Welsh GPDO changes – a closer look

As regular readers of this blog will recall, Stephen Ibbitson (who takes a close interest in the GPDO and its interpretation and practical application) has contributed several guest items to this blog. Stephen has recently taken a brief look at the newly revised Welsh version of the GPDO (amending Part 1 of the Second Schedule – development in the curtilage of a dwellinghouse), and has kindly contributed this note.

Stephen Ibbitson writes:

Much of what they've drafted appears to focus on addressing some of the many wrinkles extant in The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 (SI 2008 No 2362), albeit by means of some very tortuous language!

There is some good news for residents of Wales in Part 1, Class A: extensions to a side elevation which 'front' a highway are no longer entirely out of bounds as they are in the 2008 Order. The new Order (subject to other limitations) now allows a side extension to within 5 metres of a highway, or closer still (right up to, it seems) if part of the existing side elevation is nearer the highway than 5 metres, as would be the case if the existing side elevation is 'stepped'.

This will be an important provision for, e.g., end terrace houses adjacent to a highway (on a corner) and where the side wall of a rear wing (still considered to be part of the "side elevation") is set back from the main side wall. (Under the 2008 Order, the 'recess' thus formed is a no go area for PD.) This would seem to be the case even if the house is on article 1(5) land, although in those instances there is a further limit of 3 metres of depth (outwards, towards the highway) to any such extension in the 'recess' area.

Not such good news for the Welsh is that rooflights under Part 1, Class C are no longer PD on article 1(5) land. This will be a serious blow to those affected because, since Class B enlargements were already precluded on article 1(5) land, rooflights installed under Class C were the only other option. Cue lots of planning applications for rooflight insertion in conservation areas?

There are also some worrying new limitations in Part 1, Class E in respect of garden buildings. In the 2008 Order (and previous Orders) the 'height' of a garden building is to be determined by measuring from the 'highest' point of the land adjacent to the building in cases where the ground slopes. This allowed for at least some part of the garden building to exceed the nominal height limits specified. Notwithstanding Article 1(3) of the 1995 GPDO, it seems this is no longer the case in Wales: under the new Order no "part" of a garden building can exceed the height limits specified when measured from the ground level "immediately adjacent" to that "part". The same goes for the 'eaves' height of any such building: if the ground slopes, the eaves, like the overall height, will have to slope with it!

Presumably, householders living on sloping ground (I seem to recall there's quite a lot of it in Wales) will have the option of excavating into the higher ground to create usable ceiling heights, but the new Order certainly turns Article 1(3) on its head because height measurements are now to be determined from the lowest adjacent ground level where that level is not uniform.

[They do not seem actually to have amended Article 1(3) This led me to think that there would be problems, but I note that Art. 1(3) starts with the words “Unless the context otherwise requires,.....” so, in Wales, the provisions in Part 1, Class E now supersede the general rule regarding the measurement of height. MG]

So what will householders in Wales now do? They'll either have a vastly more costly job to do (excavation and disposal of the spoils) to build a modest shed, or have to submit a planning application, the latter quite likely to cost more than the shed itself!

Finally, a quick look at the tortuous language/construction used in the new Welsh Order. Consider this from Class E Interpretation:

"E.4. For the purposes of paragraphs E.1(b) and E.1(c), a part of a building, enclosure, pool or container is to be determined to extend beyond a wall referred to in those paragraphs if it would be in front of—

(a) in the case of a wall referred to in paragraph E.1(b)—

(i) that wall in its original form; or

(ii) that wall as it would exist if its original form were to have been extended, continuing the line of the wall, from each of its side edges to the boundary of the present curtilage of the dwellinghouse"

What they are trying to describe in "(ii)" above surely could be reduced to "plane", as in "...the plane of...". And what's wrong with "corner" in lieu of "side edges"? OK, using the word "plane" arguably doesn't account for 'stepped' elevations (where various elements of the elevation are other than co-planer), but then their drafting doesn't clearly account for those anyway!

In conclusion, the new Welsh Order succeeds in ironing out some of the wrinkles in SI 2008 No 2362, upon which it is clearly based---too many of which, it has to be said, arose in the first place due to a combination of sloppy drafting and laboured re-interpretation following the coming-into-force of novel terms devised for the Order.

To me, the modern Orders (post SI 1995 No 418) are about looking at what people want to do ('natural to the geometry of the existing building', utility creating designs) and trying to stop it. By contrast, the older Orders sought to address what was popular---those utility creating designs---but was clogging up the planning system, and tried to enable it.

© STEPHEN IBBITSON

B1 to C3 dispute hots up

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”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.

It seems that the number of applications already made for prior approval of change of use from office to residential use has significantly exceeded even the government’s expectations, and some local planning authorities have been seriously spooked by the potential ‘loss’ of office floorspace (although whether their concerns are objectively justified is perhaps open to question).

No doubt in response to this, several authorities have now made or are seriously thinking of making Article 4 Directions, but it remains to be seen whether De-CLoG ministers will use their powers to block these directions.

Meanwhile, Islington LBC, jointly with Richmond LBC, applied to the High Court on Thursday of last week for permission to bring a claim for Judicial Review of the GPDO amendments. Subordinate legislation can be challenged in this way, although the two authorities will need to persuade the Court that the amending order was significantly tainted with illegality. I have not seen the grounds, but I assume that they are based primarily on the adequacy of the consultation carried out by De-CLoG before going ahead with the amendment order, and the rejection of many authorities’ applications for exemption.

I did express misgivings at the time about the apparently peremptory dismissal of the vast majority of the applications for exemptions. There is no doubt scope for argument over whether ministers took into account all material considerations or, in light of the grounds on which LPAs were seeking exemption, as to whether the decision to dismiss these applications was Wednesbury unreasonable. The whole way the government went about this process (giving LPAs only a fortnight to seek exemption from subordinate legislation that had not even been drafted at that time) was unorthodox, to say the least, and I predicted that one or more applications for Judicial Review might well result from this.

The timing is interesting. The cause of action arose before 1 July, so the new six-week time limit does not apply to this JR application. On the other hand, by the time the JR application was issued in the High Court, 11 weeks had elapsed since the amending order was made on 9 May. So it seems to me that the two LPAs may be at some risk of being told that they have not applied promptly, as required by the Civil Procedure Rules (both before and after the recent rule changes relating to JR). It is certainly a point I would take if I were acting for De-CLoG.

It is impossible to say what the outcome of this litigation might be but, in the meantime, the amending order remains in full force and effect, and LPAs (including those who are challenging this legislation in the High Court) have no choice but to continue processing prior approval applications, in default of which the right to make the change of use from B1(a) to C3 will become automatic 56 days after the application is received by the LPA.
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UPDATE (19 August): Lambeth LBC are now joining in the party. Their bid to apply for judicial review would appear to have been made at least 14 weeks after the cause of action first arose (with the making of the GPDO amendment order on 9 May). I rather doubt whether it could be argued that time only started to run from the date when the order came into effect (30 May) (on the theoretical, but highly improbable, basis presumably that parliament might not have approved the order), but that would still be 11 weeks prior to Lambeth’s application being submitted to the High Court. The old 12-week long-stop date applies to these proceedings, but the issue of ‘promptness’ would still have to be taken into account. It will be interesting to see how the High Court deals with the time issue in these proceedings, bearing in mind the reliance that has been placed on the new legislation in the meantime by numerous applicants for prior approval of office to residential conversions.

© MARTIN H GOODALL

The recent GPDO amendments – a last look

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. The Second Schedule to the GPDO has been substantial ovehauled and re-numbered in the 2015 GPDO.

I promised in a previous post to deal with the new PD rights for other operational development granted by the amendment to the GPDO made in May.

The amendment order allows larger extensions of industrial premises than were previously permitted under Part 8 (industrial and warehouse development). The version of Part 8 that applied before 30 May 2013 was inserted in the GPDO in 2010. Class A comprises “the erection, extension or alteration of an industrial building or a warehouse.” Paragraph A.1 set out various dimensional limitations. These included [A.1(d)] any new building having a gross floor space of more than 100 square metres. Prior to April 2010, permitted development was limited to alteration and extension of existing buildings; there were no rights to provide new buildings under Class A. I have mentioned this because the editors of the Encyclopedia of Planning Law and Practice have not yet amended the text of their commentary to reflect this change, one of several instances where the text of the Encyclopedia relating to the GPDO is woefully out of date.

After April 6 2010, under paragraph A.1(e), the gross floorspace of the original building could be extended by up to 25% or 1,000 sq metres whichever was the less, provided the site was not within a National Park, an Area of Outstanding Natural Beauty, a Conservation Area, the Broads or a World Heritage Site (“Article 1(5) land”). If it was in such an area, the size limits were 10% of the floorspace of the original building or 500 sq metres whichever was the less.

The effect of the recent amendments is that, with effect from 30 May 2013, but only for a three-year period ending on 30 May 2016, the figures mentioned above are increased, so that the size limit for a new building is now 200 sq m, provided it is not on “Article 1(5) land” or (a new provision) within a Site of Special Scientific Interest. For extensions, the limits are also doubled to 50% or 1,000 sq metres, whichever is the less, provided the site is not on “Article 1(5) land” or an SSSI. In an SSSI (which is not also “Article 1(5) land”) the absolute limit is still 1,000 sq m, but the percentage limit is reduced to 25%; and, again, the lesser figure applies. In “Article 1(5) land” the limits are 10% or 500 sq m (whichever is the less).

In respect of those developments that are larger than the previous limits, there are certain extra conditions (which do not apply to new buildings or extensions that are within the previous limits). The development must be completed before 30 May 2016, and the developer must notify the local planning authority of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing and must include the name of the developer, the address or location of the development, a description of the development, including measurements and calculations (by reference to the new size limits) and the date of completion. Note that no prior notification is involved in this case and no prior approval is required.

Article 9 of the amending order amends Part 24 of Second Schedule the GPDO (developments by electronic communications code operators). The changes remove the need on “Article 1(5) land” for prior approval of the construction, installation or replacement of telegraph poles, cabinets or lines for fixed-line broadband services under Part 24 (paragraph A.3 ) for a 5 year period. Any developments covered by this concession must be completed before 30 May 2018.

It is easy to forget that Part 41 was added to the Second Schedule of the GPDO with effect from 6 April 2010, allowing certain extensions or alterations to office buildings. There is no reference here to “Article 1(5) land”, and the only restrictions relate to development within an SSSI. Except in an SSSI, the gross floor space of the original building can be increased by up to 50%; or 100 square metres, whichever is the less (up from 25% or 50 sq m under the 2010 rules). The same rules about notifying completion of one of these larger buildings or extensions apply here as apply to Part 8.

It is also easy to overlook Part 42 of the Second Schedule to the GPDO, another provision added in April 2010, which allows certain extensions or alterations to shops or catering, financial or professional services establishments. Again, the size limits have been increased from 25% to 50% or from 50 sq m to 100 sq m, subject to the same time limit for these larger extensions (completion before 30 May 2016) and the same requirements as to notifying the LPA of completion.

I have deliberately omitted the new permitted development rights for schools, as these are really only going to be of interest if you are directly involved in educational development. Suffice it to say that these changes represent the long-awaited delivery of the promise made way back in 2010 by our wonderful and ever so talented Education Secretary, Gussie Fink-Nottle (alias ‘Michael Gove’), to “tear up the planning laws” to allow his new ‘free’ schools to be built. It only took them 3 years to get there!

Meanwhile, our Welsh friends have also acquired a ‘round tuit’, and have finally amended the Welsh version of the GPDO to bring it more up-to-date. I have not had time yet to compare the new Schedule 2 in Wales with the version of the same schedule that now applies in England, but a very brief scan through it suggests that there are substantial similarities. The Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (SI 2013/1776) comes into effect in Wales on 30 September.

© MARTIN H GOODALL

Enforcement notice served out of time is quashed

The case of R (Stern) v. Horsham District Council [2013] EWHC 1460 (Admin), in which judgment was given by Leggatt J on 1 May 2013, is a salutary reminder to LPAs and their officers of the need to ensure that statutory requirements in connection with the service of enforcement notices are strictly adhered to.

Section 172(3) of the 1990 Act provides that a copy of an enforcement notice must be served on the owner and on the occupier of the land to which it relates, and on any other person having an interest in the land (being an interest which, in the opinion of the LPA, is materially affected by the notice) not more than 28 days after the date on which the notice is issued, and not less than 28 days before the date on which it is to take effect.

In this case, two enforcement notices were issued on 6 December 2011, and specified 4 January 2012 as the date on which they were to take effect. To comply with section 172(3) the notices would need to have been served at the latest on 7 December 2011. The notices were in fact served on 9 December 2011, i.e. less than 28 days before the date specified in the notices as the date on which they were to take effect.

The claimant immediately instructed an agent to lodge an appeal under section 174, but due to some delay on the part of the claimant’s agent, and with the intervention of the Christmas and New Year holidays, the appeal did not reach the Planning Inspectorate until 4 January 2012, i.e. the day on which the enforcement notices took effect. This was a day late, as the appeal must reach the Planning Inspectorate no later than the day before the notice takes effect. The Planning Inspectorate has no power to extend time for appealing, and so there could be no appeal against these enforcement notices.

In the circumstances, the claimant sought to persuade the council to withdraw the enforcement notices and reissue them so as to give him the opportunity to appeal. However, the council refused to do so, and the claimant applied to the High Court by way of Judicial Review, seeking an order quashing the enforcement notices on the grounds that they had been served out of time (i.e. less than 28 days before they were due to take effect).

The claim for judicial review proceeded on two grounds. It sought first to challenge the validity of the enforcement notices, by reason of their late service. In the alternative, the claimant argued that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council.

The council sought to defend its position by contending that the claimant could have ensured that the appeals reached the Planning Inspectorate by 3 January. They further argued that section 174(2)(e), when read together with section 285, has the effect that the validity of the enforcement notices issued in this case could not be questioned in any proceedings whatsoever on the ground that they were not served on the claimant within the time required by section 172(3). Therefore, they claimed, the claimant could not challenge the validity of the enforcement notices on that ground in these proceedings or in any other proceedings.

Leggatt J held that, interpreted in the context of the legislative scheme as a whole, the words of section 172(3) must, to avoid unfairness which cannot reasonably have been intended and to make sense of the scheme of the legislation, be interpreted as referring only to a situation where copies of the enforcement notices were not served at all as required by section 172. On this ‘narrow’ interpretation, Ground (e) in section 174 of the 1990 Act (alleging non-service of the notice) does not cover a situation where, as happened in this case, copies of the enforcement notice were served on the persons specified in section 172(2) but not within the period specified in section 172(3). Thus the preclusive provisions of section 285, on which the council relied, did not prevent the defective service that had occurred in this case being challenged by way of judicial review.

The claimant also ran an argument under Article 6 of the ECHR (the right to a fair trial). Article 6 applies to planning determinations including the issue of enforcement notices and, in the light of the decision of the House of Lords in the case of R (Alconbury Developments Limited) v Secretary of State for Environment [2003] 2 AC 295, this brings section 3(1) of the Human Rights Act 1998 into play (which states that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."). His lordship pointed out that the interpretative obligation imposed by section 3(1) is a strong obligation. It requires that the more favourable interpretation of section 174(2)(e) must be adopted unless it is plainly impossible: see e.g. R v A (No 2) [2002] 1 AC 45. The interpretation of section 174(2)(e) that was more favourable to the claimant must accordingly be adopted in order to achieve compatibility with Article 6 of the Convention.

On the question of the exercise of the court’s discretion, one of the causes of the failure to appeal in time was the council's breach of statutory duty. That being so, the claimant had been substantially prejudiced by the council's breach of duty (as well as by the fault of his own agent). Hence, this was not a case where the Court should decline to make a quashing order.

Although, in view of his other findings, it was unnecessary for him to adjudicate on the claimant’s alternative argument (that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council), Legatt J indicated that he would also have found in favour of the claimant on that ground.

What I really don’t understand about this case is why on earth Horsham didn’t just withdraw the enforcement notices as requested. Even if they had been issued and served right at the end of the four-year period, the council would still have another four years in which to issue and serve fresh notices under the ‘second bite’ provision – section 171B(4)(b). OK, so that would give the claimant a right of appeal under section 174, which they would otherwise have lost, but so it should. A theme which runs right through the judgment of Leggatt J is the need for fairness. It would be manifestly unfair for the council to seek to take advantage of their own procedural mistake to deprive the claimant of their right of appeal.

© MARTIN H GOODALL

And now – A1 to C3?

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”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.

Planning officers who are worried about the recently introduced rules allowing change of use from B1(a) (office use) to C3 (residential use), will soon have more to worry about. The government is preparing proposals to allow conversion of “some” retail floorspace (I don’t know yet what sort of premises might be involved) to residential use.

The spin put on it by Uncle Eric at a recent conference, when he foreshadowed these proposals, referred to “dormant out-of-date offices, empty shops and boarded up buildings”, which he intends to turn into new homes. He believes this will bring life back to town centres. Some town planners might not agree. Would it really strengthen the ‘vitality and viability’ of shopping centres, or just produce more dead frontage? No doubt primary retail frontages will be excluded, and we shall have to see the detail of De-CLoG’s proposals before we can understand the possible impact, and (perhaps more important for our day-to-day work) precisely how the new PD rights will work in practice. One can only hope that they will be less ambiguous than those set out in the recent amendment to the GPDO in May.

Pickles also seems to have wittered on in the same speech about “giving rural communities new power to turn old barns and outhouses into new homes and businesses”, which he claims will boost the rural economy whilst protecting the open countryside from development. The recent changes to the GPDO definitely do not permit change of use of agricultural buildings to residential, so is the government seriously proposing to make it possible to do this in future? We shall have to see what emerges in the promised consultation document, which is promised before the end of this month, and then in the resulting amending legislation – in the form of yet another amendment to the GPDO.

If the GPDO is to be amended yet again, maybe this would be a good opportunity for De-CLoG to sort out the muddle in paragraph N of their amending order in May, so as to drop the requirement that the LPA should “have regard to the NPPF as if the application were a planning application” and make it clear that the only considerations to be taken into account are those relating to any transport and highways impacts of the development and any contamination risks or flooding risks on the site. Otherwise, why make these changes of use permitted development at all?

© MARTIN H GOODALL

Judicial Review – the new rules

Readers who keep up-to-date with such matters will already be aware that the government’s new restrictions on applications for Judicial Review (‘JR’) came into force on 1 July.

The changes that relate to legal challenges to planning decisions are quite simple. They do not affect legal challenges to appeal decisions made by planning inspectors or by the Secretary of State, under sections 288 and 289 of the 1990 Act. The new rules only affect legal challenges to other decisions, such as the grant of planning permission by a local planning authority (or by the Secretary of State, for example on a called-in application under section 77) which are brought under Part 54 of the Civil Procedure Rules.

Where the application for JR relates to a decision made by the Secretary of State or a local planning authority under the Planning Acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose. No change is made to the identification of the date when “the grounds to make the claim first arose”, and so in accordance with the decision of the House of Lords in Burkett, that date is the date on which the planning permission under challenge was actually issued, not the date of the committee meeting or the date of the delegated decision when it was resolved to grant planning permission.

In simple cases, the two events can occur on the same day or within a day or two of each other, but in more complex cases several weeks or months can sometimes elapse between the decision to grant permission and the actual issue of that permission. In practice, this may give objectors a bit more time to get themselves organised, as the kind of decisions that tend to be challenged by way of JR are often the ones that involve some complexity. Nevertheless, objectors who wish to challenge such a decision should not hang around. Lawyers need to be instructed as early as possible to advise on a potential High Court application, so that if they advise that an arguable case can be put forward, the necessary application can be issued and served within the 6-week time limit.

This latest amendment to the Part 54 of the Civil Procedure Rules does not affect the power of the Court to extend time, so the absolute six-week cut-off that applies to section 288 applications does not apply to JR applications under CPR Pt.54. The position now is really no different from that which obtained before the House of Lords’ decision in Burkett, a situation with which we all seem to have coped at the time. In appropriate cases, the court will no doubt be prepared to extend time, although it will clearly not do so if the failure to apply within six weeks is simply the result of unpreparedness on the part of the claimant or simple dilatoriness, whether on the part of the claimant or on the part of their legal advisers.

The new rules amend Part 52 so as to remove the right to renew the application for permission to proceed with a claim for JR at a hearing in open court following a previous refusal of permission on the papers, but only if the judge who refused permission on the papers certifies that the claim is totally without merit. I confess to having some misgivings about this, but it is to be hoped that judges will exercise this power sparingly, and only in the most obvious cases.

The new rule under Part 54 (the six-week time limit) applies only in respect of those cases in which the grounds for JR arose on or after 1 July 2013. The new rule under Part 52 (oral hearing of a renewed application) does not apply to an application for permission to bring proceedings for JR that was made before 1 July.

Increases in the court fees payable in these proceedings had already been introduced under previous rule changes.

© MARTIN H GOODALL

Curtilage in relation to lawful use

I have received a comment from a planning officer which raises a question about a particular LDC application that they have received. I don’t think I should publish the officer’s comment in the form in which it was submitted, as it discusses the application in more detail than is perhaps appropriate in this forum. Nevertheless, the comment raises specific points of interest which I thought it worth discussing here.

A CLOPUD is being sought for development which is claimed to be permitted development. This depends on the land in question being domestic curtilage so as to bring it within the terms of Part 1 of the Second Schedule to the GPDO.

Planning permission was granted for the erection of a dwelling on a smallholding. The officer says this was an outline permission. But before the dwelling was built there must have been a reserved matters approval. In any event it is the outline permission that constitutes a planning permission, and section 75 of the 1990 Act provides that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and if it doesn’t then the permission is to be treated as authorising its use for the purpose for which it was designed. (I am assuming that the house has actually been completed - failing which no PD rights under Part 1 could arise yet.)

If the approved drawings are examined, it should be easy enough to determine the extent of the planning unit to which that permission related, but this may no longer be of any great relevance because, in the case in question, evidence apparently indicates that the relevant area (now claimed to be ‘curtilage’) has been used as garden land well in excess of 10 years, and this would seem to indicate that its use has become lawful, so that it lawfully forms part of the same planning unit as the house.

Notwithstanding this, my correspondent refers to an appeal decision on another site in 2001 in an appeal against the refusal of a CLEUD for “use of surrounding area of land to house to use as residential”, which was dismissed because the Inspector concluded that “whilst it is unusual for a home not to have residential curtilage – no area is defined on the permission”. With respect to that inspector, this is a rather inaccurate and woolly statement. I suspect that what the inspector meant was that the permission did not identify any planning unit other than the footprint of the house itself (which is unusual but not unknown). However, in the present case, this is no longer relevant, because an area of garden land has been added to the planning unit, and the evidence indicates that this change of use has become lawful under the 10-year rule.

The next question is how far the domestic curtilage extends. I have discussed this issue in this blog ad nauseam, so just take a look through the various discussions on this issue. But ‘use’ as domestic curtilage is not a use for planning purposes – it is just a matter of fact, and it can change at any time very easily.

Two points should be borne in mind. First, by virtue of Art. 3(5)(b) of the GPDO, PD rights cannot be exercised over land whose use is unlawful. It follows that permitted development within a domestic curtilage cannot be carried out on land that is not lawfully in domestic use. So whilst there is no qualifying period for land to become domestic curtilage, it cannot be treated as domestic curtilage for the purposes of the GPDO if its residential use is unlawful or has not yet become lawful. On the other hand, if the relevant area is lawfully used as part of a planning unit falling within Use Class C3 (i.e. a single private dwellinghouse and the land occupied with it and lawfully used for domestic purposes) the domestic curtilage can be extended at any time to include an enlarged part or even the whole of that planning unit (see Sumption v. Greenwich LBC). Whether this has in fact happened is simply a question of fact, applying the test in Sinclair Lockhart’s Trustees and the other cases discussed in previous posts.

If the garden land is lawfully used as such (as seems to be the case here), then it is capable in principle of having become part of the domestic curtilage. In fact, if it forms part of the formal garden around the house, or a vegetable garden, and is not separated from the house by, say, a paddock or area of rough grass, then it is very likely that it is indeed part of the domestic curtilage. An LDC cannot be issued in respect of the ‘use’ of land as ‘domestic curtilage’ (for the reason previously mentioned) but a certificate can be issued in respect of permitted development that is dependent on the land in question being within the domestic curtilage (i.e. PD within Part 1), which in effect provides the desired confirmation of the status of the land as domestic curtilage, albeit by a slightly different route.

So in the case mentioned by my correspondent, it seems that the land in question is lawfully part of the residential planning unit, and it is simply a question of deciding whether as a matter of simple fact it does actually form part of the domestic curtilage as such. If it does, then (subject to the rules in Part 1 as to the precise siting and dimensions of extensions and outbuildings), it would appear that a CLOPUD ought to be issued in respect of the proposed domestic extensions.

I have gone through this case simply to show how questions of this sort should be approached. The outcome of the pending application to which I have referred will ultimately turn on a factual judgment as to the actual extent of the domestic curtilage, and this will depend on the evidence put forward by or on behalf of the applicant. In assessing this, planning officers should always bear in mind paragraph 8.15 in Annex 8 to Circular 10/97 and the judgment in FW Gabbitas v. SSE referred to in that paragraph.

© MARTIN H GOODALL

Avoiding changes of use from B1(a) to C3

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”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.

It has been reported that Brighton & Hove wish to prevent changes of use from Class B1(a) to C3 within their area by means of an Article 4 Direction. They were one of the authorities that applied unsuccessfully to be exempted from the provisions of the amended GPDO before these changes were made.

A news report states that the council “are to consider applying for an Article 4 direction from the Department for Communities and Local Government so that some areas of the city are exempt from the policy.” Strictly speaking, an LPA does not in fact need to apply to De-CLoG for an Article 4 Direction; they have the power to make the Direction themselves. Even if there are objections to the Direction, there is no longer a requirement for the Direction to be confirmed by the Secretary of State, although the LPA must properly consider any objections before confirming the Direction.

What the writer of the news story may have had in mind is that under the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654) LPAs are obliged to give notice of Article 4 directions to De-CLoG, and cannot confirm them for 28 days or such longer period as the Secretary of State may specify following notice of the draft Article 4 direction having been received by De-CLoG from the LPA.

The Secretary of State has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA, although Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description).

It may be the requirement to give notice of the Article 4 Direction to De-CLoG, coupled with the power that Uncle Eric has to make a direction cancelling or modifying an Article 4 Direction, that has led Brighton & Hove to decide that they need to go cap-in-hand to De-CLoG to beg them not to cancel an Article 4 Direction if they make one.

So, as I pointed out in a post some months ago (long before the amendments to the GPDO were finally made), Uncle Eric does have the whip hand in such matters, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he has so recently created. When these changes were first mooted last year I predicted a sort of ministerial ping-pong match, with Uncle Eric lobbing the ball back over the net every time an LPA makes an Article 4 direction in an attempt to remove the extended PD rights. But do De-CLoG ministers really want a series of stand-up fights with LPAs over this? I suspect that saner counsels may in fact prevail, and there may be some sort of negotiated settlement which would allow Brighton & Hove and other LPAs to make Article 4 Directions that exclude the permitted development right to change from a use within Class B1(a) to C3 in some parts of their area, or which modify this PD right in some other way that would exclude certain types of building or particular types of conversion.

Brighton & Hove are due to take a decision on 11 July on how to take this proposal forward, and it will be interesting to see how this develops. Other LPAs will no doubt be following this matter with considerable interest.

© MARTIN H GOODALL
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UPDATE (12 July) : Brighton and Hove are going ahead with their Article 4 Direction, and it seems that a number of other councils are now proposing to make these directions. It will be interesting to see whether Uncle Eric or the boy Boles use their ministerial powers to block these directions. Meanwhile Islington LBC is contemplating a legal challenge to the GPDO amendment order by way of judicial review, based on the way the consultation process was carried out prior to the government's decision as to whether particular authorities should be exempted from the order. Other councils could join in if these proceedings get off the ground.