Wednesday, 18 June 2014

Residential conversion of agricultural buildings - ecological considerations

Neil Pearce at Wychavon DC has raised with me a point arising from the conversion of agricultural buildings to residential use under Class MB in Part 3 of the Second Schedule to the GPDO. This relates to the appropriateness of a requirement that certain ecological surveys should be carried out. There are actually two points –

(1) Can the need to protect bats or other protected species be a material consideration in the determination of a prior approval application under Class MB?

(2) Can pre-commencement conditions relating to ecological surveys and protection measures be attached to a notice of prior approval under Class MB?

Paragraph MB.2 provides that the change of use under Class MB(a) is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses),

and it goes on to say that the provisions of paragraph N of Part 3 shall apply in relation to any such application.

As I pointed out in earlier blog posts relating to the changes to the GPDO made in 2013 and 2014, paragraph N provides that the local planning authority must, when determining a prior approval application have regard to the National Planning Policy Framework as if the application were a planning application.

The consensus of opinion seems to be that, notwithstanding paragraph N, the LPA is in fact constrained in its consideration of the prior approval application to the criteria listed in the relevant class in Part 3 (in this case, paragraph MB2). I believe that several appeal decisions have now been issued that confirm this approach.

In the case of Class MB, however, the criteria that the LPA must take into account are rather more wide-ranging than they are under certain other classes. In particular, these criteria include consideration as to whether the location or siting of the building makes it impractical for any other reason (besides the others that are listed) or undesirable for the building to change from agricultural use to residential use. This seems to me potentially to introduce all sorts of other factors that might arguably militate against the residential conversion of the building. Among these, I suggest, could be ecological considerations, including the presence of protected species, such as bats.

I am told that Wychavon has a lot of bats (Stop sniggering at the back there!) and some enthusiastic ecologists. The argument is that, whilst not expressly referred to as one of the prior approval issues for an LPA to consider, ecology (and in particular the conservation of protected species) remains a key factor in the conversion of rural buildings. The ecologists very reasonably point out that the De-CLoG response to consultation on this issue stated that “All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations.”. Furthermore, Section 40 of the Natural Environment and Rural Communities Act 2006 requires all public bodies to have regard to biodiversity conservation when carrying out their functions. In the exercise of its functions, an LPA is also required to have regard to the requirements of The Conservation of Habitats and Species Regulations 2010. I am bound to say that this does seem to me to be an entirely reasonable approach, and I really can’t fault the ecologists’ view on this issue.

The ecologists also point out, again quite rightly, that Paragraph N of Part 3 provides that “the local planning authority may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include —

(a)assessments of impacts or risks;
(b)statements setting out how impacts or risks are to be mitigated; or
(c)details of proposed operational development;

The ecologists believe that the implications for protected species should be considered as “impacts or risks”. Again, I really can’t disagree with that. They also take the point which I referred to earlier that prior approval applications are required to be determined with regard to the requirements of the NPPF. This requires decisions to be taken with regard to protected species. The ecologists therefore feel that the council should require a prior approval application to be accompanied by an appropriate assessment of the potential impact upon protected species and a mitigation strategy, if there are protected species at risk of harm from the development.

This would certainly be done if the LPA was dealing with an application for planning permission, and I am inclined to the view that a similar approach would be appropriate in the case of prior approval applications under Class MB. One might argue that this makes a nonsense of the principle of “permitted development”, but I think this is inherent in the whole prior approval concept that the government has devised. I have previously described it as “planning permission-lite”. It would be a serious mistake for anyone to run away with the idea that the government ever intended a free-for-all for residential developments in the countryside . Some people may find this disappointing, but that’s the way it is.

I mentioned earlier the issue of pre-commencement conditions. The 2014 amendment to Part 3 made it clear that LPAs have the right to impose conditions on prior approvals in the same way, and subject to the same rules and considerations, as in the case of planning permissions. It follows that pre-commencement conditions may be appropriate in some cases, and such conditions might include protection measures for fauna and flora, among other things.

I don’t think Neil was expecting me to come down on the side of the ecologists, but as a lawyer I just have to interpret the law as it stands, irrespective of my personal views as to whether it is ‘right’ or not in a political sense.

NOTE: This is one of the many topics that are discussed in 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.


Monday, 16 June 2014

More pain for struggling planning authorities

It has no doubt been a considerable disappointment to De-CLoG ministers that, despite all the huffing and puffing on the part of Yorkshire’s Biggest Export, only one local planning authority has ended up being put in special measures on the grounds of alleged poor performance (Blaby – a Tory-controlled council in Leicestershire), and it looks as though only one county planning authority (actually a unitary – Trafford) will join them on the naughty step, on account of their performance in dealing with minerals and waste applications.

It was with this in mind that ministers have tried to dream up other ways in which they could sweep local planning authorities into the net, although (when you think about it) the whole idea seems pretty daft, as most developers probably won’t want to apply for planning permission direct to the Planning Inspectorate. What vast number of such direct applications have there been in Blaby so far, I wonder?

Anyway, undeterred by the sheer pointlessness of the exercise, De-CLoG has now announced the outcome of the consultation it launched in March. Among the ideas that had been canvassed was a rise in the percentage threshold to 40% or even 50% for determining major applications within the target period (13 weeks, or 16 weeks where EIA is involved). Instead of abandoning the daft idea of judging LPA performance by the speed of decision-making, it seems the government has settled on a 40% threshold (which actually represents an increase of one-third in the number of major applications that LPAs will now have to process on time).

There will be an exemption for LPAs receiving no more than two major applications over the two-year assessment period, but this means that an authority that receives only three such applications will have to determined two out of the three on time in order to meet the 40% threshold, because meeting the target time for only one out of the three would be belowe the 40% benchmark! Such an authority would in practice be facing a 66% threshold. (Which just goes to show how daft this game really is.). Not content with this, ministers have thrown in a veiled threat that the threshold could still be upped to 50% at some time in the future, although this may be an empty threat if the current motley crew get thrown overboard by the electorate at the General Election in 11 months’ time.

The other whizzo wheeze that ministers have dreamed up is the proportion of decisions on major applications that are overturned at appeal. The threshold here is losing 20% of such appeals over a two-year period. LPAs will be assessed against each of these two criteria independently, and so could be put in the sin bin on the basis of either or both of these. On the lost appeals criterion, there will be an exemption for those authorities receiving 10 or fewer major applications in the two-year period.

One point which is not spelt out, but which may lie behind ministerial thinking, is that LPAs who turn down major housing applications on un-allocated green field sites, but then lose subsequent appeals because they can’t demonstrate a 5-year housing supply, could be at some risk of being ‘designated’ under the appeals criterion if they lose, say, three out of 11 to 15 major appeals in their area. This could act as a further strong incentive to councils to ensure that their local plans are updated as soon as possible, so as to allocate enough housing sites to meet the 5-year housing land supply requirement in the NPPF and, in the meantime, to let these applications through, rather than risk losing appeals and getting sat upon by the Secretary of State (a painful experience, as the Leader of Blaby Council has discovered).

I wonder whether the government is going to keep up this performance all the way to the General Election? With UKIP snapping at their heels (having jumped on this conveniently passing bandwagon), I find it hard to believe that ministers will be able to resist making a U-turn at some time between now and next May.


Friday, 13 June 2014

Announcing it twice. Announcing it twice.

I see that Eric Pickles (who perhaps we ought now to refer to as ‘Little Sir Echo’) was sounding off earlier this week about his proposed repeal of section 25 of the Greater London Council (General Powers) Act 1973 (as amended), which provides that for the purposes of what is now section 55(1) of the 1990 Act, the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part of them that is used for that purpose. Oh, by the way, that particularly pernicious piece of legislation (if you happen to share Uncle Eric’s view) was passed by a Conservative Government, although I suppose today’s Tories would regard the then prime minister, Ted Heath, as a dangerous crypto-socialist.

I wrote about this proposal when it was first announced more than four months ago (see Short-term lets in Greater London, 25 February 2014). I picked up on it from a story in the Evening Standard on 24 February, which reported that Kris Hopkins, who was then a recently appointed junior minister in De-CLoG, had said that ministers intended to scrap this provision, so as to allow short-term lets in Greater London (for example “for a few days while the owners go on holiday”). The demand for short-term accommodation during the 2012 Olympics was cited as the sort of thing that ministers think ought to be catered for.

Uncle Eric’s announcement this week made me think that the details of this proposal had now been published. But not so. We shall have to await the introduction of amendments to the Deregulation Bill, currently wending its weary way through parliament (having been carried over from the last session). I have no doubt that the amending legislation when it emerges will turn out to be hedged about with all sorts of ‘ifs’ and ‘buts’ to prevent the sort of free-for-all that I warned against in my February commentary. So I am re-assured that Uncle Eric, despite his completely contrary intentions (if his bullish speeches are to be believed), will be making yet more work for the planning lawyers.

That is what I like about ‘reforms’ of the planning system. They just make planning law even more complicated. In the words of an old Flanders and Swann song – “Oh, it all makes work for the working man to do.”


Monday, 9 June 2014

Infrastructure Bill

Hardly had the ink dried on the Queen’s Speech than the Infrastructure Bill was introduced in the House of Lords on the very next day (5 June) and had its First Reading - a pure formality, without debate. The Second Reading debate in the Lords is currently scheduled for Wednesday 18 June.

Conspicuous by their absence from the Bill are the promised provisions to make it easier to promote exploration for oil and gas and its extraction by ‘fracking’, including horizontal drilling under land not owned by the developers. Clearly it would have made a nonsense of the current consultation exercise if these provisions had been shoved into the Bill right from the word ‘Go’. I have no doubt, however, that the government will introduce these provisions as amendments to the Bill just as soon as they decently can, after perfunctory consideration of responses to the current consultation exercise. This will have the (possibly unintended) bonus for the government of cutting down on the opportunities for parliamentary debate on this subject if, for example, these amendments only emerge at committee stage or even report stage, as the Bill progresses through parliament.

I won’t waste space on the procedural amendments in respect of nationally significant infrastructure projects (Clauses 17 to 19). Pending the introduction of the ‘fracking’ clauses at a later date, the most interesting provision in the Bill in its present form is Clause 20, on the deemed discharge of planning conditions.

This will introduce a new Section 74A in the Town and Country Planning Act 1990, which will give the Secretary of State power to make a development order (which in practice will presumably take the form of an amendment of the Development Management Procedure Order) providing for the deemed discharge of a condition or limitation in a planning permission which requires the consent, agreement or approval of a local planning authority to any matter.

The new provision will come into play if the applicant has applied to the LPA for the consent, agreement or approval required by the condition, the period for the authority to give notice of their decision on the application has elapsed without that notice having been given, and the applicant has then taken the further steps (if any) which will be prescribed in the amended DMPO.

The amendment to the DMPO may provide that the deemed discharge procedure will not apply in relation to certain types of condition, in relation to certain types of planning permission, or in relation to certain types of development, as well as in any other prescribed circumstances.

There will be an ‘opt out’, where the applicant and the LPA both agree, before or after planning permission is granted, that this provision should not apply in a particular case.

The position relating to appeals is not entirely clear. The DMPO amendment may make provision for section 78(2) not to apply, or to apply with modifications, in cases where certain further steps (not yet identified) have been taken by the applicant.

The amended provisions of the DMPO will apply only where the original planning application is made after the DMPO amendment order comes into force. So it’s not the date of the planning permission which imposes the condition that counts - the planning application itself must post-date the effective date of the DMPO amendment.

I don’t propose to follow this Bill through parliament in all its stages, but I will keep an eye on the Bill for any significant amendments, especially the ‘fracking’ clauses, when they are introduced.


Wednesday, 4 June 2014

More planning changes in the Queen’s Speech

I had not expected that we would get much more in the way of new planning legislation before the next General Election but, once again, planning reform featured in today’s Queen’s Speech, at the commencement of the final session of this parliament.

Announcing an Infrastructure Bill, Her Majesty said, “My government will introduce a Bill to bolster investment in infrastructure and reform planning law to improve economic competitiveness. The Bill will enhance the United Kingdom’s energy independence and security by opening up access to shale and geothermal sites and maximising North Sea resources. Legislation will allow for the creation of an allowable solutions scheme to enable all new homes to be built to a zero carbon standard and will guarantee long-term investment in the road network.”.

On increasing the housing supply, she said “My government will increase housing supply and home ownership by reforming the planning system, enabling new locally-led garden cities and supporting small house building firms.” and added “My ministers will continue to promote the Help to Buy and Right to Buy schemes to support home ownership.

Government press offices have jointly published a lengthy briefing note on today’s Queen’s Speech to flesh out the bare bones of the legislative programme announced from the throne. The proposed Infrastructure Bill in particular seems to be a pot pourri of various measures that go well beyond the provision of infrastructure.

I propose to concentrate solely on those elements in the Bill that are directly relevant to planning as such. Among these elements, the Bill will simplify the process for making changes to Development Consent Orders (DCOs) for nationally significant infrastructure projects by speeding up non-material changes to a DCO, and allowing simplified processes for material changes. It will allow the Examining Authority to be appointed immediately after an application has been accepted and for the panel to comprise two inspectors, in the hope of speeding up the process and saving money.

The Bill will also allow certain types of planning conditions to be discharged upon application if a local planning authority has not notified the developer of their decision within a prescribed time period, reducing unnecessary delay and costs.

“Subject to consultation” [Pause for hollow laughter], the Bill is intended to make it possible for oil and gas companies to conduct underground exploration and extraction (by ‘fracking’) of oil and gas from shale deposits below land not owned either by them or by the owner of the land on whose land the shaft is sunk.

The Government is at pains to point out that this legislation is entirely dependent on the outcome of their current consultation exercise, but you would have to be extremely naïve to believe that the government will be persuaded to desist from pressing ahead with this legislation, irrespective of what consultees may say about it. The press release itself stresses the government’s enthusiasm for pressing on with “full and rapid implementation” of this project to deliver “at least 3-4 billion barrels of oil equivalent more than will otherwise be recovered over the next 20 years, bringing over £200 billion additional value to the UK economy. The Government accepted Wood’s recommendations in full in February 2014, and is introducing measures in this Bill to put the principle of Maximising Economic Recovery of petroleum in the UK into statute.” Not much sign there of a willingness to take on board the strong opposition that is likely to be revealed by the current consultation exercise.

There are also proposals regarding the energy efficiency of new homes. This will take the form of some slight relaxation of the commitment to implementing a zero carbon standard for new homes from 2016. A minimum energy performance standard will be set through the Building Regulations. The remainder of the zero carbon target, the government says, can be met through cost effective off-site carbon abatement measures – known as ‘allowable solutions’ - as an alternative to increased on-site energy efficiency measures or renewable energy (such as solar panels). Small sites, which are most commonly developed by small-scale house builders, will be exempt. What constitutes a “small site” for this purpose will be the subject of consultation, and will then be defined in the regulations.

The Zero Carbon Home standard will be set at Level 5 of the Code for Sustainable Homes, but the legislation will allow developers to build to Level 4 as long as they offset through the allowable solutions scheme to achieve Code 5. Energy efficiency requirements for homes are set out in the Building Regulations ( made under powers in the Building Act 1984), but there are insufficient powers in that Act to introduce off-site allowable solutions, so the Infrastructure Bill is expected to contain the necessary enabling powers for this.

Finally, there is a proposed provision that is unlikely to excite much interest among the general public, but which causes considerable concern to conveyancers and to planning lawyers. The Bill will transfer statutory responsibility for local land charges registers (currently maintained by local authorities) to the Land Registry, who will in future be responsible for dealing with local land charges searches submitted by conveyancers on behalf of homebuyers.

Local authorities have built up considerable local knowledge and expertise in the maintenance of their LLC registers and related databases, and are uniquely well placed to be able to give accurate (though not invariably infallible) answers to LLC searches, related enquiries and other queries. This local knowledge and expertise will be entirely lost if or when the LLC registers are transferred to the Land Registry. It is likely to cause considerable difficulty for purchasers and their solicitors, to homeowners and not least to local authorities themselves, especially when contemplating enforcement action, where accurate local records are essential.

This proposal seems to be part of a wider aim to commercialise and even, possibly, to privatise the Land Registry itself, which can only lead to even greater difficulties for all users of the system.

So far as increasing the housing supply is concerned, the Government is proposing In the next session to provide development finance to support smaller builders to develop new homes (through the Builders’ Finance Fund), and to deliver further homes on small sites over the course of its programme. The Government says it will also scale back the imposition of Section 106 levies on small-scale development.

The government also intends to introduce a loan fund to support “up to 10,000” new service plots for custom-build homes, as well as consulting on how to implement their previously announced “Right to Build” to give custom-builders the right to land in their local area. [If the government thinks they will achieve anything like 10,000 self-build or ‘custom-build’ housing starts by this means, they really are living in Cloud-cuckoo-land.]

The government proposes to introduce secondary legislation (a Development Order?) to allow for a locally supported garden city to be built in Ebbsfleet, backed by an Urban Development Corporation, as well as other ‘locally led’ or ‘locally supported Garden Cities. [Quite frankly, I am afraid this is simply ‘pie-in-the-sky’.] The Government says it is also rolling out two further programmes to provide infrastructure support for large-scale, ‘locally supported’ schemes.

More interestingly, from the point of view of those of us involved in day-to-day development management, the government says it will help speed up the time taken for sites granted planning permission to be built out, including reforming “unwieldy procedures and conditions” attached to existing planning permissions, whilst at the same time (they say) protecting environmental safeguards.

They also propose to make further changes to Part 3 of the Second Schedule to the GPDO to make it easier for “empty and redundant buildings” [sic] to be converted into productive use, supporting brownfield regeneration and increase the supply of new homes. The changes introduced this year and last year were certainly not confined to empty and redundant buildings, and I don’t suppose the further changes of use that the government is now proposing to allow will be either.

Meanwhile, the government will be pressing on with its “Help to Buy” scheme. They are convinced that it is not causing a housing bubble in London and the South-east, despite anecdotal evidence to the contrary. In the same way, they are determined to press on with the “Right to Buy” scheme which has caused such a devastating loss of social housing stock, and has significantly worsened the plight of homeless families by depriving them of the opportunity of being re-housed in decent housing in the public sector.

Will this be the last gasp of this government? Frankly, the outcome of the General Election on Thursday 7 May next year is completely unpredictable in light of recent electoral upsets, and I am not sure what direction, if any, will be discernible from the result of tomorrow’s Newark by-election. I still believe that if they are sufficiently ‘spooked’ by continuing unpopularity, the government might yet throw the planning system into Reverse, just as Maggie Thatcher did in 1987. Only time will tell.


Tuesday, 3 June 2014

Building shrouds – a wasted opportunity

(Fifth in an occasional series)

Lack of time has prevented me yet again from posting regularly on this blog, but some of my recent travels have thrown up some further examples of building shrouds – this time showing the aesthetic ‘appeal’ of a shroud carrying no advertising.

I photographed two examples yesterday – the first in Bristol and the second in London. Quite frankly neither of these shrouds does anything for the townscape, and commercial shroud adverts in both cases would be infinitely preferable to this messy sight.

These shrouds are usually in place for several months, and it would make sense for temporary permission for the display of a large shroud advertisement to be given for the duration of these works. As I have suggested before, this could usefully take the form of deemed permission under the Control of Advertisements Regulations, rather than being left to the sometimes capricious decision-making process of individual LPAs.

I appreciate that it is possible to display a pictorial shroud (usually a representation of the hidden facade of the building under repair) without advertising, but this is an added expense and so is unlikely to be willingly undertaken by most developers. Nonetheless, in fairness to the “No advertising, please” lobby, here is an example I came across on a flying visit to Brussels a couple of weeks ago, in the Grand Place.

I don’t know who funded the shroud display here (possibly the city council?), but it can’t have been cheap, and as the examples I photographed in Paris in April all explicitly stated, advertising shrouds can contribute to the cost of restoration of the buildings that are being refurbished.