Thursday, 7 July 2011

The definition of development (2)


As promised, I am returning to this topic to follow up the suggestions for reform which I proposed here last week.

I would propose to amend s.55 [1A] by deleting paragraph (a) [“demolition of buildings”]. This was a hasty and ill-thought out insertion in the Act in 1991, which necessitated some complex gymnastics, including ministerial directions under s.55(2)(g) - recently found to have been unlawful (!) - plus Part 31 of the GPDO. This nonsense could all be done away with by simply removing demolition from the definition of development.

There are some further amendments which might usefully be made to some of the other sub-sections of section 55.

Sub-section (2) sets out some exceptions to or exclusions from the definition of development, and there are a number of changes that I would propose to this sub-section.

Paragraph (d) has been anomalous and unnecessary since the inclusion of dwellinghouses within the Use Classes Order in 1987. Since that date, the wider provisions of paragraph (f) have applied to dwellinghouses (which are now in Use Class C3), and so the uses to which any buildings or other land within the curtilage of a dwellinghouse may be put are no longer limited (if they ever were) to purposes which are “incidental to the enjoyment of the dwellinghouse as such”; they include purposes which form part of the primary residential use of the property and ancillary uses as well. Nor is the lawfulness of such uses confined to the ‘curtilage’ of the dwellinghouse; it extends to the whole of the planning unit.

For the avoidance of doubt, I should make it clear that, as matters stand at present, the wording of Part 1 of the Second Schedule to the General Permitted Development Order does confine the initial use of outbuildings and other structures (including pools, etc.), built as permitted development, to purposes which are strictly “incidental” to the residential use, and such operational development is also confined to the ‘curtilage’ of the dwellinghouse. However, once that permitted development has been carried out, the effect of Section 55(2)(f) is such that there is nothing (after a decent interval) to prevent that development, which was originally for a purpose which was strictly “incidental” to the enjoyment of the dwellinghouse as such, then being used instead for purposes which form part of the primary residential use (such as extra sleeping accommodation) or for any ancillary purpose. This suggests to me that there is a need to amend the wording of Part 1 so that it no longer uses the term “incidental”, but that is another topic, and we must return to the provisions of section 55.

I have used the removal of paragraph (d) as an opportunity to insert a new paragraph in its place, dealing with the use or uses to which a newly erected building can be put. If erected with the benefit of planning permission, the use of a new building is governed by section 75, but that section does not apply to buildings which were not built with the benefit of planning permission. This gives rise to a possible difficulty where an unauthorised building has become immune from enforcement under the 4-year rule and therefore lawful. There is judicial authority which suggests that the use of that building may not become lawful at the same time. It is in order to obviate that difficulty that I have proposed the following new paragraph to exempt the use itself from the definition of development:

(d) the use of a building or part of a building for the purpose or purposes for which it was designed or adapted when first built together with the use for the same purpose or purposes of any land which forms part of the same planning unit which comprises that building or part of a building and the land occupied with it;

This exemption would apply only to the first use of a new building; it would not exempt a subsequent change of use of the building from the definition of development. The effect of the change would be to make it clear that the use of a new building does not need to be considered separately from the operational development involved in its erection.

The next proposed amendment relates to agricultural and forestry uses. At the moment, any change of use to use for agriculture, horticulture or forestry is entirely excluded from the definition of development, so that turning your house and garden into a smallholding (as Tom and Barbara Good did in the well-known sitcom The Good Life) is perfectly lawful. To avoid anomalies and difficulties arising in future, I am proposing that this exemption should be confined to changes within this group of uses, and would not apply to a change of use from some other use. So, as amended, this paragraph would read:

(e) the use of any planning unit for the purposes of agriculture or forestry (including afforestation) where the last use of the planning unit was for one of those purposes, and the use for any of those purposes of any building which existed within the planning unit when the current use commenced;

I think the wording of paragraph (f) would also benefit from a little tidying up, to make it clear that it applies to the planning unit:

(f) in the case of a planning unit which is used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the whole of the planning unit for any other purpose of the same class, including the use for such purpose or purposes of any building which existed within the same planning unit when the current use commenced.
Note that I have omitted the reference in the current wording of this paragraph to part of the buildings or land. That arises from an amendment which I am proposing to sub-section (3), to which I will return in the next post on this topic.

Finally, in light of my proposal to remove demolition from the definition of development, paragraph (g) would also need to be taken out of sub-section (2), and it might be advisable to put the point beyond doubt by adding to the exclusions in sub-section (2) the following new paragraph (g) :

(g) the demolition in whole or in part of any building or structure or any part of a building or structure.

© MARTIN H GOODALL

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