Q & A 10.1/10
My authority has an application for a residential caravan to be sited within an existing, modern agricultural building which would not be altered externally. As the works are internal only, I think the application is for a change of use of part of the barn to residential and thus the usual PPS7 tests on the re-use of buildings in the countryside apply. As such, in my view it would then be difficult to refuse the application on technical grounds as the barn is structurally sound and its character would not be harmed. However, my colleagues consider that the proposal is for a residential unit in the countryside which requires an occupational justification. Who is right?
I have never come across a comparable situation. In essence, Circular 10/97 says that if no reasonable person would identify a particular structure as a dwellinghouse, then it isn’t a dwellinghouse. Factors to be considered include its physical condition and the manner of use, and whether it has been designed or adapted for residential purposes with the normal facilities for cooking, eating and sleeping. The application here is clearly abnormal, as it would not result in a conventional dwellinghouse. I do not think therefore that it would be appropriate to consider it as a part barn conversion. Rather, it is likely that the application is for a mixed-use that includes the stationing of a residential caravan in the countryside. I therefore agree with your colleagues that special justification is required. If any reader is aware of a similar case, I would be interested to hear.
In a non-determination case from Dorset in 1990, the Secretary of State held that the stationing of a mobile home inside a barn, which also included lorry storage and repair, did not give the building the attributes of a dwellinghouse that attracted the four-year immunity rule. In reaching that conclusion, the Secretary of State relied on Scurlock v the Secretary of State for Wales and Preseli District Council , where it was held that premises with a dual purpose of residential and business use did not constitute a dwellinghouse but was a mixed use, and the judgement in Backer v the Secretary of State for the Environment and Camden London BC . Thus for the mobile home to have been lawful, it would have needed to have been there for ten years.
In Lee v The First Secretary of State & Swale Borough Council , the High Court held that the use of caravans positioned within a building had to be part of the use of the building and was material to, if not determinative of, the question as to whether the use of the building was or was not a single dwellinghouse.
I read somewhere that the House of Lords has ruled that a hotel room is legally a dwellinghouse. This seems to have considerable implications for planning control and I wonder whether you have any knowledge of it?
In Uratemp Ventures Ltd v Collins , which considered the long-term occupation of a single room in a hotel, the law lords held that the absence of cooking facilities in the room did not prevent it from being a "dwelling" and that, for the purposes of the Housing Act 1988, a dwelling means a place where an occupier lives and treats as their home. However, I do not think that this ruling can be transposed into planning law or that it replaces the approach in Gravesham Borough Council v Secretary of State for the Environment and O'Brien  and the advice of paragraph 2.81 of Circular 10/97. These have established that for planning purposes, the criteria for determining use as a dwellinghouse include physical condition, the manner of its use and the presence of everyday facilities such as cooking, eating and sleeping. My advice is supported by the judgment in Grendon v First Secretary of State and Others , in which the court held that a one-bedroom shelter was not a dwelling because it lacked running water and a toilet.
My client obtained planning permission for a new "barn", part as a dwelling (without occupancy condition) and part in connection with a smallholding. Due to a number of circumstances the smallholding has not been successful and the whole building is now in use as a single dwelling. The LPA takes the view that the breach (if one occurred) did not in itself create a single dwellinghouse and therefore the ten year rule applies. Is this a correct analysis? PH.
Section 171B(2) of the Town and Country Planning Act 1990 states that the four year rule providing immunity from enforcement applies to the change of use of any building to use as a single dwellinghouse. The issue here is whether a lawful dwelling may integrate an adjoining non-residential use, and the enlarged accommodation benefit from the section. It can be argued that the four year rule is not applicable as the breach in this case is not a change of use to a single dwellinghouse, as defined in Circular 10/97. Rather it is a change of use from agriculture to ancillary residential accommodation. The Court of Appeal decision First Secretary of State v Arun District Council and Karen Brown 10/8/2006 is worth noting. Here, the point was made that the legislative rationale behind the stipulation of a shorter period for establishing immunity in the case of single dwellinghouses was to avoid personal hardship, possibly resulting in the loss of a home, when the breach of planning control may have occurred up to ten years before. This would hardly be the case where, as in this instance, the occupation of the original house as permitted would remain unaffected by any possible future enforcement action. Any alternative views from readers will be welcome. GH
Planning permission was granted for a barn conversion to two dwellings. The application site incorporated a sprawl of modern farm buildings indicated by a red edge. Within this, the area of the modern buildings was outlined in green with the notation ‘open pasture (not garden)’ and another area tight around the building to be converted was colour coded purple to show the curtilage. A condition was imposed stating that the green area was to be restored to open pasture, including the removal of existing structures, before either of the dwellings were occupied. However, one occupier has produced evidence that the land was returned to pasture before occupation. As there was no perpetuity element to the condition, he is claiming that the green land can now be used as domestic curtilage because it falls with the red line. Can you advice what enforcement action can be taken, if any, to return the green area to pasture? TY.
It would seem that the condition applied by your authority has been fulfilled. Therefore it would not be possible to instigate enforcement directed against its future breach. This leaves the possibility that an enforcement notice could allege a departure from approved plans. Certainly the plan you describe makes it patently clear that the ‘green’ land was not to be used as domestic curtilage. Should an appeal result an important factor assisting your council’s case would be if a further condition had been applied to the permission requiring conformity with submitted plans, or whether the description of the development permitted in the decision notice itself embodied such a constraint. GH
How are the conversions of barns and other rural buildings into dwellings and holiday accommodation within Flood Zone 3 to be treated in terms of Annexe D of Planning Policy Statement 25 (PPS25)? Is a sequential test required? CG
Barn conversions, etc are "minor development" applications rather than changes of use for the purposes of paragraph D15 of Annexe D of PPS25, i.e. a flood risk assessment and flood risk reduction are required, but not a sequential test or exception test. JH.
You suggest barn conversions are "minor development", but I struggle to agree. Minor development for these purposes is defined in footnote 7 of PPS25. It includes alterations where there is no increase in the size of the building, but it also explicitly excludes any development that would create a separate dwelling within the curtilage of an existing one. It would surely be inconsistent to apply the test to conversions within an existing residential curtilage but not to all barn conversions. The guidance’s purpose is to prevent inappropriate development in a floodplain and that includes residential development.
Recently, however, I have received an appeal decision (DCP No 100-061-578) which disregards the sequential test on the basis a barn conversion is a change of use. I find this stance difficult to reconcile with the desire to prevent other residential development in the floodplain and would be grateful for your views. MB
In the appeal decision referred to the inspector considered the barn conversion, on a flood zone 3 site, was a change of use as the extent of building works was fairly limited, rather than alterations not increasing the size of buildings; though as paragraphs D15 to D17 of PPS25 cover both types of development, the effect is the same. As the authority’s development plan policies predated PPS25 and contradicted it, the inspector applied PPS25. This did not require a sequential assessment for changes of use and a satisfactory flood risk assessment was supplied, so she allowed the scheme. Conditions relating to flood risk were imposed, e.g. requiring a flood defence wall.
Regarding the issue you raise whether barn conversions are "minor development", you make a good point regarding footnote 7’s reference to new dwellings in existing residential curtilages. The provisions do seem illogical. On the other hand, the inspector in the appeal decision did not require a sequential test. Apart from pointing out a flood risk assessment is required in such circumstances which should cover safety, etc issues, I cannot explain this contradiction and wonder if other readers can assist. JH.
As JH and MB say, both Planning Policy Statement (PPS) 25 and the practice guide say, "Applications for minor development and changes of use should not be subject to the sequential or exception tests", but there is the rather confusing qualification given by the definition of minor development in footnote 7. This qualification certainly implies that the ST should be applied to changes of use where dwellings are created and this is the approach my authority takes when the scheme involves substantial alterations, on the advice of our regional Environment Agency office. Whilst the phraseology of the PPS and Practice Guide are undoubtedly and unfortunately confusing, I believe that not applying ST to changes of use creating of dwellings would contradict the fundamental objective of PPS25 of achieving safe development based on the precautionary approach. It is quite another discussion as to whether a barn conversion would pass the ST, especially having regard to the guidance in the Practice Guide on qualifying the search area for the ST based on the nature of the development and the sustainability benefits it affords. I have worked as a local authority development Control officer for only 4 years but it has been my life’s work in this time to interpret and appropriately apply PPS25. I continue to enjoy the challenge daily! BC
I have a barn conversion scheme creating 4 dwellings. No extensions are proposed and a considerable number of other buildings will be removed. The site is in flood zone 2 and the Environment Agency has accepted a site specific flood risk assessment accompanying the proposal. The planning authority has now requested a sequential test. Paragraph D15 of Planning Policy Statement 25 says sequential or exception tests are not required for changes of use but the council says it requires one under paragraph 4.41 of the Good Practice Guide. The council also indicates it requires the sequential test to be on a districtwide basis and will not offer any advice or guidance on ‘reasonably available’ alternative sites. Do we have to do a sequential test and, if so, what would constitute a reasonable alternative site given that the barns only exist on this site? MM.
Paragraph 4.41 of the Good Practice Guide is under the heading "Redevelopment of an existing single property", whereas what you propose is a change of use which is the next heading. The next paragraph, 4.42, which is under the heading "Change of use" makes clear that changes of use should not be the subject of sequential and exception tests. Furthermore, as you clearly point out attempting a sequential test for a change of use is not feasible. If the authority insists on a sequential test, I would advise an appeal against non-determination.
Paragraph D15 of PPS 25 states that applications for minor development and changes of use should not be subject to the sequential or exception tests. The minor development definition in footnote 7 on page 7 of PPS25 specifically excludes development that would create a separate dwelling within the curtilage of the existing dwelling e.g. subdivision of houses into flats. Although paragraphs 4.40 and 4.41 of the Good Practice Guide are under the heading "Redevelopment of an existing single property", the advice states that ‘Where an individual proposes to redevelop their property in an existing flood risk area the consideration of alternative sites is not likely to be a realistic option.’ Therefore what the Practice Guide is saying is that for the redevelopment of property on a like-for-like basis, e.g. a replacement dwelling, it is not reasonable to apply the sequential test. At paragraph 4.41 it goes on to state that ‘It is important that where there is a proposal to create additional dwellings then it will need to be considered as a new development according to the increased vulnerability that would be created as a result. It would be reasonable for an local planning authority to require an applicant to assess alternative sites through application of the Sequential Test.’ The issue in question is not whether what is proposed is a change of use but whether the conversion involves the creation of additional units and increases the flood risk vulnerability. Clearly in this example it does both increase the number of units and the flood risk vulnerability and therefore in accordance with the Good Practice Guide the conversion should be dealt with as a new development in terms of the sequential test. The Environment Agency agrees with such an approach to requiring a flood risk sequential test in this instance. JO.
What you say is well argued and would seem to be correct if the Environment Agency supports this view. Nevertheless, the guidance is not very clear on this point and it would be preferable for it to have been better worded. JH.