You want to convert your barns to residential use? Not so fast…

A search for ‘barn conversions’ on Google reveals, perhaps unsurprisingly, that local planning authorities remain unconvinced of the merits of converting redundant agricultural buildings into residential units (Class Q). After permitted development rights were extended in 2014 to cover the conversion of farm buildings, it transpired that more than 50% of applications were refused prior approval because most failed the location sustainability test. Anxious to increase the amount of rural housing stock and conscious that applying the location test to farm buildings is illogical, the government issued revised guidance in 2015 clarifying that a proposed building conversion under Class Q should be judged on whether it is ‘impractical’ or ‘undesirable’. In other words, the location should not be a barrier to development unless the proposed site had either no, or very limited, access (impractical) or it was next to an intensive livestock unit or other ‘objectionable’ activity (undesirable).

‘Sustainable location’ test does not apply

In spite of this helpful clarification, LPAs have not shown any notable enthusiasm for increasing the number of prior approvals, primarily because most have not traditionally supported development in open countryside and it is perceived as a tool to circumvent planning policy. East Hertfordshire DC has to gone to great lengths to challenge the guidance in two cases after it refused prior approval for barn conversions on the grounds that both locations were impractical and undesirable. Both decisions were appealed and the court found that the council had not applied the guidance relating to location correctly and that the proposed conversions were, in fact, neither impractical nor undesirable.

…but the convertibility test does

Rather than relying on location criteria to bounce applications, some LPAs are carefully scrutinising the physical aspects of the building, in other words, does it have the necessary load bearing capability and can it be converted without substantial demolition and rebuilding: ‘building operations are allowed…only to the extent reasonably necessary for the building to function as a dwelling house, and partial demolition to the extent reasonably necessary for carry out these building operations’. This has been tested in a case in Nottinghamshire where the farmer wanted to convert a steel-framed barn into a house. The case hinged on whether the ‘proposed conversion amounted to a rebuild’ as the barn was open on three sides. Although all the other criteria under Class Q were met, the planning inspector determined that the barn would need substantial rebuilding and thus did not fall within permitted development tolerance and would need full planning permission. The assessment of “substantial” is in the eye of the beholder and essentially a judgment call.

Building must have had an agricultural use

Given the apparent reluctance of LPAs to approve the conversion of farm buildings, there is another potential pitfall for farmers selling an agricultural building as a development opportunity with Class Q consent. One of the eligibility criteria is that the building in question must have been used for agricultural purposes on or before 20 March 2013. Jill Scrivener, an agricultural planning consultant with Bourne Rural, warns that if a LPA discovers subsequently that the eligibility criteria was not met, it is perfectly possible that it might withdraw consent, particularly if there had been any controversy surrounding the site. If this occurs, the purchaser’s investment will be worthless and they may well seek damages from the seller. Of course, proving agricultural usage is not always easy relying as it does on either photographic or written records (which may not exist), or verbal confirmation. Any landowner with a potential development opportunity would be well advised to try and gather as much evidence as possible about the previous use of the building, not only to give the prospective purchaser certainty but to head off any retrospective enquiry.

Government mission to increase rural housing supply

The government’s 2016 Rural Planning Review has helped to inform its approach to the rural housing crisis. The summary of responses to the Review contains a number of questions relating to local housing needs in rural areas. These include the creation of another agricultural-to-residential use permitted development right to allow conversion of up to 750sqm, for a maximum of 5 new dwellings, each with a maximum floor space of 150sqm; and an extension of the existing Class Q permitted development right to increase the existing conversion threshold from 450sqm to 465sqm. Although these proposals will be welcomed by many farmers and landowners who have redundant buildings capable of conversion under Class Q, they and their advisers must be absolutely rigorous when determining whether or not they meet the eligibility criteria. In spite of central government encouragement that everything must be done to increase rural housing stock for rural workers, all the indications are that LPAs will stick to the letter of the law.

This article is included in our Law and Land magazine; spring/summer 2017 edition.