Thursday, 31 March 2016

Parliamentary challenge to GPDO changes

Michael Bach has kindly drawn my attention to two early day motions that have been put down in the Commons following the recent amendment order to the GPDO (which is due to take effect on 6 April). The first of these seeks to annul the Statutory Instrument by which these changes to the GPDO are made.

Before anyone gets too excited about this, I should make it clear that I don’t seriously think this attempt to resist the current changes to the GPDO stands any realistic chance of getting the amending order rescinded. At best, it may get the Opposition a debate on the subject in the Commons but, on recent performance, I doubt whether they will make anything of it, and on this occasion it is extremely unlikely that they would have the support of the Scottish Nationalists (who are entirely unaffected by English planning law), even if a few discontented Tory back-benchers could be persuaded to join in opposing these changes to the GPDO.

I can’t help feeling that this early day motion is simply tilting at windmills, as the time to oppose the liberalisation of permitted development would have been when these provisions were first introduced, and then successively widened, in 2013, 2014 and 2015. As explained in my recent post on the current GPDO changes, the effect of the amendment order is a good deal less dramatic than was expected, due to the omission of permitted development rights for the demolition and reconstruction of office buildings. Making the permitted development right for the residential conversion of offices permanent after it has already been in force for three years hardly seems sufficiently controversial to justify an attempt to overturn it. LPAs in the exempted areas have been given a further three years in which to get Article 4 Directions in place to prevent the loss of office space in the most vulnerable locations, and other LPAs can do likewise, although in those cases a year’s delay would be necessary in order to avoid compensation claims.

The other early day motion notes that launderettes continue to be a vital part of our communities as well as being an important safety net for many people, especially those on low-incomes or living in privately-rented housing; regrets the Government's decision to remove planning protections that currently prevent launderettes from being changed to other types of shop or housing without the owners obtaining planning permission; and calls on the Government to remove launderettes from the scope of the GPDO.

Whilst I am not entirely unsympathetic to this argument, the previous omission of launderettes from the permitted development right for residential conversion under Class M was purely the consequence of their having been made a sui generis use by the Use Classes Order, not because they are in need of special protection, but because a change of use from A1 (shop) to launderette was thought to give rise to possible problems for neighbours. Their exclusion from the UCO simply made it necessary to apply for planning permission for any change of use to or from use as a launderette.

All other ‘town centre uses’ i.e. A1 (shops) and A2 (‘retail services’, i.e. offices open to the public, such as banks, building societies, etc.), as well as amusement arcades and casinos, are already open to residential conversion under the GPDO, and in light of this it does seem anomalous to continue to exclude launderettes from this PD right. This second early day motion really serves no useful purpose, other than to allow the Opposition to make a political point, and it remains to be seen if any parliamentary time can be found to debate it on the floor of the house.


Residents’ parking permits banned by 106

My retired colleague David Brock recently posted an item in his blog drawing attention to two High Court decisions which confirm that a covenant in a section 106 agreement (or unilateral planning obligation under that section) that seeks to prevent residents from applying to the council for a parking permit in a CPZ is unlawful, because such a restriction is not within the scope of section 106.

The recent case to which David’s blog post refers is R (Khodari) v. Kensington and Chelsea RLBC [2015] EWHC 4084, in which judgment was given on 18 November 2015. David reminds his readers that this is nothing new. The point was decided as long ago as March 2013, in Westminster City Council v. SSCLG [2013] EWHC 690 (Admin), on which David had also commented in his blog at that time.

In the earlier case, it had been the LPA that was challenging the grant of planning permission on appeal, where the planning inspector had taken into account a planning obligation proffered by the appellant, in which they undertook “not to apply to the Council for a Parking Permit in respect of the Land nor to knowingly permit any owner or occupier of the Land to apply to the Council for a Parking Permit and if such a permit is issued in respect of the Land it shall be surrendered to the Council within 7 days of written demand”. The illegality of the obligation led to the quashing of the appeal decision.

In the recent case involving Kensington & Chelsea, it was a third party objector who successfully challenged a grant of planning permission by the LPA. The council had granted permission for development of a neighbouring property on the basis of a section 106 agreement which contained a covenant in exactly the same terms as those in issue in the earlier Westminster case, except that the obligation required this term to be written into the leases of the new dwellings as cross-covenants on the part of both the lessor and the lessees. Given the judge’s findings in respect of the invalidity of the section 106 agreement, it followed that the planning permission had to be quashed.

The legal consequences of an unlawful planning obligation (such as those in both the cases cited above) can be markedly different, depending on the circumstances. Clearly a planning permission granted by an LPA or by a planning inspector on appeal is vulnerable to challenge in the High Court (and the same would apply to a prior approval under Part 3 of the Second Schedule to the GPDO) if it was dependent on an unlawful planning obligation, but in all these cases there is a six-week time limit for launching such a challenge. Time can be extended in exceptional circumstances, but only for a short period in most cases.

Absent a timeous legal challenge, however, the planning permission or prior approval will stand, but the unlawful section 106 agreement will be unenforceable. Thus, whilst it would be inadvisable for a developer to offer or agree to a planning obligation that seeks to prevent applications for residents’ parking permits, because of the risk of the permission being quashed if challenged in the High Court, where there is an unlawful 106 but there has been no High Court challenge to the planning permission, there would appear to be nothing to prevent residents applying for parking permits, notwithstanding the purported prohibition in the section 106 agreement. (It should be borne in mind, however, that the lease term that was to be entered into in the Kensington & Chelsea case might have proved more difficult to break.)


Wednesday, 23 March 2016

Demolition and reconstruction of offices under the GPDO

Having fired off my last blog post in a great hurry at the end of a hectic week, I have now had the chance to look a little more carefully at the recent GPDO amendments (which come into force on 6 April).

I am grateful to readers for pointing out a couple of matters that I missed or misinterpreted in my haste. I have already corrected the references to the new Class PA in my original post, and so readers who have not already seen these corrections should perhaps revisit that blog post, where they will see the corrected text.

I promised that I would look at Class PA in more detail in a future blog post, but in view of the fact that it will not take effect for another 18 months, I think further discussion of Class PA might as well await the second edition of my book (“A Practical Guide to Permitted Changes of Use”). In the meantime, anyone eager to carry out a residential conversion of a light industrial building is just going to have to be patient for the next a year and half.

Turning back to the residential conversion of office buildings, and the strange omission of demolition and rebuilding from the amendments to Class O, I am grateful to Jennie Baker and her colleagues at Nathaniel Lichfield & Partners for doing a bit of sleuthing to reveal the real reason behind this glaring omission, following the very definite announcement by ministers last October that demolition and reconstruction of office buildings was to be included in the GPDO.

As readers are well aware, the Housing & Planning Bill is slowly wending its way through parliament, and is currently at its committee stage in the House of Lords. I have deliberately refrained from commenting on the Bill up to now, because it has (as I predicted) been subject to numerous government amendments during its passage, and we may see yet more amendments to the Bill before it finally reaches Royal Assent.

However, one clause which Nathaniel Lichfield & Partners have drawn to my attention is Clause 138 (as currently numbered), which will amend section 60 of the 1990 Act. Section 60 allows the inclusion in a development order of certain specific provisions. It is, of course, purely an enabling power, and it is the actual provisions of the development order that govern the relevant permitted development itself. As currently drafted, section 60(2) provides that where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.

As things stand at present, therefore, any inclusion in the GPDO of a permitted development right for the demolition and reconstruction of office buildings could only require prior approval of the design or external appearance of the building. The building operations, including limited demolition, permitted by certain other Classes in Part 3 (notably Class Q) were clearly felt not to present any problem, whereas ministers and their advisers have presumably concluded that the wholesale demolition and reconstruction of office buildings will necessitate the prior approval of a rather wider range of matters, such as the method of demolition among other things.

The new section 60(1A) in the 1990 Act will provide that where planning permission is granted by a development order for building operations in England, the order may require the approval of the local planning authority, or the Secretary of State, to be obtained for those operations, or with respect to any matters that relate to those operations, or to the use of the land in question following those operations, as specified in the order. This is a fairly subtle change, but it will give ministers power to include a requirement in the GPDO to obtain prior approval of a wider range of matters than they can at present.

Incidentally, this power relates to all those PD rights in the GPDO where prior approval is required in respect of building operations (including demolition), and so it would be open to ministers, if they were so minded, to require in any future amendment of the GPDO that prior approval of additional matters should be sought by applicants not only in respect of Class O but also in respect of other Classes in Part 3 that include building operations, and also under other parts of the Second Schedule (such as Part 1 – larger domestic extension, Part 11 – demolition, and Part 16 – telecoms developments).

With a following wind, the Housing & Planning Bill should receive Royal Assent within a few weeks, so that De-CLoG should be able to make a second amending order dealing with Class O in Part 3 of the Second Schedule to the GPDO (and perhaps one or two other things) by this Autumn, although it could just as easily be postponed until next Spring. The precise extent of this extended PD right still remains uncertain for the time being, and there must also remain some uncertainty as to its precise timing. But ministers have already indicated that the demolition and reconstruction of office buildings through the mechanism of the GPDO is still on the agenda, so we can expect these proposals to emerge in one form or another at some time within the next year or so.

UPDATE (31.3.16): Margaret Baddeley, Planning Director at Nathaniel Lichfield & Partners, has alerted me to the Impact Assessment that has just been published in respect of Clause 138 of the Housing and Planning Bill. This confirms what we had already deduced :

‘The first use of the new provision is likely to be in support of the Government’s intention, announced on 12 October 2015, to bring forward the proposal to allow the demolition of an office building and its replacement with a residential building on a like for like basis’. It adds: ‘The detail on the permitted development right for the demolition of an office building and its replacement with a residential building is being developed. It is therefore too early to estimate the impacts on business within this Impact Assessment.

This conveniently glosses over what we might euphemistically refer to as “an administrative oversight” in De-CLoG, which prevented the inclusion of demolition and reconstruction of office buildings in the recent amendment of the GPDO. (I used a slightly more colourful term when I first heard about it.)


Friday, 18 March 2016

The GPDO is amended at last

There seems to be an immutable Law of Nature that as soon as my back is turned something dramatic happens on the legal front. Over the past week I have been kept out of the office every day until today, at a series of meetings, site visits, etc., so that it was not until this afternoon that I had the chance to catch up on the legal news. Whereupon I discovered that at the end of last week, without any kind of fanfare or announcement, the government had made and laid before parliament the long-awaited Amendment Order to the GPDO. This is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (SI 2016 No. 332), which comes into force on 6 April.

I will look at the most important changes in today’s article, and will defer to a future post the other amendments to the GPDO that this new Order makes.

As expected, the wording of Class M has been amended to include launderettes among the types of building uses that may be converted to residential use under this Class. Paragraph M.2(1)(d)(i) has been amended to refer additionally to launderettes in relation to the test as to the impact of the change of use on adequate provision of services of the sort that may be provided by such a building.

However, the most eagerly awaited amendments are the changes in the rules relating to the residential conversion of offices under Class O.

The previous deadline for the completion of a residential conversion under Class O (31 May 2016) is entirely removed, by the deletion of paragraph O.1(c), which had imposed this deadline. However, there is now a condition (which is already found within a number of other Classes of permitted development in Part 3) that the development under Class O must be completed within a period of 3 years from the prior approval date. Where prior approval under Class O has already been given, this means that the three-year time limit for completion of the development is calculated from that date, which in some cases may not leave developers who got prior approval some time ago with too much extra time within which to complete their development. I have discussed the calculation of time limits and what constitutes “completion” in my book (A Practical Guide to Permitted Changes of Use), so I won’t repeat that material here.

One of the promised changes was the removal of the exclusion of permitted development under Class O in the ‘exempted areas’ (Article 2(5) Land). As previously announced, this exclusion of exempted areas is to be extended in order to give LPAs the opportunity to put Article 4 Directions in place in those areas. The government seems to have been in two minds as to how long should be allowed for this purpose, but they have now decided to extend this period for a further three years. A prior approval application in respect of the proposed residential conversion of offices in one of the exempted areas cannot therefore be made before 30 May 2019 (or, as the GPDO amendment puts it, the change of use will not be permitted development if the prior approval application is made before that date).

Article 2(5) will then disappear with effect from 31 May 2019, as will the list of exempted areas (currently in Part 3 of Schedule 1 to the GPDO). For the sake of good order, the prohibition on prior approval applications under Class O in exempted areas before 30 May 2019 will also disappear from the Order on that date.

Note also that the impact of noise from commercial premises on the intended occupiers of the development has now been added to the matters requiring prior approval in all cases under Class O (in addition to the existing requirement for prior approval in respect of transport and highways impacts, contamination risks on the site, and flooding risks). For this purpose, “commercial premises” means any premises normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application, and includes any premises licensed under the Licensing Act 2003 or any other place of public entertainment.

And now we come to the big surprise. Despite very clear ministerial promises, the revisions to Class O make no provision for any demolition or rebuilding of the office building. The position remains, therefore, that any building operations (whether for partial or more substantial demolition, or for any new build, even of quite a minor nature) will still require a separate planning permission. In principle, there is no reason why such a planning application for ‘associated works’ should not accompany (or follow shortly after) the prior approval application, and this has already been the practice for several years under the existing provisions. Any such planning application will have to be dealt with on its own merits, but the change of use itself will not be a material consideration in the determination of that application, because the change of use is in any event permitted development, subject only to the prior approval of the specified matters relating to that change of use.

It seems that ministers were advised that the enabling power in section 60 of the 1990 Act does not currently allow them to require prior approval of a wider range of matters beyond just the design or external appearance of the building in prior approval applications for building operations, and so demolition and reconstruction of offices under Class O will have to await the amendment of section 60, to enable this additional PD right under Class O to be added to the GPDO.

On the other hand, ministers have kept their promise to add a new Class of permitted development (Class PA) that will allow the residential conversion of premises that have been in light industrial use, although there will be only a limited window of opportunity within which this can be done.

Development is not permitted by Class PA if a prior approval application in respect of the development is received by the local planning authority before 1 October 2017. So contrary to what I originally wrote in this blog post, everyone one will have to wait for almost 18 months from now before the window of opportunity for the residential conversion of light industrial buildings will open. I am sorry if I caused some unnecessary excitement by suggesting the converse when I originally wrote this post.

This window of opportunity will nevertheless be of limited duration. Development is not permitted by Class PA if the prior approval date falls on or after 1st October 2020. (The ‘prior approval date’ is the date on which prior approval is actually given or the date on which the 56-day period expires without the LPA having notified the applicant of the determination of the application.). So there will be a three-year time slot (actually 8 weeks less than three years) in which prior approval can be sought under Class PA. To be on the safe side, a prior approval application under Class PA ought to be submitted no later than July 2020.

There is also the now standard proviso that development under Class PA is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date. As with the various other Classes of PD in Part 3, the provisions are quite detailed, and I will explain these in a future blog post.

[FOOTNOTE: When I originally wrote this blog post, I was focusing primarily on Class O, and only threw in a brief note on Class PA as an afterthought. In my haste (at the end of a very busy week), I misread the time limits applying to this new permitted development right, and I am grateful to Gary Mickelborough MRTPI for alerting me to the error in my original post, which I have now corrected.]

UPDATE (6.5.16): In case there are any readers who do not habitually look at the comments appended to blog posts, I would draw their attention to some important clarification from De-CLoG on the interpretation of the time limit under Class O that is set out in the latest comments posted below.


Monday, 7 March 2016

Planning Law – the European dimension

It is slowly dawning on people that if this country votes to leave the European Union on 23 June, there will be numerous knock-on effects, most of which will be unwelcome at best and in many cases seriously damaging to our wider interests both at home and abroad.

One of the canards the ‘outers’ frequently peddle is the idea that, as members of the EU, we can’t make our own laws in this country. This is complete nonsense, as anyone who is familiar with our legislative process is well aware. It is entirely proper that as members of the Single Market we should, so far as practicable, harmonise our legislation with that of other members, so as to create a level commercial playing field, but in practice we have done no more than that. If we wish to remain in the Single Market (like Norway) in the event of a vote to leave the EU itself, we will still have to comply with the rules that apply in the EEA (the European Economic Area), and this will necessarily involve compliance with European law in order to maintain the required level of legal harmonisation. The same would apply to any bilateral agreement that the UK might attempt to negotiate with EU countries as an alternative (which puts paid to one of the delusions from which Boris Johnson and others seem to be suffering – which might be termed “the BMW argument”).

It cannot realistically be argued that compliance with EU rules imposes any significant burden on this country in legal or economic terms. Arguments about ‘sovereignty’ are just so much hot air – entering into any treaty obligations involves accepting some limitations on the freedom of action of any country, whether it is in connection with membership of the UN, NATO or any other international organisation (including various international trade pacts).

European law has comparatively little direct effect on our planning legislation in this country, because, like the planning systems in each of the other member states, our development management regime is purely home-grown, and is tailored to the specific needs of the three separate jurisdictions in this country – England & Wales, Scotland and Northern Ireland (with the Welsh planning system now becoming increasingly divergent). This is a legal planning framework over which Brussels has no direct control, either in its formulation or in its practical operation.

Where European law and European directives are relevant to town and country planning in this country is in relation to environmental protection, and in particular the protection of rare and endangered species and their natural habitats. This European law has not been written into our primary planning legislation, but operates through our subordinate legislation governing the practical operation of development management procedures. The objective is to ensure that an appropriate level of environmental protection (especially for vulnerable species and their habitats) is maintained when considering development proposals.

The primary means by which this is secured is through the requirement in appropriate cases for an Environmental Impact Assessment (EIA). EIA is not automatically required. There are clear criteria for judging those cases where EIA may be required. In those cases where an EIA may (or may not) be required, the first step in confirming that requirement is by means of a screening opinion from the LPA (or a screening direction from the Secretary of State). Despite some whingeing from some sections of the development industry, the procedural requirements are not unduly demanding, and they are no more than is necessary if we are to afford some protection to the natural fauna and flora in our countryside. I don’t propose to go into all the detail, but an adverse environmental impact is not an absolute bar to development; a judgement is required to find the balance of public interest in any particular case.

It is interesting to note how our courts have dealt with planning and environmental cases involving a European dimension. Far from a kow-towing to an allegedly all-powerful Brussels-based Eurocracy (as the Europhobes would have it), our courts have demonstrated their long-established independence, and have applied European law in a proportionate and restrained manner. It is clear even from the decisions of the European Court of Justice itself that the application of European directives (such as the Birds Directive and the Habitats Directive) requires a balancing exercise, in which the public interest may in fact favour the approval of a development project, even where it may impinge to a greater or lesser extent on nature conservation interests.

I strongly suspect that what is dressed up as opposition to alleged over-regulation at the behest of Brussels is in reality just another manifestation of the free market dogmatism espoused by the right-wing of the Tory party and their financial supporters, who yearn to see the untrammelled operation of market forces, irrespective of the economic, social and environmental consequences.

These people may turn out to be frustrated in their aspirations, even if we do leave the EU. It cannot realistically be supposed that all the environmental protection that has been written into our subordinate planning legislation will instantly be repealed. In fact, there is a very strong case for its retention in substantially the form in which it is currently framed, and I rather doubt whether even a Tory government would dare to dismantle these environmental safeguards, which will clearly still be needed in order to afford appropriate protection to our fauna and flora.

As in so many other areas of economic activity, leaving the EU would make no practical difference to the level of regulation to which development is subject in this country, and from that point of view ‘Brexit’ would serve no useful purpose whatsoever. On the contrary, it would in fact be extremely damaging in its consequences in all sorts of ways.

One final point is worth emphasising. Leaving the EU would have no effect whatsoever on our treaty obligation to comply with the European Convention on Human Rights. This is because neither the European Union, nor any of its institutions (including the European Court of Justice – the ECJ) have any role in the enforcement of the Convention. The European Court of Human Rights (ECHR) has no connection with the EU and, nothing at all to do with the ECJ. It is the same right-wing elements in the Tory party (and their allies in the press) who are so Europhobic and chauvinistic, who also whinge about our adherence to the European Convention on Human Rights. There is no connection other than this.

For internal party reasons, Cameron and the current party leadership have felt it necessary to pander to these Neanderthal elements in the party, and so they have embarked on an attempt to draft amending legislation which is intended in some way to lessen the influence of the ECHR on our affairs. However, by all accounts, government lawyers are finding it difficult to frame legislation that would strike the sort of balance the government apparently wants to achieve. As with the environmental protection mentioned above, there is clearly a need to protect human rights (including workers’ rights), and to preserve the long-established concept of the rule of law in this country. Right-wing ministers seem to be irritated by the ability of the courts to call in question the lawfulness of the government’s actions, but this is an essential bulwark of our liberty, and must be preserved. Our continued adherence to the European Convention on Human Rights (and compliance with the rulings of the European Court of Human Rights) is an essential element in that protection.