Thursday, 9 July 2020

Latest changes to the GPDO

On 26 June, I drew attention to the temporary changes to the GPDO made by The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020 No. 632). In addition to the new temporary PD rights that came into effect on 25 June, these Regulations make permanent changes to the GPDO. The title of this SI is, on the face of it, misleading because the permanent changes to the GPDO that will come into force on 1 August have nothing at all to do with the current coronavirus crisis.

The one change that grabbed the headlines was the introduction of a new Part 20 to the Second Schedule to the GPDO, which will permit the addition of two extra storeys to certain blocks of flats. However, I am not inclined to get too excited about this change, because I suspect that developers will find that the opportunities to avail themselves of this new PD right are, in practice, somewhat limited. I will return to Part 20 in a later post, but I want to concentrate today on the other changes to the GPDO that will take effect on 1 August.

The other changes fall broadly into three categories. First there is a belated tidying up of the drafting of Article 7 (relating to the agreed extension of time for determination of a prior approval application). Second, there are some minor consequential amendments to Part 1 in light of some of the other changes that have been made to the GPDO, and then third come a number of amendments to the drafting of the residential conversion provisions in Part 3 (Classes M, N, O, PA and Q) and also in paragraphs W and X, including an important change with regard to prior approval applications.

Most of us thought that Article 7 was quite clear in its intention and effect, namely that a prior approval application has to be determined within the period specified in the relevant Part of Sch. 2 (or, in the absence of a specified period, within 8 weeks), or within such longer period as may be agreed by the applicant and the authority in writing. But we then had the Warren Farm judgment which (much to everyone’s surprise) ruled that, in practice, time could not be extended by agreement. To general rejoicing, that judgment was reversed by Gluck, which established that Article 7 does mean what it appeared to say. Nevertheless, MHCLG has now decided to tweak the wording of Article 7 to put the matter beyond any possible dispute. Article 7 has now been amended to read that, as an alternative to (a) and (b), the prior approval application may be determined “within such longer period than is referred to in paragraph (a) or (b) as may be agreed by the applicant and the authority in writing.”

Turning to Part 1, an apparent gap in the legislation has now (rather belatedly) been plugged. Last year, the Fees Regs were amended so that prior approval applications for larger domestic extensions would be subject to the payment of a fee of £96. It was intended that this fee would be payable on prior approval applications under Part 1 that were made on or after 19 August 2019. However, MHCLG omitted to amend Part 1 in the Second Schedule to the GPDO to require that the items to be provided to the LPA in connection with a prior approval application must include “any fee required to be paid.”. I don’t know whether somebody took the point that there was no actual requirement in Part 1 itself to pay an application fee, but with effect from 1 August this apparent loophole will now be plugged by the requirement that the listed items must be provided “together with any fee required to be paid” (namely the amount stated in regulation 14(1)(zab) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (S.1. 2012/2920)). I wonder - Would it be open to anyone who had paid a £96 application fee under Part 1 between 19 August 2019 and 31 July 2020 to demand that the LPA refund that fee?

It is worth remembering that Reg. 14(1A) of the 2012 Fees Regs provides that no application fee is required for the prior approval application where an application fee is paid for a planning application made in respect of proposals for development of a site which includes buildings or other land which are the subject of the prior approval application, provided that the application for planning permission is made on the same date and by or on behalf of the same applicant as the prior approval application.

The conditions attached to Class B include a provision [B.2(b)(ii)] that other than in the case of an enlargement which joins the original roof to the roof of a rear or side extension, no part of the enlargement must extend beyond the outside face of any external wall of the original dwellinghouse. As originally drafted, paragraph B.4 provided that for the purposes of paragraph B.2(b)(ii), roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse were not to be considered part of the enlargement. This has now been amended, so that for these purposes (a) roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse are not to be considered part of the enlargement; and (b) “rear or side extension” includes an original part of, or a subsequent extension of the dwellinghouse that extends from the rear or side of the principal part of the original dwellinghouse.

The PD rights under all Classes in Part 1 are excluded in respect of any dwelling created under the new Part 20 (upward extensions of blocks of flats).

In Part 3, an important change is made in respect of prior approval applications relating to residential conversions under Classes M, N, O, PA and Q. In each of these Classes an additional matter will require approval, namely “the provision of adequate natural light in all habitable rooms of the dwellinghouses” so created. “Habitable rooms” are defined as “any rooms used or intended to be used for sleeping or living” which are not solely used for cooking purposes, (but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms). So a kitchen does not have to have adequate natural light, whereas a kitchen/diner does. There is clearly scope here for dispute as to whether the kitchen is solely provided for cooking purposes, and for no other purpose (such as eating, or informal entertainment of guests).

In addition, paragraph W has also been amended to require that in relation to prior approval applications in respect of any of these five Classes of residential conversion, the application must also be accompanied by “ a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses.” It was perhaps anomalous that this provision was not included in the original drafting. Notwithstanding this, however, the LPA is still not entitled to consider the adequacy of the accommodation in spatial terms; the only additional item that they can now consider is the adequacy of natural light in those rooms that are defined as habitable rooms.

Furthermore, where the application relates to prior approval as to adequate natural light, the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses. This is not a matter for the LPA’s discretion; refusal is mandatory in such circumstances. For the sake of good order, the LPA’s discretion under paragraph W(3) to refuse an application where the proposed development does not comply with any relevant conditions, limitations or restrictions applicable to the development permitted is removed in respect of the provision of adequate light in the case of Classes M, N, O, PA and Q, in view of the absolute requirement to refuse the application where adequate natural light is not provided in such a case.

The inclusion of Class PA in these amendments is puzzling, because paragraph PA.1 in Class PA provides that “Development is not permitted by Class PA if— (c) the prior approval date falls on or after 1st October 2020.” [The “prior approval date” is the date on which prior approval is given, or a determination is given that such approval is not required, and also if the period for giving such a determination (56 days in the case of Part 3) has expired without the applicant being notified whether prior approval is required, given or refused.] So it will only be possible for a few days after 1 August to submit a prior approval application under Class PA for determination in advance of the 1 October prior approval deadline. Are the government perhaps hedging their bets in case they might decide after all to extend Class PA, which they could still do between now and late September? This could possibly explain the otherwise inexplicable addition of sub-paragraph (v) to PA.2(1)(b)].

Some people seem to have been confused by the transitional provisions in Reg. 27. This provides that where a “prior approval event” occurs, the planning permission granted by Class M, N, O, PA or Q of Part 3 of Schedule 2 to the 2015 Order continues to have effect as if the amendments made by Part 2 of these Regulations [i.e. the amendments made by these Regs to the 2015 Order] had not been made. The only effect of this provision that I can discern is that [having regard to the definition of “prior approval event” in Reg. 27(1)] these changes do not have any effect in relation to any PD right in respect of which a prior approval application is either determined before 1 August [or the 56-day rule operates before that date, in the event of non-determination] or, alternatively, where the prior approval application is made before 1 August, but is determined after that date. In other words, the changes have effect only in respect of PD in respect of which a prior approval application is made on or after 1 August. [I really don’t understand why they couldn’t just have said this!]

As I read the new Regs, they do not amend or have any effect on paragraph PA.1(c), which continues to prohibit any PD under Class PA where the prior approval date falls on or after 1st October 2020. There is nothing in the new Regs that preserves or extends the PD right under Class PA for the residential conversion of a light industrial building. The guillotine will still fall on 1 October, and will rule out any PD under this Class where the prior approval date falls on or after that date.


Friday, 26 June 2020

Further temporary changes to the GPDO

The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020 No. 632) were made on 23 June. Most of these amendments come into force on 1 August, but Regulations 20 and 21 came into effect on 25 June. I will confine myself in this post to these two changes, and will discuss the other changes in a later post.

Regulation 20 introduces a new PD right for temporary changes of use in Part 4 of the Second Schedule to the GPDO. This is Class BA (additional temporary use of land). This PD right is additional to the 14/28 day uses permitted by Part 4, Class B. It is also additional to the temporary change of use permitted by Class BA of Part 12 (as to which see below). The development permitted is the use of any land, in addition to that permitted by Class B of Part 4, for any purposes for not more than 28 days in total during the period from 1 July 2020 to 31 December 2020, of which no more than 14 days in total may be for the purposes of the holding of a market, or for the purposes of motor car and motorcycle racing including trials of speed, and practising for these activities, and the provision on the land of any moveable structure for the purposes of the permitted use.

However, development is not permitted by Class BA of Part 4 if:
(a) the land in question is a building or is within the curtilage of a listed building;
(b) the use of the land is for a caravan site;
(c) the land is, or is within, a site of special scientific interest, and the use of the land is for motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; clay pigeon shooting; or any war game, or
(d) the use of the land is for the display of an advertisement.

Regulation 21 introduces a new PD right in Part 12 of the Second Schedule. This is Class BA of that Part, which relates to the holding of a market by or on behalf of a local authority The development permitted is the use of any land for the purposes of holding a market by or on behalf of a local authority and the provision on the land of any moveable structure for the permitted use at any time during the period beginning with 25 June 2020 and ending with 23 March 2021.

Development is not permitted by Class BA of Part 12 if the land is, or is within, a site of special scientific interest.

I confess that the justification for the extra temporary PD rights outlined above has escaped me, other perhaps than a desire on the part of the government to provide more ‘bread and circuses’ for “the ordinary people” as the PM and his boss (D Cummings, Esq) are in the habit of calling us.

Although I'll be dealing with the rest of this SI in a future post, I should perhaps mention that other measures in these regulations are not related in any way to Coronavirus; nor are they temporary. These regulations contain some quite important changes to other PD rights. Watch this space!


Thursday, 25 June 2020

Matters arising - Extension of time for prior approval

Following my webinar on Permitted Development at the end of last month, I was hoping to answer some of the questions that had been submitted, but which there was not time to answer ‘on the air’. Unfortunately, there has been some delay, due in part to our encountering a difficulty in actually downloading the questions from Zoom. In this post I shall concentrate on those questions that related to the extension of time for the determination of a prior approval application.

The first questioner asked whether an LPA’s refusal, despite Gluck, to agree an extended deadline for determination of a prior approval, might be unreasonable behaviour, and therefore grounds for a costs claim. However, one has to remember that the LPA is bound in principle to determine the prior approval application within the relevant time limit, failing which the PD right will be exercisable by default. It is therefore up to the LPA either to determine the prior approval within that deadline or to seek the agreement of the applicant to an extension of time. There is no requirement for an LPA to do this; Gluck merely confirmed that Article 7 of the GPDO does enable time to be extended by the written agreement of both parties.

If the LPA refuses the application within the time limit, rather than seeking an agreed extension of time, I suppose that (in some circumstances) this might amount to unreasonable behaviour justifying an award of costs, if it is clear that an agreed extension of time would have enabled them to grant prior approval. But I stress that this would be very much dependent on the facts of the case. If their refusal of prior approval was justified in any event, then clearly the fact that they did not seek agreement to an extension of time for their determination of the application would not be grounds for an award of costs.

Another questioner had forwarded my blog post on the extension of time limits to the LPA, but they declined to extend time on a Class Q application to enable a Phase 2 bat survey to be completed. A refusal was issued on the ground that incomplete bat survey information had been provided and also that the applicant had failed to sign a section 106 undertaking requiring a payment to be made to the LPA.

Taking the latter point first, I cannot envisage any circumstances in which any payment to the LPA could be required in respect of the matters requiring prior approval under the GPDO. So this would certainly be a potential ground of appeal (and would possibly justify an application for costs against the LPA). The question of the bat survey is, however, slightly more problematic. I am aware of prior approval appeals being dismissed for lack of information on ecological issues (such as a bat survey where this might reasonably be required). On the other hand, I am aware of a condition being imposed on a prior approval granted on appeal requiring a bat survey before the commencement of the permitted development. The questioner might have been justified in expecting this approach to be taken; alternatively, an extension of time could perhaps have been agreed. If an appeal were to be lodged against the refusal of prior approval, there might possibly be time to complete a Phase 2 bat survey, and forward this to the Inspector, although I am not sure whether such ‘late’ information would be accepted by PINS. A better option might be to start again with a fresh prior approval application, having first completed the bat survey.

The next question was - "If an LPA does not determine a Class Q application within 56 days, should they issue a letter to the applicant confirming that they have deemed consent if the proposal is permitted development; or refuse to determine the application and advise the applicant to apply for a Lawful Development Certificate for a determination as to whether it is permitted development?"

I am not convinced that an LPA that misses the deadline for determination is specifically required to do anything. They have missed the boat and, provided the development does actually qualify as PD, the developer is free to proceed with the development. I have always advised developers that they need to be quite sure that the development does qualify as PD and that it does meet all the limitations, restrictions and conditions that apply to that particular development. If there is any doubt about this, or if it is clear that the LPA does not accept that the development does in fact qualify as PD, then it may be advisable to apply for a Certificate as to the Lawfulness of Proposed Use or Development under section 192 before starting work. A gung-ho approach on the part of the developer could be risky unless they have been advised by professional consultants that the development undoubtedly qualifies as PD. The onus is entirely on the developer to satisfy themselves as to the legal position; it really doesn’t matter whether the LPA sends a belated communication or not.

There was then a question as to whether conditions 'bite' when the LPA issues a prior approval after the expiry of the determination period. The answer to this is that, once the deadline has passed, any notice issued by the LPA will be of no legal effect, even a purported notice of approval. It follows that any conditions attached to a purported prior approval issued out of time will be of no effect.

A different aspect of this issue was raised with regard to Part 6, Class A - Although the Order specifies a timeframe for the Council to notify the applicant if prior approval is required, there is no timeframe for the submission of the prior approval details (when they are required), or for the Council to then give or refuse approval of those details. Do the time limits in Article 7 therefore apply to the 'second stage' of the application? The wording would suggest the 8 weeks would run from the date of the application, i.e. the first stage, not the second stage, however the prior approval details may not be submitted within that timeframe. Is there anywhere else in the legislation that would put a time limit on the second stage decision?

This would appear to be a lacuna in the legislation. The LPA must decide within 28 days whether their prior approval will be required as to the siting, design and external appearance of the building, etc. The initial prior approval application will have been accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site, but if the LPA does decide (within the 28-day period) that their prior approval of siting, design, etc, will be required, there may well be a need for more information (such as building elevations, etc.) to be provided. There is no indication as to when the developer should provide this information, nor is there any binding obligation on the LPA to approve the siting, design, etc. within any particular period. The usual 8-week period allowed for the determination of planning applications would appear to apply in principle, but the only remedy for the developer if that further 8-week period expires without a decision would be an appeal against non-determination (deemed refusal). Most applicants would no doubt prefer to wait and see whether an approval is in fact forthcoming.

Finally, a questioner asks whether an extension of time can be agreed with the applicant via email or whether it must be in the form of a letter. This question arose in Gluck. The judge held that an email qualifies as being “in writing”, and no greater formality of communication is required.

I will deal with some questions on Class Q and other particular classes of PD in a future post.


Wednesday, 24 June 2020

Planning permissions to be extended

A few weeks ago correspondents raised in comments on this blog their concern about planning permissions expiring during the current coronavirus crisis without developers being able to commence their development within the time limit specified in the permission.

The Scottish Government tackled this problem some time ago – one of the many examples of the superior performance of Scottish ministers compared with the hapless and hopeless crew appointed by Boris Johnson.

Now Mr R Jenrick (who is believed to be the Hosing and Communities Secretary, at least for the time being) has at last got around to announcing a similar relaxation in England although, typically, the announcement, only in the form of a deliberately vague press release, fails to give any details of exactly how this will work.

We still don’t know the legal mechanism by which the life of planning permissions will be extended. It appears that the relaxation of the time limit for the implementation of planning permission will apply to all permissions expiring since the imposition of the coronavirus lockdown in late March. So does this mean that planning permissions that have expired within the past three months will be retrospectively revived?

I think we all ought to be told exactly what the government is doing about this, rather than having to rely on a half-baked and largely uninformative press release. Maybe Jenrick has been too busy worrying about legal challenges to unlawful planning permissions to Tory donors, or about getting planning permission for a big extension of his Westminster town house, after it was previously rejected on planning grounds by the LPA’s officers. Must try harder.(Or maybe just resign)

UPDATE [25.6.20]: I am grateful to Richard W and Steve Jupp for drawing the Business and Planning Bill to my attention (see comments below). So this is how the government intends to enable time for commencement to be extended. The Bill is in fact the vehicle for various planning and licensing relaxations that have recently been canvassed. The problem is that it is only a Bill (which has only just had its First Reading [a mere formality] today and is yet to begin its passage through both Houses in parliament). It seems that the government intends to fast-track the Bill through the Commons (with all stages being taken next Monday, 29 June) but they have less control over what happens in the Lords.

Clause 17 of the Bill introduces sections 93A and 93B into the 1990 Act. Section 93A substitutes a commencement condition specifying 1 April 2021 as the commencement date in place of a condition in an unimplemented planning permission. However, section 93A is not retrospective in its effect. This section only applies to planning permissions where the original commencement date specified by the condition in the planning permission will expire within the period beginning with the day on which section 17 of the Business and Planning Act 2020 comes into force [as yet unknown] and ending with 31 December 2020.

For those planning permissions that will already have lapsed before the Act comes into effect, section 93B provides a somewhat more complex procedure. It applies where the date for commencement of development falls within the period beginning with 23 March 2020, and ending with the day before the date on which section 17 of the Business and Planning Act 2020 comes into force. This involves the developer in applying for an “additional environmental approval”. If this approval is granted, this too will substitute a commencement condition specifying 1 April 2021 as the commencement date in place of a commencement condition in the unimplemented planning permission.

The precise requirements for an application for an “additional environmental approval” are too complicated to summarise here, but they cover the need for EIA, compliance with the Habitats Directive, and other environmental protections. There does not appear, however, to be any requirement for the application to be determined in accordance with section 38(6) of the 2004 Act. Furthermore, no conditions can be imposed on the additional environmental approval.

My initial impression is that what is now proposed is going to be unduly complicated and too slow, and will involve developers in jumping through hoops to enable planning permissions to be extended. No doubt the complications of section 93B were thought necessary in order to ensure compliance with the relevant environmental protections, merely by reason of the original planning permission having lapsed, but I find it hard to believe that extending the date for commencement of development by less than 9 months would give rise to any fresh environmental considerations, especially when other permissions expiring a little later will not be subject to the requirement for additional environmental approval.

I had always thought that primary legislation might be required to enable the time limits as to commencement of development to be varied. But there were surely simpler ways the government could have gone about this. For example, section 73(5) of the 1990 Act could simply be have been repealed (or its operation suspended for a stated period), enabling a section 73 application to be made to vary the time by which development must be started, or the time by which an application for the approval of reserved matters must be made. If this variation were to be allowed retrospectively, section 75(4) would have to be similarly repealed or suspended.

This would still make it necessary for the developer to make an application to the LPA, but doing this under section 73 would appear to be more straightforward than what is proposed in the new Bill.


Tuesday, 16 June 2020

Compulsory closure of premises – revised rules

The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 (SI 2020 No. 588) are now in force. They further amend the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350). I have not previously commented on the No.3 amendment regulations (S.I. 2020/558), which came into force on 1 June, and so I will cover those as well in this note. However, I shall confine this summary to those regulations that govern the use of premises; I am not therefore commenting on those regulations that continue to govern personal movement.

Where various premises have previously been required to be closed, the proprietor of a business offering goods for sale or for hire can now open it to the public, provided the shop is separate from the premises used for any business that is still required to remain closed. So all shops can now open to the public. “Shops” are not defined in the Regulations, and so it would seem that the definition in Class A1 of the Schedule to the Use Classes Order 1987 (as amended) can be assumed to apply. As before, such businesses are also permitted to make deliveries or otherwise provide services in response to orders received through a website, or otherwise by on-line communication, or by telephone (including orders by text message), or by post.

Again, as before, a café or restaurant may be open solely to sell food or drink for consumption off the premises, provided the café or restaurant is separate from any premises used for a business that is still required to remain closed. For this purpose, a shop, café or restaurant is separate from premises used for the closed business if it is in a self-contained unit, and provided also that it is possible for a member of the public to enter the shop or café from a place outside those closed premises. The list of catering premises that must otherwise remain closed remains the same as it was in Part 1 of Schedule 2 in the original regulations.

There are slight changes to Part 2 of Schedule 2, comprising the list of other premises that must remain closed. Drive-in cinemas are now exempted from the requirement to close cinemas. The prohibition on opening museums and galleries no longer extends to retail galleries, where the majority of the art on display is for sale. (These are galleries that fall in fact within Use Class A1, rather than D1). Betting shops are no longer required to remain closed.

On the other hand, the prohibition on the opening of indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities was extended by the No.3 amendment Regs (on 1 June) to include indoor games, recreation and entertainment venues. Similarly, the prohibition on the opening of funfairs (whether outdoors or indoors) has been extended by the No.3 Amendment Regs to embrace theme parks and adventure parks and activities. These were clearly unintended omissions from the original Regs. For the same reason the prohibition on opening playgrounds etc. has now been tweaked twice, and it now prohibits the opening of playgrounds, indoor sports courts, outdoor gyms and outdoor swimming pools. The listed prohibitions have also been extended to social clubs, model villages and indoor attractions (as defined in the amended paragraph 23E(2)) at aquariums, zoos, safari parks, farms, wildlife centres and any place where animals are exhibited to the public as an attraction. From1 June, aquariums, zoos, safari parks, farms, wildlife centres were added to the list of attractions that must be closed, but from 15 June they can now open, with the exception of any ‘indoor attractions’ (as defined). [Confused? Well I confess that I am.] Indoor attractions must also remain closed at visitor attractions such as botanical or other gardens, biomes or greenhouses; heritage sites or film studios and landmarks, including observation wheels or viewing platforms.

The prohibitions in paragraphs 21, 22 and 23 have been removed, so that it is now lawful to open all types of outdoor market, car showrooms and auction houses.

Although libraries must remain closed, this does not prevent the library from carrying on a business of offering goods for sale or for hire in a shop which is separate from the premises usually used for the provision of library services (“the library premises”); nor does it prevent the making deliveries in any way permitted under the rule mentioned above allowing shops to carry on remote ordering and delivery services; and neither does it prevent a library from operating a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the library premises.

Places of worship must remain closed for public worship, but are now permitted (in addition to providing for funerals, broadcasting an act of worship, whether over the internet or as part of a radio or television broadcast, certain essential voluntary services or urgent public support services, as specified in the Regs) to be open for private prayer by individuals, i.e. prayer which does not form part of communal worship. Furthermore, a place of worship is permitted to carry on a business of offering goods for sale or for hire in a shop which is separate from the place of worship, and to make deliveries or otherwise provide services in response to orders received by the means mentioned above (i.e. online, by phone or by post). A place of worship may also operate a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the place of worship.

For these purposes, a shop, café or restaurant is separate from a place of worship or library premises if it is a self-contained unit, and provided also that it is possible for a member of the public to enter the shop or café from a place outside the place of worship or library premises. It should perhaps be emphasised that the amended regulations do not permit a use of any premises that is not already authorised under the planning legislation; nor do they permit such a use in breach of any planning condition, enforcement notice or other legal constraint on such development.

There are also changes to the list of premises in Schedule 2 that must remain closed. The most important change is the complete removal of Part 3 (which was the part of the schedule that listed premises that could remain open for business), consequent upon the amendment of Regulation 5(1), which now prohibits only the provision of library services (with the exception mentioned above).

Oh, I almost forgot; you will be delighted to know that the prohibition on gyms and other sports facilities no longer extends to facilities for training for elite athletes (including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools and other indoor leisure centres). But before any of you sporty types get overenthusiastic about this, the definition of ‘elite athletes’ is confined to those officially in the running for the British Olympic Team, or at a similar high level in their sports.

And finally, don’t get too used to the rules outlined above, because they are liable to change again in less than three weeks’ time, if the government decides that it’s safe to further relax the coronavirus lockdown. (Alternatively, if recent public behaviour leads to an increase in the rate of infection, rather than a continuing decrease, this could prompt a tightening of restrictions instead.)


Thursday, 14 May 2020

Meet the authors: FREE planning law webinars

I’m pleased to be able to let readers of this blog know about a series of four free 'meet the author' planning law webinars that BATH PUBLISHING are broadcasting during May and June. You can listen in to one, two or all four absolutely free, gratis and for nothing!

In each webinar, one of Bath Publishing’s authors will provide a brief review of recent developments and cases and then open proceedings to questions from fellow panellists and the audience.

The series kicks off a week today, on Thursday 21 May with The Environment Bill – what it means for planners & developers by Tom Graham, who will provide a quick introduction to the impact that the Environment Bill will have on planning and development decisions. Tom’s book on the Bill will be published soon after it has received Royal Assent later this year. He also runs a Planning & Environment blog (to which I have just added a link on the sidebar).

I shall then be presenting the second in the series on Thursday 28th May. This will be a Permitted Changes of Use update, when I shall be highlighting some of the recent changes affecting permitted development that have occurred since publication of the Third Edition of my book, A Practical Guide to Permitted Changes of Use last October.

Among the topics I am hoping to cover will be:

• ‘Qualifying’ purpose for PD (New World Pay Phones – Court of Appeal)
• Extending the 56-day period (Gluck v SSHCLG, reversing the Warren Farm judgment)
• “Used solely for agriculture when last in use”, discussing
(a) whether a material change of use is required in order to override a former agricultural use, and
(b) whether it applies in any event after 20 March 2013
• Plans and drawings required for prior approval applications.

There will also be time to put questions to me and to an expert panel if you join us live.

On Thursday 4 June, Peter Edwards of Planning Progress will present a webinar on “Neighbourhood Planning - Key Questions Answered, when he will review some of the key questions for planners, local authorities and parish councils to consider when preparing a neighbourhood plan. Peter is the author of The Power of Neighbourhood Planning (which is due to be published during May).

Peter is the latest recruit to Bath Publishing’s stable of planning law authors. He is a solicitor specialising in planning and related aspects of law. He also runs Planning Progress Limited, a planning and public affairs consultancy that advises a variety of clients from all sectors, and throughout the UK, on planning and the interaction between planning and the environment. He advises a number of parish councils on all aspects of neighbourhood planning.

Finally, on Thursday 11 June, Alistair Mills of Landmark Chambers will present an NPPF Update. Alistair is the author of Interpreting the NPPF. In this webinar, he will update you on the latest policy developments and cases involving the NPPF, and will then take questions from the audience.

As well as being a busy member of the bar, Alistair is an External College Lecturer in Law at Magdalene College, Cambridge, and is an Assistant Editor of the Encyclopedia of Planning Law and Practice. He also maintains a digest of decisions relating to the NPPF on the Landmark Chambers website.

The timing of these seminars varies, so please be sure to check the time that they are due to go out on the relevant date. Full details can be seen on the Bath Publishing website [ ] , where you can register to join one or more (or even all four) of these webinars.

We look forward to seeing you.


Thursday, 16 April 2020

Completing PD within the 3-year time limit (Class O)

One of the problems associated with the residential conversion of offices has always been how to determine whether the time limit for completion of the permitted development has been met where the development comprises the creation of a number of dwelling units in the building.

Under Class J in the 1995 Order (and also under Class O in the 2015 Order, as originally made), development was not permitted if “the use of the building falling within Class C3 (dwellinghouses)” was begun after 30th May 2016. That provision [paragraph O.1(c)] was repealed in 2016, and was replaced by a condition [set out in paragraph O.2(2)] requiring that development under Class O must be completed within a period of 3 years starting with the prior approval date. The question is – What does “completed” mean in this context?

This is a question that I discussed at some length in the Third Edition of A Practical Guide to Permitted Changes of Use. The change in the time limit was foreshadowed in the First Edition, but when the Second Edition was published (in October 2016), the precise effect of the change remained unclear, except to the extent that the original May 2016 deadline no longer applied at all, even where prior approval had been granted under Class J in the 1995 Order, or before 6 April 2016 under Class O. I discussed the issue of “completion” in paragraph 7.5 of Chapter 7 in the Second Edition, but without reaching any firm conclusion, other than to refer back to paragraph 1.3.2. of Chapter 1, where I discussed the judgments in both Impey v SSE (1984) 47 P. & C. R. 157 and in Welwyn Hatfield BC v SSCLG [2011] UKSC 15.

The question of “completion” under Class O then arose in a planning appeal in the London Borough of Bromley, which was determined in January 2019 [3200876]. (The decision letter was re-issued, subject to a correction notice, in March 2019). That decision was subsequently quashed in the High Court by consent, but I felt that the Inspector’s reasoning in his decision letter had nevertheless been a brave attempt to get to grips with the question of “completion”, notwithstanding that the question would now have to be reconsidered in a redetermined appeal. It was on this basis that I summarised that appeal decision in paragraph 7.5 of the Third Edition of my book.

The decision letter in the redetermined appeal has now been issued (on 14 April). This appeal was made under section 195, against the refusal by the LPA of an LDC application, which had sought to establish the lawfulness of an existing use (at the date of the application) as eight flats (Class C3) pursuant to a grant of prior approval under Class O.

The Inspector recorded that the previous appeal decision had been quashed on the basis that the Inspector had had regard to the judgment in the case of Gravesham as to the definition of a dwellinghouse, that is - ‘does the building in question (or part thereof) meet the definition of a dwellinghouse, i.e. does it have the distinctive characteristic of the ability to afford to those who used it the facilities required for day to day domestic existence?’. He should, however, have had regard to the test in Welwyn/Impey as to when a material change of use can have occurred in the process of conversion to a residential use, as well as considering what that residential use was, and he did not directly do so. The answer he would have come to might have been the same if he did, but in failing to consider the test in Welwyn/Impey and preferring to apply the Gravesham test he may have fallen into error on the correct lawful test to apply.

This matter had a long and somewhat unfortunate history. A dispute with the LPA as to the lawfulness of the proposed development, which gave rise to an earlier LDC application and appeal, decided in the appellants’ favour, caused inevitable delay in the conversion works being pursued (though not, it should be noted, through any fault on the part of the appellants). In the meantime, being aware of the time limits that might apply, the appellants re-started the works in April 2016 in order to try to establish that the change of use had begun by 30 May 2016 as was required at that time by paragraph O.1(c). By 28 May 2016, Flat 1 had been completed and occupied. Drainage trenches had also been dug, and gas, water, electricity, telephone, aerial and satellite feeds had been brought through the building to serve the other seven flats.

By 9 December 2016, Flats 2, 3, 5 and 6 were at a stage such that all services were complete including gas, electrical, water, telephone, satellite, and central heating. Floor finishes were complete, kitchen fixtures had been installed and the flats had been painted and decorated. However, bathroom fixtures had not been installed. Flat 4 had plastered walls with insulation, drainage and all services supplies had been installed, and second fix electrical work completed. There were no kitchen or bathroom fixtures. Flats 7 and 8 were at earlier stage, with drainage installed, walls plastered and insulated, and all service supplies in place, but again there were no kitchen or bathroom fixtures. No entrance doors had been fitted, and common parts were unfinished.

The key to the approach that the Inspector took in redetermining this appeal is to be found in the judgment in Impey, in which Donaldson LJ had observed that “a change of use to residential development can take place before premises are used in the ordinary and accepted sense of the word. The question arises as to how much earlier (than actual use) there can be a change of use, it may be that the test is whether they are usable, but it is a question of fact and degree”. Donaldson LJ proposed that the physical state of the premises is very important, but not decisive, that their actual use, or intended use, or attempted use are important but not decisive, and that these matters have to be looked at in the round. This is a broader view of Impey than I had adopted in my comments on that case in my book and, on reflection, I accept the logic of the Inspector’s approach to that judgment. The Inspector also drew attention to the comment of Lord Mance in Welwyn Hatfield (which I have previously quoted), which supports that approach.

As a matter of fact and degree, the Inspector found that at the end of May 2016 (the original deadline, which had been extended by paragraph O.2(2) to a date falling in December of that year) Flat 1 had been completed and occupied, but the remainder of the building was still a shell. This could not be regarded as completion of the development, when seven of the proposed flats were little more than the building shell. However, nothing turns on this point, in view of the extension of the deadline to December of that year.

By 9 December 2016, in addition to Flat 1 being complete, the partitions, finishes, fixtures and service installations for the other seven flats were all at an advanced stage, with room layouts and circulation areas defined, and the new staircase at the northern end of the building completed. The Inspector appreciated that bathroom fixtures had not been installed in Nos. 2, 3, 4, 5, 6, 7 and 8, and that there were no kitchen fixtures in Flats 7 & 8. However, the works completed were very much integral to, and part and parcel of the alterations necessary for the change of use to eight flats. Any use, or even potential use as offices had clearly ceased by then. In the Inspector’s opinion, the layout, services, fixtures and finishes – even though incomplete - were at such an advanced stage that the conversion to eight flats was readily apparent, and the possibility of reversion to office use essentially impractical.

Looking at the physical state of the building in December 2016, the Inspector accepted that seven of the flats did not offer all the facilities required for day-to-day domestic existence and were not properly habitable. Nevertheless, they had reached a stage where they were recognisably flats rather than offices. The extent and advanced state of the works, and the substantial financial investment made at considerable risk demonstrated the appellants’ clear intention to bring the building into such use. At this point, it appeared to the Inspector as a matter of fact and degree that use of the building had irreversibly changed from office use to use as eight flats, each one a dwellinghouse. He considered, therefore, that on the balance of probabilities the change of use to eight Use Class C3 flats had occurred by 9 December 2016, and that the development was therefore lawful at the date of the LDC application (5 May 2017).

One of the factors which seems to have influenced the Inspector’s approach to the redetermination of this appeal was the unfortunate history of this matter. In my view, it was perfectly proper that the Inspector should take this factor into account. In the ordinary course of things, the grant of prior approval on 10 December 2013 would have allowed reasonably ample time for the appellants to carry out conversion works and effect the change of use by 30 May 2016. In the event, as a result of the uncertainty introduced by the Council’s doubts over the B1(a) use of the building, their failure to determine the appellant’s first LDC application, and the time necessarily taken in the resulting appeal, the conversion works were put in abeyance from October 2014 to April 2016. The appellants had made a serious and determined attempt to achieve completion in the context of a significantly reduced timeframe, and the uncertainty introduced [by the LPA] by doubts over the original B1(a) use. The Inspector stressed that the weight he gave to the appellants’ clear intentions and serious attempts to carry out the conversion played a significant part in coming to his conclusion.

This appears to me to be a just and fair result, in that the delays in the completion of the development were solely due to the conduct of the LPA, and it would ill become an authority to exploit the literal provisions of the legislation to defeat the legitimate objectives of that legislation to facilitate the provision of additional housing by the conversion of office buildings and other premises. This appeal decision demonstrates that a broader interpretation of the judicial authorities, in particular Impey, is possible, whereas a narrowly legalistic approach to the interpretation (of which I confess I have myself been guilty in the past) is not appropriate in determining the question of “completion” under paragraph O.2(2). This requires a broader more purposive approach if the objectives of the legislation are to be fully and fairly realised.

[My colleague Ben Garbett has had the conduct of this case throughout its five-year history, including all three public inquiries and the quashing order obtained in the High Court. This exemplifies the substantial cases that Keystone Law’s planning law team has brought to a successful conclusion on behalf of our clients. Ben has written a commentary on the case in our ‘Keynotes’ series on Keystone Law’s website. The link is here: ]