Monday, 27 April 2015

What’ll the Romans ever do for us?

I had intended to write a piece under this title, reviewing the proposals in the various party manifestos that are relevant to town and country planning, but they are all so vague that it is pointless to waste time on them. There are various proposals for more house-building, including the possibility of ‘garden cities’, plus further encouragement to develop brownfield sites, but on the past performance of all three main parties over the past 20 years one has to treat these proposals with a considerable degree of scepticism, especially as none of the parties seems to have any idea of how they are going to deliver these extra houses in practice, having conspicuously failed to do so in the past.

Proposals relating specifically to planning reform are rather thin on the ground, and we may be in for a rather quieter time in that regard compared with the stream of significant changes made by the coalition government in recent years. But if the civil servants in De-CLoG are not going to be kept busy with preparing new legislation, they may turn their minds to a consolidation of the primary planning legislation. This was last consolidated in 1990, and so we are perhaps overdue for a further consolidating Act. I won’t personally welcome this, as it would mean that we would have to re-learn all the section numbers with which we have become so familiar over the past 25 years, but I would have to agree that it would make administrative sense.

The final factor which dissuaded me from writing a review of the election manifesto proposals is the extreme uncertainty as to the outcome of the election. I have a strong feeling that all the party manifestos will be just so much waste paper on May 8, and quite a few of the bright ideas put forward by various parties will have to be jettisoned in the course of the intense negotiations that are likely to follow an inconclusive election result.

Incidentally, it has become increasingly obvious that journalists commenting on the likely scenario after 7 May are pretty clueless as the constitutional law and practice that will govern the course of events in the aftermath of the election. The first thing to bear in mind is that all the members of the present coalition government are still in post, and this will remain the position on the morning of 8 May (even if some of those ministers no longer have parliamentary seats). I dare say ministers are not spending much time at their desks right now, being too busy campaigning around the country, but they will still be receiving their red boxes, and the business of government is still being carried on.

There is no rule or constitutional convention that requires a Prime Minister to ‘concede defeat’ and resign after losing an election. If the outcome of the election does not give any single party a Commons majority, it is in fact more sensible for the PM (and the rest of his government) to remain in post until it becomes clear whether a new administration can be formed, led by one party or another. Each of the two main party leaders (Cameron and Miliband) will no doubt urgently explore the possibilities in talks with other parties, and if Cameron, as the incumbent PM, thinks he can carry on, then he is free to meet the new House of Commons and to put forward his programme, and see whether the Commons will support him or not.

One thing that has become clear is that in these circumstances, when it is likely to remain very unclear as to which party could in fact form a viable government, the Queen has no intention of becoming embroiled in what is likely to be a messy political situation. HM is therefore unlikely to open the new parliament in person – it can be done by a commission, in the same way as Royal Assent to Bills and the Prorogation of Parliament. There would be no Queen’s Speech, and Cameron (if he decides to adopt this course of action) would simply have to set out his programme in the Commons. Sooner or later, he would be obliged to table a motion of confidence, and if the government loses that vote, the provisions of the Fixed Parliaments Act will kick in.

On the other hand, it may become clear on 8 May that the game is up for the Tories, and that Cameron stands no chance of commanding any sort of Commons majority, no matter what way the cards are cut. In that case (while Cameron remains in post at least as a caretaker) it will be up to Miliband to see if he can come to some arrangement with other parties (however informal it may be) which would allow a Labour or Labour-led government to function with the support of a majority of MPs in the Commons. If or when he signals that he has reached a position where he believes this is possible, Cameron would then resign, and Miliband would be invited by HM to form a government. I don’t propose to speculate as to how that government might be composed and, in particular, whether any members of one or more other parties might or might not be invited to join it. In any event, the viability of this government would probably have to be tested, sooner or later, by a confidence vote in the Commons, and if it is lost then (as I mentioned earlier) the provisions of the Fixed Parliaments Act would come into play.

There has been some wild talk in recent days about the ‘legitimacy’ of a government formed by a party which does not have the largest number of MPs in the Commons, but this is complete nonsense. It has always been the position that any party leader who appears to be in a position to command a Commons majority (whatever its make-up) may be called upon to form a government. Loose talk about whether a government does or does not have a ‘mandate’ is also just hot air. All that matters is that the government, whatever its political composition, and whatever the composition of its various supporters in the Commons, is able to carry on the government of the country with the support of the House. Teresa May’s assertion that such a scenario would be the worst constitutional crisis since the Abdication has been greeted with the derision that it deserved.

To be coldly objective, it seems extremely unlikely that David Cameron will be able to cobble together a Commons majority after May 7, whereas it appears that there could quite possibly be a comfortable Centre-Left majority for a government led by Ed Miliband, always provided that some of the perhaps rather rash statements made by him, by Nick Clegg and by the Scottish Nationalists as to whether or not they would be prepared to reach some sort of understanding with various other parties can be put aside, and that they can find a way of co-operating with each other to carry on the government of the country.


Thursday, 9 April 2015

REAL Reform of the Planning System ?

In an article which I posted here five years ago, on Tuesday 20 April 2010, I speculated, through the words of a supposed speech by a member of a newly elected ‘Conlaberal’ government, on changes that could (and perhaps should) be made to planning law and practice.

This was a couple of weeks before the last General Election, when it did not appear that any of the main political parties had in mind any proposals resembling those canvassed in the article. If Labour were-to be re-elected, it seemed that their planning policies would in effect be ‘more of the same’ as we had seen for the past 13 years. The Tories, on the other hand, had discovered the concept of ‘Localism’ and appeared to be about to enact a NIMBY’s Charter if they were returned to power.

The Tory-led coalition that came to power in May 2010 did indeed set out to put these NIMBYist ideas into practice, daft and impractical though they seemed to be. I commented at the time that political and economic reality would sooner or later force a change of direction, and so it proved. This was not due solely to the desire of the government to boost an obviously flagging economy, but was also driven by a fundamental tension within the Tory party itself, between the Tory backwoodsmen - MPs and their constituents in the more green and pleasant parts of the country who were committed NIMBYs and just wanted to make development go away – and, on the other hand, the ‘free marketers’, led by the Tory Chancellor, George Osborne, with the support of his friend and mentor, David Cameron, not to mention other senior members of the government who believed passionately in allowing the unrestrained operation of market forces. This faction within the government, which rapidly gained the upper hand, saw building and development as something to be encouraged for its own sake, as well as being a useful means of boosting the economy.

These competing views were not confined to the Tory party itself, but had been evident within government (that is to say, within the government machine) for some time before 2010. The Treasury, in particular, had been pushing the case for building and development even under the last Labour government, as evidenced by several reports and initiatives coming out of the Treasury at that time.

What is remarkable, looking back over the past five years, is the extent to which the various ideas I canvassed in that April 2010 article have been put into practice, without any hint prior to the 2010 General Election that any of these proposals were on the agenda.

The words I put in the mouth of my fictitious Minister, dealing with some of the main policy changes he was supposedly putting forward included this: “First, I intend to widen considerably the scope of Permitted Development under the General Permitted Development Order, especially for householder developments. ...........What I have in mind is a much more liberal regime for householder developments” and he went on to say that he proposed to take the same approach to other parts of the GPDO.

Our fictitious minster also proposed to amend the Use Classes Order so as to produce rather broader classes, especially for commercial uses in town centres. For example, he proposed an amalgamation of the Category ‘A’ Use Classes in a single class, so that there would no longer be any restriction in changes of use to and from retail, office and catering uses in town centres. To quote the supposed speech again: “We really must leave it up to the market to decide what uses will be commercially viable in particular locations. I do not accept that we have to intervene in a misguided effort to protect primary retail frontages from other town centre uses.

The minister then went on to say that he also intended to make a number of important changes to ministerial policy advice. These included subjects such as Housing, Green Belts and development in the countryside. There was a need, in particular, to encourage house-building.

He said this : “There will still be a need for a very large number of houses to be built in the private sector, and it is frankly unrealistic to expect that the numbers required can be built without resort to a significant number of ‘green field’ sites, especially in the south-east of England. All that has been achieved by restricting new build to ‘brown’ land is an overall reduction in house building, and the over-provision of small flats when there is an overwhelming need for family houses, with a decent amount of garden space where children can play. I shall use my powers to ensure that sufficient housing land is released to provide the homes we need, and I shall reinforce ministerial policy requiring local planning authorities to identify a 5-year land supply for housing (with a 2-year supply of sites ready for immediate development), failing which undesignated ‘wind-fall’ sites will have to be given planning permission (on appeal, if necessary) in order to ensure that house-building targets are met.

Later in the speech, our putative minister turned the subject of Listed Buildings. He canvassed some changes to the system of listed building control, and said: “ We all greatly value our architectural heritage, but it is important that the owners and users of buildings protected by these formal designations should not be unduly fettered in their use of their property. A fair balance must be struck between preservation on the one hand and, on the other, appropriate change to ensure the continued beneficial use of such buildings.

He added: “In order to assist owners of listed buildings to determine whether listed building consent may or may not be required in particular circumstances, I propose to introduce provisions similar to the existing procedures for lawful development certificates. The non-availability of such certificates in respect of works to listed buildings is an anomaly that has long been in need of reform.

There were admittedly some rather more radical proposals in this speech that were never likely to see the light of day. These included a down-grading of the status of the Development Plan, by repealing section 38(6) of the 2004 Act, and considerably simplifying the plan-making process. A major review of Green Belt boundaries and of Green Belt policy as also proposed – but it is very unlikely that any political party will dare to grasp this particular nettle.

De-listing of large numbers of Grade II listed buildings was also suggested, coupled with a significant relaxation of listed building control with regard to internal alterations of Grade II buildings.

Finally, the minister proposed to embark on a thorough re-drafting of both primary and subordinate planning legislation, so as to iron out anomalies and ambiguities and generally to simplify what has become a grossly over-complicated system. He could well have added that there is an urgent need to streamline the development management process, so as to simplify planning applications and their processing.

So there is still much to do to bring about REAL reform of the planning system. I wonder whether the next government, whatever its political complexion, might be persuaded to tackle these issues.


Wednesday, 1 April 2015

The new GPDO - Permitted Changes of Use under Part 3

NOTE: 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.

I thought it might be helpful to share with you a table that I have prepared for my forthcoming book on Permitted Changes of Use. This lists each of the classes of development permitted by Part 3 in the order in which they now appear in Part 3 of the Second Schedule. The 2015 Order comes into effect on 15 April.

Several of the new permitted development rights reflect the changes made to the Use Classes Order, whereby Betting Offices and Pay Day Loan Shops have been removed from Use Class A2, so that each of them is now a sui generis use. Others represent a significant expansion of the permitted development that is now allowed by the GPDO, including changes of use from A1 to A2, A1 to A3 and A2 to A3, among several others.

In the first column, an asterisk in front of the class letter indicates that a prior approval application is required.

The second column shows the corresponding class of development that was permitted by the 1995 Order, from which it will be seen that Part 3 has grown considerably. The classes shown in brackets - (A), (C) and (CA) - indicate that those classes of permitted development in the 1995 Order did not exactly correspond with the provisions in the 2015 Order.

This table is necessarily a very abbreviated summary of Part 3, and does not reflect the numerous exclusions, restrictions and conditions attaching to the various classes of permitted development. For example, it does not indicate that certain classes of permitted development apply only where there is a ground floor display window. The individual classes of development are fully explained in the text of the book, but I am afraid you will have to save up your pennies to buy it when it is published this summer, as I don’t propose to publish all the contents for free in this blog!

In the meantime, I hope you may find this table helpful.


More on short lets in Greater London

I am grateful to Sheridan Westlake (who until the end of last week was a Special Adviser - a ‘SPAD’ - at De-CLoG, before going off to work for the Tory re-election campaign) for drawing my attention to the Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 (2015 No. 994 (C. 69)), which was made on 27 March, but has not yet been laid before parliament. This will have to await the summoning of a new parliament on 18 May.

Article 6 provides that the date appointed for the coming into force of sections 44 and 45 of the Act (dealing with the relaxation of restrictions on short-term use of London accommodation) is 26 May 2015. Some of the other provisions of the Act are due to come into force in April, but I confess that I am puzzled as to the legality of this, in the absence of this statutory instrument having been laid before parliament. At the head of the SI one usually expects to see three dates – the date the SI was made, the date it was laid before parliament and, finally, the date when the SI takes effect. Only the date on which the SI was made is shown, and so I am left in doubt as to whether this Commencement Order will in fact be effective until after the next session of parliament commences.

I confess to being very rusty indeed on my basic constitutional and administrative law, including parliamentary procedure, so I remain completely in the dark so far as the current legal status of this Commencement Order is concerned, especially during the hiatus between the dissolution of one parliament and the summoning of the next.

Just to recap on the existing legislation, section 25 of the Greater London (General Powers) Act 1973 (as amended) provides that for the purposes of 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 thereof which is so used. “ Use as temporary sleeping accommodation” in this context means use as sleeping accommodation which is occupied by the same person for less than 90 consecutive nights [originally 22 nights] and which is provided (with or without other services) for a consideration arising either by way of trade for money or money's worth; or by reason of the employment of the occupant; whether or not the relationship of landlord and tenant is thereby created.

What section 44 will do (when it comes into effect on 26 May) is to make section 25 of the 1973 Act subject to a new section 25A. This provides that, notwithstanding the provisions of section 25(1), the use as temporary sleeping accommodation (i.e. for less than 90 days) of any residential premises in Greater London does not involve a material change of use if two conditions are met.

These are, first, that the sum of the number of nights of use as temporary sleeping accommodation, and the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year, does not exceed 90 and, secondly, that, in respect of each night which falls to be counted in this way, the person who provided the sleeping accommodation for the night (i.e. the owner or normal occupier) was liable to pay council tax in respect of the premises. If more than one person provided the sleeping accommodation for the night, then it’s OK if at least one of those persons was liable to pay council tax in respect of the premises. And it does not matter whether any previous use was by the same person. (I confess that I am not quite sure what difference dection 25A makes, compared with section 25 itself.)

The second new section (25B) gives either the local planning authority or the Secretary of State the power to direct that section 25A is not to apply to specified residential premises, or to residential premises situated in a particular area. A direction under this section can be given only if the local planning authority or the Secretary of State considers that it is necessary to protect the amenity of the locality. The local planning authority may give a direction under this section only with the consent of the Secretary of State. A direction under this section can be revoked at any time, but only by the person (i.e. the LPA or the S of S) who gave it. A direction is not subordinate legislation, and is not therefore subject to the usual legislative formalities, but this power will not arise before 26 May.

The Secretary of State may delegate his functions under this section to an LPA, or may direct that an LPA may give directions under this section without his consent (although he can also revoke such a delegation or direction).

The Secretary of State also has power by means of a statutory instrument to make regulations providing for the procedure which must be followed in connection with the giving of a direction under this section or in connection with its revocation, and as to the information which must be provided where the LPA seeks the consent of the Secretary of State to their giving a direction under this section.

Section 45 of the Deregulation Act then goes on to give the Secretary of State the power, by means of a statutory instrument, to make regulations to disapply section 25(1) of the 1973 Act if conditions specified by those regulations are met. The regulations must include provisions corresponding to section 25B but, subject to that, they may amend the 1973 Act, and may make different provisions for different purposes, and they may include incidental, supplementary, consequential, transitional, transitory or saving provisions. A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

It was section 45 of the 2015 Act I had in mind in pointing out that the Secretary of State would run out of time (and has now run out of time) in which to make any such regulations before the General Election. I didn’t follow the Deregulation Bill in its passage through parliament, other than to note its general progress, but I am under the impression that sections 44 and 45 as they have emerged in the Act differ somewhat from the original draft of the Bill, and that the amendments made during the passage of the Bill may well have been intended to overcome this time problem by allowing changes to the rules in advance of any statutory instrument being made.

If so, then it seems that Uncle Eric has ultimately been frustrated, and the intended relaxation of the rules on short-term lets in Greater London will have to await the pleasure of the next Secretary of State.