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 Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way?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least in theory) unless development has actually begun, any planning permission granted by Article 3 of the 1995 Order was revoked with effect from 15 April 2015, even if prior approval had been granted in respect of that development before that date.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.

© MARTIN H GOODALL

10 comments:

Dominic Heath-Coleman said...

I assume that this would also have the effect of resetting the removal of certain PD rights from parts of the GPDO when development is carried out under the provisions of another part. For example, when development is carried out under class Q of part 3 it has the effect of removing permitted development rights for new agricultural buildings under Part 6. So if work had been carried out under part MB of the previous GPDO the part 6 permitted development rights under the new GPDO would now be intact. There are other examples as well. Your thoughts?

Unknown said...

I hope the book will be available in digital format.

Rgds

Ali Musani

Martin H Goodall LARTPI said...

Yes. The book is intended to be available both as an ebook and in printed form.

Anonymous said...

Looking forward to the book Martin, I'm sure it will do very well and is likely to become a standard text for planners and consultants alike!

John Harrison said...

We had a question at Planning Aid England. Someone had obtained the first part of the approval for a Class MB barn conversion and had approached the LPA about making the 2nd one, but had been told he had to start again under Class Q as MB was now revoked. Having looked at the provisions I answered it seemed the LPA was right, though was able to add unless circumstances had changed I felt the LPA should not refuse the new appn under Class Q.

John Harrison

C McNally said...

Hi Martin, this is the first time I have left a comment on your blog, the information you share is irreplaceable. This current topic is of great interest to me, I do grasp the technical point in addition I am aware of LPA using technical points in a negative way when ever possible.

The former Class M had a cut off point of 500 sq metres, also a building not exceeding 150 sq metres only required a notification procedure. I have used the 150 sq metres to change the use of a 147 sq metre building. I have another building on the same site that does not exceed 150 sq metres, I do feel that the technical point in your blog could be used to my advantage for this building under Class R in that the simpler notification procedure could be used. Am I correct that the former Class M and Class R differ on a significant point Ie. Class R allows for associated operational development, where as the former Class M did not, your trusted opinion would be most appreciated.

Martin H Goodall LARTPI said...

In answer to C McNally (25 May), there was a provision in the former Class M that after a change of use had been made under that class, the development that was permitted at that time by the former Part 41, Class B applied in the same way as it applied to an office building. This permitted the provision or replacement of a limited area of hard surface within the curtilage of the building. However, there is no longer any such provision in Class R, and so any operational development of this nature will now require planning permission.

Instead, Class R provides that if planning permission is given for such ‘associated’ operational development, then the three-year time limit for commencing the permitted development starts from the date of that planning permission, rather than from the prior approval date.

Martin H Goodall LARTPI said...

In answer to Dominic Heath-Coleman (21 May), my view is that if development has been carried out under former Class MB, this will have had the effect of removing Part 6 development rights for 10 years. I think this condition must be deemed to have survived the repeal of the 1995 Order. So Part 6 PD rights are lost whether residential conversion is carried out either under former Class MB, or under the new Class Q.

I am, however, open to persuasion if anyone thinks I am wrong about this.

Anonymous said...

Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way?

I am no lawyer, but this seems to be covered under the general savings provisions in s16 of the Interpretation Act 1978. I enjoy the blog, many thanks for writing it.

Tom Bright said...

Martin,

Thank you for sharing your thoughts on this matter. As ever, I find your posts extremely informative and helpful. I have recently discussed the implications of the new GPDO with collegauges and would like to add a comment on the affect of any Prior Approvals granted prior to the new introduction of the new GPDO: My understanding is that they are not made redundant because section 16(1)(b) of the Interpretation Act 1978 (read with section 23(1) of the same Act) states that where one set of regulations repeals another set of regulations, that repeal does not affect anything done under the original regulations. Accordingly, the steps taken, and everything done, under the former (repealed) regulations, remains validly taken and done.

It would be much appreciated if you could share your thoughts on Prior Approvals/Article 4 Directions in the new GPDO: The existing deadline provides that Class O development must be begun before 30 May 2016. However, Reg 4(2)(a) introduces another deadline, in circumstances where an Article 4 Direction has been made. My understanding is that this provides that an Article 4 Direction does not affect the carrying out of Class O development which is permitted by a Prior Approval given before the Article 4 Direction comes into force. This would imply that where an Article 4 Direction has been confirmed, the SoS no would no longer need to modify it in order to 'protect' any properties from losing their Prior Approval prior to the Article 4 Direction coming into effect - do you agree with my interpretation?

Good luck with you new book - I look forward to reading it!

Many thanks,

Tom