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Auction Rooms: 01749 840770

 

Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314

 

The Court of Appeal has clarified the position with regard to the floor area of buildings with Class Q permitted development rights and the approach taken by planning officers of considering a “realistic fallback provision” when advising councillors on a planning application.

 

The appeal was made by an objector to a planning application that sought permission for the demolition of an existing apple store and bungalow and the construction of four detached dwellings on a site in Kent. The planning application was approved by the local authority on the recommendation of the planning officer, who considered that there was a realistic fallback position that the landowner could seek to develop the site by converting the 600 sq.m. apple store into three dwellings occupying up to 450 sq.m. and replacing the bungalow with a modern dwelling in accordance with the Council’s local plan. The officer considered that the outcome of a scheme under Class Q would be a contrived development whereas the submitted planning application offered a “more comprehensive and coherent redevelopment of the site”. As such, the officer recommended approval even though the site was outside any village development boundary and deemed as being in “open countryside”.

 

The main grounds of appeal were that the officer was mistaken in his interpretation of the provisions of Class Q, particularly in respect of his view that part of the apple store could be converted leaving any excess in agricultural use, and whether the council should have accepted the prospect of a ‘fallback position’.

 

The appellant argued that Class Q had been misinterpreted stating that the General Permitted Development Order had to be read to mean that the building to be converted must be less than 450 sq.m. The Court of Appeal rejected this argument stating that:

 

“The total floor space of the building or buildings concerned may itself be more than 450 square metres. But the cumulative amount of floor space whose use is permitted to be changed within that total floor space must not exceed 450 square metres”

 

This is a helpful clarification as there has been much dispute between planning authorities and applicants but it is now deemed acceptable to convert 450 sq.m. of a larger building and leave the remainder in agricultural use.

 

On the issue of the fallback position, the appellant argued that the officer’s view in considering this applied was not realistic because there was evidence that the site owner would not have sought to convert the apple store as it would have been uneconomic to do so hence the fallback position was only a theoretical scenario that the planning committee should not have taken into account as a material consideration.

 

The Court found that the site owner had clear and firm intentions to redevelop the site and that it was appropriate and necessary for the council to take this into consideration when assessing the application.

 

A failing of Class Q is that any conversion must be within the constraints of the existing building and this can lead to poor development. This Case provides useful guidance for local authorities, site owners and their agents regarding Class Q development rights and provides an opportunity for agricultural building sites to be redeveloped with new build dwellings that are more attractive and more appropriate.

 

Contact us for further guidance on Class Q permitted development rights and the possible development of agricultural building sites.

 

Class Q permitted development rights – what’s allowed?

Class Q regulations can be applied to buildings which have been used for agriculture on or before 20th March 2013. It doesn’t apply to buildings which are in AONB, National Parks or conservation areas, or those which are listed.

The regulations state:

  • You can create up to three dwellings when converting existing buildings using a total floor space of 450sqm.
  • You cannot extend the building beyond its existing external dimensions and the garden area cannot be any bigger than the footprint of the building itself.
  • You can install or replace windows, doors, the roof, exterior walls, water, drainage, electricity, gas and other services to the extent that they are ‘reasonably necessary’ for the building to be used as a home.
  • As long as it is ‘reasonably necessary’, you can undertake partial demolition.
  • The regulations do not allow the introduction of new foundations or loadbearing floor slabs and you may also find it difficult to add a first floor. A structural appraisal will often be required to check that the current structure can support the conversion – if it can’t, you’ll have to go through the full planning process.

 

 

 

 

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