Friday, 27 March 2015

And yet more amendments to subordinate legislation

And did I mention these other statutory instruments? They were all made on the same date and come into force at the same time as the others - the Town and Country Planning (Use Classes)(Amendment)(England) Order 2015 (SI 2015 No.597), the Town and Country Planning (Compensation)(England) Regulations 2015 (SI 2015 No.598), the Town and Country Planning (Section 62A applications)(Procedure and Consequential Amendments)(Amendment) (England) Order 2015 (SI 2015 No.797), and the Town and Country Planning General (Amendment)(England) Regulations 2015 (SI 2015 No.807).

I am not a conspiracy theorist, but it is rather suspicious that after ministers had made such a fuss about these various proposed changes, they delayed actually laying them before parliament until the very last week of the parliamentary session, when MPs were distracted by thoughts of the coming end of this parliament, not to mention events elsewhere that rather distracted attention from what was or was not going on in the Westminster village.

Incidentally, the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2015 (SI 2015 No. 659) must be one of the shortest-lived statutory instruments on record, having already been repealed by the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No. 596). [Note that the number of the repealed SI is higher than the number of the SI that repeals it – rather odd that, don’t you think?]


Development Management Procedure Order replaced

Oh, and just in case you hadn’t noticed, the DMPO has also been replaced by a consolidated Order - the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595). This was also made on 18 March, laid before parliament on 24 March and comes into force on 15 April. (It’s like that old joke about London buses – you wait for ages and then..............)

It contains several drafting amendments, and a handful of procedural changes. No time to say more at the moment.


General Permitted Development Order – All change!

It seems I only have to be away from my desk for a couple of days, and all sorts of major changes take place! De-CLoG has finally succeeded in getting its act together, and has completely replaced the much-amended 1995 GPDO with a consolidated order – the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No. 596).

Not only does this consolidate the many amendments that had previously been made to the GPDO, but it also introduces the further amendments, or at least some of them, that the government had been promising or threatening for the best part of a year now. The Order was made on 18 March, laid before parliament on 24 March and comes into force on 15 April. (Talk about ‘last-minute merchants’!).

The main changes made by the new GPDO are:

— the date for the expiry of permitted development right for larger home extensions (in Class A of Part 1) has been extended and will now expire on 30 May 2019;

BUT the time limit for the residential conversion of offices (formerly Class J, now Class O) has not been extended, and is still set to expire on 30 May 2016.

— the previous time-limit for extensions to non-domestic premises (offices, shops, industrial buildings and schools etc) have been made permanent (now Part 7 of Schedule 2);

— a number of new permitted development rights have been inserted in Part 3 (changes of use): the conversion of retail premises to restaurants / cafes (Class C); the existing permitted development to convert a shop to a deposit-taker is replaced by a wider right to convert a shop (or a betting office) to a premises providing financial and professional services (Classes D and F); the conversion of retail premises to assembly and leisure (Class J); the conversion of casinos or amusement arcades to dwellinghouses (Class N); and the conversion of premises used from storage or distribution centre uses to dwellinghouses (Class P);

— a new permitted development right for temporary use of building and land for commercial film-making has been inserted in Part 4;

— a new permitted development right has been included for the provision of click and collection facilities within the curtilage of a shop and for increasing the size of loading bays for shops and permitted development for the extension etc of buildings used for waste facilities (see Classes C, D and L of Part 7 of Schedule 2); and

— a new permitted development right for the installation of solar PV panels, with a generating capacity of up to 1 MW on the roofs of non-domestic buildings (Class J(c) of Part 14).

We are clearly going to have to get out heads round various re-numberings, and more subtle changes to the legislation that this new Order brings about, but it does represent a welcome tidying up of what had become a very messy document. Having been out of the office since Tuesday afternoon, I have only had time to give the new GPDO a very cursory examination, and will have to study it in detail in the coming days and weeks.

I was very close to completing a book on Permitted Changes of Use, and now I am going to have to do some fairly urgent revision of the text! The book won’t need a compete re-write, but clearly a lot of the references to the legislation are going to have to be changed. I had already anticipated these changes to some extent while writing the book, but there are nevertheless going to have to be a number of revisions to the text, and this is an extra task which I would frankly have preferred to avoid. Such is the lot of an author!


Short-term lets in Greater London – still no change

Royal Assent to the Deregulation Bill, together with a number of other Bills, was signified yesterday at the very last minute before parliament was prorogued. It has now therefore become the Deregulation Act 2015.

Contrary to original expectations (and the original drafting of the Bill), sections 44 and 45, amending section 25 of Greater London Council (General Powers) Act 1973 have not come into force on the passing of the Act, but must await a Commencement Order.

The Deregulation Act 2015 (Consequential Amendments) Order 2015 (SI 2015 No. 971), which was made and laid before parliament today (and I confess that I was unaware that this could be done after parliament had been prorogued) does not bring these two sections into force.

Parliament has been prorogued until Monday 30 March, which is the day on which it is due to be dissolved in any event, so I would be rather surprised if any further statutory instruments could be made and laid before parliament on Monday – but I am rapidly learning that the Whitehall sausage machine never stops churning out subordinate legislation, so we shall have to see what (if anything) emerges on Monday.

If, however, I am right in my long-held belief that the proposed amendment to the 1973 Act, which currently restricts short-term lettings in Greater London, could not be achieved before the General Election, then we shall have to wait and see what the ministers who are in office after 7 May will do about it (if anything). If no commencement order is ever made, this would certainly not be the first legislative provision that has languished on the statute book unimplemented.


Tuesday, 24 March 2015

Shroud adverts on large buildings

I was pleased to see a report of a planning appeal decision earlier this month in London , in which an Inspector had allowed an appeal against the refusal of advertisement control consent for the display of a large shroud advert on the scaffolding around a building awaiting or undergoing refurbishment.

The Inspector very sensibly decided that an advertisement display of this type would be preferable to ‘drab’ sheeting round the building, and that the shroud advert would ‘enliven the street scene’. This seems to have overridden arguments by the LPA that the advert would be a prominent feature close to a conservation area (although not actually in it).

The essential point is that this display will be purely temporary, while the works on the building are being carried out, a fact which many LPAs seem entirely to overlook. Clearly, the inspector was satisfied that any alleged detriment to amenity would be outweighed by the advantage of the ugly plastic sheeting that normally covers such developments being hidden by a lively and attractive advert.

I very much hope that other inspectors will follow this lead, although it would be unnecessary for these matters to be disputed in this way if the Control of Advertisements Regulations were amended to allow temporary shroud advertising of this type where a building is covered in scaffolding and plastic sheeting during building works.


Tuesday, 17 March 2015

Further protection for pubs (1)

Ministers stated their intention on 26 January this year to strengthen the protection of pubs identified as assets of community value, by bringing forward “at the earliest opportunity” amendments to the Second Schedule to the General Permitted Development Order so that in England the listing of a pub as an asset of community value would trigger a removal of the permitted development rights, under Part 3 for change of use, and under Part 31 for demolition, of those pubs that have been designated as ACVs.

The promised changes to the GPDO have now been made, by an amendment order laid before parliament last week. With effect from 6 April 2015, there is a restriction on the changes of use permitted by Part 3, Classes A, AA and C, in respect of a building used within Class A4 (drinking establishments), where that building has been either nominated or designated as an “asset of community value”. Furthermore, even where the developer is not aware of the building having been either nominated or designated as an asset of community value, the permitted development under Class 3 is subject to the prior condition mentioned below.

A public house (as well as other land and buildings) may be designated by the LPA as an asset of community value, on the application of the parish council or a recognised community interest group under Part 5, Chapter 3 of the Localism Act 2011, as supplemented by the Assets of Community Value (England) Regulations 2012 (SI 2012 No.2421) (which came into effect on 21 September 2012). Public houses seem to be the type of property most commonly designated under the Act, representing slightly more than one-third of designated ACVs, with a very high proportion of nominations (not far short of 90%) having led successfully to the designation of pubs as assets of community value.

The primary effect of an ACV designation is a moratorium on the disposal of the property. However, in addition, there is now a restriction on the changes of use that are permitted by Part 3, Class A (change of use to a use within Use Class A1 – shop or other retail use), Class AA (change of use to a use within Use Class A3 – for the sale of food and drink for consumption on the premises, i.e. a restaurant or cafĂ©) and Class C (change of use to a use within Use Class A2 – financial or professional services).

The restriction applies where the building is used for a purpose falling within Class A4 (drinking establishments) and either it has been designated as an ACV, or the LPA has notified the developer that it has been nominated as an ACV (i.e. proposed for designation as such) under section 89(2) of the Localism Act 2011.

In the case of a building which is already a designated ACV, the restriction lasts for the period of 5 years beginning with the date on which the building was entered on the list of assets of community value. The restriction no longer applies where the building has been removed from that list under regulation 2(c) of the Assets of Community Value (England) Regulations 2012 following a successful appeal against listing, or because the local authority no longer considers the land to be land of community value, or where the building has been removed from that list under section 92(4)(a) of the Localism Act 2011 following the local authority’s decision on a review that the land concerned should not have been included in the local authority’s list of assets of community value. In those cases, the restriction applies during the period from the date on which the building was entered on the list of assets of community value to the date on which it was removed from that list.

In the case of a building that has been nominated as an ACV, but which has not yet been designated as such, the restriction lasts from the date on which the LPA notifies the developer of the nomination, to the date on which the building is entered on the list of assets of community value, or a list of land nominated by unsuccessful community nominations under section 93 of the Localism Act 2011. It follows that if the nomination results in the designation of the building as an ACV, the 5-year restriction mentioned above will then apply immediately, so that the restriction on the change of use will continue without a break, subject only to its possible termination by the removal of the building from the list of ACVs in the meantime.

In the case of a building which is not an asset of community value but which is used for a purpose falling within Class A4 (drinking establishments) it is a condition that, before beginning the development, the developer must send a written request to the LPA as to whether the building has been nominated for designation as an ACV. This request must include the address of the building, the developer’s contact address and the developer’s email address if the developer is content to receive communications electronically.

If the building is nominated for designation, whether before or after the date of the developer’s request, the LPA must notify the developer as soon as is reasonably practicable after it is aware of the nomination, and upon that notification development is not permitted for the specified period mentioned above. Development under Classes A, AA or C must not begin before the expiry of a period of 56 days following the date of the developer’s request as to whether the building has been nominated for designation as an ACV and must be completed within a period of 1 year of the date of that request.

I will deal with the changes to temporary uses under Part 4 and demolition under Part 31 in a later post.


Thursday, 12 March 2015

They were only playing ping-pong

There is a song in “Oh, what a lovely war!” (the popular musical satire on the First World War) entitled ‘They were only playing leapfrog’. It occurred to me that a modern equivalent would be ‘They were only playing ping-pong’ (as one Lord’s amendment after another amendment was scrapped by the Commons and sent right back). Well, it doesn’t quite scan, but you get the general drift.

After the Commons discussed the Lords’ amendments to the Deregulation Bill on 10 March, the Bill has gone back to the House of Lords, and the rejected amendments are due to be re-considered by them next week, on Monday (16th March). If the Lords follow their usual practice, the ‘offending’ amendments will then be withdrawn and the Bill will finally be passed by the House of Lords, and will then go for Royal Assent.

So the Bill could finally become the Deregulation Act 2015 next week. This leaves precious little time to lay the relevant statutory instrument to amend the Greater London (General Powers) Act 1973, but other statutory instruments are continuing to come forward, so perhaps my supposition that a certain amount of time would have to be allowed before the dissolution of parliament was incorrect. But can the government go on laying this subordinate legislation before parliament right up to the last minute?

Dissolution is due on 30th March, but there is a rumour that Tory MPs have been told to empty their desks and their lockers in time for prorogation on or about the 25th. By my calculation, this will leave barely a week in which to lay the requisite statutory instrument, if that is indeed procedurally possible. Will they make it in time? This is getting to be like one of those old films, with a final car chase (accompanied by loud and urgent music and much squealing of tyres) leading to the denouement right at the very end.

I am glad that I am not a property owner in Greater London, wanting to make my property available for short-term lets. They must be biting their nails by now.