Saturday, 15 August 2015

PERMITTED CHANGES OF USE – at last, the book!

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!


Friday, 7 August 2015

Lack of EIA not fatal to planning permission

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 [2015] 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 [2012] UKSC 44, [2013] 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) [2014] 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.


Wednesday, 22 July 2015

How to ‘fix’ the planning system

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.


Tuesday, 21 July 2015

Catching up

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.


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.


Monday, 8 June 2015

The 56-day rule – some additional points

NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

A couple of readers have written to me to draw attention to Article 7 of the GPDO. This is a new provision that did not appear in the 1995 Order.

There was no provision in the 1995 Order for any extension of time in respect of the determination of a prior approval application. However, Article 7 (after restating the basic rule that prior approval applications must be determined within 56 days) now allows the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing (which could comprise an exchange of emails).

There is, of course, no obligation on the applicant to agree to such an extension of time, but if they do not do so a prudent authority might then refuse the application fairly promptly in order to avoid the 56-day rule coming into operation, thereby enabling the development to go ahead in any event. It is clear that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. A nil response from the applicant to the LPA’s a request for more time would not prevent time from continuing to run for the purposes of the 56-day rule. There would need to be some written evidence that both parties had agreed to extend time.

One correspondent queried whether sub-paragraphs (a), (b) and (c) in Article 7 do in fact enable time to be extended (or whether sub-paragraph (a) in fact rules this out), but there is no doubt that any one of sub-paragraphs (a) or (b) or (c) may apply; there is a comma after sub-paragraph (a), so it is clear that each is an alternative to the others.

Reverting to appeals against non-determination of a prior approval application, after further representations from the LPA, the Planning Inspectorate subsequently changed their minds in the case I mentioned in my last post, and accepted the appeal, on the basis that the case raised other issues besides the question of non-determination within the 56-day period. In the absence of such additional issues, though, it would appear that it is unnecessary (and in fact impossible) to appeal against the non-determination of a prior approval application. The right to proceed with the development arises automatically. However, if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, it may in such circumstances be advisable to make an application for a Lawful Development Certificate under section 192 of the 1990 Act, as I mentioned previously.


Wednesday, 3 June 2015

The 56-day Rule - Some further thoughts

NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Since I wrote my previous posts on this topic on 9 and 13 February and 11 March, I have taken the opportunity to look in more detail at the requirement as to the timing of the LPA’s notification of their determination of a prior approval application.

On the basis of the practical examples that I quoted in those posts, the consensus would appear to be that notification of the LPA’s determination of the prior application must not only be given by the authority within the 56-day period, but must also be received by the applicant within that period, and a proper construction of paragraph W(11), read as a whole, would seem to support this.

In paragraph W(11) of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”, although sub-paragraph (c) merely refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Sub-paragraph (c) relates to both of these two alternative notifications under sub-paragraph (a) or (b), and (by implication) to the third possibility that the notice served by the authority may be to inform the applicant that prior approval is refused. It therefore seems clear from the context that sub-paragraph (c) must also be taken to refer to the receipt by the applicant of such a notice, so sub-paragraph (c) should in practice be read as - “the expiry of 56 days following the date on which the application was received by the local planning authority without the receipt by the applicant from the local planning authority of a written notice as to whether prior approval is given or refused”.

Whilst on this topic, I am grateful to a correspondent for drawing to my attention the position regarding an appeal under section 78 against non-determination of a prior approval application, where the failure of the LPA to determine the application or to notify the applicant of that determination within the 56-day period is the sole determining factor in the appeal.

In such a case, the Planning Inspectorate seems recently to have taken the view that no appeal is required (or can be made) in such a case. I have been shown a letter from the Planning Inspectorate, written in May of this year in response to an appeal which had been made against non-determination of a prior approval application in Gloucestershire, in which they stated that, because it would appear that the LPA did not determine the application within the required 56 day period, the applicant can proceed with the development in these circumstances, and no right of appeal applies. The LPA had the power to refuse the application on the basis that the development was not appropriate for the prior approval process but there was no indication in this case that they did so. In the circumstances, the Inspectorate stated that the appeal appeared to be invalid and no further action would be taken on it. A copy of this letter was sent to the LPA who were asked to note its contents.

This would appear to dispose of the need to appeal against non-determination. If the applicant is correct in their assertion that they have the right to carry out the permitted development, then the expiry of the 56-day period would in principle enable the development to proceed, but if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, or if there is a dispute with the LPA as to the qualification of the site for change of use under the relevant Class in Part 3 (or where the LPA is otherwise challenging the right to carry out the proposed development), caution may suggest that the correctness of the applicant’s assertion as to the lawfulness of the proposed development should be tested by means of an application under section 192, before going ahead with the development.

It may be helpful to readers who are making an LDC application to be reminded of the judgment in F W Gabbitas v SSE and Newham LBC [1985] JPL 630, where it was held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but the legal principles that it set out continue to apply.