Monday, 29 July 2013
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.
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