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the possibility that there may be some general rule of statutory interpretation which would preserve the effect of the repealed legislation, but I had not had time to look this up.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repeals an enactment, the repeal does not (unless the contrary appears) affect the previous operation of the enactments repealed or anything done or suffered under that enactment.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.]


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