This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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Friday, 13 May 2016
Class Q – Sustainability of location
Notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there are still some LPAs that seek to resist permitted development under Class Q on the basis of ‘sustainability of location’. I am grateful to my correspondent William Ashley for drawing my attention to an example of this in a recent appeal in Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675].
There was no dispute in this case that the qualifying criteria of Class Q had been satisfied, and the LPA raised no concerns in relation to noise, contamination, flood risk, design or the transport or highways impacts of the proposal. The appeal therefore turned solely on whether or not the location or siting of the building made it otherwise impractical or undesirable for residential use.
The LPA submitted that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The LPA claimed that their view was supported by (undisclosed) legal advice stating that its interpretation of the GPDO was correct as a matter of law, and they relied on paragraph W.10(b) of Part 3 that LPAs must have regard to the NPPF, so far as relevant to the subject matter of the prior approval, as if the application were a planning application. However, the Inspector rejected this narrow approach. The PPG (as updated in March 2015) is clear that Class Q does not apply a test in relation to sustainability of location, given the inherent rural location of agricultural buildings.
His view was that Class Q needs to be seen as part of a wider and more positive approach in considering appropriate opportunities, such as the re-use of rural buildings, to meet housing need in rural areas. This is reflected in paragraph 109 of the PPG as follows. “That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.”
On this basis, the Inspector found that the amended PPG on permitted development rights for the change of use of agricultural buildings, in a specific and defined way, complements the growth agenda advocated in the NPPF rather than necessarily introducing an in-built tension. He was not therefore persuaded that, in applying paragraph W.10(b) with regard to the NPPF, the provisions of paragraphs 108 and 109 of the PPG should be regarded as erroneous and that they should consequently be discounted.
In this particular case the appeal site was readily accessible, services could be made available and it was not truly isolated from other households. The Inspector was also satisfied that there were no agricultural operations or activities taking place nearby that might harm the living conditions of future occupiers. Accordingly, he considered that the location and siting were neither undesirable nor impractical, and so the provisions of Class Q(a) and (b) would be satisfied.
It occurs to me to wonder whether East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. They have just under six weeks left now in which to apply for permission to proceed in the High Court. It all depends what counsel advises, if they are minded to take that course, although I would be surprised if such a challenge were to succeed, particularly bearing in mind the Inspector’s finding that this location was not in fact unsustainable in any event.
© MARTIN H GOODALL
I note that the House of Commons CLG Committee on Operation of the National Planning Policy Framework in 2014 recommended at Paragraphs 91-92 that the Government revoke the permitted development rights allowing change from classes A1 and A2 to C3 {Recommendation 29}.
ReplyDeleteIn response in February 2015 the Government responded that:
62. The Government does not accept this recommendation. As the Committee recognises, the way we use our high streets is changing, and the Government has introduced permitted development rights to respond to this change. It is important to remove unnecessary barriers for owners to make the best use of their premises, such as allowing small shops and financial and professional services to change to residential use. This flexibility can provide much-needed homes and can help to revitalise town centres by increasing footfall and spending.
63. The Government appreciates that in certain locations it may not be appropriate for premises to change use, which is why this permitted development right is subject to prior approval. Local planning authorities are able to take account of the impact of the loss of a retail unit on the sustainability of the shopping centre, and to ensure that an adequate provision of retail services of the sort provided is retained, provided there is a reasonable prospect of the building being used to provide such a service. To ensure there is no adverse visual impact of introducing housing into a retail streetscape, prior approval is also required for any change to the external appearance of the building.
The issue as I see it is that the Government response at Paragraph 63 does not correspond to the Regulations or PPG unless the wider implications of the NPPF which leads to not only further questions on the suitability of location (e.g. Paragraph 55 of the NPPF) but also the impact of office/retail to residential conversion and the impact on the town centre (Paragraphs 23 to 27 of the NPPF) but also raises the question as to what other aspects of the NPPF could be reasonably considered - e.g. design? Does this raise a question that has been answered in the Courts already?
We have just had our planning committee meeting for change of use agriculture to residential - I thought you would be interested to know that the planning solicitor had a copy of your book (which he referred to as the planning bible) and quoted bits about farm shops etc to the members.
ReplyDeleteUnfortunately the vote didn't go our way because the planners scared them by a legal issue - they claimed our use of the building although agricultural in 2013, was not in lawful agricultural use in 2013 because we had not followed our original planning conditions to the letter. I can't see from your book that you address this issue, but is it possible for the agricultural use of a building on an agricultural holding to be unlawful?
I thought this may be a question of general interest to readers of your blog.
Thanks, Julia
The provisions of the NPPF are only relevant to those matters that specifically require prior approval in connection with permitted development in the specific Class in Part 3 under which the development is to be carried out. The NPPF does not therefore have any wider implications outside these narrow parameters. The wording of the GPDO is not as clear as it might be (with the inclusion of the potentially misleading words, “as if the application were a planning application”). However, the latent ambiguity of this provision was addressed in the 2014 amendment order by the addition of the words “so far as relevant to the subject matter of the prior approval”.
ReplyDeleteThe amendment (now incorporated in the text of 2015 GPDO) makes it clear that the only policies in the NPPF that can be taken into account in determining an application for prior approval are those that are relevant to the strictly limited matters requiring prior approval, as set out in respect of the specified Class of development. This has been confirmed and reinforced by appeal decisions, where inspectors have been robust in excluding considerations that go outside those parameters, and further reinforced by an amendment to the government’s online Planning Practice Guidance on 5 March 2015, which points out that this procedure was amended in April 2014 to make it clear that the local planning authority must only consider the NPPF to the extent that it is relevant to those matters on which prior approval is sought, for example, transport, highways, noise etc.
I do not see any realistic prospect of this being successfully challenged by an LPA in the High Court.
In answer to Julia (19 May), this question would require proper consideration on the basis of full professional instructions. One would need to know rather more about the circumstances in order to form a view as to the correct legal position.
ReplyDelete