Hibbitt and Another v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 09 November 2016 |
| Neutral Citation | [2016] EWHC 2853 (Admin) |
| Docket Number | Case No: CO/3360/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2016 |
[2016] EWHC 2853 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr Justice Green
Case No: CO/3360/2016
Mr Campbell (instructed by Public Access) for the Claimant
Mr Westmoreland-Smith (instructed by Government Legal Department) for the First Defendant
No Attendance for the Second Defendant
Hearing date: 25 th October 2016
A. Introduction: The Issue
There is before the Court an application under section 288 Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of an Inspector dismissing an appeal against the refusal of a planning authority to grant prior approval to a proposed development. The Claimants own a large, 30 metre, steel framed barn largely open on three sides. Approval to convert the barn into an automatically approved dwelling upon the basis that it was a " permitted development" was refused by Rushcliffe Borough Council ("RBC") and an appeal to the Inspector failed. The issue before the Court boils down to a point of law. The Claimants say that on the facts of the case in order to fall within the scope of the permitted development it is sufficient that (a) the conversion is from an " agricultural building" to a dwelling and (b) the existing structure (here the barn) is sufficient to bear the load of the development works needed for the conversion of the barn into the dwelling.
The Inspector disagreed. She held that in the context of the case in addition to (a) and (b) there was a further and more elementary requirement which was that for the development to amount to an automatically permitted " conversion" the nature and extent of the works entailed had to fall short of that constituting a " rebuild".
The issue before the Court is a short point of construction of the relevant statutory material concerning permitted developments and in particular it focuses upon the meaning of the word " conversion".
B. Relevant Legislation: "Permitted Developments" – the conversion of agricultural buildings to dwelling houses
The principal applicable measure in this case is the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the Order"). Pursuant to Article [3] of the Order " … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2". Any permission thereby granted is subject to any relevant exception, limitation or condition also as specified in Schedule 2. Part 3 of Schedule 2 is entitled " Changes of Use". The Part identifies various classes of development which are permitted. Class Q is entitled " Agricultural Buildings to Dwelling Houses".
The Permitted Development in Class Q is defined in the following terms:
"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 the Class C3 (dwelling houses) of that Schedule."
There is also set out provisions concerning " Development Not Permitted". For present purposes it is Class Q.1(i) which is relevant. This states:
"Development is not permitted by Class Q if –
(1)(i) the development under Class Q(b) would consist of building operations other than –
(i) the installation or replacement of –
(aa) windows, doors, roofs, or exterior walls, or
(bb) water, drainage, electricity, gas or other services,
to the extent reasonably necessary for the building to function as a dwelling house;
and
(2)(i) partial demolition to the extent reasonably necessary to carry out building operations allowed by paragraph Q.1(1)(i)…"
Article [2] of the Order sets out various definitions. It is relevant to the present case that there is no definition of " convert" (as in convert the building). There is, however, a definition of " building" which, for present purposes: " … 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 of " Agricultural Building" in paragraph X of Part 3 of Schedule 2 of the Order which refers to a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business. " Agricultural use" refers to such uses.
There is formal guidance to be taken into account. Paragraph [105] of the NPPG (Reference ID: 13–105–20150305), under the heading " Are any building works allowed when changing to residential use?", provides as follows:
"Building works are allowed under the change to residential use. The permitted development right under Class Q assumes that the agricultural building is capable of functioning as a dwelling. However, it recognises that for the building to function as a dwelling some building operations which would affect the external appearance of the building, which would otherwise require planning permission, should be permitted. The right allows for the installation or replacement of windows, doors, roofs, exterior walls, water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwelling house; and the partial demolition of the extent reasonably necessary to carry out these building operations. It is not the intention of the permitted development right to include the constructionof new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes from the external works to provide for residential use that the building would be considered to have the permitted development right."
(Emphasis added)
There are three components of this guidance which are contained in the emboldened text above which are of particular significance to this case. First, the reference to the assumption that the permitted development must be " capable" of functioning as a dwelling. Second, the reference to the permitted development not including " new structural elements". Third, the reference to the existing building being sufficiently structurally strong to bear the loading from the external works. In principle guidance cannot bind a Court, which must construe and interpret the law in an objective manner taking into account relevant context and purpose. The Court will however take the guidance into account, bearing in mind that it is intended to assist in fostering transparency and legal predictability in planning and development matters. But ultimately the issue of interpretation is a matter for the Court.
C. The Development
The proposed development in question concerns a barn on land at Kingston Brook Farm, Thorpe in the Glebe, Wysall, Nottingham. The Parish of Thorpe in Glebe is situated in the south of Rushcliffe Borough Council. Very little at all survives of the original village. There are a number of farm houses or former farm houses scattered throughout the Parish but none form a group. The site in issue is accessed from the Wymeswold Road which is located at the end of an access track which is 380 metres long and it is located around 600 metres from the built up end of the village of Wysall. The building which is the subject of the litigation is a metal framed modern farm building: a metal frame, corrugated sheet and open sided cattle stall. The size of the barn is 30.5m x 7. 96m (243sq.m). It has a maximum height of approximately 5 metres with the lowest eaves at a height of 3.2 metres. It is largely open on three sides and was, when the Inspector visited, used to house cattle. The barn is situated between two other large steel framed buildings that house livestock. There are a number of other structures and buildings on the site. The farm does not have an authorised farm house. There are open agricultural fields to the west and north and the building projects into the northern field. In order to convert the barn into a dwelling it was contemplated that there would be no demolition and the existing steel frame would be retained in its entirety, as would the roof.
D. The Inspector's Decision
The Inspector's decision is dated the 19 th May 2016. It is clear from that decision that there was no dispute that the barn constituted " an agricultural building" within the meaning of the Order and that the development proposal entailed a change of use to that of a dwelling with associated operational development. The Inspector described the barn in question in the following terms:
"The building in question is an open sided steel framed structure with a monopitch roof. It has a concrete floor slab and six steel uprights which span to support a corrugated fibre roof, supported on timber cross beams. It is open to two sides with a single skin steel panel to the rear and the long part of one further side. This sits above a concrete panel to around a metre in height. The concrete panel does not appear to be attached to the floor slab."
In paragraph [7] of the decision the Inspector described the proposed development:
"The development right described in Part Q relates to conversion of a building. For that right to apply the building must first be capable of functioning as a dwelling. The Appellant's submission describes how the steel frame, roof and floor slab would be retained and how structural infill panels (SIPs) would be used to construct walls and a ceiling within the existing frame. Steel box profile...
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