Thursday, 22 August 2013

We’re all going to be film stars!

Not to be outdone by the forthcoming second series of ‘The Planners’ on the telly (which, by the way, is going to be re-titled “Not in My Back Yard!”), Uncle Eric has decided that the cameras should be allowed into planning committee meetings and planning hearings and inquiries.

New guidance is to be issued by De-CLoG, which "will make clear the rights for members of the press and public, including local bloggers and hyper-local [?] journalists, to report, film and tweet planning appeal hearings." In a press release, De-CLoG ministers express the hope that “this will open up a previously mysterious and rarely seen side of the planning process”.

The new freedom to record and film proceedings, including the use of digital and social media can be exercised in future in appeal hearings and inquiries, provided that it does not disrupt proceedings. According to the blurb, "Inspectors will advise people present at the start of the event that the proceedings may be recorded and/or filmed, and that anyone using social media during or after the end of the proceedings should do so responsibly."

Pickles is particularly annoyed, because previous guidance he published in June, which was intended to open up planning committee meetings in the same way, has been deliberately ignored by some councils. Unfortunately, he omitted to write this into recent changes to subordinate legislation on the conduct of council meetings, and so he can do no more for the time being other than to huff and puff about it (something Uncle Eric is rather good at doing).

The press release ‘names and shames’ several of the offending councils:

• Wirral Council banned a blogger from filming its planning committee on health and safety grounds, asserting the ban was necessary as they cannot ‘police’ people filming.

• Tower Hamlets stopped a 71 year old resident and OAP campaigner filming a council meeting in June 2013. Council officers asserted that allowing filming could lead to “reputational damage to the authority”

• Keighley Town Council stopped a council meeting when a group of pensioners started to film the meeting and called in the police who escorted the 11 residents from the town hall. Officials argued allowing filming would be a “breach of Standing Orders”

• Blogger Richard Taylor, producing a guide for citizens on how to film meetings, has warned that some councils have demanded identity papers, such as a passport, before allowing filming, and warned “be prepared for the police to be called and the possibility of arrest, especially if you intend to film, photograph, tweet or take notes on a laptop” (Apparently, he was threatened with arrest when he tried to film Huntingdon District Council.)

• Bexley Council has asserted it intends to continue to prohibit audio and visual filming due to its “agreed protocol”

• Stamford Town Council meeting has reaffirmed its ban on a newspaper reporter tweeting from a council meeting, due to “concerns about 140 character snippets of information not accurately portraying a debate”

I have no more sympathy than Pickles with these weak excuses. If meetings are open to the public (as most planning committee meetings must be by law), there can be no reasonable objection to the proceedings being filmed, photographed and recorded, or reported ‘live’ on social media.

On the other hand, if you have attended as many different planning committee meetings as I have, you may well understand the reluctance of elected members to have their ‘deliberations’ broadcast to the great unwashed. The sad fact is that the standard of debate in many planning committees is absolutely dire, and the poor calibre of elected members, their profound ignorance of planning principles and procedures, and general lack of common sense is appallingly obvious. When officers in one authority claimed that allowing filming could lead to “reputational damage to the authority”, their fears may well have been justified!

As for opening up planning inquiries and hearings to the cameras, camera phones and recorders, I rather suspect that interest in recording the proceedings in this way will rapidly wane. It is rare even to see a local print journalist at an appeal hearing or inquiry, and those members of the public who bother to attend mostly drift away by lunchtime on the first day. The plain fact is that for those not directly involved in the process, it is arcane and incomprehensible, and opening it up to the cameras is not going to change that.

Major public inquiries into controversial development proposals might attract the TV cameras, but they will have the same problem as print journalists who have tried to cover these proceedings in the past. The bigger the development scheme, the longer the inquiry, and for journalists and TV crews it is likely to prove as exciting as watching paint dry.

Still, it makes a good silly season story, and Uncle Eric can feel satisfied that he has taken yet another decisive step to improve the planning system. Never mind, that we are still not building more than a tiny proportion of the new homes that are so urgently needed. Never mind that local planning authorities are starved of funds and can hardly cope with their work as a result. And never mind that all Uncle Eric’s previous brave words and stirring deeds have done virtually nothing to make any really significant change to the planning system.

UPDATE (30 August 2013): I am told that Merton Council has begun webcasting various meetings within the past few months, including its Planning Applications Committee (although I am told that after two meetings no further webcasts have been made due to "technical difficulties"). A correspondent has suggested that readers should watch the first three applications presented on 18 April.

The webcasts can be accessed on:

This is not a link, but if you copy and paste this URL into the address line on your browser, the page should open. Don’t panic when you get no sound at the beginning. The camera was switched on before the meeting began, and the sound only starts when the Chairman opens the meeting, 7½ minutes into the recording. (You can move the cursor along to get to this point without having to watch usual the pre-meeting comings and goings in total silence. Alternatively, the menu on the right of the page enables you to go straight to the start of each item. The first application is reached about 10¾ minutes ibnto the recording.)

The 18 April meeting seems fairly typical to me. One thing you’ll notice is that the proceedings might reasonably be described as ‘unhurried’. It takes over 20 minutes, including the planning officer’s introduction, and public statements, before the members of the committee start to discuss the first application around 33½ minutes into the recording.

Anyway, see what you make of it.


Monday, 19 August 2013

Office to residential – some interesting examples

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. 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.

There are interesting and encouraging signs that some LPAs are taking a positive and proactive approach to the new permitted development right allowing the conversion of offices to residential use. Furthermore, despite the doubts I expressed initially, it seems that there are no qualms about multiple conversions, involving the creation of a significant number of new flats within a single large office building.

I understand that Birmingham City Council has recently approved a 120-unit conversion in an office building in the city under the prior approval procedure introduced in May, rather than by means of an application for full planning permission. Other large schemes are in the pipeline around the country, but a few authorities are showing a degree of reluctance to accept such conversions, even for single units. As I have observed before, we shall have to await the outcome of a number of appeals before it becomes clear how the issues that arise from the drafting of the legislation are likely to be resolved.

It seems that the LPAs that are responding positively to these prior approval applications are fully prepared to accept that there is no opportunity to seek any element of affordable housing in such schemes and that the scope for securing other benefits from developers is limited. If there are any LPAs that don’t accept this, they may find out the hard way, through the appeals process, what the true limits of their powers are under the new prior approval procedure.


Friday, 16 August 2013

Uncle Eric’s wheelie bin crusade

Since it’s Friday, I couldn’t resist passing on to you a joke sent to me by Stephen Ibbitson.

The date is some time in 2015 (I suggest before May of that year). Uncle Eric is walking down a new street and sees a collection of wheelie bins standing there.

"I thought we'd made sure new houses had to store their wheelie bins out of sight?" he lamented to his Permanent Secretary.

"Oh, but we did, Minister. Those are the new houses!"


There is in fact a possibility that Uncle Eric may have moved to pastures new before the next general election. The Westminster rumour mill already has him marked down as the next Tory Chief Whip in the expected cabinet reshuffle during the current summer recess. If this appointment does eventuate, no doubt we can look forward to predictions that he will sit firmly on any Tory MPs who step out of line in the run-up to the general election, and that he will personally squash any backbench rebellions.


Tuesday, 13 August 2013

Barn conversions to be permitted development

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. 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.

Lack of time prevented my writing on all the changes proposed by the recent consultation paper on “Greater flexibilities for change of use”, and so I dealt initially only with the proposed permitted development rights for change of use from retail (A1) or from professional and financial services (A2) to residential use (C3). However, a more dramatic, and potentially controversial, proposal is to allow a change of use of existing agricultural buildings to residential use (together with associated physical works) – the classic barn conversion.

There are already permitted development rights for the change of use of agricultural buildings to use for commercial purposes. So, having allowed conversion of agricultural buildings to other uses, the government sees no reason in principle to restrict this, although they acknowledge that what would be an acceptable change of use needs to be carefully defined. They say they want to avoid high-impact development occurring without the opportunity for local consideration.

The specific proposal is that up to 3 additional dwelling houses (which could include flats) could be converted on an agricultural unit which already existed on 20 March 2013, with an upper limit of 150 sq m for each dwelling, which would allow for a home of reasonable size without its being excessively large. This would apply to any agricultural unit irrespective of its size. (An agricultural unit comprises agricultural land which is occupied as a unit for the purposes of agriculture, including any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or any dwelling on that land occupied by a farm worker.)

Such a new permitted development right for change of use of agricultural buildings to residential use is likely to need some external alterations, and the government recognises that for this permitted development right to be effective it should also include provision for some limited physical development. This would even extend “where appropriate” to the demolition and rebuilding of the property on the same footprint. (Hallelujah! At last we shall see an end to the precious insistence on retention of the existing grotty fabric of life-expired barns and similar buildings that are being converted.)

The catch to these proposals is that prior approval for siting and design would be required to ensure that the physical development complies with local plan policies on design, materials and outlook, and that there would also be a requirement for prior approval in respect of transport and highways impact, noise impact, contamination and flooding risks to ensure that the change of use takes place only in ‘sustainable’ locations. No mention is made here, however, of the NPPF or of the local development plan in general.

Unless I have misread the consultation paper, this permitted development right would not be excluded on “Article 1(5) land” (i.e. in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Norfolk Broads and World Heritage Sites). No mention is made of listed buildings, but perhaps the need for Listed Building Consent for alterations affecting their character is thought to be sufficient protection without requiring any further restriction affecting the proposed permitted development rights set out here.

One of the consequences of the proposed change is that it may become easier in future to create new agricultural dwellings, without having to jump through the hoops currently required by paragraph 55 of the NPPF (and the tests formerly prescribed by Annex A to PPS7). Furthermore, such a dwelling would not be subject to an agricultural occupancy condition.

The government seems dimly to perceive that they may be creating a potential loophole here, and so they propose that in future an owner will be able to choose to exercise either the existing permitted right to construct a new agricultural building under Part 6 (for purely agricultural, not residential use) or the new right for conversion of an agricultural building to a dwelling house. Where the new right is exercised the owner will only be able to exercise the permitted development right for construction of a new agricultural building once a period of 10 years has elapsed. The stated intention is that only where the agricultural buildings are genuinely redundant will it be appropriate to grant a permitted development right to allow for the change of use of that building to residential use. In addition an owner will not be able to exercise the new right if they used the existing permitted development right to construct a new agricultural building on or after the publication of this consultation paper (on 7 August 2013). However, as the paper points out, this will not prevent an application for planning permission for development during this period.

As noted elsewhere in the consultation paper, local planning authorities will be able to issue Article 4 Directions to prevent or restrict such changes of use, although compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

UPDATE: The amendment order was made on 10 March 2014, laid before Parliament on 13 March and will come into force on 6 April. See now the post I published on 17 March 2014 (“Barn conversions – the new rules”)


Wednesday, 7 August 2013

Change of use of shops to residential use

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.

As predicted in my post on 18 July (“And now – A1 to C3?”), De-CLoG has now published a consultation paper suggesting this and other changes to the GPDO which (among other things) would allow change of use of some shops to residential use. This consultation paper is only a week late, having been promised for “the end of July”.

These changes were foreshadowed in the 2013 Budget Statement. De-CLoG is proposing to create a permitted development right for change of use (together with the associated physical works – in contrast with the recent provisions for change of use from office to residential) from a small shop (Class A1) or from professional/financial services (Class A2) to residential use (Class C3). It also proposes to allow a change of use from retail (A1) to use as a bank or a building society branch (within Class A2) (but not to other uses within this use class) and from agricultural use to residential use. I will deal with these latter proposals in a separate post.

The department’s stated intention is to find new uses for shops that no longer have a future. The consultation paper gives a perfunctory nod towards the “town centre first” policy set out in the NPPF, but does not propose to restrict the new permitted development right to a particular type of retail unit or site (e.g. secondary retail frontage). The proposed amendment will allow for necessary works for the residential conversion, including a new frontage, windows and doors.

The developer will be required to apply to the LPA for prior approval in respect of design, the potential impact of the loss of the retail unit on the economic health of the town centre, the need to maintain an adequate provision of essential local services such as post offices, and the potential impact of the change of use on the character of the local area. This will allow the local authority to have regard to their local plan policies for the area. So LPAs will still have quite a wide discretion over the determination of these change of use applications. In practice, it looks as though this alone could largely negative the liberalisation that the government claims to be seeking. This point is impliedly recognised in the consultation paper, which points out that the refusal of prior approval will be subject to appeal if local authorities are found to be using it unreasonably to prevent these changes of use.

The proposed permitted development right will be limited to A1 and A2 premises of not more than 150 square metres floor area, and will allow conversion to a single dwelling house or a maximum of four flats (but not a small HMO). Premises in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage sites (“Article 1(5) land”) will be excluded.

The consultation paper recognises that local planning authorities can issue Article 4 Directions to prevent or restrict such changes of use, although it does include a reminder that compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.


Extra GPDO changes for telecoms operators

NOTE: There have been further changes to the law since this blog post was published. The position is now governed by the GPDO 2015.

Those busy bees at De-CLoG are still hard at it. Their latest production is the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2013 (SI 2013/1868) which comes into force on 21 August 2013 (in England only). This is fairly specialist stuff, but taken together with other recent changes to the GPDO, it represents a further liberalisation of the control regime for telecoms code operators.

The amendment permits replacement or alteration of existing freestanding masts except on “Article 1(5) land” or in an SSSI. The altered or replacement mast can be up to 20 metres high and up to one third wider than the existing mast. Larger aerial dishes and extra aerial systems can now be attached to certain buildings and structures.

Several other amendments are made to the requirements for prior approval, and where the code operator and the LPA agree minor amendments to a previously approved proposal under the prior approval procedure, a fresh prior approval application will not now be required.


Friday, 2 August 2013

A (partial) end to validation nonsense

As other commentators have observed, there have been a lot of changes going on recently, one of which is the revised process for the validation of planning applications, which was brought into force on 25 June (but only in England).

The amendments made by the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 are somewhat more modest than we might have hoped, and they fail to address a number of problems that have been thrown up by the current rules and practices surrounding the validation and registration of planning applications.

There is some limited relaxation of the requirement for Design & Access Statements. They are now required only for ‘major development’ (see below) or, if any part of the development is in a conservation area or a World Heritage Site, where the development consists of the provision of one or more dwellinghouses or the provision of a building or buildings where the floor space created by the development is 100 square metres or more.

‘Major development’, is defined by Article 2 of the 2010 Order, and includes mineral working or waste development, the creation of 10 or more homes, any other residential development on a site having an area of 0.5 hectares or more, the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more, and any development on a site having an area of 1 hectare or more.

However, the requirement for a DAS does not apply to an application under section 73 (permission to develop land without compliance with conditions previously attached to a permission), an application to extend the life of a planning permission (under the limited powers currently allowing some permissions to be extended), an application for an engineering or mining operation or waste development, and an application for change of use. I confess to being slightly confused here. A DAS is not required for minerals or waste development, but these are, by definition, ‘major development’, which does require a DAS. Can somebody explain to me in words of one syllable how this apparent ambiguity is resolved? What obvious clue have my little grey cells missed here?

Article 5 of the amendment order introduces a new procedure for resolving validation disputes relating to the information demanded by an LPA before they will register an application. This effectively reverses the Newcastle judgment - [2009] EWHC 3469 (Admin) [see “Validation dispute goes pear-shaped”, published in this blog on 5 May 2010] - and restores the right to appeal under section 78 against the non-determination of the application, but instead of the straightforward appeal that could be lodged before the Newcastle case, the applicant will now have to go through a dispute resolution procedure before the right to appeal can arise, involving yet more time and more cost. But at least there is now a means to resolve the impasse where an LPA is refusing point blank to register an application.

The amendments made by Article 5 do not apply to any planning application made before 25 June 2013, but where an applicant is already at loggerheads with an LPA over validation of an application submitted before that date, it would be a simple matter to withdraw that application (which the LPA has not in any event accepted is a valid application) and resubmit it, whereupon the validation dispute procedure will become available in respect of that new application. The original fee should be refunded automatically in view of the non-registration of the application in respect of which it was paid, and a fresh fee will then be payable on the submission of the new application.

In order to invoke the validation dispute procedure, the applicant may send a notice to the authority specifying which particulars or evidence the applicant considers is unnecessary, setting out the reasons the applicant relies upon in holding that view and requesting the authority to waive the requirement to include those particulars or evidence in the application. The LPA must then notify the applicant either that the authority no longer requires the applicant to provide the particulars or evidence (“a validation notice”), or that the authority continues to require the applicant to provide this information (“a non-validation notice”). In either event the LPA must respond within the statutory determination period ( 8 weeks in most cases, longer for major developments and developments involving an EIA), unless the applicant’s notice was received by the LPA within 7 working days of the end of that period, in which case the LPA has a further 7 working days after that to respond. The application must be a valid application in all other respects, including payment of the fee, etc.

It is upon the service of a non-validation notice or the failure of the LPA to respond within the time limit that the right to appeal against non-determination under section 78 will then arise.

There is one missing element here. A chartered surveyor with whom I have worked on a number of planning cases over the years has pointed out that there is one LPA he knows whose performance is so poor that they are not even managing to register applications within the 8-week period, even where no dispute has arisen over the information supplied in compliance with the local validation checklist. When and how does a right of appeal against non-determination arise in this case? It is possible that the authority in question may get put into ‘special measures’, which I suppose will solve the problem in one sense, as the applicant can then apply for planning permission direct to the Secretary of State, but there could be other examples around the country where this is not going to be an option. My instinct tells me that a section 78 appeal could be run in such circumstances, and that it would not be precluded by the Newcastle decision. However, this is a situation which the DMPO amendment itself does not cover.

Article 7 of the amendment order has now removed the requirement for an LPA, when granting planning permission, to include a summary of their reasons for the grant of permission and of the policies and proposals in the development plan which are relevant to the decision to grant permission. However, this amendment does not remove the ridiculous requirement imposed in 2012 that the LPA must include a statement “explaining how, in dealing with the application, the authority has worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with the planning application”.