New case law - converting an agricultural building to a dwelling house

The recent case of Hibbitt and another v Secretary of State for Communities and Local Government and another [2016] EWHC 2853 (Admin) clarifies that the permitted development right under Class Q (agricultural building to dwellinghouse) in respect of those building operations “reasonably necessary to convert” means exactly that – namely that anything other than conversion is not permitted.

Details of the Planning Law case:

In the case of Hibbitt prior approval was sought for the conversion of a steel framed barn largely open on three sides to a residential dwelling house on the basis that it was permitted development. The issue for the Court to determine was whether such a conversion fell within the scope of ‘conversion’ under Part 3 Schedule 2 of Town and Country Planning (General Permitted Development) (England) Order 2015 (“GDPO”). The relevance being that, in dismissing an appeal against refusal of prior approval, a Planning Inspector had determined that, notwithstanding the various conditions, the development in question had to amount to conversion and conversion only.

The Judge took a purposive approach in considering the definition of conversion in a planning context and drew distinctions between conversions, rebuilds and fresh builds leading to his narrow interpretation of Class Q GDPO.   

The Permitted Development in Class Q of the GPDO provides;

“Q. Development consisting of—

(a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwelling houses) of the Schedule to the Use Classes Order; and

(b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwelling houses) of that Schedule”.

Class Q.1 (i) GDPO provides;

Development not permitted

Q.1  Development is not permitted by Class Q if—

(i) the development under Class Q(b) would consist of building operations other than—

(i) the installation or replacement of—

(aa) windows, doors, roofs, or exterior walls, or

(bb) water, drainage, electricity, gas or other services,

to the extent reasonably necessary for the building to function as a dwellinghouse; and

(ii)partial demolition to the extent reasonably necessary to carry out building operations allowed by paragraph Q.1(i)(i);

There is no particular definition of “convert” in respect of converting a building, but there is a definition of building which includes “any structure or erection and includes any part of the building and does not include plant or machinery and... does not include any gate, fence, or wall or other means of enclosure.” There is also a definition for Agricultural Building under the GPDO which states “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business; and “agricultural use”

Ruling in the Planning Law case:

The Judge ruled that the extent of the works should stand, amongst others, as a relevant consideration to assist in judging whether the works comprised a conversion, rebuild or fresh build but not a dispositive consideration.  

In Hibbitt it was determined that the proposed development was an agricultural building despite discussion that a structure which “is so skeletal or marginal” should not be termed an agricultural building. As such, the Claimants argued that the nature of the conversion should not be the point of evaluation in deciding whether the works to the building amounted to a conversion (or rebuild) because the concept of an agricultural building, by its very essence, served to prevent rebuilding.

Green J commended the Claimant’s analysis but ultimately found that the Inspector’s application of paragraph [105] NPPF was correct in respect of the three components which question:

-       Whether the permitted development is capable of functioning as a dwelling

-       Whether the permitted development includes new structural elements

-       Whether the existing building is sufficiently structurally strong to bear the loading from external works

Ultimately, despite the proposed development’s structural sufficiency to bear the load of the works, the proposed development in Hibbitt was considered incapable of functioning as a dwelling without the works and needing extensive works that amounted to a rebuild and beyond what may (on the facts before the Judge) be considered a conversion. In other words, whether the proposal under Q(b) amounts to more than “conversion” will be fact sensitive.

Comment from a Planning Law solicitor:

Following Hibbitt there is now a preliminary threshold to be met, namely will the works under Q(b) amount to more than conversion? If the answer is considered to be “yes” then regardless of whether the remaining conditions under Class Q are met, the development cannot be considered permitted development. The case arguably opens the door to greater unpredictability and uncertainty for planning applications concerning building conversions on the premise that whether a proposal can be considered to be “conversion” will turn on the facts of each application and, further, it may be the case that in light of Hibbitt applicants are required to produce more detailed/technical information in order to convince the authority that the works amount to conversion only.

Note: the image used on this page is not that of the building referenced in the case which is discussed on this page.