Appeal 6002508

The appeal is dismissed.

An application for costs was made by [site address] City Council against [name]. This is subject to a separate decision.

On 21 May 2024, [name] 2024 No. 579 ([name]. 579) came into force amending Article 3(1), Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO). Due to the transitional arrangements, I have proceeded to determine this appeal in accordance with the GPDO provisions that were in force prior to 21 May 2024. All references to the GPDO in this decision therefore relate to the version that was in force at that time.

The appellant has provided at appeal stage an updated visual structural inspection report ([name]). This did not form part of the evidence upon which the Council based its decision. The procedural guide for planning appeals advises that the appeal process should not be used to evolve a scheme as it is important that what is considered by the Inspector at appeal is essentially the same scheme that was considered by the local planning authority and by interested parties at the application stage. I have therefore proceeded to determine the appeal on the basis of the evidence upon which the Council made its decision.

Class Q of the GPDO permits development consisting of 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 (dwellinghouse) of the Schedule to the Use Classes Order, together with building operations which are reasonably necessary to enable the conversion of the building. This is subject to limitations and conditions as set out in paragraph Q.1 and Q.2 of Class Q.

The GPDO states that the local planning authority can refuse an application where, in the opinion of the authority – (a) the proposed development does not comply with, or (b) the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with the conditions, limitations or restrictions set out in paragraphs Q.1 and Q.2.

The Council contends that the development is not permitted development under Q.1(g)(ii) because it considers that development under Class A(a) or Class B(a) of Part 6 of Schedule 2 of the GPDO has been carried out on the established agricultural unit, where development under Class Q begins after 20 March 2023, during the period which is 10 years before the development under Class Q begins. Furthermore, it also contends that the pre-development works (notably the dwarf wall) carried out to the building forms an integrated and essential part of the new dwelling and would be beyond what is reasonably necessary for the building to function as a dwellinghouse (Q.1(i)(i)).

Consequently, the main issues are whether the proposal would be permitted development under Schedule 2, Part 3 Class Q of the GPDO with particular regard to:  whether development under Class A(a) or Class B(a) of Part 6 of the GPDO has been carried out on the established agricultural unit (paragraphQ.1(g)(ii)); and  whether the dwarf wall is beyond what is reasonably necessary to facilitate the conversion of the building to a dwellinghouse in respect of paragraph Q.1(i)(i).

[name].1(g)(ii) outlines that development is not permitted by Class Q if development under Class A(a) or Class B(a) of Part 6 of Schedule 2 (agricultural buildings and operations) has been carried out on the established agricultural unit (i) since 20th March 2013; or (ii)where development under Class Q begins after 20th March 2023, during the period which is 10 years before the date development under Class Q begins.

Class A(a) and Class B(a) of Part 6 of Schedule 2 of the GPDO permits the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of works for the erection, extension or alteration of a building and the carrying out on agricultural land comprised in an agricultural unit, of not less than 0.4 but less than 5 hectares in area, of development consisting of the extension or alteration of an agricultural building respectively.

[site address] has a relatively extensive planning history (including a previous appeal decision) of which I am mindful. It is a duo-pitched, reinforced concrete portal frame barn with the addition of a lean-to structure.

In the evidence before me photographs have been provided dating around May 2021 which demonstrate that one of the elevations was not fully enclosed. Whereas at present the elevation is now fully enclosed by timber cladding and a dwarf wall (the wall) has also been constructed. The appellant does not dispute these works have taken place.

Section 55 of the Town and Country Planning Act 1990 (as amended) (the TCPA) provides a broad definition of ‘development’ in subsection 1 as the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

S55(2)(a) of the TCPA states that the carrying out for the maintenance, improvement or other alteration of any building of works which— (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building are not to be taken for the purposes of the Act to involve the development of land.

[name] v Bristol City Council [1996] 1 PLR 78 it was found that regarding whether works are material it is not sufficient merely for the exterior surface to be affected, the external appearance had to be changed, that the change had to be visible from a number of normal vantage points and was not limited to aerial views or those from a single building, and that the material nature of the alteration depended on the type of building.

Based on the photos provided by the appellant from around the Summer of 2021, [site address] was predominantly fibre cement sheeting, with the lean-to element appearing to be timber clad. The appellant in their evidence also describes the building’s cladding as comprising corrugated sheeting and more limited areas of vertical timber panels at ground floor level.

Notably there is limited substantive evidence before me regarding the elevation adjacent to the lane. However, the appellant accepts that it was not fully enclosed. Given that it was not fully enclosed, the addition of timber cladding which not only encloses the partial opening but introduces timber on an elevation that appears to have been mainly fibre cement sheeting, results in a significant material change to the appeal building.

Additionally, within the evidence before me, a concrete lower beam can be seen. The appellant outlines that the wall provides resistance to wear and tear from agricultural machinery and protects the wall cladding above.

Nevertheless, the wall is markedly different in terms of scale when compared to the concrete lower beam, appears to have been constructed along the elevation of the appeal barn including where it was once partially open and can be seen externally. Consequently, in my planning judgement, the wall is not contained within the interior of the building and thus constitutes development and a material change as outlined in S55(2)(a) of the TCPA.

Furthermore, in my planning judgement the external appearance of the building has changed particularly due to the full enclosure of an elevation that was once partially open and the inclusion of timber cladding to the elevation facing the lane. Thus, to my mind, these pre-development works result in a material change to the external appearance of [site address] .

Whilst the appeal building is set back from the rural lane adjacent to the appeal site and there is some vegetation on the boundary of the site, it remains to my mind that the pre-development works as a whole are visible from multiple normal vantage points.

Regarding whether the construction of the wall and the timber cladding were maintenance or improvement is a matter of planning judgement. Based on the evidence before me and on the balance of probabilities, I consider that these works were not for maintenance or improvement for the reasons I have identified above.

Considering all of the above, the proposal would therefore fail to comply with paragraph Q.1(g)(ii) of the GPDO. Accordingly, the proposal does not benefit from the permitted development rights under Schedule 2, Part 3, Class Q of the GPDO.

Planning Practice Guidance (PPG) states that the Class Q permitted development right is not intended to allow rebuilding work which would go beyond what is reasonably necessary for the conversion of the building to residential use. This includes the installation or replacement of roofs and external walls to the extent that is reasonably necessary for the building to function as a dwelling house.

There is no definition of what constitutes works that are reasonably necessary and therefore it is a matter of planning judgement.

In the case of Hibbitt v SSCLG [2016] EWHC 2853 (Admin) it was held that the building must be capable of conversion to residential use without operations amounting to a complete or substantial re-building of the pre-existing structure.

I note that the [name] ([name]) (the survey) provided by dbstructural outlines that transverse stability of the barn is provided by the portal frames and the haunch connections being that of a ‘moment’ type connection. Additionally, that longitudinal stability is provided by the fixing of the precast concrete purlin rails and eaves beams (including gutter eaves beam).

Furthermore, it provides that the support of the roof, lateral support to the proposed walling and resistance to the applied horizontal forces will be carried by the existing framework. Additionally, that the first floor will require a combination of existing walling and new additional support.

Additionally, based on the evidence before me, the proposed first floor would be supported by internal and external load bearing walls and beams.

Moreover, the ground floor slab would be tied to the existing external blockwork wall, concrete frame and existing concrete slab. Consequently, it remains that there is limited substantive evidence before me to adequately demonstrate that the wall would not be significant structurally for the appeal scheme.

I am mindful that internal works are not generally development. PPG outlines that for the building to function as a dwelling, it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls, which are not prohibited by Class Q1. Consequently, in my planning judgement, 1 Paragraph: 105 [name]: 13-105-20180615 the proposed works for the first floor and the ground floor slab are not development.

Notwithstanding this, the survey outlines that the proposed ‘...external walls are to be formed by raising new masonry off the existing masonry (where applicable)’. Furthermore, the survey outlines that proposed external walls would be tied to the existing concrete portal columns and eaves rails. The wall has, based on the evidence before me, been built off trench fill foundations.

Given the reference to ‘where appliable’ and based on the limited substantive evidence before me, in my planning judgement the appellant has not adequately demonstrated that the wall is not structurally significant for the appeal scheme in this respect. Additionally, the wall is connected to the existing concrete columns and there is limited substantive evidence before me to adequately demonstrate that as a consequence the wall does not provide additional support as well as a foundation for these columns.

Regarding appeal decisions at [address] and at Agricultural building at [address], [name], I do not have the full circumstances of these before me and therefore cannot be certain that they are wholly comparable to the appeal scheme before me. Nevertheless, each application is determined on its own merits. Based on the evidence before me, the wall in this appeal was constructed post the 2022 application and it has not been adequately demonstrated that it is not structurally significant for the appeal scheme. Therefore, they do not lead me to a different conclusion.

Consequently, on the evidence before me, it has not been adequately demonstrated that the wall would not be structurally significant for the appeal scheme. Therefore, I am not satisfied that the pre-development works notably the wall, result in building operations reasonably necessary to convert the appeal building to dwellinghouse under Schedule 2, Part 3, Class Q.(1)(i)(i) of the GPDO.

There is no need for me to go on and consider the effect of the proposed development regarding the prior approval matters specified in paragraph Q.2. under Class Q as it would not alter the outcome of the appeal. Consequently, it follows that there is no need for me to consider the effect of the proposed development on the setting of the [site address] Conservation Area.

The following [name] listed heritage assets have been referred to in the evidence before me known as: [address] [name] of [name], [address], [name] to [address], [name] of Clarke and [name], [name], [address] at [name] of [name] of Weston Park, Walls to [name], Weston Park north west of [address], Weston Park kitchen Garden, [name] in the Wilderness Weston Park, [name], Wall to [name] of and [name] to [name] of Wilderness Weston Park and A Bust of Homer in The Wilderness, Weston Park.

Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 sets out the duty to, in considering whether to grant planning permission for development which affects a listed building or its setting, have regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. However, it is not directly relevant for prior approval applications because planning permission is granted by Article 3(1) of the GPDO.

Nevertheless, where the prior approval matters include amenity, siting or location, or design and external appearance, the impact of a development on the setting of a listed building will need to be addressed.

However, I have found that the appeal scheme would not be permitted development under Schedule 2, Part 3, Class Q of the GPDO. Therefore, there is no need for the impact upon the setting of the [name] heritage assets to be considered further.

In conclusion, for the reasons given above the appeal should be dismissed.