Thursday, 28 May 2015

Savings for old provisions in the GPDO

NOTE: For completely up-to-date and 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.

When I wrote the other day about Article 8 of the GPDO 2015, I mentioned the possibility that there may be some general rule of statutory interpretation which would preserve the effect of the repealed legislation, but I had not had time to look this up.

I am grateful to Fraser Kerr for reminding me of section 16 of the Interpretation Act 1978. Although we are dealing here with a statutory instrument rather than an Act of Parliament, under section 23 (1) the provisions of this Act apply (unless the contrary intention appears) to subordinate legislation made after the commencement of this Act as they apply to Acts of Parliament. Section 16(1) provides that where an Act repeals an enactment, the repeal does not (unless the contrary appears) affect the previous operation of the enactments repealed or anything done or suffered under that enactment.

This is enough, I think, to protect the effect of a prior approval already granted before 15 April 2015, and this provision should also suffice to enable any pending prior approval applications and/or appeals against their refusal to be determined after 15 April, whereupon any prior approval so granted could be acted upon, even though the prior approval application was made under the provisions of the 1995 Order. It would also appear that the relevant provisions (including any limitations, conditions or restrictions) applying to the permitted development in question would be those under the 1995 Order, rather than the 2015 Order, although I am not absolutely certain about this last point.

In other cases, where no prior approval application had been made before 15 April, or in any cases where no prior approval was required (and where development had not commended before 15 April), the permitted development will now be entirely governed by the provisions of the 2015 Order.

So far so good, but I don’t think this answers the second problem which I posed in my last post, namely whether dwelling units (or floorspace) converted under a relevant class in the 1995 Order (e.g. under Class MB) should be counted towards the numerical limit (or cumulative floorspace limit) in the corresponding Class in the 2015 Order (Class Q in the example given). I am not convinced that the Interpretation Act has that effect. In this connection, I also looked at section 18 of the Interpretation Act, but I am not convinced that this section has the effect of enabling the provisions of the former classes of development in Part 3 of the 1995 Order to be read as if they were equally applicable to the corresponding new Classes in Part 3 of the 2015 Order. But I am open to persuasion on this point.

This last issue is perhaps more important, from a practical point of view, than the first point I raised. I am assuming for the time being that I am right in thinking that the numerical and floorspace limits in respect of development carried out under the 1995 Order do not affect development subsequently carried out under the corresponding provisions of the 2015 Order, but (as before) I would welcome any comments from readers on this point.

[P.S. I wrote this piece before I had seen Tom Bright’s comment, which has now been published under the previous post. I will take a look at the other point he raises, regarding Article 4 Directions, and come back on this subject in a future post.]


Thursday, 21 May 2015

GPDO 2015 - a problem?

NOTE: For completely up-to-date and 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.

Like most planning professionals, I imagine, I have had my nose buried in the new GPDO since it was published, in an effort to check all the changes (some of them quite subtle) that have been made to this legislation by the new Order. (This, incidentally, explains the relative paucity of posts on this blog in the past few weeks.)

As a result of a question someone asked me (and which I still haven’t answered), I have hit upon a possible problem of statutory interpretation arising from the new GPDO.

Article 8 of the GPDO 2015 revokes all the statutory instruments listed in Schedule 4, including the 1995 Order, and the amendment orders of 2013, 2014 and the most recent amending order of March 2015. One would naturally expect, however, to find a savings provision in the new Order, and Article 8 does indeed contain such a provision. However, the saving in Article 8(2) is solely for the purposes of development specified in Article 6(2) of the March 2015 amendment order, namely in respect only of a temporary change of use, under Class C or Class D of Part 4, of premises used within Use Class A4 (drinking establishments), and certain demolition under what had been Part 31 in the 1995 Order (now replaced by Part 11 in the 2015 Order). There is nothing else to preserve the effect of any of the provisions of the 1995 Order.

Have I missed some obvious general rule, contained elsewhere in the planning legislation? Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way? If not, then it seems to me that the repeal of the 1995 Order and all its amending orders could have two consequences, one which would clearly disadvantage developers and one which could be of benefit to them.

It seems to me that (at least in theory) unless development has actually begun, any planning permission granted by Article 3 of the 1995 Order was revoked with effect from 15 April 2015, even if prior approval had been granted in respect of that development before that date. (Bear in mind that the prior approval is not a planning permission, and does not have the effect of a planning permission; it simply fulfils a condition without which the development could not proceed. The planning permission was actually granted by Article 3.) So does anyone who had intended to carry out development under the 1995 GPDO now have to start again, even if the LPA had notified the developer of their prior approval? If one views each of the 1995 Order (now repealed) and the 2015 Order (effective from 15 April) as being entirely self-contained and mutually exclusive, which in the absence of any relevant saving provision in the 2015 Order would appear to be the case, then this would appear to be the position (as I say, at least in theory) in which a developer could find themselves.

On the other hand, if we take (say) the 3-dwelling limit in the former Class MB and the same limit in the new Class Q (or the floorspace limit under each of those provisions), then arguably any development carried out under Class MB (i.e. commenced before 15 April 2015, even if it has not yet been completed) would not count towards the limits now imposed by Class Q. There is no mention anywhere in the new GPDO, as far as I know (and I really have been through it over and over again with a fine-tooth comb while writing my book on the subject) of development previously carried out under Class MB in the 1995 Order. So, arguably, one could have used up the 3-dwelling limit under Class MB (or the floorspace limit under that class) and still be able to develop another three dwellings under Class Q ! [I appreciate that the ability of the LPA to refuse prior approval because “the location or siting of the building makes it otherwise impractical or undesirable” for the proposed residential conversion might possibly be used as an excuse by an LPA, or even by PINS, to block extra dwellings over and above the three already built under former Class MB, but it is the underlying principle with which I am currently concerned.]

I put these points to my colleagues in Keystone Law’s planning law team, and we all agreed that the apparent result of this legislative change which I have postulated above cannot have been intended by ministers. So far as concerns the apparent revocation of any permission granted by the 1995 Order (even where prior approval has been given in respect of the relevant issues with which it was concerned), the consensus we have reached in the team is that the new GPDO must be construed in accordance with Human Rights legislation, in a way which is compatible with the landowner's rights under Article 1 of the First Protocol, so far as it is possible to do so, and that the permission granted by Article 3 of the 1995 GPDO should not be regarded as having been revoked where prior approval in respect of such a development has been given, bearing in mind the 3-year time limit for commencement under the 1995 Order. We have collectively taken the view that a commonsense approach is required to this issue. Nonetheless, the strict legal position remains uncertain.

We have similarly taken the view that a prior approval application made under the terms of the 1995 Order which has not yet been determined should be treated as an application under the corresponding provision in the 2015 Order and should be processed and determined in accordance with the new rules, with the 56-day rule continuing to run from the day after receipt of the prior approval application by the LPA. This again, however, is a matter of common sense rather than legal interpretation. Planning inspectors in determining planning appeals have certainly taken this approach in recent weeks.

However, as regards the limits on development that were imposed (for example) by Class MB in the 1995 Order, as compared with the same limits imposed by Class Q in the 2015 Order, we take a different view. We have come to the conclusion that it would theoretically be possible to create up to six dwellings within a single agricultural unit – three under Part 3, Class MB in the Second Schedule to the 1995 Order, and another three under Part 3, Class Q in the Second Schedule to the 2015 Order (subject to prior approval under the terms of Class Q). [If my my supposition as to the loss of these permitted development rights if they had not been implemented before the 1995 Order was repealed is in fact correct, these residential conversions would have to have been started before 15 April 2015 in accordance with a prior approval or approvals under Class MB.]

Incidentally, I trust that readers have caught up with the change made in the amending Order made shortly before the consolidating Order itself, which resolved the previous doubt as to whether the 3-dwelling limit applied to all dwellings previously created on the same agricultural unit or only those created as permitted development under the GPDO. That amendment, now carried into the substantive Order, confirmed that it is only dwellings created as permitted development under Class MB of the 1995 Order (and now under Class Q of the 2015 Order) that count towards the 3-dwelling limit.

I would be very grateful if readers could direct my attention to any legislative or judicial authority on the issues I have raised above, and I shall be pleased to publish these as comments on this post.


Monday, 11 May 2015

Goodbye, Uncle Eric!

The government has announced that Greg Clark [WHO???] has been appointed Secretary of State for Communities & Local Government in place of Eric Pickles. At the time of writing, I am not aware as to what role, if any, Eric Pickles may play in the government in the future. This may emerge in the course of the next few days. Maybe he will be put out to grass, although elevation to the House of Lords might not be an option if the PM wants to avoid a by-election in an Essex constituency where UKIP could no doubt be expected to mount a strong challenge.

Pickles has been possibly the longest serving head of this department and, in his rather plodding way, he has faithfully stuck to his brief, starting after the last election with the Localism Bill, which sought to put into effect the half-baked ideas that the Tories had dreamt up in opposition as a sop to the NIMBYs. However, the Wicked Uncle who resided (and still resides) at 11, Downing Street strangled the infant at birth, and Uncle Eric was then obliged to publish the National Planning Policy Framework, for which he clearly had no real enthusiasm, but he did what he was told, and it was eventually published in March 2012, encouraging much more development than the NIMBYs would have liked, or had been led to expect when the coalition government first took office.

Responding again to the diktats of the Treasury, Uncle Eric’s department then set about the further liberalisation of the planning regime, by amending the GPDO in three tranches (in May 2013, April 2014 and April 2015) to allow residential conversions of a variety of commercial premises and of farm buildings, as well as other changes of use that would otherwise have required planning permission. This met with strenuous opposition from some local planning authorities, but was forced through anyway, and has been backed up by some robust appeal decisions, which have swept aside objections to these developments. Recent amendment of the Use Classes Order has further liberalised the uses to which commercial premises can be put in future.

I will take a look at the new De-CLoG ministerial team in a future post. As I indicated before the election, the pace of change in planning law and practice may slow down somewhat now, especially since the government’s primary focus for the time being will be on other areas. However, there are some controversial infrastructure projects in the pipeline, including HS2 and the demand for additional airport capacity in the South-east (either at Heathrow or at Gatwick). There will no doubt be some unhappiness on the Tory back-benches if the government continues to push ahead with these schemes.