Tuesday, 22 September 2015
In addition to publishing my new book, “A Practical Guide to Permitted Changes of Use”, BATH PUBLISHING are also organising a seminar on this subject, which is to be held at One Great George Street, London SW1P 3AA on Friday 27 November.
This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £120 +VAT if you book before 25 October and includes a copy of my book (worth £40 when published), which will be given to all delegates to the event.
The seminar will cover some of the issues that give rise to difficulty in relation to this type of permitted development, followed by a panel discussion:
• Restrictive conditions in planning permissions - Do they or don’t they preclude permitted development?
• The 56-day rule in practice
• Structural issues (including partial demolition and structural alterations)
• Prior approval - material considerations and appropriate conditions
You can read more about the programme and venue or book online on the Bath Publishing site here.
Professional delegates will be able to claim 2½ hours’ CPD for this event.
If you have already ordered the book and wish to attend enter the discount code COUPRE35 when booking online to make sure you are not charged for the book again.
Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button below the seminar icon on the left-hand side of this page, by calling Bath Publishing on 01225 577810 or by sending your cheque and full contact details to:
BATH PUBLISHING LIMITED 27 Charmouth Road Bath BA1 3LJ
Tuesday, 8 September 2015
Regular readers of this blog will have noticed the lack of any recent posts. This is entirely due to the work involved in preparing my forthcoming book for publication. I am pleased to report that this is proceeding to schedule, and the only complicating factor at the moment is the question of whether or when the government will further amend the GPDO. It now seems fairly certain that it will do so, and it is our intention that the expected amendments will be incorporated in the book, even if this slightly delays its publication.
Since July, when the government pulled an expected announcement almost at the last minute, there has been feverish speculation as to when the government will announce its expected extension (or removal) of the deadline for the residential conversion of offices under Part 3 Class O, and the likely extent of this freeing up of the rules, including the new safeguards that may be introduced in the form of additional matters to be considered by a local planning authority when determining a prior approval application in respect of this type of development. All residential conversions of offices under this provision are currently due to be completed no later than 30 May 2016, but funding for such developments has all but dried up, because lenders fear that developments that are not already in train may not be completed by the deadline. It might, I suppose, be described as “the Cinderella dilemma”.
The Planning Minister, Brandon Lewis, appeared before the Communities & Local Government Select Committee yesterday afternoon, and in the course of the meeting he was asked when an announcement on these further changes to the GPDO can be expected. Lewis said he was sorry that it was “not possible to make an announcement today”, but he told the committee that ministers are hoping to make an announcement “relatively soon”. Ministers, he said, are currently looking at feedback from the consultation on this subject and will take account of views expressed by local authorities. He said that they “want to get it right”. He hoped that an announcement would be made “in the not-too-distant future”.
Rumour has it that what caused the delay in the planned announcement of the government’s intentions in July was an almighty ear-bashing that De-CLoG ministers received from Westminster City Council and the City of London. This was sufficiently unnerving to prompt them to take the proposals back and look at them again. However, this certainly has not resulted in the abandonment of the intention to extend or remove the May 2016 deadline for the residential conversion of offices; the puppet-master-in-chief at No.11 Downing Street would never tolerate that. What we may get, therefore, may be some slight watering down of the previously proposed amendment to Class O (compared with some of the off-the-record briefings coming out of De-CLoG in the past year).
I am still keeping my fingers crossed that the announcement which is expected “relatively soon” or “in the not-too-distant future” may in fact be made before the end of this month, and that a Written (or even Oral) Ministerial Statement in the Commons will coincide with the laying before parliament of The Town and Country Planning (General Permitted Development) (England) Order 2015 (Amendment) Order 2015” (or some similar title). It is possible that the May 2016 deadline may simply be extended for three years (as was originally proposed in the ‘Technical Consultation on Planning’ in July 2014), although ministers had more recently talked in terms of its entire removal. Ministers had intended to remove the exempted areas (“Article 2(5) land”), but they may have been persuaded to keep these, at least in London.
The other likely changes (as previously canvassed over a year ago) include the addition of an extra matter for prior approval, namely the potential impact of the significant loss of the most strategically important office accommodation, although this is likely to be tightly defined to avoid widespread rejection of office conversions by LPAs on this ground.
So we still have to play a waiting game, but maybe not for much longer.
© MARTIN H GOODALL
Saturday, 15 August 2015
I am very pleased to be able to announce the forthcoming publication of “ A Practical Guide to Permitted Changes of Use”. This long-awaited book is due to be published by Bath Publishing in OCTOBER, both in book form and as an eBook, and can be pre-ordered by readers at a special pre-publication price of £35. When you think of all the time and trouble that permitted changes of use tend to cause, the book will more than repay its cost if it helps you to deal with just one case. You can order it now, by clicking through on the link on the side bar on this page.
I have written quite a few posts in this Blog over the last two or three years on the new rules relating to permitted development, and this book not only brings together all of that material but goes a great deal further, so as to provide a comprehensive and, above all, practical guide to the whole of this subject.
The book gives clear advice on the operation of the prior approval procedure, including the detailed requirements for prior approval applications, their processing and determination, and the way the 56-day time limit for the determination of these applications works in practice. The book also covers other changes of use permitted by the GPDO, including flexible and temporary uses.
After a general introduction to the subject in Chapter 1, the following eleven chapters explain in detail each of the Classes of permitted changes of use. Prior approval applications are then discussed in Chapters 13, 14 and 15, dealing with the content and submission of the application, its processing and determination, and the operation of the 56-day rule. The remaining chapters in the book then explain the rules on temporary and recreational uses of land, including caravan sites and camping. Other important factors to be considered are dealt with in the appendices, including the loss or removal of permitted development rights and the identification of the ‘planning unit’ and the ‘curtilage’ of a building.
This book will be a valuable resource for all property and planning professionals including Architects, Town Planners (in both the private and public sectors), Surveyors, Valuers, Auctioneers and Estate Agents, Barristers, Solicitors, Licensed Conveyancers and other legal and property advisers and also to Builders and developers and to property owners wishing to carry out residential conversions or to make other changes of use as permitted development.
We intend that this book will be completely up-to-date, and so we hope to include in the text the widely anticipated extension of the time limit for the residential conversion of offices, expected to be introduced in September and to come into effect in October, and the associated changes that the government is expected to make to the rules governing these office conversions. Notes of appeal decisions that illustrate points explained in the book will also continue to be added to the text up to the time we finally go to press.
And all this for just £35 if you order now!
© MARTIN H GOODALL
Friday, 7 August 2015
There has been a trend in recent years for amenity groups and other third party objectors to challenge procedural irregularities in an effort to overturn planning decisions to which they were opposed. Where the challenge appears to have been of a pedantically ‘technical’ nature, the courts have not hesitated to dismiss such challenges, on the grounds that there was no substantive unfairness or no breach of procedure of sufficient significance as to amount to a legal error that would justify quashing the planning decision. In addition, there are occasionally cases where the legal objection is made out, but where it is still not appropriate, in the court’s view, that the planning decision should be quashed.
It is a well established principle that the courts have a discretion as to whether (and, if so, in what form) relief should be granted where a legal challenge to a planning decision, or other administrative decision or action, is made out. There are various factors that the court will take into account in deciding whether to grant relief in such cases, such as whether the decision under challenge has substantially prejudiced the claimant, and whether there is a realistic prospect that, upon the matter in question being redetermined by the decision-maker, there is any realistic prospect that a different decision might be reached.
It was the latter point that led the Supreme Court, in R (Champion) v North Norfolk District Council and another  UKSC 52 on 22 July 2015 to dismiss an appeal aimed at securing the quashing of a planning permission for the erection of two grain silos and the construction of a lorry park with wash bay and ancillary facilities, on a site close to the River Wensum. In this case, there was no disagreement that it was appropriate for the LPA to undertake a screening exercise in respect of the scheme proposed by the planning application, and that this exercise had been legally defective.
However, having found a legal defect in the procedure leading to the grant of planning permission, it was necessary for the court to consider the consequences in terms of any remedy. Following the decision of the Supreme Court in Walton v Scottish Ministers  UKSC 44,  PTSR 51, it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation [by making representations and by having all the relevant issues fully considered by the decision-maker], and there has been no substantial prejudice.
The subsequent judgment of the Court of Justice of the European Union in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12)  PTSR 311 confirmed that not every procedural defect will necessarily have consequences that can possibly affect the legality of a planning decision and it cannot, therefore, be considered to impair the rights of the party pleading it. This was consistent with the decision of the Supreme Court in Walton.
The court therefore dismissed the appeal. Although the proposal should have been subject to assessment under the EIA Regulations, that failure did not in the event prevent the fullest possible investigation of the proposal and the involvement of the public. There was no reason to think that a different process would have resulted in a different decision, and the claimant’s interests had not been prejudiced.
It should not be assumed from this judgment that an incorrect screening opinion and the consequent lack of an EIA can be lightly overlooked. Clearly there are many cases in which such a defect would be fatal to the grant of planning permission. The judgment does, however, make it clear that procedural error alone, even in relation to compliance with European Directives, will not automatically lead to a planning permission being quashed. The issue of prejudice (not merely to the challenging party, of course, but also to the wider interests that they are seeking to protect) will be a determining factor in the court’s decision as to whether or not they should exercise their discretion to quash the planning permission or to grant such other relief as the claimant may be seeking.
One other point to emerge from this judgment is that the court considering an application for permission to bring judicial review proceedings should take into account the likelihood of relief being granted, even if a legal error were to be clearly established. So permission to bring such cases in future may be refused at the outset if the view is taken that, upon a full hearing of the case, relief is unlikely to be granted. I foresee some difficulties arising from this suggestion, and it will be interesting to see how this point is dealt with if or when it arises in future permission applications under CPR Part 54.
© MARTIN H GOODALL
Wednesday, 22 July 2015
Earlier this month there was a flurry of announcements intended to make it look as if the government is at last prepared to do something about the continuing failure (primarily on the part of the development industry, but they of course are excused from any blame by the government) to deliver sufficient new housing to meet ever-growing demand. This process started with a joint newspaper article by Cameron and Osborne in The Times on 4 July, foreshadowing the budget statement and various press releases and other documents issued to coincide with the budget on 8 July, and then on 10 July a policy document described as the government’s “Productivity Plan” and entitled Fixing the Foundations.
I have commented before on the Treasury’s habit of taking ownership of such announcements, rather than De-CLoG, leaving that subservient department to obey the commandments of the Chancellor handed down on tablets of stone from the Mount Sinai of Downing Street. This is nothing new; the tendency of the Treasury to take charge was equally evident under the last Labour government. But Gorgeous George has always found this approach particularly to his taste, and he has been in a notably gung-ho (not to say hubristic) mood since the election.
The government’s proposals for further changes to the planning system are set out in Chapter 9. With regard to housebuilding, the document acknowledges the longstanding failure to build enough homes to keep up with growing demand, and notes that housing starts fell by nearly two-thirds between 2007 and 2009, with the number of first time buyers falling by more than 50% between 2006 and 2008 (carefully selected figures to coincide with the last period of Labour government).
The document blames “an excessively strict planning system”, which prevents land and other resources from being used efficiently, thereby impeding productivity by increasing the cost and uncertainty of investment, hindering competition, constraining the agglomeration [?] of firms and the mobility of labour, and encouraging land speculation, rather than productive development. Ministers assert that the resulting under-supply of housing, especially in high-growth areas of the country, has pushed up house prices.
The document recognises that the glacial pace of the plan-making system has been a major constraint in achieving the release of housing land, although they refuse to acknowledge one of the primary factors in this – the abolition under Eric Pickles’ superintendency of the Regional Spatial Strategies, which were designed to ensure that all authorities should contribute their share to meeting housing land need. The weak and wishy-washy ‘duty to co-operate’ that was incorporated in the Localism Act failed (as nearly everyone predicted) to provide an effective alternative, and even the NPPF has only had a limited effect in securing the release of housing land.
The plain fact is that local planning authorities, with all the local political pressures to which they are subject, cannot be trusted to deliver the housing that is needed in their areas in order to meet demand not only locally but generated in neighbouring areas as well. The government forswears ‘top-down planning’, but is nevertheless obliged to cast about for some mechanism that would force the hands of LPAs.
In pursuit of this objective, the government has announced its intention to take further action to ensure that local authorities put local plans in place by a set deadline. That deadline has been announced today in a written ministerial statement. It will be “early 2017” (five years after the publication of the NPPF), although it is not entirely clear whether ‘producing’ a local plan means actually adopting it, or merely publishing the first consultation draft. Furthermore, a local plan is not complete until all the DPDs are in place (a lengthy process). I suspect that what is referred to here is simply the Core Strategy.
The government proposes to publish league tables, setting out local authorities’ progress on their Local Plan. The league tables will be fairly meaningless in themselves, but where it becomes clear that LPAs are not making effective progress towards the adoption of a Local Plan, De-CLoG will intervene in those authorities and will do the job themselves. Whether this will in practice lead to faster plan-making is perhaps open to doubt.
This will be accompanied by proposals to streamline the plan-making process significantly, helping to speed up the process of implementing or amending a plan. The government also intends to strengthen the duty of cooperation between local authorities (a clear admission that this provision in the 2011 Act has been ineffective). This means that LPAs will have to be prepared to find housing land to meet the housing needs of adjoining local authority areas where they cannot be met within those areas themselves. However, you can be sure that this will produce a good deal of screaming and kicking on the part of some local councillors, who can see no reason why Midsomer Fartworthy District Council should be forced to allow houses to be built on its nice green fields just to meet the housing needs of their despised neighbours in the Borough of Clagthorpe.
There is a suggestion that further use will be made of development corporations to deliver higher-density development in designated areas. The government says it will consider how policy can support higher density housing around key commuter hubs. There is also a welcome intention to devise policy guidance to secure the release of commercial and industrial land for housing. Local planning authorities are all too prone to resist the ‘loss’ of employment land on which future commercial or industrial development is very unlikely ever to take place, and for which there is no demand in practice.
There is a more radical proposal for ‘brownfield’ sites (previously developed land), where the government is promising “an urban planning revolution”, including funding to provide infrastructure, strong local leadership to shape development and assemble sites, and the removal of unnecessary planning obstacles. The real problem, as anyone who has been involved with such sites is well aware, is the cost of remediation of site contamination where there has been an interesting and varied history of industrial uses. Developers have been known to bankrupt themselves in the process of trying to clean up sites of this sort.
Ministers contend that the planning system can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build, where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny. The government says it is clear on the need to promote the use of brownfield land, and that it will remove all unnecessary obstacles to its re-development, including these sorts of planning obstacles. To this end, as well as legislating for statutory registers of brownfield land suitable for housing, the government proposes to legislate to grant automatic permission in principle on brownfield sites identified on those registers, subject to the approval of a limited number of technical details. On brownfield sites, this will give England a ‘zonal’ system, like those seen in many other countries, reducing unnecessary delay and uncertainty for brownfield development. (Hands up those of you who are old enough to remember ‘zoning’ in this country, and its abolition under ‘new-style’ development plans in the 1980s.) There is also a suggestion that compulsory purchase powers may be used to assemble housing sites on brownfield land.
The assertion is repeated that delays in processing planning applications may be a significant factor preventing housing supply from responding to upturns in the market. So the government proposes to legislate to allow major infrastructure projects with an element of housing to apply through the Nationally Significant Infrastructure Regime (i.e. taking the project out of the normal planning system and shoving it through the fast-track procedure for Development Consent).
There is a threat to further tighten the thumb-screws of the planning performance regime, so that local authorities making 50% or fewer of decisions on time are at risk of designation. The performance regime will also be extended to minor applications, so that local authorities processing those applications too slowly will be at risk of designation.
An unspecified fast-track certificate process is also proposed for establishing the principle of development for minor development proposals, coupled with an intention to significantly tighten the ‘planning guarantee’ for minor applications (whatever that means).
Section 106 agreements have also been identified as a delaying factor, and so the government proposes to introduce “a dispute resolution mechanism” [sic] for section 106 agreements, to speed up negotiations and allow housing starts to proceed more quickly. There isn’t supposed to be a ‘dispute’ about a draft section 106 agreement; it is intended to be negotiated, but where an LPA is proving difficult, I suppose some means of shifting the log-jam may be helpful (although an appeal against non-determination may still be the most practical way forward).
Finally, in order to bring forward more ‘starter’ homes, the government intends to extend the current exception site policy, and to strengthen the presumption in favour of Starter Home developments, starting with unviable or underused brownfield land for retail, leisure and institutional uses. These starter developments will be exempted from the Community Infrastructure Levy, and from the requirement to provide or contribute towards affordable housing. Tariff-style general infrastructure funds will not be sought from them.
How this will all be brought about will become clear over the next year or so. We will presumably see yet another Planning Bill later in this parliamentary session, and some re-writing of ministerial policy to give effect to the government’s stated intentions. How effective all this will prove to be is open to doubt, and I have already heard some very sceptical views expressed as to the actual delivery of all those new houses.
The government has still not addressed some of the real bugbears of the planning system, such as the nonsenses over the ‘validation’ of planning applications. Nor have they addressed the chronic under-funding of planning departments in local authorities and the consequent lack of sufficient experienced planning officers to handle planning applications quickly and effectively. If local authorities are squeezed even harder by the Treasury (as seems likely) things will only get worse. It is not enough for ministers to will the end; they must also will the means.
© MARTIN H GOODALL
Tuesday, 21 July 2015
Readers will have noticed that three weeks have passed since I last posted anything here, when I reported the arrival of Andrew Hignett as a member of our Planning Law Team; and the last substantive post on a planning issue was three weeks before that. Three of those weeks were taken up with final completion of my forthcoming book (“A Practical Guide to Permitted Changes of Use”) of which I hope to post further details shortly. The remaining time was accounted for by a much needed holiday.
It seems to be an immutable Law of Nature that whenever I go away for more than a week or so, the government seizes the opportunity to rush out major announcements of forthcoming changes to planning law and procedure, and so it proved this time. I will comment on the government’s proposals in due course, although what has been announced so far is a bit light on detail.
Not yet formally announced, but widely anticipated, is the further amendment of the GPDO so as to make permanent the PD right for the residential conversion of offices under Part 3, Class O of the Second Schedule to the GPDO, which is currently due to expire towards the end of May next year. These further changes should occasion no surprise, as they were canvassed in some detail in last year’s consultation paper. It is only their timing that has remained in doubt, and my guess is that an amendment Order will be made so as to come into force at the beginning of October.
Those who followed my various posts on short term lets in Greater London will be aware by now that, following the re-election of a Conservative government, sections 44 and 45 of the Deregulation Act 2015 duly took effect on 26 May so as to allow the short-term letting of dwellings in Greater London, which had previously been restricted by the Greater London Council (General Powers) Act 1973. There had been a possibility that a different election result might have led to the new provisions not taking effect, but now that we are living in a Tory paradise nothing can stop the government doing exactly what they like.
There are various other matters, including some judicial decisions, that may merit comment as soon as I have the chance to write them up, and I rather hope that I can now update this Blog more frequently than I have managed to do in the past couple of months. The same applies to the rather large backlog of comments that are awaiting moderation and publication.
© MARTIN H GOODALL
Wednesday, 1 July 2015
Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning and environment lawyer, Andrew Hignett, has joined KEYSTONE LAW. This further strengthens our well-established planning law team, and now gives us coverage of major infrastructure projects, particularly in the ports sector, in addition to the other specialisations we already cover. It brings the number of planning lawyers in the firm to five, all of whom have substantial experience in planning law at a senior level.
Andrew’s key skills are founded in planning and environmental law, and he principally advises ports and other organisations in the sector on marine-related development, particularly in relation to port infrastructure projects. As well as project work, Andrew advises on regulatory and harbour management issues, including the promotion of Harbour Revision Orders.
He has considerable practical experience on the impact of nature conservation law in both the UK and Europe. Andrew also has experience of the judicial review of development consents, including planning permissions, marine licences, and harbour revision orders.
Andrew is a member of the UK Environmental Law Association and is actively involved in the work of the British Ports Association. He also writes and lectures on issues of concern to the ports industry.
© MARTIN H GOODALL