Appeal 6005725

The appeal is dismissed.

I have used the description of development found on the decision notice and appeal form, as the version on the application form includes wording that is not a description of development.

The appeal relates to an agricultural building (the building). Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO) is therefore pertinent. For the purposes of the appeal, it permits the change of use of a building that is part of an established agricultural unit and any land within that building's curtilage to a dwellinghouse, together with building operations reasonably necessary to convert it, subject to limitations and conditions.

The Council contends that the proposed building operations would comprise a “fresh build” rather than a conversion, which is what Class Q permits. It also cites noncompliance with the limitation set out at Q1.(h) as the scheme involves extending the external dimensions of the building. Finally, it cites the absence of a completed Section 106 planning obligation to mitigate against the adverse impact the development would have on the Epping Forest Special Area for Conservation (SAC) in terms of recreational pressure and air pollution.

The main issues, therefore, are: • whether the proposal has the benefit of permission under Class Q and, if so: • whether it exceeds the limitation set out at Q1.(h); and • the effect of the proposal on the Epping Forest SAC.

Planning Policy Guidance (PPG) states that the permission granted by Class Q for “building operations reasonably necessary to convert” should be read with the assumption that the agricultural building in question is capable of functioning as a dwelling, and that the GPDO does not seek to allow rebuilding work beyond that reasonably necessary for the conversion of the building to residential use. Indeed, the PPG is explicit that “it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right” and directs the reader to the Hibbitt1 case regarding the difference between conversions and rebuilds.

The appellant has referred to Hibbitt and so I need not rehearse the judgement here, other than to say that whilst Class Q permits building operations reasonably necessary to convert an agricultural building to a dwellinghouse, a “conversion” is distinct from, and Class Q does not permit, a “rebuild” or a “fresh build”.

In its reason for refusal the Council states that the scheme would not comply with the requirements of Class Q.1(i) as it would require building operations which would exceed those reasonably necessary for the conversion of the building. Hibbitt is clear, however, that the concept of “conversion” is found in the overarching provisions of Class Q, not in Q.1, and that if a development does not amount to a “conversion” then it fails at the first hurdle and there is no need to delve into the exceptions in Q.1. I make my assessment on that basis.

The PPG states that internal works are not generally development, and that internal structural works, including to allow for a floor or internal walls, are not prohibited by Class Q. Insofar as my determination is concerned, the external alterations to the building are therefore the principal significant element of the appeal scheme.

The existing building is a simple structure, open on one long side, and built using concrete portal frames spaced equidistantly. On to these are attached corrugated sheeting to form a duel-pitched roof. Similar sheeting is used to enclose the two gable ends, save for the lower sections, where exposed blockwork is used. The longest wall is made with horizontal timber cladding above a short section of brickwork.

It is proposed to enclose the long, open side of the barn. The existing corrugated cladding would be replaced with, in the case of the roof, standing seam zinc and, in the case of the walls, vertical ‘hit and miss’ timber boarding. The southwestern wall would be in replacement timber edge featherboard. The brick and blockwork would no longer be visible. In short, all but nothing would remain of the existing external envelope of the building, and most of it would be replaced with noticeably different materials.

The appeal scheme would amount, therefore, to a “fresh build”. The proposed building operations fall outside the scope of a conversion and, as such, are not permitted development under Schedule 2, Part 3, Class Q of the GPDO. 1 Hibbitt v SSHCLG [2016] EWHC 2853 (Admin) Limitation Q1.(h) & Epping Forest SAC

[name] have found that the proposal does not have the benefit of permission under Class Q, the question of whether it complies with the limitations of that class ceases to have relevance, as does the question of its effect on the SAC. That said, I have assessed these matters in the interests of completeness.

Class Q includes a limitation, set out at Q1.(h), that development is not permitted if it would result in the external dimensions of the building being extended. The first reason for refusal cites noncompliance with this limitation. An allowance exists, however, for protrusions of up to 0.2 metres to accommodate the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse. Q1(h)(ii) and Q.1(j)(i) refer.

The Council has based its first reason for refusal on it finding that the building would go from 9.172m deep to 9.412m, an increase of 0.24m. The former dimension, however, reflects the width of the concrete portal frame rather than the existing building, which includes the brickwork and horizontal timber of the southwest elevation outside the frame. The appellant has clarified this point, and also argued that the operative allowance would, in any event, cover separate 200mm protrusions at either end of the building. I have no counter argument from the Council on either point, and see no obvious flaw in the appellants reasoning.

This does not alter the facts that the proposal is a “fresh build” and so does not have the benefit of permission from Class Q. [name] reference above, Hibbitt is clear that a two-stage process is applied, in which compliance with limitation Q1.(h) is only considered if the proposed development is first found to be a “conversion”.

Regulation 75 of the Conservation of Habitats and Species Regulations (2017) states that it is a condition of any planning permission granted by the GPDO that development likely to have a significant effect on a European site, and not directly connected with or necessary to the management of the site, must not be begun until the developer has received the Local Planning Authority’s written notification of approval of an application made under Regulation 77.

A prior approval appeal cannot be dismissed on the ground that a Regulation 77 application is required but not yet made or approved. Whilst the development cannot be begun until written notification is received of the approval of the Regulation 77 application, that does not need to precede the prior approval process. Though the appellant has made this point in the course of the appeal, the Council has not addressed it and so provided me with no reason to doubt that the approach set out above would be the correct one.

Based on the above, I see no reason to believe that I would have dismissed the appeal were it not for my finding in respect of the first main issue.

The appellant has drawn my attention to previous decisions at the appeal site. [name] under Class Q was granted relatively recently2. That scheme, however, did not include replacing the external envelope of the building to anything 2 Application Ref EPF/0522/24 like the same degree as the appeal scheme. The former had the benefit of permission from Class Q, therefore, whilst the latter does not.

In addition to the Class Q Prior Approval, planning permission has been granted for the replacement of the building with a dwelling3. I have no reason to doubt that the appellant may proceed with either scheme, but the prospect of ‘fallback’ does not come into consideration when assessing compliance with the GPDO. I have therefore attached no weight to these previous decisions, or to any aspect of the approved schemes.

The appellant provides me with an excerpt from a previous appeal at a different site4 in which the Inspector gave short shrift to the Council’s finding of noncompliance with limitation Q.1(h). I have found no such noncompliance in this instance and so need consider the cited appeal no further in that respect.

That said, I note another similarity between that previous appeal and this one. In both cases, the scheme in question was found to fail the test of being a conversion as required by Class Q, rather than a rebuild or fresh build. This reinforces the point I have made above, that a scheme which would have complied with limitation Q.1(h) may nevertheless not have the benefit of permission under Class Q to begin with.

For the reasons given above the appeal is dismissed.