Tuesday, 23 July 2019

Bojo to run Tory Circus*

[*into the ground]

So there you have it; despite his manifest unsuitability for this or any other position of responsibility, Bojo the Clown has, as expected, been made Chief Clown by the collective membership of the Tory Party, comprising less than half of 1% of the total electoral franchise, with the remaining 99.5%+ of the electorate having no say in the matter. “Roll up, roll up to see Bojo, the Blithering Blatherer! Laugh as he waves his Red Herring around! Special matinée performances every Wednesday lunchtime from September.” The problem is that the audience may no longer be amused, in the circumstances now facing the country.

To misquote Oscar Wilde, the Tory Party leadership contest has been an unedifying spectacle of the Unspeakable in pursuit of the Unattainable, because irrespective of the identity of the Prime Minister, Brexit remains undeliverable. It is like the quest for the Holy Grail; the Brexiteers can see the vision tantalisingly before them, but it is destined always to remain beyond their grasp.

There is no realistic prospect of our shiny new PM being able to re-negotiate the draft withdrawal agreement which Theresa May reached with the EU last year (except perhaps for a few purely cosmetic tweaks to the non-binding and largely meaningless political declaration annexed to the agreement). Bojo will find that his intended technique of bluff and bluster, in order to secure the removal of the Irish back-stop, among other substantive elements in the withdrawal agreement, will cut no ice in Brussels or in any other European capital. The EU has repeatedly made this clear, and individual member states have been equally adamant that they will not be persuaded to depart from the agreed collective position of the EU. It seems, however, that the EU might be prepared to agree a further extension of Article 50, if this is what it takes to avoid a ‘No-Deal’ Brexit on 31 October.

It has become depressingly apparent that a significant number of Tory MPs, and a majority of Tory Party members in the country (not to mention supporters of the Faragiste ‘Brexit Party’) are fervent followers of the Peter Pan view of politics, whereby you only have to wish for something really, really hard and it will magically happen. They are destined to have a very hard collision with reality within a very short time, with a distinct possibility of Bojo’s government being thrown out of office by the House of Commons, or being forced in any event to accept the inevitability of a fresh referendum or a General Election.

As Theresa May was fond of saying, “Nothing has changed.” There is still no parliamentary majority for the only Brexit deal that is available, nor is parliament prepared to countenance a ‘No-Deal’ Brexit. However, it is very unlikely that, without the co-operation or acquiescence of the Executive, parliament could prevent this happening simply by default, short of bringing the government down in a No Confidence vote in the Commons to force a General Election. This is a nettle that moderate Tories will have to grasp sooner rather than later (i.e. during September, rather than October, by which time it would probably be too late). It would be inadvisable to place any great reliance on other parliamentary tactics, such as last week’s amendments to the Northern Ireland (Executive Formation) Bill, designed to limit the new government’s room for manoeuvre. These may not ultimately be effective in preventing a ‘No-Deal’ Brexit. A motion of No Confidence, moved by the Leader of the Opposition in September, and supported by a majority of members in the Commons, would seem to be the only really reliable option that is now left, and those Tory MPs who want to stop a ‘No-Deal’ Brexit will have to decide whether the time has finally come when they must sacrifice their political careers in the national interest.

A General Election could only be held before 31 October if the Commons were to pass a motion of No Confidence in the new government almost immediately after they come back from their summer recess on 3 September. Even then the timetable would be extremely tight, and it might well slip if the government tries to delay the start of the process. So a further postponement of Article 50 would be essential, before parliament is dissolved, in the event of a General Election being held. The timetable for a referendum would require an even longer extension, taking us well into 2020.

I have no illusions about the result of a General Election. The most likely outcome is another hung parliament in which both Labour and the Tories have lost seats to other parties, with no party being in a position to form a government (even with the support of another party), unless it is ether a very unstable minority government, or the fabled ‘Government of National Unity’ formed solely to give the final coup de grace to Brexit.

There is, of course, the possibility that (either by accident or by design) we may reach 31 October without anything being resolved, whereupon the default position kicks in and the UK simply crashes out of the EU without any transitional arrangements, and without any form of understanding as to our future trading relationship with the EU (so that no reliance at all could then be placed on Article XXIV of GATT, contrary to the assertions of some of the Brexiteers). I don’t need to repeat here the dire consequences for the whole country that would immediately follow in that event. The government and the country is even less prepared for a ‘No-Deal’ Brexit now than it was before the previous Brexit deadline in March.

The possibility has been canvassed (not only by Bojo, but also by other head-bangers in the Tory Party) that parliament might be prorogued, with the deliberate intention of bringing this about. The latest wheeze is to pretend that this would be just a routine procedure for bringing the current parliamentary session to a close, before a new session starts with a Queen’s Speech at the beginning of November. However, prorogation at any time before 31 October would be a transparent ploy to force a ‘No-Deal’ Brexit on the country, whether parliament likes it or not.

As I have pointed out previously, the Royal Prerogative (which includes the power to prorogue parliament) must be exercised in a properly constitutional manner. It would be grossly improper for the government (any government) to ask the monarch to prorogue parliament with the express intention of silencing parliament or thwarting its wishes. If our new PM seriously proposes to use this device, I would hope that the Cabinet Secretary would make it abundantly clear to him and to his advisers that prorogation for this purpose (no matter how it may be dressed up) would be a wholly unacceptable exercise of the Royal Prerogative, and would drag the Queen into the political arena in a completely unconstitutional way. The Palace would no doubt make it clear to the Cabinet Secretary in any event that the Queen would strongly deprecate being involved in political controversy, and that the suggested prorogation of parliament for such an improper purpose would be constitutionally unacceptable.

It is a convention of the constitution that the monarch acts on the advice her government, but if she is being advised or requested to act in a manner that would be unconstitutional, the constitutional convention would not in my view require the Queen to accede to her government’s request in those circumstances. It would be entirely proper, in my submission, for the Queen to refuse in such circumstances to prorogue parliament. (In practice, strenuous efforts would no doubt be made behind the scenes to avoid the monarch being put in the invidious position of having to be seen publicly to refuse to carry out her government’s wishes, and it is to be hoped that the PM would be persuaded to back down before that point is reached, in order to avoid a major constitutional crisis.)

No doubt Bojo will be busy in the next few days putting the finishing touches to his Cabinet of Clowns (although wiser Tory MPs – there are a few - might be well advised to sit this one out, rather than having to share the blame when Bojo’s government hits the buffers, as it undoubtedly will). What happens next is anyone’s guess. MPs are due to go off on their hols later this week, almost immediately after Bojo takes office, and so the first parliamentary showdown won’t take place until after the Commons returns from the summer recess in September, when there will be a brief session before everyone goes off again for the party conference season until mid-October (although there is a suggestion that the Commons may have to stick at it through the conference season this year). This will leave precious little time to prevent a car crash Brexit on 31 October, which is why there would appear to be no alternative to a No Confidence motion being passed in the Commons early in September, especially if it has become clear that Bojo, having returned empty-handed from Brussels, is by then heading for a ‘No-Deal’ Brexit. A No Confidence vote would trigger the procedure under the Fixed Term Parliaments Act, leading to a change of government or, more probably, a General Election. At the very least, this would then require a further extension of Article 50.

So Scene II of the Final Act of ‘Brexit – The Play That Goes Wrong’ may prove to be as action-packed with political mayhem as the final scenes of Hamlet and The Duchess of Malfi combined. There is, however, a very un-Shakespearean way in which this tragi-comedy of errors could be resolved without metaphorical blood all over the carpet, and that would be for Bojo’s government to accept that the only way to avoid a looming political disaster would be to revoke the UK’s Article 50 notice to the EU, thus bringing the current Brexit crisis swiftly to an end. I am sure that Bojo is a sufficiently practised illusionist to pretend that this is his cunning plan to out-fox the EU while he plots a much more effective way of delivering Brexit at some future date. That way, the Tories, the Labour Party and the country as a whole will all live to fight another day.


Monday, 15 July 2019

The Lambeth case – Conditions in a section 73 permission

I have been very busy recently on another major writing project (of which more anon), which has prevented my posting anything on this blog recently. Now that I have a few moments, I have taken the opportunity to look at the Supreme Court decision in Lambeth LBC v SSHCLG [2019] UKSC 13.

It is important to understand what this decision was about, and what it was not about. This case concerned a permission issued pursuant to an application under section 73. It was not about an original ‘stand-alone’ permission for development as such. This is the key to the decision reached by the Supreme Court, and this factor confines the significance of the judgment to cases under section 73. It does not affect the well-established law relating to conditions in planning permissions generally. Thus it does not disturb the long line of authorities starting with the Walton Charities case in the early 1960s, which confirm the general rule that a condition cannot be implied in a planning permission in the entire absence of such a condition on the face of the permission.

This rule has been refined in recent years by the decision of the Supreme Court in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74, to the effect that where a condition does appear on the face of the permission, but is so worded that its intended effect is not fully spelt out in the condition itself, then the missing words in that condition can be implied so as to give proper effect of the intention of the condition. The obvious example is a condition requiring that certain details of a development must be submitted to and approved by the LPA, but which does not go on to say explicitly that the development must be carried out in accordance with those approved details. In light of Trump International, a term to that effect can be implied in that condition, but Trump International does not disturb the general rule that where an intended condition has been wholly omitted from a planning permission it cannot be implied.

The recent judgment in the Lambeth case, does not disturb the previous authorities cited above. What happened in this case is that the LPA granted permission in 1985 for a retail store (i.e. an A1 use), subject to a condition that the retail unit thereby permitted was to be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose. A further planning permission was then granted in 2010, under section 73, which varied the conditions as to the retail uses to which the store could be put, but otherwise reimposed the conditions in the earlier permission. There was then a further section 73 application, granted in 2014, under which the LPA approved a proposed re-wording of Condition 1 so that the store could in future be used “for the sale and display of non-food goods only”, but this appeared only in the operative words of the permission as then issued, and not in the actual conditions attached this 2014 permission. Two other conditions (about refuse storage and the management of deliveries) that had been imposed on the 2010 permission were also omitted from this 2014 section 73 permission.

This prompted the building’s owner to a apply for an LDC, claiming that the effect of the 2014 permission was to give them an unrestricted A1 use of the premises. The LPA’s refusal of that application was overturned by an inspector on appeal, and the LPAs challenge to the Inspector’s decision was dismissed both by the High Court and by the Court of Appeal. I don’t propose to rehearse the arguments in the courts below, but reference was made (among other cases) to I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, which I have always regarded as the classic case relating to failure to impose a condition, but ruling out the suggestion that such a condition was intended and should therefore be implied. In that case a permission had been granted which, in its operative words, was stated to be for a limited period, but there was no condition in the permission to that effect, requiring that the use should cease at the end of the stated period. The permission therefore took effect as an open-ended permission, unlimited as to time.

Lambeth LBC’s mistake was a classic one, which all LPAs should avoid. The 2014 permission should not have been framed as a permission to vary the 2010 permission. It is well settled law that a section 73 permission takes effect as a fresh permission and, as a matter of good practice, it should be in substantially the same form as the permission whose conditions it varies, and all those conditions should be expressly included in the new permission, subject only to the omission and/or variation of those conditions that the LPA has agreed to remove or vary, because a permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. The new permission can, of course, contain additional conditions if appropriate. However, both the High Court and the Court of Appeal held that in wording the section 73 permission as they did, and in failing to include a condition that governed the future use in the manner intended by the permission, the LPA had actually granted an unconditional permission, so far as the extent of the retail use of the premises was concerned.

The Supreme Court did not attempt to go behind this aspect of the decisions in the courts below. Instead they concentrated on the effect of the section 73 relative to the previous permission. Whilst the new permission expressly varied the wording of a condition in the 2010 permission, it did not discharge it. When a planning permission is implemented, all its conditions then take effect, and remain in effect until or unless discharged or unless removed or varied by a later permission under section 73. The 2010 permission was undoubtedly implemented, and so its conditions, including Condition 1 limiting the scope of retail sales on the premises, had taken effect and remained in effect.

The court derived support for this from the judgment in Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin). Permission in that case had been granted for a transport depot subject to 12 conditions. The landowner applied under section 73 for development described as “retention of the use of the land without compliance with condition 2 (improvements to public highway)”. The LPA granted permission as asked, but imposed no conditions on this new permission. However, in giving judgment on the disputed effect of the section 73 permission, Sullivan J held that the grant of the new permission did not mean that the other conditions were no longer effective. On the other hand, he did not intend to say that the other 11 conditions were by implication to be treated as included in the new permission, or that the old permission was superseded. Rather the new permission, confined as it was to the retention of the use without complying with Condition 2, and involving no inconsistency with the old permission and the remaining conditions, had no effect on their continuing effect as conditions subject to which the development had been carried out.

This does involve two planning permissions being extant in relation to the same planning unit at the same time, but (as Lord Carnwath JSC put it) it will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions (see the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 144). In the present case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding - not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.

This Supreme Court judgment is a useful clarification of the legal effect of a planning permission granted under section 73. Whilst the conditions in the earlier permission cannot be taken to be implied in the new permission if they are omitted from it, they nevertheless continue to have effect (except to the extent that the section 73 permission has varied them). Nevertheless, it is still good practice, which all LPAs should follow, to repeat in the section 73 permission all the unamended conditions from the earlier permission, as well as those that have been amended.


Wednesday, 3 July 2019

Supreme Court allows Lambeth appeal

Judgment was handed down this morning in Lambeth LBC v SSHCLG ([2019] UKSC 33).

Lambeth's appeal was allowed.

I haven't had time yet to read the judgment, but will post a summary shortly.


Tuesday, 4 June 2019

A Practical Guide to Planning, Highways and Development - the book and the seminar

I really should have alerted readers of this blog before now to a very useful seminar that Bath Publishing have organised in connection with the recent publication of Tom Graham’s book on “A Practical Guide to Planning, Highways and Development”. This will be held on Thursday 20 June (from 10.00 a.m to 1.00 p.m.) at One Great George Street, London SW1V 3AA, just round the corner from Parliament Square (nearest tube station: Westminster - 2 minutes’ walk). Tickets, which are limited to 100 in total, are selling fast, but there are still some places left, so it’s not too late to book if you contact Bath Publishing as soon as possible to place your order. (See the contact details at the end of this post.) The price is a very reasonable £165 + VAT, which includes a copy of both the print and digital editions of Tom’s book, which together are worth £75. This really is an excellent bargain.

I am honoured to have been invited by Bath Publishing to chair the seminar. After a brief introduction, William Upton QC and Meghan Thomas will present a paper on relevant case law on Planning and Highways issues. After a break for refreshments, we shall then hear from Tom Graham on Drafting Highway Agreements, when he will outline best practice and will reveal some tips and ‘tricks of the trade’. Alastair Mills, who is the author of another recent Bath Publishing book, on Interpreting the NPPF will be our final speaker, covering the National Planning Policy Framework, not only with reference to highway issues but also more generally. We shall then conclude with a panel discussion on questions from the audience. So we shall have a very full morning’s programme, which is bound to be of value to all planning professionals who are concerned in any way with highways in relation to development (and that must surely mean nearly all of us).

Tom’s book itself is an extremely valuable handbook for planning practitioners. The first part of the book contains chapters on the foundations of highway law, highway authorities and the creation of highways, the physical extent of a highway (a rather important consideration), a landowner’s right of access to the highway, including the important topic of ransom strips, and the extinguishment and diversion of highways. We are now into subject matter that is extremely important to developers and their advisers. The following chapters go on to consider the Advance Payments Code, and the relevance of highway issues in relation to planning applications, including Transport Assessments, Transport Statements and Travel Plans, as well as Road Safety Audits, before going on to consider the important topic of Planning Conditions (including the contentious issue of financial contributions). This naturally leads on to a consideration of Planning Obligations.

Those of us who have acted for developers will be well aware of the importance of Section 38 Agreements (requiring the construction of estate roads to an adoptable standard, leading to their adoption by the highway authority). This chapter leads on logically to the subject of section 278 agreements (governing the financing of highway improvements, the need for which arises from the development). These are sometimes seen as an alternative to a section 106 agreement and, as one would expect, this is a topic which is discussed in this chapter.

Further chapters deal with the Land Compensation Act 1973, legislative provisions relating to structures over and under the highway, and the need for a licence if a developer wishes to oversail the highway with a crane, as well as street works licences and scaffolding licences.

Finally, the book contains annotated extracts from the Highways Act 1980 and the Town and Country Planning Act 1990, and some very helpful precedents for drafting relevant documentation, such as Planning Obligations, section 38 and section 278 agreements, among others, as well as the necessary bonds to secure performance of such agreements.

In my view, this is an absolutely essential handbook for everyone advising developers where highways issues have to be considered (and surely this means 99.9% of all developments). Even greater value will be obtained if you can also attend the seminar on 20 June.

To book your place (or simply to order the book, if you can’t attend the seminar), visit the Bath Publishing website - href="http://bathpublishing.com"> (or telephone 01225 577810)


Wednesday, 29 May 2019

Brexit – whither now?

There was little point in commenting on Brexit again while Theresa May’s premiership was in the process of finally collapsing, until the outcome of the election for the European parliament became clear. As was to be expected, Nigel Farage is now crowing like a farmyard cockerel atop a dung heap. He complains of media bias against him and his shiny new party, but in fact the way in which the BBC and others reported the results of the recent election was, if anything, unduly kind to the Faragistes.

In reality, the Brexit Party is simply a break-away faction from UKIP, and to get a true picture of the results one has to consider both of those parties together. Their combined share of the vote, compared with the results in the last Euro-elections in 2014, went up by just 7.4% and they gained 5 extra seats (all of which went to the new Brexit Party faction and none to UKIP, which is now effectively moribund). This compares with the Tories, also a pro-Brexit party (whose official position up to now has been that they wish to deliver Brexit on agreed terms which would enable this to happen in an orderly fashion). They lost almost 15% of their previous share of the vote, with a consequent loss of 15 seats. The extra 7% of the vote gained by the two Brexit parties almost certainly came from former Conservative voters, and perhaps some former Labour voters, who found their respective parties insufficiently ‘Brexity’. This hardly represents any significant increase (or any increase at all) in the overall pro-Brexit share of vote.

The performance of the two wings of the extremist Brexit faction can be compared with the results for the Lib Dems, whose share of the vote compared with 2014 went up by 13.4%, giving them 15 extra seats. The other unequivocally pro-European parties (Greens, SNP, Plaid Cymru and Change UK) gained an extra 9% of the vote, giving them 5 extra seats. So the combined figures for these five anti-Brexit parties represented and overall gain of 22.4% of the vote and a net gain of 20 seats.

The precise position of the Labour Party is still a mystery, and even now after they lost 11.3% of the overall vote compared with 2014, leaving them 10 seats down, the official position of the Labour leader is hardly distinguishable from the Tories, apparently favouring some kind of Brexit on agreed terms, but not ruling out as an option the possibility that they might perhaps support a fresh referendum, but only if they have failed (after how many attempts?) to engineer a General Election. Unsurprisingly, the electorate was confused and are still unsure where the Labour Party stands. It seems to be neither fully pro-Brexit nor is it unequivocally anti-Brexit.

The combined votes for the out-and-out Brexit faction (UKIP and Faragistes combined) were 34.9% of the total votes cast, whereas the combined votes of the unequivocally anti-Brexit parties (Lib Dems, Greens, SNP, Plaid Cymru and Change UK) came to 40.4%. No matter how Nigel Farage tries to spin it, this is hardly a clear call for the result of the 2016 referendum to be delivered; in fact, it is nothing of the kind. The exact views of those voters who still voted for the two main (or formerly main) parties is difficult to discern, but the majority view among Labour members and supporters seems to be anti-Brexit, and many of those who still voted Conservative can probably be counted as pro-Brexit. To be realistic, a roughly equal number of Tory and Labour voters can probably be added to each side of the debate, which would bring the pro-Brexit share of the vote to 44% and the anti-Brexit vote to 54.5%. This confirms that recent opinion polls were broadly correct in detecting a definite shift in public opinion away from Brexit and in favour of Remain.

MEPs are elected by proportional representation, but the D’Hondt system is not perfect (and a single transferable vote might arguably be preferable). So despite the use of this proportional system, the Brexit Party with 31.6% of the votes won 29 seats, whereas the unequivocally anti-Brexit parties (Lib Dems, Greens, SNP, Plaid Cymru and Change UK) with 40.4% the votes won just 27 seats between them. Taking the number of UK seats (73 in total), a total of 29 seats for the Brexit Party falls somewhat short of a majority of UK representation in the European Parliament. So, despite claims to the contrary, Nigel Farage’s Brexit Party did not ‘win’ this election.

These results nevertheless underline the inevitable consequence for the various parties opposed to Brexit of failing to reach an electoral pact with like-minded political parties in good time before an election. In the first-past-the-post system that we use for our domestic parliamentary elections, and in particular in our next General Election (whenever it comes), it is even more important that the anti-Brexit parties agree among themselves as to which constituencies they will contest, standing aside in those constituencies where another anti-Brexit party stands a better chance of winning the seat. The Labour Party ought to participate in these arrangements, but I fear that the political dinosaurs who control that party are so incorrigibly tribal in their attitudes that they could never bring themselves to compromise in this way. The precipitate and ill-considered expulsion of Alastair Campbell from the party this week is a sad reflection of this obscurantist attitude, which does not bode well for the future electoral prospects of the Labour Party. Maybe the time has come for Jeremy Corbyn to follow the example of Vince Cable, and step down from the leadership of his party, so that he can spend more time on his allotment.

The important point is that, interesting though the European election may have been, it has not changed the parliamentary arithmetic at Westminster. The Tory leadership contest may well be influenced by last week’s vote, although Jeremy Hunt has sounded a timely warning note about misinterpreting that vote, but in the final analysis the identity of the Tory leader is an irrelevance. I would not hazard even the most tentative guess as to who may ultimately emerge as the new Tory leader but, whoever it turns out to be, they will be faced with exactly the same political and parliamentary problems as Mrs May.

Those Tory leadership hopefuls who talk about going back to Brussels to negotiate a much better deal than Theresa May was able to achieve have either been failing to pay attention or are simply deluding themselves (and their followers). Not only has the EU made it clear that the draft agreement that has been reached cannot be re-negotiated, but the agreement by which the UK was given an extension to Article 50 until 31 October specifically provides that this extension cannot be used for any renegotiation of that agreement.

The stark choices that will face parliament, and the government under its new Tory PM, are unchanged – (1) sign off on the deal that has been negotiated, (2) ‘crash out’ of the EU without a deal or (3) revoke the UK’s Article 50 notice (so as to put an end to Brexit). One or two of the Tory leadership contenders have enough common sense to appreciate that a ‘No Deal’ Brexit would be catastrophic, and that no government could realistically contemplate such a disastrous outcome to the Brexit process. Whilst the current ‘default’ position is that, in the absence of any other course of action having been adopted in the meantime, the UK is indeed set to ‘crash out’ of the EU on 31 October without transitional arrangements of any sort, there is a strong possibility that if it were to become apparent that the government was seriously prepared to allow this to happen, there could be enough Tory abstentions on an opposition ‘No Confidence’ motion in the Commons to bring the government down and precipitate a General Election. It would need only a handful of Tory abstentions to bring about this outcome, if this proves to be the only way to defend the vital national interest, rather than the narrow political interests of the Tory Party.

One prediction I will make - the tenure of the next Tory prime minister will be as difficult and unhappy as that of Mrs May, and may well prove to be brief and inglorious.


Wednesday, 8 May 2019

New amendments to the GPDO

I have been keeping a look-out on the UK Legislation website for the expected amendment to the GPDO, searching (not unreasonably) under “General Permitted Development Order”, but MHCLG were too clever for me, and sneaked these amendments out in an SI entitled The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 [2019 No. 907]. These regulations were made on 1 May, laid before parliament on 3 May and will take effect on 25 May. Part 2 of these Regulations sets out the amendments to the GPDO.

Part 1, Class A of the Second Schedule to the GPDO (larger domestic extensions) is amended by omitting the words “until 30th May 2019” in paragraph A.1(g), and by omitting sub-paragraphs (13), (14) and (15) in paragraph A.4, thus making this class of PD permanent. This amendment also removes the requirement for the developer to notify the LPA of the completion of the development.

A new Class of PD has been added to Part 3. This is Class JA, which permits a change of use of a building from a use falling within Class A1 (shops), Class A2 (financial and professional services), or Class A5 (hot food takeaways) or from use as a betting office, pay day loan shop or launderette, to a use falling within Class B1(a) (offices). I don’t propose to comment on the detailed provisions of the new Class of PD here, other than to note that there is a qualifying date of 29 October 2018 for the pre-existing use, and a floorspace limit of 500 sq m. The usual exclusions will apply, and a prior approval application is required in respect of transport and highways impacts, noise impacts from neighbouring commercial and retail premises, and any impact that the development may have on the availability in the area of services of the sort that were provided by the pre-existing use.

In Class M (residential conversion from A1 shops, A2 offices, etc.), A5 take-aways have been added to the pre-existing uses that can be changed to residential, together with a clarification of the retail impact assessment that is required.

There is also a slight clarification of the floorspace limit in Class Q (residential conversion of an agricultural building). This provides that the floor space of any [one] dwellinghouse developed under Class Q must not exceed 465 square metres. I must confess that this is how I already read Class Q (as amended in 2018), so I am not sure why it was thought necessary to insert sub-paragraph (ba). This amendment does not affect the cumulative floorspace that can be developed under Class Q, which for the reason previously explained in this blog may be up to 865 sq m in total (if larger and smaller dwellinghouses are developed in the appropriate combination).

Finally in Part 3, there is a minor updating of paragraph W so that paragraph W.10(b) now refers to the February 2019 version of the NPPF in place of the original (2012) version. The same amendment is made elsewhere in the GPDO where references were previously made to the older version of the NPPF.

Part 4, Class D (temporary use of various business premises) is amended by enlarging the uses to which the use of the specified business premises can be changed to include, in addition to those previously listed, Class D1(a) (the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner), Class D1(d) (the display of works of art (otherwise than for sale or hire)), Class D1(e) (museum), Class D1(f) (public library or public reading room), or Class D1(g) (public hall or exhibition hall). The single period during which the premises can be put to another use under this Class of PD is also extended from 2 years to 3 years.

I have deliberately omitted some of the more obscure amendments made by these Regulations, but will just note finally the amendment to Part 16, Class A (PD for electronic communications code operators), which, as previously promised by the government, now excludes from this Class of PD the installation, alteration or replacement of a public call box. Part 3 of these Regulations also amends the Control of Advertisements Regulations to remove the whole of Class 16 from Part 1 of Schedule 3, which gave deemed consent to advertisements displayed on telephone kiosks. Thus the provision of telephone kiosks now requires planning permission, and the display of any advertisements on them now requires advertisement control consent. No doubt there will be rejoicing in local planning authorities and dismay among telecoms operators and outdoor advertising companies. This could also lead to the removal of many remaining telephone boxes, where advertising revenue can no longer be obtained to support their continued provision (an example, perhaps, of the Law of Unintended Consequences).

[For the avoidance of doubt, I should make it clear that where a prior approval application for the erection, alteration, etc. of a public call box is pending on 25 May, it must continue to be processed and, if refused, an appeal against that refusal can still be made and /or determined after that date. Secondly, a surface of a public call box which was used for displaying an advertisement on or before 24 May 2019 may continue to be used for that purpose.]


Friday, 3 May 2019

Supreme Court to consider ‘implied’ conditions

I reported in this blog on both the High Court judgment [ [2017] EWHC 2412 (Admin) ] and the decision of the Court of Appeal [ [2018] EWCA Civ 844 ] in Lambeth LBC v SSCLG.

This case has been appealed to the Supreme Court, and is due to be heard on 21 May.

It raises an important issue as to the extent (if any) to which conditions may be implied in a planning permission where an express condition has not been included in the permission.

If, as is likely, judgment is reserved, we may get the result in June or July.