situation postulated by my correspondent is more likely to arise in Wales than elsewhere, as my impression is that most English authorities are seeking to maximise CIL so far as practicable, and Nil rates are likely to be a rarity. The danger in England is that if planning applications are delayed, the resulting developments may be caught by CIL, whereas the early grant of planning permission could enable it to be avoided (except in those areas where it has already been or is about to be adopted).

As regards financial contributions under existing policies, secured by section 106 agreements, where local policies call for financial contributions from developers, these policies appear in most cases to be predicated on the existence of an identified need to provide for community, education and/or health facilities in association with new development proposals. It is only where replacement, additional or enhanced facilities are genuinely required that the developer can be expected to make provision for such facilities related in scale and kind to the need generated by the development.

In considering this issue, the statutory tests for the use of planning obligations laid down by Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 must be applied. This provides that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is -

(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.

If a planning obligation does not meet all three of these tests, it cannot in law be taken into account in granting planning permission. There is therefore a legal requirement to demonstrate that the terms of the obligation are lawful.

There is clear evidence that the Planning Inspectorate and the Secretary of State are interpreting this requirement strictly, so as to ensure that the statutory tests are met. For the LPA to take account of a proposed section 106 agreement in granting a permission, it needs to be convinced that without the obligation permission should be refused. It is not sufficient to rely on a generic policy or on adopted supplementary planning guidance. This is particularly relevant where there is an authority-wide tariff scheme. The LPA must be able to provide evidence of the specific impact of the particular development, the proposals in place to mitigate that impact and the mechanisms for implementation. This has been the position since the CIL regulations came into force in April 2010 and applies irrespective of whether an authority has adopted or intends to adopt CIL.

In order to illustrate this point, if an authority has a section 106-based tariff system in place to require payments for school places from residential development, then to receive monies under the tariff for a specific planning application, it should be able to demonstrate that there is a deficit of school places within the local catchment area which make the application unacceptable in planning terms and that the Education Authority has measures in place to remedy that deficit, to be funded in whole or in part from section 106 contributions.

If this is not the case and the reality is that contributions are being sought as a fund to support school places generally across the LPA area, there is the risk that a decision to grant permission could be taken unlawfully, as the contribution should not have been taken into account.

There are ministerial appeal decisions that clearly illustrate this approach. For example, Mersea Homes CBRE, Land at Westerfield Rd, where the Secretary of State gave no weight to a number of financial contributions, for education, playing fields and a country park on the grounds that they did not meet the statutory tests. The site was considered already to make a good contribution to open space, the country park was not directly related to the development and there was sufficient capacity within existing schools. The contributions were not fair and reasonable. And, to take another example, Doepark Ltd, American Wharf Southampton, where the Secretary of State gave no weight to financial contributions for public open space, play space, sports pitches and transport infrastructure on the basis that there was insufficient information to decide whether they met the tests of being necessary to make the development acceptable in planning terms, directly related to the development and reasonable in scale and kind.

So, in the absence of any evidence of a specific identified need to provide for community, education and/or health facilities in association with a particular development proposal, and any evidence that replacement, additional or enhanced facilities are genuinely required within that particular area, it would appear that a planning obligation to secure such financial contributions would be unlawful when tested against the criteria laid down in Regulation 122(2) of the CIL Regulations, if it cannot be demonstrated that this is necessary to make the development acceptable in planning terms, is directly related to the development and is fairly and reasonably related in scale and kind to the development.

I understand that advice to this effect has been issued by the Planning Officers’ Society.

Reverting to CIL itself, when this comes into full effect the actual calculation and collection of the tax (because that is what it is – a development tax) is going to be an absolute nightmare. I strongly believe that it will become such a shambles and will cause such an outcry that CIL will be dropped within a few years, but we shall have to cope with it as best we can in the meantime (like each of the other failed attempts to tax development in the past).

To take one small example, very few people seem to be aware that CIL will be payable on house extensions and outbuildings erected as Permitted Development, unless the tax payable would come to less than £50. I bet that will come as a bombshell to householders!

As I indicated earlier, CIL is not really my subject, and I would much prefer to leave it to David Brock to try to explain it, as he did so succinctly and alarmingly at our seminar last month. Bearing in mind the timing, I reckon that CIL is going to become a real albatross around the neck of the coalition government in the run-up to the 2015 General Election, together with the ‘bedroom tax’ on housing benefit claimants and various other bright ideas the government has had, which will all be showing their true practical effects by that time.

© MARTIN H GOODALL

Due to the large number of spam comments being received recently, it has been necessary to introduce word verification on the Comments facility. None of these spam comments actually reached the blog itself, as all comments are subject to moderation, but the incoming rubbish was becoming a nuisance.

Genuine commentators should find the comments verification system easy to use, and I hope it won’t deter bona fide comments. It is primarily aimed at spam comments generated by ‘bots’, and I hope it may also deter ‘nuisance’ comments from others.

© MARTIN H GOODALL

Planning lawyers and town planners have received a shock with the judgment of the High Court in Westminster City Council v. SSCLG [2013] EWHC 690 (Admin) in which judgment was given by Belinda Bucknall QC on 27 March 2013.

I was going to write a piece on this judgment, but my colleague David Brock has beaten me to it, and so I recommend that you take a look at David’s post (which can be accessed by clicking on the direct link on the left-hand side of this page).

As David points out, this was a salutary case, and he has some pertinent observations to make on the issues that this case raises. It is a pity that De-CLoG takes so little notice of what they are told by planning professionals, and especially by planning lawyers with hands-on experience of the problems thrown up by planning legislation. We know what we are talking about, which most politicians certainly don’t, and the politicians are frankly ill-served by their civil servants.

© MARTIN H GOODALL

Here are a couple of quiz questions for the planning professionals among our readers:

Question 1 - Hands up if you think that, in England, the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building is not permitted development (under Class 1, Part A).

Question 2 - Hands up if you think that, in England, permitted development under Part 1, Class E is restricted in size to no more than 10 cu m if the property is in a Conservation Area.

I am willing to bet that there are quite a few people who thought that the answer to both these questions was ‘Yes’. In fact even the editors of the two main practitioners’ text books – the Encyclopedia of Planning Law and Practice and Development Control Practice seem to be under this impression, judging from their respective commentaries on this legislation.

If the property in question is in Wales, then this is certainly the case, at least for the foreseeable future, because the pre-October 2008 version of Part 1 of the Second Schedule to the GPDO, which continues to apply in the principality, said precisely this. The references in the pre-October 2008 version of the Order are paragraphs A.1(g) and E.1(f) respectively.

However, it seems to have escaped the attention of nearly everyone that the revised version of Part 1 that was substituted, in England only, by the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008 (SI 2008/2362), with effect from October 1, 2008 changed these provisions.

What had been paragraph A.1(g), precluding the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building, was omitted from the post-October 2008 version of Part 1. It was presumably felt that such an enlargement, improvement or other alteration of the listed building would be likely to affect its character as such, and so any necessary control over such an extension would be adequately provided by the requirement for Listed Building Consent. Thus, in England, since 1 October 2008, the enlargement, improvement or other alteration of a dwellinghouse is Permitted Development under Part 1, Class A, even if the dwellinghouse in question is a Listed Building. In most cases, of course, it will require LBC, but (until LBC and planning permission are merged into a single consent) planning permission is not required as such.

Part 1, Class E comprises the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool, provided that the building or structure in question is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". This permitted development right extends also to a container used for domestic heating purposes for the storage of oil or LPG (but does not include the stipulation that it should be required for a purpose incidental to the enjoyment of the dwellinghouse as such). However, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

As regards curtilage development under Class E which is not within the curtilage of a listed building, what had been paragraph E.1(f) in the pre-October 2008 version of Part 1, restricting the size of curtilage development to no more than 10 cu m in cubic content if the property was situated within “any Article 1(5) land” (i.e. land within a National Park, AONB, Conservation Area, the Broads or a World Heritage Site), was changed in the post-October 2008 version of Part 1 so that what is now paragraph E.2 no longer refers to “Article 1(5) land” as such, but lists only land within a World Heritage site, a National Park, an AONB, or the Broads, and therefore omits land within a Conservation Area. The restriction in the specified areas is also amended, so that the limit, which now relates to a cumulative total of 10 sq m in area, only applies to the aggregate of buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwellinghouse.

On the other hand, paragraph E.3 does refer to “Article 1(5) land”, so this paragraph does still include Conservation Areas. This precludes development under Class E if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.

Incidentally, I have deliberately omitted one of the categories listed above under the definition of “Article 1(5) land”. This is “an area specified by the Secretary of State and the Minister of Agriculture , Fisheries and Food for the purposes of section 41(3) of the Wildlife and Countryside Act 1981” (which relates to the enhancement and protection of the natural beauty and amenity of the countryside). David Brock and I were wondering a few weeks back whether any such areas had ever been specified under that section, so I fired off an email to both DEFRA and De-CLoG. DEFRA hadn’t a clue, and De-CLoG never replied! So your guess is as good as mine, although I strongly suspect that no such areas have ever been specified.

As noted above, the current version (in England) of Part 1, Class E does contain a prohibition, in the current paragraph E.1(f), of permitted development under this class if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

Just to add to the apparent anomalies in the legislation, there has never been a prohibition in the case of a listed building (either under the pre-2008 or the post-2008 version of Part 1) on permitted development consisting of an addition or alteration to the roof of a dwellinghouse (under Part 1, Class B). So, subject to the limitations and conditions set out in Class B, roof extensions or alterations to such a house would be permitted development, even if it is a listed building. Again, this apparent omission is no doubt explained by the fact that such an extension or alteration to the roof of the listed building would amount to an alteration affecting its character as such, so that any necessary control over development of this kind would be adequately provided by the requirement for Listed Building Consent.

There is one important proviso in relation to permitted development under Part 1, Class B. Within "Article 1(5) land" (which includes a Conservation Area), additions or alterations to the roof are entirely precluded.

The train of thought that led to my writing this note was prompted by an enquiry that raised a slightly different point. This related to a situation, which I imagine is not uncommon, where a building has been listed, and land within its curtilage has then been sold off and one or more new houses have been built (with planning permission) on that former curtilage land.

So far as the extent of the listing is concerned, the relevant 'curtilage' for this purpose is the curtilage of the building that has been listed at the time of its original listing. However, as I have repeatedly pointed out, this would apply only to that part of the original garden land that was genuinely within the curtilage of the listed building at that time. As readers will have seen from the various notes on 'curtilage' in this blog, it cannot automatically be assumed that the whole of the former garden of the listed building was in fact within its curtilage. This will depend on the precise manner in which the land that now forms the separate property or properties was used at the time of the original listing of the neighbouring dwelling and its functional relationship with that dwelling at that time.

If the land now occupied by the new house or houses was within the curtilage of the listed building at the time of its original listing, then the listing extends to any object or structure within that original curtilage which had formed part of the land since before July 1, 1948. Listed building consent would be required for the demolition or alteration of any such object or structure (if that alteration would affect the character of the neighbouring dwelling as a listed building). However, the listing would not extend to any building, structure or other object on the land that was not there before July 1, 1948.

There is, however, some confusion as to the effect of land now separated from the listed building having been within the curtilage of that listed building at the time of listing, when one comes to consider the exercise of Permitted Development rights. For the reasons I have explained, in England at least, permitted development rights under Part 1, Classes A and B would not be precluded in respect of the new property or properties, even if they are still regarded as being within the curtilage of the listed building.

However, as noted above, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building. It is very much open to argument as to whether this prohibition applies only to the (reduced) curtilage of the listed building as it exists at the time when the permitted development is carried out, or whether it applies to the whole of the curtilage of the listed building at the time of its original listing. The latter would, in my view, throw up some obvious anomalies, but it would require some careful investigation and cogitation before one could be confident of coming up with an answer. It looks very much like a piece of litigation waiting to happen!

There is just one final point I should mention. Before getting stuck in to a detailed consideration of the provisions of the GPDO, it should not be forgotten that in these sort of cases there is quite often a condition attached to the planning permission for the erection of the new property or properties which will have removed permitted development rights under Part 1 in any event. If such a condition was imposed, the precise effect of the GPDO is entirely academic. Such conditions are not always justified and can sometimes be removed upon application to the local planning authority (or on appeal, if necessary, in the event of refusal – having regard to Circular 11/95). It is at that point that you would then have to consider whether the ‘curtilage’ issue might still prevent permitted development.

© MARTIN H GOODALL