Friday, 20 November 2020

USE OF LAND book – Publication imminent


The Revised Edition of The Essential Guide to the Use of Land and Buildings under the Planning Acts and Supplement is about to go to press.

The Revised Edition (with Supplement) not only flags up the old and new Use Classes in the original text, but also brings various other legislative references up to date, and contains new material and re-cast or re-written text.

As I wrote the other day, I would strongly recommend readers to order the Revised Edition of the book, with the Supplement bound in, because the Revised Edition provides a much more useful basic text than the original edition would now do, in relating the new Use Classes to the previous Use Classes. The Supplement describes and discusses the new Use Classes (and contains numerous cross-references to the main text of the book).

The difference in price between the stand-alone Supplement and the Revised Edition of the book (including the Supplement) is only £35. So if you have already ordered the Supplement alone (for £15), or the Supplement plus webinar booking (for £40), but you now wish to upgrade your order to include the Revised Edition of the book (with bound-in Supplement), in place of the Supplement alone, you can do so by paying only £35 more. But you will need to do so almoast immediately, before orders are dispatched. Bath Publishing have kindly agreed to process any revised orders, on receipt of the extra £35. So if you wish to upgrade an existing order, you should send an email to info@bathpublishing.co.uk and they'll take it from there.

However, if you have not yet placed an order at all, the best route is go is through the Bath Publishing website (using the link on the left-hand side of this page). There is still time to place an order for either the Revised Edition (with Supplement bound in) or the Supplement alone, and to book for the webinar, if you have not yet done so.

Purchasers of the digital edition of the book (or supplement) should receive this by 26 November, and the printed edition should also become available soon afterwards. So you shouldn’t have to wait too long now for your order to arrive.

© MARTIN H GOODALL

Tuesday, 17 November 2020

High Court challenge to GPDO & UCO fails


The legal challenge by ‘Rights: Community: Action’ to the amendments made to the GPDO and the Use Classes Order was dismissed in a judgment of the Divisional Court this morning.

I haven’t managed to get hold of the judgment itself yet, but I understand that the Court dismissed every ground on which the claimants sought to impugn the Secretary of State’s action in making the Statutory Instruments which were under challenge.

Lewis LJ is quoted as having pointed out in his judgment that the role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. It is not the role of the court to assess the underlying merits of the proposals.

Holgate J is reported to have added that none of the Statutory Instruments in question constituted a plan or programme setting the framework for future development consents, so there was no requirement for strategic environmental assessment.

The Court also held that the claimants had no realistic prospect of establishing that the Secretary of State had failed to take account of the public sector equality duty set out in the Equality Act 2010.

The Court seems to have been persuaded that the current coronavirus crisis does excuse ministers from strict compliance with a promised consultation process. The Court also seems to have accepted that the government’s decision to enlarge PD rights in this way was prompted by a legitimate desire to promote development in the difficult economic circumstances that had been caused by the pandemic.

For all these reasons, the claim for judicial review was therefore dismissed.

The claimants’ solicitors expressed disappointment on behalf of their clients, noting that whilst the judges had recognised the very significant environmental impact that the changes arising from these two Statutory Instruments will have, the Court had reached a conclusion on the technical requirements of the Strategic Environmental Assessment Directive that puts these changes outside the scope of the kind of plans or programmes that require assessments. Their clients were nevertheless firmly of the view that the Directive does apply to these SIs and so they would be seeking permission to appeal that ground.

© MARTIN H GOODALL

USE OF LAND book - REVISED Edition


When I recently wrote the new Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts, it was also my intention to make some minor amendments to update the text of the book itself, but in practice I found myself carrying out a rather more extensive revision of the text than I had originally intended, so that rather than a mere ‘updated’ edition, we are now going to publish a Revised Edition (with Supplement), which not only flags up the old and new Use Classes in the original text, but also brings various other legislative references up to date, and contains some new material and re-cast or re-written text.

In order to make proper sense of the Supplement describing and discussing the new Use Classes (which contains numerous cross-references to the main text of the book), the Revised Edition of the book itself will provide a much more useful basic text than the original edition would now do. It is solely for that reason (and not because I want to sell a lot more books) that I would strongly recommend readers to order the Revised Edition of the book, with the Supplement bound in, rather than just buying the Supplement alone.

The difference in price between the stand-alone Supplement and the Revised Edition of the book (including the Supplement) is only £35, which when you think about it is a remarkable bargain for such a useful book.

If you have already ordered the Supplement alone (for £15), or the Supplement plus webinar booking (for £40), you may now wish to upgrade your order to include the Revised Edition of the book (with bound-in Supplement), in place of the Supplement alone, by paying only £35 more. Bath Publishing have kindly agreed to process any revised orders, on receipt of the extra £35. So if you wish to upgrade an existing order, you should send an email to info@bathpublishing.co.uk and they'll take it from there.

I should emphasise though that if you have not yet placed an order at all, the best route is go is through the Bath Publishing website (using the link on the left-hand side of this page). There is still time to place an order, and to book for the webinar, if you have not yet done so.

We hope to go to press very shortly, and our aim is that, at the very least, you should have received the digital edition of the book (or Supplement) by 26 November, but we have been working to extremely tight deadlines, and so the production schedule has necessarily been squeezed. So it’s fingers crossed, but you certainly won’t have to wait too long for your order to arrive.

© MARTIN H GOODALL

Monday, 16 November 2020

GPDO – Yet more amendments


The government has been promising for some time to introduce a minimum space standard for new residential units created as permitted development under the GPDO. The Secretary of State also announced recently that he would extend the temporary PD right for hot food takeaways. Both of these changes to the GPDO have now been made by the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020 [SI 2020 No.1243] which were made on 9 November.

With effect from 6 April 2021, the GPDO will not permit any residential conversion where the gross internal floor area is less than 37 square metres in size, or which does not comply with the nationally prescribed space standard issued by the Department for Communities and Local Government on 27th March 2015. (The adequacy of natural light had already been added to the matters requiring prior approval.)

It is noteworthy that, whilst various other issues (including the adequacy of natural light) are listed as matters that require prior approval, and are therefore dependent on the LPA notifying the applicant of its determination of the prior approval application within 56 days, the absolute prohibition on development that does not comply with the stated space standards does not depend on the determination of any prior approval application, but will apply even in those cases where a development could otherwise proceed in the event of the LPA’s failure to determine the prior approval application within (in the case of Part 3) the 56-day period. The space standards apply to all permitted development under the GPDO involving the creation of new dwellings, including for example the various forms of development permitted under Part 20.

The other point that readers will immediately spot is that there is quite a generous window of opportunity for developers to put forward proposals for ‘rabbit hutch’ or ‘broom cupboard’ dwellings before the space standards kick in. Although this provision is stated to come into force on 6 April 2021, the transitional provisions define the precise timing by reference to the ‘prior approval event’. These transitional provisions are one the finest examples of gobbledygook that I have ever encountered. In fact, the convoluted way in which the transitional provisions are set out in Regulation 12 deserves some sort of booby prize for outstandingly opaque legislative drafting.

Boiled down to their bare essentials, what they mean is that the provisions outlined above will not apply to a development in respect of which a prior approval application is made before 6 April 2021 (irrespective of the fact that the prior approval or expiry of the 56-day period, in the case of Part 3, will occur after that date); nor will they apply where prior approval is granted on appeal, where the appeal against a refusal of prior approval is lodged within the 6 months following the date of refusal [or non-determination] of a prior approval application that had been made before 6 April 2021. This relates to prior approval applications for residential development under both Part 3 and Part 20.

As mentioned above, the temporary change of use to use as a hot food take-away under Class DA of Part 4 has been extended [by Regulation 5] for an extra year, from its previous expiry date of 23 March 2021 to 23 March 2022. As I pointed out when originally reporting on this temporary use right, it does not override any condition in a planning permission that precludes use as a hot food takeaway.

One other change worth noting is set out in Regulation 6, which comes into force on 3 December 2020. This amends the PD right for demolition of buildings under Part 11, Class B. Apart from excepting from this PD right the demolition of any unlisted building in a conservation area, Part 11 did not previously exclude the demolition of any particular type of building, but this amendment now excludes from the PD right under Class B of Part 11, the demolition of any building that is used, or was last used, for the purpose of—

(i) a concert hall;
(ii) a venue for live music performance; or
(iii) a theatre.”

These are all sui generis uses, but the exclusion has not been extended to the demolition of a cinema, bingo hall or dance hall, or any of the other sui generis uses listed in Article 3(6) of the UCO.

As with other PD rights, the transitional provisions in Regulations 12 provide that where the prior approval application that is required under Part 11 is made prior to 3 December 2020 the exclusions noted above will not apply; nor will they apply where prior approval is granted on appeal, where the appeal against a refusal of prior approval is lodged within the 6 months following the date of refusal [or non-determination] of a prior approval application that had been made before 3 December 2020. [This prior approval does not relate to the principle of demolition, but only to the method of demolition and any proposed restoration of the site. Except in strictly limited circumstances, specified in the GPDO, commencing demolition before a prior approval application has been submitted, and determined, is not permitted development, and may lead to enforcement action being taken.]

© MARTIN H GOODALL

Tuesday, 27 October 2020

UPDATED Use of Land Book and Webinar


In a blog post in July, I briefly outlined the important changes to the Use Classes Order that were due to take effect on 1 September. As I explained at the time, this was only a first stab at the subject, and I have now completed a much more thorough examination of the changes and their practical effect, in the form of a Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts, which is due to be published shortly.

The previous Use Classes will remain relevant until well into next year, and so this Updated Edition of the book will continue to be an essential resource for everyone concerned with the planning aspects of the use of land buildings. A complete new edition of the book would be premature at present, because there are clearly important further changes still to come, but I have taken the opportunity to update the main text of the book to reflect the recent changes and to flag up their relationship to the previous Use Classes.

Readers can choose from several options in buying this important new material. For the most complete coverage of the subject, I would recommend the purchase of the Updated 1st Edition of the book, which comes complete with the bound-in Supplement. For the same price as the original edition (£50.00), this is an excellent bargain. If you really don’t want to replace your (now out-of-date) First Edition of the book, then you can buy the Supplement alone for £15.00, but this means you won’t have access to the updated text of the main book.

Whichever option you choose, another absolute bargain will be available in the form of a Webinar (via Zoom) on the UCO changes, to be broadcast on Thursday, 26 November from 10.00 to 11.30 a.m. You can book for the Webinar, as well as buying the Updated 1st Edition of the book, with bound-in Supplement, for only £75.00. (This means that you’ll pay only £25.00 to attend the Webinar.) If you really don’t want the updated edition of the book, you can book for the Webinar, and still received the Supplement separately for a price of £40.00 (which again means paying only £25.00 for the webinar).

The topics covered in the Supplement, which will also be discussed in the Webinar are:

• the new sui generis uses
• the new Use Class E
• the new Use Classes F.1 and F.2
• transitional provisions and other changes
• some problems of interpretation
• the effect on Permitted Development

There will be an extended Q&A session at the end of the Webinar, to enable participants to put questions to me and to my colleagues from Keystone Law’s Planning Law Team on the practical effect of the UCO changes.

All Webinar delegates will receive a recording of the webinar with an office licence, so everyone in your team can watch it later.

If you don’t want to attend the Webinar, you can still buy either the Updated 1st Edition of the book (complete with bound-in Supplement) for £50.00, or the Supplement alone for £15.00

Ordering and booking are really easy. All you need do is to click on either the 'Pre-order' or 'Book Now' buttons in the left-hand margin of this page, then read more and place your order.

© MARTIN H GOODALL

Monday, 21 September 2020

LPA bitten by 56-day rule


In my book, A Practical Guide to Permitted Changes of Use, I stressed the absolute necessity of an LPA’s notifying their determination in respect of a prior approval application within the time limit laid down (56 days in the case of Part 3), and I carefully explained the detailed rules for establishing both the start date and end date of the 56-day period. Yet some LPAs still seem to get it wrong, especially if a public holiday occurs just after the application is received.

Just to remind you, there are no dies non for the purpose of calculating the 56-day period. The 56-day period (and similar time limits for determining other prior approval applications under the GPDO) continue uninterrupted throughout weekends and public holidays, and it is essential that LPAs should take this into account when working out how long they’ve got in which to make a determination and to communicate it to the applicant.

I was recently sent an appeal decision in Wellingborough [3248384] in a case where the prior approval application under Part 3, Class R had been delivered to the LPA by hand at 10.07 a.m. on Christmas Eve. It was deposited in a letter box for incoming mail at the council’s office. However, the letter box had been emptied earlier that morning, and was not then opened again until 2 January. At the time of delivery, the council’s office was, nevertheless, open for business. It closed for Christmas at 4.00 p.m. that day. The Council sought to argue that the application should be deemed to have been received on 2 January, not 24 December, and that the 56-day period should be calculated accordingly.

Their contention was that this office is only accessible to the public by appointment, and that if customers wish to drop off planning application forms, documents or samples, they are requested to call the planning department on the relevant phone number. Furthermore, they said, the Council’s Christmas opening hours were displayed on the letter box and also advertised on the Council’s website throughout December, making it clear that the council’s offices were closed from 4pm on Christmas Eve to 1 January 2020, and would not re-open until 2 January.

Rules relating to the delivery of documents outside a council’s business hours relate only to delivery by electronic means. [For those rules, see Article 2(9) of the GPDO and section 336(4A) of the 1990 Act, summarised in paragraph 13.8.1 of Chapter 13 in the Third Edition of my book.] There are no rules in the GPDO governing the physical delivery of documents at times when the council’s offices are closed, but this does seem to be a ‘grey’ area (unless someone can remind me of a general rule as to the service of documents that would cover this). Subject to that parenthetical proviso, it seems to me that the legal position might not have been entirely clear if (in this case) the physical delivery of the prior approval application had been made by depositing it in the council’s letter box at, say, 4.15 p.m. on Christmas Eve, after the office had closed. However, that point did not arise in this case, because delivery in the council’s letter box took place almost six hours before the office closed for the holiday.

The Inspector was entirely clear in his finding that there was nothing to prevent or prohibit the applicant from hand posting the application in the letter box at the council’s office on Christmas Eve. Responsibility rested with the council to ensure that applications it receives, including those received immediately prior to a holiday period, are processed within the statutory time limit. Weekends and bank holidays or other public holidays did not ‘stop the clock’, nor could it be suspended during the extended closure of the council’s office in this case. Day 1 of the 56-day period in this case was therefore 25 December, and the council had accordingly failed to notify the applicant as to whether prior approval was required or was given or refused within 56 days of its having received the application on 24 December.

The Inspector nevertheless pointed out that the proposed development could only lawfully proceed if it was in fact permitted development having regard to the relevant conditions and limitations imposed on the planning permission granted by the GPDO. There appears, however, to have been no contention on the LPA’s part that the development would not be compliant with the restrictions, limitations or conditions applying to Class R. Furthermore, (due to the council’s being out of time to determine the prior approval application) it was no longer necessary to consider whether prior approval as to the transport and highways, and noise impacts of the development would or should be required.

The appellant applied for, and was granted, a full award of costs. The appellant had sought on at least two occasions to persuade the council that it was out of time, but the council persisted in denying this. In the circumstances, it was unlikely that the council would have granted an LDC if the appellant had made a section 192 application. So it was clear that the applicant had no viable option but to appeal under section 78, despite having taken all reasonable steps to avoid such a situation. As a result, the applicant had been put to the cost of an appeal that should have been avoided by the LPA’s acceptance that the 56-day period had elapsed. This amounted to unreasonable behaviour resulting in unnecessary or wasted expense, and an award of costs was therefore justified.

This should be an object lesson to all LPAs. In order to avoid running out of time for determining a prior approval application, they should make a working assumption that physical delivery of an application (discovered in their letter box on returning to the office after a weekend or public holiday) was effected before the closure of the office for the weekend or before that holiday period, and ensure that the timescale within which the application must be determined is calculated on that basis, so that the application is in practice determined within that shortened period.

© MARTIN H GOODALL

Friday, 4 September 2020

Legal challenge to GPDO and UCO changes moves forward


The High Court (Holgate J), has directed that this action (on which I reported on 27 August) will be heard in a “rolled-up” hearing in the first half of October. This means that the Court will deal with both the application for leave to proceed and with the substantive claim at the same time. This is a procedure that is sometimes adopted in cases of urgency.

I did wonder whether this case might be thought to be of sufficient importance to be heard by a Divisional Court, rather than by a single judge, and this is indeed what has been decided. One advantage of this (for both sides) is that if the case is decided by a strongly constituted Divisional Court, the losing side may possibly be able to appeal under the ‘leap-frog’ provision direct to the Supreme Court, without first having to pursue an appeal through the Court of Appeal.

The claimant also sought confirmation from the Court that this case would be governed by the Aarhus Convention (which limits the costs that can be awarded against a losing claimant in an environmental case), and the Court has confirmed that this case will be covered by the convention.

In view of the early substantive hearing of this case, the claimant has decided not to pursue its original application for interim relief, but at the hearing it will simply seek the final relief which has been claimed.

In the meantime, the offending SIs have been ‘prayed against’ in parliament (which is parliamentary language for having the matter debated). This will at least give opposition parties a chance to voice their concerns about this radical new subordinate legislation, although the government’s substantial majority will ensure that these political objections will be brushed aside.

The legal challenge to the legislation is far more serious, and the grounds on which this challenge is based raise important legal issues, especially in relation to the failure to carry out a Strategic Environmental Assessment. The alleged failure to take proper account of the responses to consultation, or to consider the government’s own specialist advice, also raises a serious Wednesbury issue.

I am sure that I am not the only lawyer who is salivating at the prospect of a juicy legal battle in October.

UPDATE: The case was heard by a two-judge Dvisonal Court last week, and (as is usual in such cases) judgment was reserved. I am not aware of any estimate as to how soon judgment may be exepected.

© MARTIN H GOODALL