Dinghy Boat Plans | Barn conversions – the new rules re interpreted

Dinghy Boat Plans

NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

As many readers have discovered, the interpretation of the rules on prior approval of the proposed residential conversion of agricultural buildings has been much more restrictive than we had been led to expect, and it has clearly not reflected ministerial intentions.

This is largely due to the actual drafting of the provisions in Part 3, Class MB of the Second Schedule to the GPDO. These really ought to be amended, but for various reasons ministers have not found an opportunity to do so, other than a minor change in April 2014 to make it clear that the provisions of the NPPF are to be taken into account only so far as they are relevant to the specific matters to which a prior approval application relates (e.g. highways and traffic, noise, site contamination, etc.).

In an attempt to counter the unduly restrictive approach that has been taken, both by LPAs and by the Planning Inspectorate, to Class MB in particular, the government amended their on-line Planning Practice Guidance last week, on 5 March, to explain their view as to how these permitted development rights are intended to operate.

The notes below summarise some of the points that have now been incorporated in the government’s online planning practice guidance.

Limits on building operations

On this topic, the new guidance does actually reinforce the approach which has hitherto been taken in these cases.

The definition of a “building” in Article 1(2) of the GPDO includes “any structure or erection” as well as any part of a building. This may be relevant in the context of the residential conversion of agricultural buildings, as it could in principle include various buildings and structures of unconventional, and perhaps in some cases rather insubstantial, construction. The well-known judicial authorities on what constitutes a building or structure could also be relevant in this context (e.g. Cardiff Rating Authority -v- Guest Keen Baldwin [1949] 1 KB 385, Skerritts of Nottingham v. SSETR (No.2) [2000] 2 P.L.R 102; [2000] JPL 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)).

However, the works permitted under Class MB(b) are restricted to what is reasonably necessary for the building to function as a dwellinghouse, and any partial demolition must also be limited to the extent reasonably necessary to carry out the building operations that are permitted by this class. This imposes a practical constraint on the convertibility of some buildings. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.

In their amended on-line practice guidance, the government has confirmed that it is not the intention of the permitted development right under Class MB(b) to include the construction of new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works to provide for residential use that the building would be considered to have the permitted development right.

In any event, the development under Class MB(b) must not consist of building operations other than 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, and partial demolition to the extent reasonably necessary to carry out the building operations listed here. Furthermore, the development must not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point.

The inclusion of roofs and walls in the list of items that can be installed or replaced as part of the building operations permitted by Class MB might be thought to allow scope for some significant rebuilding or replacement of the existing fabric, but an appeal decision in Bedfordshire, issued in February 2015, provides clear confirmation that the extent of the proposed building operations must not go beyond what is “reasonably necessary” for the building to function as a dwellinghouse, so that substantial demolition of the building and its effective replacement would be outside the scope of the development that is permitted. This is a factor which will clearly be a material consideration in the consideration and determination of the prior approval application

The strict limitation on the works that may be carried out under Class MB(b), combined with the condition that they must not extend outside the envelope of the pre-existing building, does not allow the creation of any hard surface or other engineering works (such as the laying of gravel) to provide any hard surfaces within the curtilage for the purposes of parking, or the provision of a patio, etc. Nor is there any provision (as there is in Classes M and MA) for permitted development under Part 41, Class B that would allow any such works to be carried out. Furthermore, such works cannot be carried out under Part 1 of the Second Schedule, because such development is specifically excluded by Class MB. Planning permission will therefore be required if it is desired to incorporate any such facilities in the development, and all the usual policy considerations relating to development in the countryside will apply to the determination of such an application.

A further appeal decision in Nottinghamshire also illustrates this point. The inspector in this case held that the proposed barn conversion would involve such major changes and reconstruction as to go beyond the scope of the development permitted by Class MB(b). The building had a metal frame and walls comprising a single metal skin, plus an element of blockwork, and a roof of corrugated asbestos fibreboard. What was required to enable the adaptation of the building for residential use amounted to substantial demolition and reconstruction of the building, plus various physical alterations. This was quite clearly beyond the scope of Class MB(b).

The National Planning Policy Framework

When determining a prior approval application, the LPA must also have regard to the National Planning Policy Framework (issued by the Department for Communities and Local Government in March 2012) so far as relevant to the subject matter of the prior approval, as if the application were a planning application. The words in italics were added to the GPDO with effect from 6 April 2014.

This amendment became necessary because, when determining prior approval applications under Class J, LPAs had been interpreting paragraph N, including the words “as if the application were a planning application”, as giving them a wide discretion to take into account other policy considerations in addition to the short list of criteria set out in Class J. The amendment makes it clear that the only policies in the NPPF that can be taken into account in determining an application for prior approval are those that are relevant to the strictly limited criteria set out in respect of the specified class of development. This has been confirmed and reinforced by appeal decisions, where inspectors have been robust in excluding considerations that go outside those parameters.

This point has been further reinforced by the amendment to the government’s on-line Planning Practice Guidance, which points out that this procedure was amended in April 2014 to make clear that the local planning authority must only consider the NPPF to the extent that it is relevant to those matters on which prior approval is sought, for example, transport, highways, noise etc.

In relation to Classes MA (conversion of an agricultural building to use as a school or nursery) and MB (residential conversion of an agricultural building), in particular, the revised ministerial practice guidance explains in some detail how an LPA should approach the question as to whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use. The practice guidance makes it clear that when an LPA considers location and siting it should not be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant. (This is explained in more detail in the note on rural development policy below.)

Limits on dwelling numbers

Paragraph MB.1(c) provides that the cumulative number of separate dwellinghouses developed within an established agricultural unit must not exceed three. There has been some confusion over the precise interpretation of this provision but, in amending their on-line Planning Practice Guidance on 5 March, the government has made it clear that it was their intention that the total number of new homes (3 dwellinghouses) should not include existing residential properties within the established agricultural unit, unless they were created by the use of this permitted development right on a previous occasion, in which case they would be counted.

The Planning Inspectorate can be expected in future to apply this guidance in determining planning appeals where this point is in issue, in contrast with a previous appeal decision in which one inspector held that the 3-dwelling limit applied to all such dwellings, and was not limited only to the number created under Class MB. The effect of that appeal decision was that any dwellings already in existence on the agricultural unit would count towards this total, so that if there were already three built under previous planning permissions, then no more could be created under Class MB.

The revised ministerial guidance in the government’s on-line Planning Practice Guidance does not, however, resolve the difficulty posed by the drafting of the Order. The interpretation of legislation does not depend on what ministers think it says or would like it to say. The courts may not, therefore, agree with the advice set out in the government’s online practice guidance, if a local planning authority were to challenge this interpretation of the 3-dwelling limit in a future case.

Rural development policy

One of the criteria to be considered by the LPA when determining an application for prior approval of proposed development under Classes MA and MB(a) (both relating to conversion of an agricultural building), but not under Class M, is whether the location or siting of the building makes it impractical or undesirable for the building to change from agricultural use to use as a school or nursery (under Class MA) or to a residential use (under Class MB(a)). This has proved to be a major stumbling block for applicants in obtaining approval of these proposed conversions of agricultural buildings. Ministers did not intend to allow LPAs such broad scope for rejecting proposals for the conversion of agricultural buildings, but the drafting of Classes MA and MB has up to now been interpreted as giving an LPA a considerable measure of freedom to refuse the application on policy grounds. At least half of all such applications for residential conversion under Class MB up to the early part of 2015 are thought to have been refused (and there was anecdotal evidence that there had been an even higher rate of refusal in some areas). Furthermore, by early 2015, 9 out of 10 of the appeals against such refusals had been dismissed by the Planning Inspectorate (a significantly higher proportion than in other types of planning appeal).

This has prompted the government to amend their on-line Planning Practice Guidance to address in particular the issue as to whether the ‘sustainability’ of the proposed development is intended to be a material consideration in determining an application for prior approval of the proposed change to residential use. The revised ministerial guidance makes it clear that the permitted development right does not apply a test in relation to sustainability of location. This is deliberate, as the right recognises that many agricultural buildings will not be in village settlements and may not be able to rely on public transport for their daily needs. Instead, the local planning authority can consider whether the location and siting of the building would make it impractical or undesirable to change use to a house.

The revised practice guidance then goes on to explain what is meant by “impractical or undesirable” for the change to residential use. Impractical or undesirable are not defined in the Order, and the LPA should apply a reasonable ordinary dictionary meaning in making any judgment. “Impractical” reflects that the location and siting would “not be sensible or realistic”, and “undesirable” reflects that it would be “harmful or objectionable”.

When considering whether it is appropriate for the change of use to take place in a particular location, an LPA should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the LPA would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.

There may, however, be circumstances where the impact cannot be mitigated. Therefore, when looking at location, LPAs may, for example, consider that because an agricultural building on the top of a hill with no road access, power source or other services, its conversion is impractical. Additionally, the location of the building whose use would change may be undesirable if it is adjacent to other uses such as intensive poultry farming buildings, silage storage or buildings with dangerous machines or chemicals.

When an LPA considers location and siting it should not therefore be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant.

Adopted policies in the Development Plan are also capable of being a material consideration when determining a prior approval application, but it is clear from the revised ministerial practice guidance that adopted policies on development in the open countryside, development in the Green Belt (where applicable) and sustainable development, especially taking account of the availability or non-availability of easily accessible local services and any generation of car-borne movements that might arise from this will not usually be relevant and are unlikely to be valid reasons for refusal of a prior approval application.

© MARTIN H GOODALL


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Boat Plans For A Chesapeake Deadrise | Barn conversions the new rules

Boat Plans For A Chesapeake Deadrise

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.


The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 was made on 10 March, laid before Parliament on 13 March and will come into force on 6 April. This is the long promised amendment to the GPDO that will allow the conversion of agricultural buildings to residential use (‘barn conversions’), and also some additional changes of use of A1 (shops) and A2 office premises. The Order applies to England only.

I will deal in a later post with changes of use of premises currently in use or including a use within Class A1 or A2, and go straight to the one you have all been waiting for – barn conversions.

Among other changes, the Order introduces a new Class MB into Part 3 of the Second Schedule to the GPDO. This new class authorises change of use of a building and any land within its curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). This new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

As predicted, however, this new PD right is hedged around with important exceptions, limitations and conditions. First, development is not permitted by Class MB where the site was not used solely for an agricultural use, as part of an established agricultural unit on 20th March 2013 or, if the site was not in use on that date, when it was last in use before that date. Other agricultural buildings may qualify for residential conversion in future if the site was brought into use after 20 March 2013, and is used for that purpose for ten years before the date the development begins.

The cumulative floor space of the existing building or buildings changing use under Class MB within an established agricultural unit must not exceed 450 square metres, and no more than three separate dwellinghouses can be developed within an established agricultural unit. The 450 sq m limit is absolute, so that once any residential conversions carried out under Class MB have reached the 450 sq m limit, there can be no further such developments within the same agricultural unit.

Furthermore, this change of use is not permitted if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained To avoid ‘winkling’ of agricultural tenants by rapacious farm owners, change of use is also precluded if less than one year before the date development begins an agricultural tenancy over the site has been terminated, and the termination was for the purpose of carrying out development under Class MB, unless both the landlord and the tenant have agreed in writing that the site is no longer required for agricultural use.

The amendment order also prevents this change of use where the erection or extension of agricultural buildings has been carried out under Part 6, Classes A(a) or B(a) of the Second Schedule to the GPDO on the established agricultural unit since 20th March 2013, or within 10 years before the date development under Class MB begins, whichever is the lesser. So you can’t put up new agricultural buildings or extend them and then convert them soon afterwards to residential use.

Although Class MB permits building operations reasonably necessary to convert the building to residential use, it does not allow development that would result in the external dimensions of the converted building extending beyond the external dimensions of the existing building at any given point; so it has to be wholly contained within the envelope of the original building. The type of building operations that are allowed under this heading are listed as 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; and partial demolition to the extent reasonably necessary to carry out these building operations.

The inclusion of the two items I have put in italics in the preceding paragraph (roofs and exterior walls) seems to allow scope for some significant rebuilding or replacement of the existing fabric, although the reference to partial demolition would seem to indicate that wholesale demolition of the building and its entire replacement is not contemplated by this amendment to the GPDO. It would seem that there is potential here for disputes with LPAs as to the scope of ‘partial’ demolition that can be carried out within this class, and also the extent to which any such partial demotion and rebuilding is “reasonably necessary to carry out these building operations”. I would, however, suggest that it is very unlikely that the new PD right can be exploited in such a way as to build houses on the site of glasshouses or flimsily clad dutch barns and the like. But we shall see.

As confirmed in the Commons a couple of weeks ago, the development permitted by Class MB is specifically excluded on any site that is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class MB is also excluded if the building in question is a Listed Building.

As expected, the new PD right is subject to a prior notification procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use.

I have put the last of these in italics, because it seems to me that this gives the LPA a very wide discretion to resist such changes of use, without having to resort to an Article 4 Direction. The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. I discussed the practical effect of this requirement in relation to office conversions (B1(a) to C3) in a blog post on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). In relation to those conversions, there was some doubt as to whether this requirement had to be read in the context of the three criteria that were to be specifically applied to office conversions, but the inclusion in Class MB of the paragraph I have put in italics [(e) above] suggests to me that the NPPF can be applied on a much wider basis to these barn conversions. In fact, it would seem to turn the whole process into just another type of planning application – a sort of ‘planning permission-lite’.

As regards the building operations permitted by Class MB, this is subject to a separate an additional condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant to the extent that it addresses design issues (in paragraphs 56 to 68).

There is no requirement to have regard to the development plan, so section 38(6) of the 2004 Act does not apply as such, but I have previously discussed, in the blog post mentioned above, the extent to which the reference to the NPPF may to some degree bring the development plan into the equation (due to the references to the development plan contained in the NPPF itself).

Other conditions in the GPDO amendment provide that this class of development is subject to the condition that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or beginning with the date on which the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

There are some consequential amendments to various existing provisions in the GPDO, which I may discuss on another occasion (including information requirements in connection with prior approval applications), but one point of clarification which resolves an issue that has been the subject of discussion, both in this blog and elsewhere, relates to the ability of an LPA to impose conditions on a prior approval (not only under Class MB, but on the other prior approvals under Part 3 governed by paragraph N). A further sub-paragraph has been added:

“(11) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.”

This confirms that an LPA does have power to impose conditions on a prior approval under Part 3, but the scope of such conditions is limited. Any such conditions must be reasonably related to the subject matter of the prior approval, and cannot therefore be more wide-ranging. There would appear, however, to be some scope for dispute on this issue, and it may become necessary to pursue a section 73 application in some cases, and (if necessary) a section 78 appeal against the refusal of any such an application, coupled with an application for costs where appropriate.

FOOTNOTE (added on 7/8/14): The ‘barn’ (or other agricultural building) does not qualify for conversion under this provision if the site was not used solely for an agricultural use, as part of “an established agricultural unit” on 20th March 2013, or (if the site was not in use on that date) when it was last in use (or, if the site was brought into use after that date, for ten years before the date the development begins).

A correspondent has queried the fact that nowhere in my articles on this and related topics is the definition of an “agricultural unit” mentioned. I am happy to repair that omission.

By Paragraph 3(N)(7) of the Second Schedule to the GPDO (as substituted by Article 5(8)(c) of the 2014 Amendment Order) “established agricultural unit” means agricultural land occupied as a unit for the purposes of agriculture - (i) for the purposes of Class M, on or before 3rd July 2012 or for ten years before the date the development begins; or (ii) for the purposes of Class MA or MB, on or before 20th March 2013 or for ten years before the date the development begins.

By Paragraph 3(O) of the Second Schedule to the GPDO (inserted by the 2013 Amendment Order), “agricultural building” means a building used for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse, and “agricultural use” refers to such uses. Note particularly that, in order to qualify as an agricultural building, it must have been used for the purposes of a trade or business. Non-commercial use of the building is a disqualification.

However, “agriculture” itself is not defined by the GPDO, and so the definition in section 336(1) of the 1990 Act prevails in the absence of any indication to the contrary. [viz: “Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.”]

© MARTIN H GOODALL

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Boat Plans And Kits | Budget statement – more GPDO changes

Boat Plans And Kits

As I have noted before, George Osborne loves to include planning announcements in his budget statements. Today’s written budget statement (published to coincide with the Chancellor’s budget speech in the Commons) promises a review of the General Permitted Development Order. After so many amendments over almost 20 years since it was first published in 1995 it certainly needs it. Dare one hope that some of the more opaque drafting to be found in parts of the Order might at last be clarified?

A number of us have noted that recent additions to the GPDO do not grant an automatic right to carry out permitted development, but involve a prior approval procedure which I described the other day as “planning permission-lite”. It seems that the government has recognised this, and intends to make what amounts to a three-tier system of planning consents a permanent feature of the planning system.

As the budget statement puts it, there are already and will continue to be, first, simple permitted development rights for small-scale changes, then prior approval rights for development requiring consideration of specific issues, and then planning permission for larger scale development. I am not convinced that there is likely in practice to be any significant difference between the second and third kind of consent so far as the applicant is concerned. There will still be hoops to jump through and the possibility of applications being turned down, with the consequent time and expense of going to appeal. I drew attention the other day to the wide discretion that LPAs would appear to have in practice to refuse prior approval of barn conversions, even though they now come (at least in theory) under the category of ‘permitted development’.

In addition, further extensions of permitted development rights are proposed. The government is going to consult on further changes of use to residential use, for example from warehouses (B8) and light industrial structures (B1(c)). They are also considering extra PD rights for commercial premises to allow the expansion of facilities such as car parks and loading bays within existing boundaries (although only “where there is little impact on local communities”, which suggests that this will be one of the changes that will be subject to a prior approval procedure).

One other idea that emerged from the Budget Statement was the suggestion that for people who want to build their own home, the government will consult on creating a new ‘Right to Build’, giving custom builders a right to a plot from councils, and a £150 million repayable fund to help provide up to 10,000 serviced plots for custom build. It will be interesting to see how what appears in effect to be a ‘reverse-compulsory purchase’ concept will work.

© MARTIN H GOODALL

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Boat Plans And Kits | Uncle Eric’s wheelie bin crusade

Boat Plans And Kits

Since it’s Friday, I couldn’t resist passing on to you a joke sent to me by Stephen Ibbitson.

The date is some time in 2015 (I suggest before May of that year). Uncle Eric is walking down a new street and sees a collection of wheelie bins standing there.

"I thought wed made sure new houses had to store their wheelie bins out of sight?" he lamented to his Permanent Secretary.

"Oh, but we did, Minister. Those are the new houses!"

--------------

There is in fact a possibility that Uncle Eric may have moved to pastures new before the next general election. The Westminster rumour mill already has him marked down as the next Tory Chief Whip in the expected cabinet reshuffle during the current summer recess. If this appointment does eventuate, no doubt we can look forward to predictions that he will sit firmly on any Tory MPs who step out of line in the run-up to the general election, and that he will personally squash any backbench rebellions.

© MARTIN H GOODALL


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Boat Plans For A Chesapeake Deadrise | Barn conversions again Part 6

Boat Plans For A Chesapeake Deadrise

[The first five parts of this saga were posted here in March 2013.]

In the last of my 5-part series reviewing the development of the law on barn conversions, which was posted on 13 March 2013, I reported on the High Court decision in Williams v. SSCLG. I expressed some misgivings about this judgment and, although I did not spell it out in that article, I had very much expected that the LPA and/or the Secretary of State would take the case on to the Court of Appeal. At that point, being very busy with other matters, I took my eye off the ball and failed to spot that the Court of Appeal did in fact overturn this judgment on 26 July 2013, only four months after my article on the High Court decision was published.

I am very grateful to my colleague David Evans for drawing my attention to the Court of Appeal’s judgment - [2013] EWCA Civ 958. The leading judgment, with which the other judges agreed without comment, was given by Beatson LJ.

The Secretary of State and the Council both argued before the Court of Appeal that the Deputy Judge at first instance had failed to respect the Inspector’s statutory role as the primary decision-maker on questions of fact and degree, that he wrongly became embroiled in questions of planning policy, and that he adopted an approach to the construction of an enforcement notice which risked undermining the certainty that is required in such notices.

The respondent (Mr Williams, the original appellant in the planning appeal which was under challenge) argued that the Inspector’s decision erred in law, because requiring demolition of the building exceeded what was necessary to remedy the breach of planning control (pursuant to his Ground (f) appeal) and that the Inspector failed to give adequate reasons for his decision. It was submitted on his behalf that the most that could be required by the Council and the Inspector was the alteration of the existing building to make it conform to the planning permission granted.

A point which did not emerge from the judgment in the court below was that it was accepted on all sides that the planning permission for the ‘barn conversion’ had not in fact been implemented. It was common ground between the parties that the development that had been carried out went outside the scope of the planning permission. Non-payment of the appeal fee led to the Ground (a) appeal (that planning permission ought to be granted) lapsing, although the appeal was consolidated with a contemporaneous section 78 appeal against the LPA’s refusal of retrospective planning permission. In the section 174 appeal there was, however, as noted above, a Ground (f) appeal (that the requirements of the enforcement notice exceeded what was necessary to remedy the breach, or to remedy any injury to amenity).

Perhaps most importantly, the Inspector found as a matter of fact and degree that the previous building had been substantially demolished and a new one erected in its place, whereas the planning permission had authorised only the adaptation and alteration of the existing building, and not the erection of a new structure. As a matter of fact and degree, the inspector therefore found that the development could not reasonably be called a conversion of the original building. It followed that all of the building operations were unauthorised. In light of that, Mr Williams’ appeals under Grounds (b) and (c) had unsurprisingly been dismissed.

So far as the Ground (f) appeal was concerned, Beatson LJ drew attention to the Inspector’s material findings in the section 78 appeal, which was dismissed but was not challenged in these proceedings. These included a finding that the subject building with its livery business had little or no relationship with the predominantly agricultural use of the surrounding farm, and the Inspector was not satisfied that the location for a full livery business was necessarily dependent upon the use of the land at this farm.

In particular, the Inspector found that the increase in bulk and mass of the new building had reduced the openness of the Green Belt and, although the footprint of the building was similar to what was approved in 2006, the new building’s siting had had a significant impact on the openness of the Green Belt because of its materially larger scale. The decision letter referred to the visibility of the development from the surrounding area, and found that the building did not assimilate into the countryside because of its bulky appearance, due to the roof’s effect on the skyline, and that the building had a jarring effect because of its blocky form and appeared over-dominant because of its bulk. Furthermore, the mansard roof and skylights were found to be atypical of the form and shape of nearby buildings, and intrusively large.

The Inspector considered whether modifications to the roof form and external appearance of the building could overcome the objections, but was unpersuaded by Mr Williams’ arguments. Crucially, when dealing with Mr Williams Ground (f) appeal under section 174, the Inspector cross-referred to his findings on the section 78 appeal. In dealing with the argument that the steps required exceeded what was necessary to remedy any breach of planning control, the Inspector stated that the purpose of the enforcement notice was to remedy the breach of planning control and that this required full compliance with the terms of the enforcement notice. He stated that, in light of his findings on the section 78 appeal, he did not accept that modifications to the building’s external appearance and fabric would be acceptable. This cross-reference to the decision on the section 78 appeal was perfectly adequate to explain the Inspector’s reasons for refusing the appeal under section 174(2)(f)

In light of the foregoing, it is unsurprising that the Court of Appeal allowed the Secretary of State’s (and the LPA’s) appeal on the principal ground that they had pleaded, namely that the Deputy Judge had gone behind the Inspector’s findings of fact, which the courts are not permitted to do. The Deputy Judge was also held to have erred in going behind the Inspectors’ planning judgement in determining that modifications to the building’s external appearance and fabric would not be acceptable as a means of remedying the breach of planning control. It lies beyond the powers of the court to ‘second guess’ the Inspector’s planning judgment in this way. Only if a decision-maker reaches a decision which no reasonable decision-maker properly informed of the facts could properly have reached (in other words, only if the decision-maker’s judgment on the merits can be truly categorised as ‘perverse’) can the court then intervene on legal grounds.

Where this judgment is of some importance, in relation to the questions that were considered in my previous series of articles on this topic, is with regard to the way in which a planning permission for a barn conversion is to be construed. Beatson LJ criticised the Deputy Judge’s interpretation of the planning permission based on the absence of express directions or restrictions in the planning permission, rather than the fact that permission was given for “alterations” and “conversion”. The Deputy Judge had stated that, because no condition limited or directed the building method to be used, the sequence of work, or the parts of the existing structure or proportion to be retained in the light of the approved plans, the implementation of the planning permission involved both the substantial demolition of the old barn and the provision of what would be tantamount to a new building in its place. It is an argument that I have put forward myself in the past, but Beatson LJ made it clear that this approach is inconsistent with the principle, set out, for example, in Slough Estates Ltd v Slough BC [1971] AC 958 at 962. The apparent meaning of the terms “alteration” and “conversion” was not to be modified by reference to what was not in the planning permission. [I would comment that this is very much in line with the Inspector’s reasoning in the Bridgend appeal decision, referred to in an earlier episode in this series of articles.] To do that would detract from the certainty that is needed in such documents because they are relied on by third parties.

It was argued on behalf of Mr Williams that the Inspector’s finding of fact that the original barn was “substantially demolished” did not amount to a finding that the building was entirely demolished or that the demolition was either in fact or in law a separate operation to the construction of the new building. Counsel for Mr Williams maintained that, because the works resulting in the substantial demolition were so integral to the construction of the new building, the breach of planning control included both elements. Accordingly, ordering the demolition of the building went beyond what was necessary to remedy the breach of planning control and, in so ordering, the Inspector erred in law.

These submissions were rejected. It was not an error for the enforcement notice to allege that the relevant breach of planning control was the erection of a new building, because that was the effect of what had happened (and, as noted above, the planning permission could not be construed as authorising such a development). Beatson LJ also rejected the submission that the Inspector’s use of the phrase “substantially demolished” meant he did not find it was entirely demolished. Read fairly, the Inspector’s decision was that the barn had been demolished. The evidence before the Inspector was that, in proportional terms, 99% of the building was new. Determining whether changes to a building constitute a “conversion” or a “new building” is a classic fact-sensitive matter involving evaluation. The Inspector’s finding that the barn had been demolished and could not be restored was unchallengeable in a section 289 appeal.

This Court of Appeal decision would appear to put an end to arguments based on the approach taken by the inspectors in the South Hams and Woodspring appeals (see earlier articles in this series), and so it seems that the Cheshire Cat (whose views on this topic were originally canvassed in “More development in Wonderland” posted on 15 July 2011) has finally got his come-uppance. It is clearly going to be more difficult in future to argue that a planning permission for a barn conversion that does not require in terms that the pre-existing structure should be retained can therefore be construed as a permission that authorises in effect the creation of a new building. It has to be accepted that “alterations” and/or “conversion” does mean only alterations and conversion, and not substantial demolition and rebuilding.

UPDATE: On further reflection, I do not believe that the Court of Appeal’s decision in Williams altogether disposes of the proposition that was accepted by the High Court in Basildon. I have dealt with at least one case which was on all fours with Basildon, in the sense that the barn conversion that was authorised would have resulted in a building in which only the basic steel frame of the pre-existing barn structure would have been retained, and this frame would be entirely hidden from view (both externally and internally) when the development was completed. In the event, due to storm damage during the conversion works, it did not prove possible to retain the original steel frame and so it was removed and replaced with an entirely new frame. The development was then completed substantially in compliance with the approved drawings. After some argument, the LPA did eventually grant an LDC confirming the lawfulness of the development as executed. I stress, however, that the facts in this case were almost identical to the facts in Basildon, whereas the Williams case clearly differed on its facts and would not have fitted the Basildon scenario, even if that judgment had been cited on Mr Williams’ behalf.

© MARTIN H GOODALL

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Boat Plans For A Chesapeake Deadrise | Barn conversions to be permitted development

Boat Plans For A Chesapeake Deadrise

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Lack of time prevented my writing on all the changes proposed by the recent consultation paper on “Greater flexibilities for change of use”, and so I dealt initially only with the proposed permitted development rights for change of use from retail (A1) or from professional and financial services (A2) to residential use (C3). However, a more dramatic, and potentially controversial, proposal is to allow a change of use of existing agricultural buildings to residential use (together with associated physical works) – the classic barn conversion.

There are already permitted development rights for the change of use of agricultural buildings to use for commercial purposes. So, having allowed conversion of agricultural buildings to other uses, the government sees no reason in principle to restrict this, although they acknowledge that what would be an acceptable change of use needs to be carefully defined. They say they want to avoid high-impact development occurring without the opportunity for local consideration.

The specific proposal is that up to 3 additional dwelling houses (which could include flats) could be converted on an agricultural unit which already existed on 20 March 2013, with an upper limit of 150 sq m for each dwelling, which would allow for a home of reasonable size without its being excessively large. This would apply to any agricultural unit irrespective of its size. (An agricultural unit comprises agricultural land which is occupied as a unit for the purposes of agriculture, including any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or any dwelling on that land occupied by a farm worker.)

Such a new permitted development right for change of use of agricultural buildings to residential use is likely to need some external alterations, and the government recognises that for this permitted development right to be effective it should also include provision for some limited physical development. This would even extend “where appropriate” to the demolition and rebuilding of the property on the same footprint. (Hallelujah! At last we shall see an end to the precious insistence on retention of the existing grotty fabric of life-expired barns and similar buildings that are being converted.)

The catch to these proposals is that prior approval for siting and design would be required to ensure that the physical development complies with local plan policies on design, materials and outlook, and that there would also be a requirement for prior approval in respect of transport and highways impact, noise impact, contamination and flooding risks to ensure that the change of use takes place only in ‘sustainable’ locations. No mention is made here, however, of the NPPF or of the local development plan in general.

Unless I have misread the consultation paper, this permitted development right would not be excluded on “Article 1(5) land” (i.e. in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Norfolk Broads and World Heritage Sites). No mention is made of listed buildings, but perhaps the need for Listed Building Consent for alterations affecting their character is thought to be sufficient protection without requiring any further restriction affecting the proposed permitted development rights set out here.

One of the consequences of the proposed change is that it may become easier in future to create new agricultural dwellings, without having to jump through the hoops currently required by paragraph 55 of the NPPF (and the tests formerly prescribed by Annex A to PPS7). Furthermore, such a dwelling would not be subject to an agricultural occupancy condition.

The government seems dimly to perceive that they may be creating a potential loophole here, and so they propose that in future an owner will be able to choose to exercise either the existing permitted right to construct a new agricultural building under Part 6 (for purely agricultural, not residential use) or the new right for conversion of an agricultural building to a dwelling house. Where the new right is exercised the owner will only be able to exercise the permitted development right for construction of a new agricultural building once a period of 10 years has elapsed. The stated intention is that only where the agricultural buildings are genuinely redundant will it be appropriate to grant a permitted development right to allow for the change of use of that building to residential use. In addition an owner will not be able to exercise the new right if they used the existing permitted development right to construct a new agricultural building on or after the publication of this consultation paper (on 7 August 2013). However, as the paper points out, this will not prevent an application for planning permission for development during this period.

As noted elsewhere in the consultation paper, local planning authorities will be able to issue Article 4 Directions to prevent or restrict such changes of use, although compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

UPDATE: The amendment order was made on 10 March 2014, laid before Parliament on 13 March and will come into force on 6 April. See now the post I published on 17 March 2014 (“Barn conversions – the new rules”)

© MARTIN H GOODALL


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Boat Plans Stitch And Glue | Barn conversions – the structural issue 3

Boat Plans Stitch And Glue

When I wrote my last piece on this topic, I was aware that there are a couple of quotes from Sage v. SSETR [2003] UKHL 22 that might potentially be cited by a local planning authority seeking to argue that internal works do form part of the development permitted by Part 3 of the Second Schedule to the GPDO, but I did not want to lengthen further an already lengthy article, and (for reasons that I will explain below), I am in any event unconvinced that Sage really is relevant to the issue in question here. Nevertheless, my previous correspondent has understandably raised this point with me, and so I have decided that I should after all deal with it in this further article.

My correspondent also commented that, unless the Prudential judgment is contradicted by a subsequent judgment, he would be very wary of concluding that it shouldn’t be given any weight. I certainly would not suggest that the Prudential judgment should be entirely ignored. In fact, readers may recall that I wrote in my previous article that “some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument.” I hope I made it clear that someone wishing to challenge this view in relation to internal works may well have to be prepared to take it to the High Court (and they might possibly have to go on to the Court of Appeal).

Moving on, then, to Sage, my correspondent drew attention to the following paragraph in the speech of Lord Hobhouse :

“23. When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage’s case. He comes into the first category not the second.”

There are one or two other places in this House of Lords decision where reference is made to internal works, but all of these remarks were made solely in the context of a development that took the form of building operations to create a new dwelling. There was no pre-existing building, and thus no change of use was involved. What the House of Lords had before them was an enforcement case involving the 4-year rule, and the passage quoted above was in my view obiter, in so far as it might relate to a development carried out under planning permission, quite apart from the fact that it did not relate to a material change of use of an existing building.

Lord Hope (in supporting the conclusions of Lord Hobhouse) was persuaded that it made better sense of the legislation as a whole to adopt the ‘holistic’ approach which Lord Hobhouse had described. What this meant, he observed, was that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. “That will be an easy task if the developer has applied for and obtained planning permission” [my added emphasis].

Pausing there, one has to bear in mind the scope of the planning permission granted by Article 3 of the GPDO and by the various Classes in Part 3 of the Second Schedule to the Order. The permission in the case of Class O (and in certain other cases) is solely for a change of use of an existing building. In some other Classes (including Class Q) there is limited permission for building operations, but I continue to maintain that this permission (under Class Q(b)) relates only to those operations that require planning permission, and does not relate to works that are exempted from the definition of development by section 55(2)(a). The context in this case, I would stress, is very different from the context in which enforcement action is in question in relation to section 171B(1).

In his speech in Sage, Lord Hope was clearly focused on the completion of a new building that the developer intended to erect, and on what constituted substantial completion in this context. As Lord Hobhouse put it in paragraph 11, “The point raised by this appeal by the Council to your Lordships House concerns the construction of section 171B(1) and the starting point of the four-year period — i.e. ‘the date on which the operations were substantially completed’.” The LPA was arguing for a holistic construction, in order to establish whether the building had been substantially completed and, if so, when.

It is also important to understand that Sage was concerned solely with operational development, not with a material change of use. As one of the Law Lords observed, the House was concerned with section 171B(1), not with section 171B(2). The development in question in Sage was the erection of a dwellinghouse which was in the course of construction. It was in this context that Lord Hobhouse observed, in paragraph 19, that “Exception (a) clearly contemplates and involves a completed building which is to be maintained, improved or altered” [my added emphasis].

It is clear that the passage that my correspondent quoted from paragraph 23 is, like the rest of the judgment, focused solely on the unauthorised erection of a new building and on the operations involved in creating and substantially completing that building. By contrast, one is dealing in Part 3 of the Second Schedule to the GPDO primarily with the change of use of an existing building, and also in some cases (as a subsidiary or subordinate, but nevertheless separate, development) with limited building operations that are permitted in connection with that change of use. There seems to me to be no policy reason, and no justification in terms of statutory interpretation, in this context, to ignore or override the words of section 55(2)(a) so as to bring into consideration purely internal works that are for the maintenance, improvement or other alteration of the building (including internal alterations carried out in connection with the permitted change of use under Part 3).

This does not involve disturbing the decision of the House of Lords’ decision in Sage in relation to section 171B(1). It merely emphasises the need to have regard to the context in which that judgment was handed down. We must all be careful not to quote passages from such judgments out of context – a fairly common error, all too frequently committed by counsel in arguing later cases, and even sometimes by judges.

In discussing the points raised both by Sage and by Prudential, my correspondent postulated that if someone has planning permission to erect a house with two bedrooms, then they can erect such a house and then subsequently (i.e. as a separate operation) convert the two bedrooms into three bedrooms (i.e. on the basis that the latter works don’t constitute development), but he argues that you can’t simply erect a house with three bedrooms from the outset (i.e. as a single operation). This may be arguable in relation to the erection of a new house, but not (I suggest) in relation to a change of use.

I did try to run such an argument some years ago on behalf of a neighbouring objector when an authorised change of use of a house to form several flats was carried out in almost exactly this way. Permission had been given to convert the house into several 2-bedroom flats. The developer produced the specified number of flats, but in doing so he sub-divided the bedrooms so that each of the new flats was a 4-bedroom flat. Quite clearly he was converting the property into student lets. I totally failed in my attempts to persuade the LPA to take enforcement action, and I had to admit (at least to myself) that the LPA’s attitude was entirely understandable, because subsequent conversion of each of the flats into 4-bedroom flats would have been entirely lawful, and so it could legitimately be argued by the LPA that in those circumstances it was not ‘expedient’ (in the terms of section 172) to take enforcement action.

Leaving aside the question of expediency in relation to possible enforcement action, I believe it is wrong to think in terms of a planning permission for a change of use as ‘authorising’ any internal works. The development authorised by that permission is simply the making of the material change of use. The internal works required to facilitate that change of use are merely preparatory to the change of use actually being made, which will occur (as a single event) either when the development is occupied for its new use or, at the earliest, when it is finally ready for occupation (see Impey and also Welwyn Hatfield, both quoted in my last article).

So far as the description of the development is concerned (the change of use of the house to use as several 2-bedroom flats in the example I mentioned above), the scope of the authorised change of use might be taken to have been limited in the first instance, by its description, to use as 2-bedroom (not 4-bedroom) flats, but this in itself could not have prevented the later use of any of those flats as 4-bedroom flats. (For examples of the application of this principle, see Wilson v. West Sussex CC [1963] 2 Q.B. 764, and East Suffolk CC v. SSE (1972) 70 L.G.R. 803.)

We therefore come back to the point that I made in my previous article. When considering permitted development comprising the change of use of an existing building, it is a conceptual mistake to think in terms of the ‘whole’ development as including the internal alterations required to facilitate the permitted change of use. The development comprises solely the material change of use itself, when it actually occurs. In such a case, any internal works undoubtedly come within the exemption of such works from the definition of ‘development’, by virtue of section 55(2)(a). Neither Sage nor Prudential affects the position in this regard. It follows that the building operations that are permitted by Class Q(b) (and similarly by Classes M(b) and N(b)) are simply those that are listed in that Class, and that they do not include or refer in any way to any internal works to the building.

It is for this reason that I would stoutly maintain that the government’s amended online Planning Practice Guidance of 5 March 2015, stating that it is not the intention of what was then Class MB(b) [now Class Q(b)] to permit the construction of new structural ele¬ments for the building (so that, it is only where the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use that certain building opera-tions would be considered to come within Class Q(b) ) cannot, as a matter of law, be taken to refer to any works that affect only the interior of the building, or which do not materially affect the external appearance of the building.

© MARTIN H GOODALL


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Boat Plans And Kits | Running out of time

Boat Plans And Kits

One of the problems with having a fixed-term parliament is that the final stages of the parliamentary term risk degenerating into a fag-end of miscellaneous business, while ministers increasingly focus their attentions on the forthcoming election campaign. Commentators have already noted that the current parliamentary session contains a significantly reduced number of Bills compared with an average session but, despite this, time is rapidly running out in which to clear up remaining legislative proposals that the government would like to bring into force before the election. There certainly isn’t time now to introduce any new Bills, and so it is just a question of taking pending Bills through their remaining stages, and laying statutory instruments in parliament to deal with the various subordinate legislation that the government has announced its intention of making.

In the meantime, ministers seem to be resorting to the rather pointless exercise of putting down resolutions to record their future intent in the event that they were to be re-elected, in a vain attempt to commit a future government to a certain course of action, or simply to try to ‘wrong foot’ the opposition on particular issues.

The House of Commons rises for the Christmas recess today and will return on Monday 5 January. The Lords rose yesterday and will return on 6 January. There will then be a ‘half-term’ recess for both houses from 12 to 23 February, and Parliament will be dissolved on Monday 30 March 2015. This may be preceded by prorogation, marking the formal end of the parliamentary session, although the House of Commons may decide that it will not prorogue prior to dissolution. In any event there is now precious little parliamentary time left in which to complete unfinished business – barely 5 weeks in January/February, and then another 5 weeks to the end of March – 10 weeks in all for Bills to complete their remaining stages and obtain Royal Assent.

One piece of legislation that is of interest to planners (and to property owners in Greater London) is the Deregulation Bill. It contains a clause (currently Clause 33) which will come into immediate effect upon Royal Assent, and will give the Secretary of State power to make a statutory instrument relaxing, to some (as yet unspecified) extent, section 25(3) of the Greater London (General Powers) Act 1973, so as to allow some types of short-term lettings in Greater London that are currently prohibited by that sub-section of the 1973 Act. If the government wants to give effect to this change before the General Election, they will need to be drafting the necessary statutory instrument now, so that it can be laid before parliament without delay after the relevant section of what will then be the Deregulation Act 2015 comes into force.

In order to give sufficient time for parliamentary scrutiny of the SI (admittedly theoretical rather than actual, as an SI of this sort is never actually debated), it should be laid before both houses no later than mid-February, bearing in mind the impending dissolution at the end of March. But the Bill is still going through its committee stage in the Lords, and it must be a moot point as to whether it can complete its remaining stages in time to gain Royal Assent before the half-term break which starts on 12 February.

This is not the only problem now facing the government as the sands of time run out. The same timetabling considerations would apply to other subordinate legislation that the government has announced its intention to introduce. The Chancellor of the Exchequer uncharacteristically resisted the temptation to re-announce these proposals in his Autumn Statement earlier this month, but there is no reason to believe that the government has abandoned their intention to make further planning changes by fresh amendments to the General Permitted Development and to the Use Classes Order. On the other hand, the proposal to consolidate the GPDO, the UCO and also the Development Management Procedure Order may have to await the attention of the next government.

We have been promised a further amendment to Part 3 of the Second Schedule to the GPDO to permit the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of certain sui generis uses to restaurants (C3) and leisure uses (D2), plus the change of use to a widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5).

On the other hand, the intention to make permanent those permitted development rights which currently expire in May 2016 could be postponed for the time being. If the present government were to find themselves still in power after May 7 (which does seem a little improbable) there would be plenty of time before 30 May 2016 for them to make these further changes.

The right to make alterations to commercial premises so as to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises may or may not feature in the expected subordinate legislation in the New Year, and the same may apply to the proposed changes to Classes A1 and A2 of the Use Classes Order, which may involve the merger of these two use classes in a single new ‘town centre’ use class, so as to create a much more flexible range of uses in our High Streets, while at the same time restricting the scope of what is currently Class A2, so that betting offices and pay-day loan shops (both currently falling within this Use Class) will become sui generis uses.

I confess that I am a little hazy when it comes to the finer details of the negative resolution procedure, but I believe that a 40-day period has to be allowed for this purpose in most cases, even though such statutory instruments come into effect more or less automatically, without ever having been discussed or debated. If that is right, then Uncle Eric would need to lay these further statutory instruments before parliament between 6 January and 12 February in order to be sure that they can take effect before the General Election.

So we shall just have to watch and wait, to see whether the expected subordinate legislation does come forward in the coming weeks. If not, then it will depend on the policies of the ministers who are in office after the General Election as to whether these and the other planning changes that the present government has proposed will ever be brought forward.

© MARTIN H GOODALL


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Boat Plans And Kits | Barn conversions – the structural issue 2

Boat Plans And Kits

After my article on this topic was posted on 4 January, another well-known planning blogger (who, with becoming modesty, does not wish to be named here) kindly drew my attention to R (Prudential Insurance Co Ltd) v. Sunderland City Council [2010] EWHC 1771 (Admin). I will come back to this judgment below, but I want first to analyse carefully the nature of the development involved under Part 3 of the Second Schedule to the GPDO and the precise scope of the planning permission granted by Article 3 in conjunction with the various Classes set out in Part 3.

Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. In Part 3 of that Schedule, this development is specified by the various Classes set out there as “Development consisting of a change of use of a building (or, in some cases, of a building and any land within its curtilage) from a use falling within [a specified Use Class or Classes] to a use falling within [another specified Use Class]”. In certain cases, planning permission is also granted for limited building operations. I will come back to that further permission below.

When considering the planning permission for change of use granted by the various Classes in Part 3, it is important to appreciate that a change of use is a single event; it is not a gradual process or a continuing state of affairs (see Cynon Valley BC v SSW (1987) 53 P. & C. R. 68). Furthermore, it should be firmly borne in mind that, except in those few Classes where some building operations are also permitted, the permission granted is solely for the specified change of use. It follows that a development comprising a material change of use only commences when the change of use itself occurs, and (for the reasons explained in my last article, and further explored below) any incidents, including the commencement of internal alterations, that are preparatory to that change of use are of no legal significance in planning terms.

In the case of a change of use to use as a single private dwellinghouse, it is a prerequisite to such a change of use that the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence (Gravesham B.C. v SSE (1984) P. & C. R. 142). Until that point is reached, no change of use has taken place. The judgment in Impey v SSE (1984) 47 P. & C. R. 157 established that a change of use can take place before the premises are used in the ordinary and accepted sense of the word (for example, where operations have been undertaken to convert premises for residential use and they are then put on the market as being available for letting). (This was subsequently confirmed by the Supreme Court in Welwyn Hatfield BC v. SSCLG [2011] UKSC 15.)

The effect and extent of the planning permission granted by the GPDO can readily be understood by reference to Class O in Part 3 (the residential conversion of offices which have been in use within Use Class B1(a)). The GPDO is completely silent on the subject of the works required to bring about this change of use. Clearly the permission does not extend to any building works to the exterior of the building, or which would materially affect its external appearance, but quite extensive works may be required to the interior (including in may cases the erection of new internal walls, and other structural elements, as well as the installation of bathrooms, toilets, kitchens, and a variety of other features and facilities) in order to enable the authorised change of use to take place. The reason that no provision is made for these in the GPDO is that they do not require planning permission in any event, by virtue of section 55(2)(a). None of the conditions attached to Class O refers to these internal works in any way.

I want to look next at the planning permission granted by Classes M(a)and M(b). Class M(a) grants permission for the residential conversion of a building currently used as a shop (A1) or for the provision of financial or professional services (A2) (or used for certain related uses). Bearing in mind the nature of such premises, it may be unnecessary in some cases to resort to the additional permission granted by Class M(b) for building operations that are reasonably necessary to convert the building to residential use. Existing doors, fenestration and other external features may not need to be replaced or supplemented, so that no external building works need necessarily be carried out in such cases.

Where works affecting the exterior are necessary in order to convert the building to residential use, the only restrictions in Class M that relate to such works are M.1(e), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and M.1(f), which prohibits development consisting of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As discussed above, if a change of use of the building is the only development involved, there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). It cannot sensibly be argued that by also changing some doors and windows, which therefore requires additional prior approval under Class M(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. It seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class M(b).

The conditions in paragraph M.2 include a requirement that where the development proposed is development under Class M(a) together with development under Class M(b), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to a list of matters which include the design or external appearance of the building. But where the development proposed is development under Class M(a) only, prior approval is not then required as to the design or external appearance of the building. This is further confirmation that where building works are necessary under Class M(b), the only additional matter requiring prior approval is the design or external appearance of the building. Clearly the LPA is not concerned in any shape or form with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

I have set out the position in relation to Class O and Class M, in order to examine the planning permission granted by Classes Q(a) and Q(b) in light of the points established in relation to these other Classes of development in Part 3. Class Q(a) grants permission for the residential conversion of a building and any land within its curtilage from a use as an agricultural building, and Class Q(b) grants permission for building operations reasonably necessary to convert the building to residential use.

In the same way as in Class M, the only restrictions in Class Q that relate to the building works authorised by Class Q(b) are Q.1(g), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and Q.1(i) which prohibits development consisting of building operations other than 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, and also partial demolition to the extent reasonably necessary to carry out those authorised building operations.

Whilst this restriction is more prescriptive in its details than the corresponding restriction in Class M, there would appear to be no justification for treating purely internal alterations any differently from internal alterations carried out in connection with a change of use made under Class O or under Class M. For this reason, I would argue that even in the case of the residential conversion of an agricultural building there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). There still seems to me to be no basis on which it can be argued that where building works are proposed which require prior approval under Class Q(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. As in the case of Class M, it seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class Q(b).

The conditions in paragraph Q.2 requiring the submission of a prior approval application are in the same terms as in paragraph M.2. discussed above, and so this too confirms that where building works are to be carried out under Class Q(b), the only additional matter requiring prior approval is the design or external appearance of the building, and that the LPA is not concerned in any way with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.

We come then, at last, to Prudential Insurance. How, if at all, does this judgment affect the argument? This was a spat between the claimant and a rival developer (Peel Holdings), with the LPA as the unfortunate ‘piggy-in-the-middle’. The claimant was seeking to quash a Lawful Development Certificate granted by the LPA to Peel Holdings in respect of a proposed development that they sought to carry out under an extant planning permission. The planning permission authorised “Conversion of one retail unit into two units, construction of new free-standing entrance canopies and formation of a goods access road at 1 Peel Centre, The Glover, Washington..”

The development of the Peel Centre as a whole had been authorised by an earlier planning permission issued by the Secretary of State under section 77 of the 1990 Act. A condition in that original permission provided that the development permitted should not be used for the retailing of 19 different classes of goods without the prior written consent of the LPA. A section 52 agreement (under the 1971 Act) had been signed some years earlier by Peel Holdings which precluded the sale of the same classes of goods.

The proposed use or development for which the LDC was granted comprised “open A1 retail use and a planning permission dated 11.12.2006 (06/04039/FUL) unfettered by the requirements of the section 52 agreement of 08.08.1988 as amended by the deed of revocation of 14.07.2006.”

The question for the Court was - What did the planning permission in respect of Unit 1, properly interpreted, authorise? The judge had no difficulty in stating straight away that the LPA was authorising the conversion of one shop into two together with, specifically, works to the exterior of the building necessary to achieve that conversion. He observed that the work necessary to achieve the conversion was necessarily to be undertaken both to the interior and exterior of Unit 1. As a matter of interpretation of the planning permission it might be thought obvious, he said, that it was authorising the carrying out of the building activity necessary to put in place what was shown on the two plans and which would result in the conversion of the unit from one shop into two [that is to say, both internal and external buildings works].

The claimant disagreed, relying on the definition of development in section 55(1) and the exemption from that definition provided by section 55(2)(a). Counsel for the claimant accepted that in this case planning permission was required for certain of the building operations which were specified in the planning application. They were the external alterations to Unit 1, the construction of new free-standing entrance canopies and the formation of a goods access road; each clearly constituted operational development within section 55 of the 1990 Act. He submitted, however, that the conversion of Unit 1 into two units was achieved solely by virtue of internal alterations to the building. He submitted that no planning permission was necessary for the internal alterations by virtue of section 55(2)(a). Accordingly, he submitted that, as a matter of interpretation, all that the planning permission in respect of Unit 1 authorised was the physical alterations to the exterior of the building.

The case for Peel Holdings was that "the conversion of Unit 1 into two units" constituted operational development, and that the conversion was inextricably linked with both the interior and exterior alterations to the building. [Note that this development did not constitute or include a material change of use. The judge accepted that the planning permission related to purely operational development. The use of the two new units was in practice governed by section 75.]

The judge accepted that there can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. In his judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, falls within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seemed to him to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. He took the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either ‘Yes’ or ‘No’.

Looked at in this way, there was no doubt in his mind that the proposal for which planning permission was sought in respect of Unit 1 constituted development. The planning permission which was granted authorised the carrying out of the whole of that development. In his judgment, therefore, the planning permission authorised the conversion of Unit 1 into two separate units and it authorised the works necessary to achieve that end.

The planning permission so granted did not limit the use to which the two units could be put. In those circumstances, Peel Holdings submitted, permission was granted for retail uses falling within Use Class A1. On any view of the wording of the planning permission, the permission granted was for retail units i.e. shops. In the absence of a condition limiting the use of the units to certain categories of goods, or a condition limiting that which could be sold, all the uses permitted under class A1 were permitted.

I am afraid I have considerable difficulty with this judgment, and in particular with the conclusion that it would be “wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development” and that “the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole”. This appears to me to be an assertion that is entirely unsupported by any reasoning, and which (although it refers in passing to counsel’s submissions with regard to section 55(2)(a)) makes no attempt to analyse the wording and effect of section 55.

A clear distinction must be made between, on the one hand, the conversational use of the word “development”, which can embrace all aspects of what is colloquially meant by that word in ordinary conversation (and this would undoubtedly include internal works), and on the other hand, the use of the word “development” in the Town and Country Planning Act 1990, which is precisely defined by section 55 and must be construed strictly in accordance with the rules of statutory interpretation. If parliament had intended that “development” should be interpreted more widely in some contexts than in others, it would undoubtedly have legislated accordingly in the 1990 Act (or in a subsequent amendment of that Act). There is nothing in the wording of section 55 to suggest that the effect of section 55(2)(a) only applies to internal works where those works are carried out in isolation, but that when internal works are carried out in conjunction with building operations to the exterior of the building, or which materially affect its external appearance, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the external works. There is similarly nothing in the legislative wording to suggest that when internal works are carried out in conjunction with a material change of use, perhaps in fact in order to facilitate that change of use, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the change of use itself. Such an interpretation would fly in the face of the clear statutory provision contained in section 55(2)(a), and with all due respect, it is not for a High Court judge to attempt to amend statute law, or to ignore its clear meaning and intention by applying a wider more colloquial interpretation to the word “development”.

There were in fact several other grounds of challenge in the Prudential Insurance case, all of which were dismissed, and it is clear that the case turned on the fact that what the LPA had granted was an unlimited planning permission for the creation of two new retail planning units, without any condition restricting the goods that could be sold in each of those two new units. They had failed to repeat the condition in the original planning permission for the development of the Peel Centre (as perhaps they should have done), and so they had been correct in issuing an LDC in the terms that had been sought by Peel Holdings.

In my view, the court’s apparent finding with regard to the scope of the development, in relation to section 55(1) and 55(2), would by itself have merited an appeal to the Court of Appeal, but the dismissal of the other grounds of challenge was less susceptible to challenge, and this no doubt explains why the judgment was not in fact appealed. Whilst this judgment cannot be dismissed as being ‘special to its facts’, the case for the claimant may not have seemed particularly meritorious to the Court when viewed as a whole, being (as I mentioned earlier) a commercial ‘spat’ between rival developers, and as someone once observed “context is everything”.

[Although this judgment was followed by the Court of Appeal in R. (Peel Land and Property Investments Plc) v Hyndburn BC [2013] EWCA Civ 1680, that case turned entirely on other issues (such as the effect of section 75), and the judgment did not discuss section 55 or any suggestion that “development” could embrace internal works in addition to external works or a material change of use. The Court of Appeal did not therefore endorse the view taken in Prudential Insurance on this issue.]

For the reasons I have explained, I do not believe that any weight can be put on the court’s approach in Prudential Insurance to the definition of development in relation to internal works. Some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument, but if or when the matter comes before the court in a future application under section 288, I doubt whether the Court will follow Prudential Insurance when a full and careful analysis is made of the statutory wording and effect of section 55, and in particular section 55(2)(a).

© MARTIN H GOODALL


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Boat Plans For A Chesapeake Deadrise | Barn conversions – the structural issue

Boat Plans For A Chesapeake Deadrise

Anyone who has ever had to deal with a ‘barn conversion’ (i.e. the change of use of an agricultural building, usually to residential use but sometimes for other purposes) will be well aware of the structural problems that may arise, especially where the pre-existing building proves not to be sufficiently robust to allow conversion without substantial reconstruction and, in the worst case scenario, where the building collapses (or is demolished by well-meaning builders, or destroyed by fire or storm) before the project can be completed.

I have previously discussed these issues at some length in a series of five articles I published in this blog under the title “Barn Conversions again” in March 2013, and in a sixth and final article in December 2014. However, the considerable extension of permitted development rights for various changes of use introduced between May 2013 and April 2015 has given rise to further structural issues that can arise in these cases.

Some classes of permitted development within Part 3 of the Second Schedule to the General Permitted Development Order allow a certain amount of operational development in connection with some, but not all, residential conversions. However, the extent of the building operations that can be undertaken is strictly circumscribed by the terms of the Order. The changes of use in respect of which building operations are also permitted are Class M (formerly IA) (residential conversion of a shop or of premises providing financial or professional services), Class N (residential conversion of an amusements centre or of a casino) and Class Q (formerly MB) (residential conversion of an agricultural building). It is in relation to the last of these that structural issues are most likely to arise, especially if the pre-existing building is of unconventional, and perhaps insubstantial, construction.

In all three cases, the Order permits building operations reasonably necessary to convert the building to residential use (within Use Class C3 - dwellinghouses). In the case of Classes M and Q (but not Class N), development is not permitted if it would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point. In the case of Classes N and Q development is only permitted to the extent that it would consist of 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. This stipulation is not made in respect of Class M, but in all three classes development demolition is prohibited, other than partial demolition to the extent specified by that Class. The wording varies slightly as between these three classes of permitted development. In the case of Class M, any partial demolition must be reasonably necessary to convert the building to residential use. In the case of Classes N and Q, it must be confined to the extent reasonably necessary to carry out the building operations permitted by that Class (as listed above). A developer under Class M thus has a slightly wider discretion with regard both to the building works carried out and as to the extent of any partial demolition, compared with a developer under Classes N or Q. A prior approval application must, of course, be made in all cases.

These statutory provisions represent the entirety of the legal constraints on the building operations that may be carried out as permitted development under these three Classes in Part 3. However, there is another important factor to be considered. Section 55(2)(a) of the 1990 Act provides that the carrying out, for the maintenance, improvement or other alteration of any building, of works which affect only the interior of the building, or do not materially affect the external appearance of the building, are not to be taken for the purposes of the Act to involve development of the land. It would be excessively legalistic, in my view, to argue that the words “for the maintenance, improvement or other alteration” of the building limit the scope of the works that are covered by section 55(2)(a). In particular I would not accept that the words “or other alteration” are to be construed ejusdem generis with “maintenance” or “improvement”; the purpose of such works may well be much wider than that. Thus I would contend that purely internal works (or works that do not materially affect the external appearance of the building) can be carried out to any building at any time and for any purpose, and that they would not amount to development under the Act provided that the completion of those works does not in itself constitute a material change of use.

Impey v. SSE (1984) 47 P. & C.R. 157 established that actual occupation of the converted building is not required in order for a material change of use to have taken place, if the conversion works have actually been completed. This was confirmed by the Supreme Court in Welwyn Hatfield v. SSCLG [2011] UKSC 15, where the contrary suggestion that had been raised in Backer v. SSE (1984) 47 P. & C.R. 149 was rejected. However, (short of completing the conversion works) any internal works that might be, or might be alleged to be, preparatory to a change of use for which a prior approval application has not yet been made would not constitute an unlawful commencement of the permitted development in the absence of prior approval, nor would they be a breach of planning control.

There may be some readers who are tempted at this point to cite Somak Travel Ltd -v- SSE(1988) 55 P. & C.R. 250, where an internal spiral staircase had been installed. By virtue of section 55(2)(a) this did not itself constitute development, but in this case it was part and parcel of the material change of use (or integral to the change of use) of an upper floor to office use, and so a requirement in the Enforcement Notice to remove the spiral staircase was upheld. The essential point, though, is that this case was concerned solely with the requirements of the enforcement notice. The breach of planning permission comprised only the unauthorised change of use of the upper floor of the building from residential use to use as part of the travel agency business which occupied the ground floor.

It was not alleged, nor did the inspector or the High Court find, that the installation of the internal staircase constituted development in itself. [The unlawful change of use would not have occurred, at the earliest, until all the works necessary for its occupation as an office had been completed.] However, in order to remedy the breach of planning control, i.e. the change of use of the upper floor, the removal of the staircase was seen as a necessary step in the restoration of that floor of the building to residential use. It was for this reason that the requirement in the enforcement notice that the spiral staircase should be removed was upheld by the Court. The case simply confirmed that the requirements of an enforcement notice can go beyond the scope of the breach itself, if the additional steps required to be taken (in this case the removal of the spiral staircase) are a necessary part of remedying the breach so as to restore the premises to their previous use. (This was in line with two earlier cases - Murfitt -v- SSE [1980] JPL 598 and Perkins -v- SSE [1981] JPL 755.) It does not, however, justify calling Somak Travel in aid in an attempt to argue that there are any circumstances in which purely internal works (or works that do not materially affect the external appearance of the building) are not exempted from the definition of development under section 55(2)(a).

Bearing in mind the clear legal effect of section 55(2)(a), it is difficult to reconcile this statutory provision with the statement in the government’s online Planning Practice Guidance, as amended on 5 March 2015, that it is not the intention of what was then Class MB(b) (now Class Q(b)) to permit the construction of new structural elements for the building and, accordingly, that it is only where the existing building is structurally strong enough to take the loading associated with the external works to adapt the building for residential use that certain building opera¬tions would be considered to come within Class MB(b) [Q(b)].

This advice clearly overlooks the fact that (so long as it is confined to purely internal works or works that do not materially affect the external appearance of the building) the installation of new structural elements in the building, such as a new floor, or the addition of a mezzanine floor, structural strengthening, including a new or augmented load-bearing frame, additional or strengthened roof trusses, etc. does not constitute development at all, and is not therefore governed in any way by the scope of the permission granted by Part 3, either in respect of the change of use itself, or in respect of the operational development that is also permitted under Classes M, N and Q. The latter can clearly refer only to any external works, or works that do materially affect the external appearance of the building. There is absolutely nothing in the Planning Acts, or in the GPDO itself, that prevents or inhibits other works within the building and/or which do not materially affect the external appearance of the building, whether they are carried out before, during or after any external works permitted by the GPDO.

The restriction of building operations under Classes N and Q to 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 applies only to the external works permitted by Part 3. It has no application whatsoever to purely internal works, no matter how extensive those may be.

On the other hand, if the existing structure, and the materials from which it is constructed, are so insubstantial that the building would require almost complete demolition and reconstruction in order to meet the requirements of the Building Regulations, then this clearly falls outside the scope of what Part 3 permits (particularly as regards the limited scope of the partial demolition that is permitted). In my book on Permitted Changes of Use, I have cited an appeal decision in Bedfordshire, issued in February 2015 that confirmed this.

There have, however, been other appeal decisions where inspectors would appear to have fallen into error in determining that certain agricultural buildings which comprise, for instance, a steel frame clad with light corrugated sheet, are incapable of conversion within the terms of Class Q. In one case, in August 2015, the proposal was to replace the corrugated sheeting with timber cladding, and a roof of slate. However, the Inspector doubted that the increased weight of the new materials could be carried by the existing steel frame, which was showing signs of corrosion. No structural report had been produced to confirm that the proposed conversion could be based on the existing steel frame, and so he concluded that the conversion could not be carried out within the limited structural parameters of the permitted development allowed by Class Q. A similar decision was reached on very similar grounds in another appeal in September 2015. What both these appeal decisions appear to have overlooked is that the necessary internal strengthening could (and quite probably would) have been carried out under section 55(2)(a), and would not therefore impact in any way on the limited extent of the building operations permitted by Class Q(b).

The two specific examples mentioned above are among a growing number of prior approval appeals that have been dismissed on these or very similar grounds. In our seminar in November, members of Keystone Law’s planning law team expressed their strong disagreement with this approach to the structural issues arising in prior approval cases under Class Q, and our guest speaker Sinclair Johnston agreed with us, and showed examples of structural works that in his view are entirely lawful in accordance with section 55(2)(a). We are all agreed that any future appeal decisions which conclude that the need for internal structural alterations and strengthening of an agricultural building takes the proposed development outside the scope of the development permitted under Class Q would be open to legal challenge in the High Court under section 288 and are liable to be quashed.

At the application stage, I am also aware of one case in which the LPA refused their prior approval on the grounds that internal structural works had been carried out to the building without prior notification having been given under Part 6. They therefore alleged that the agricultural building as it existed at the time of the prior approval application was unlawful, so that permitted development under Part 3 was now ruled out, by virtue of Article 3(5). Bearing in mind the effect of section 55(2(a), this reason for refusal is clearly nonsense.

A practical way forward in future in cases where internal structural works have either been carried out already, or where they will clearly be necessary in order to facilitate the residential conversion of the building, would be to give details of those works as additional information accompanying the prior approval application, so as to demonstrate the practicability of the proposed conversion, while at the same time making it abundantly clear that those internal works do not form part of the application for prior approval because, by virtue of section 55(2)(a), they do not constitute development and do not therefore require prior approval under Part 3. The LPA should then have no excuse for alleging that the proposed development does not comply with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. Nor, in light of the information given by the applicant as to the purely internal works covered by section 55(2)(a), would there be any excuse for alleging that the applicant has not provided sufficient information to enable the authority to establish whether the proposed development complies with those conditions, limitations or restrictions.

© MARTIN H GOODALL


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