An Interesting New Year

In wishing readers a Happy New Year, I am well aware that after 2016’s double disaster of the European Referendum and then the election of President Trump, the New Year promises at best to be an uncertain one.

I honestly believe that our country currently has the most incompetent government since Lord North’s administration managed to lose the American colonies in the 1770s. When the PM tells us that “Brexit means Brexit”, and then clarifies this by pronouncing that what she wants is “A Red, White and Blue Brexit”, this can only be translated in plain English as “I’m sorry; I haven’t a clue.” This is hardly surprising, when managing Brexit is in the hands of the Three Stooges (Boris the Clown, ‘Dangerous’ Davis and Dr Liability Fox MD, all of whom appear to be equally clueless).

Unfortunately, we have an equally incompetent Loyal Opposition, which seems incapable of opposing anything, let alone calling the government to account for its manifest errors and omissions.

Anyway, enough of politics; this year is also likely to be interesting on the legal front. Very early in the New Year we shall have the Supreme Court’s decision on the procedure required to invoke Article 50 of the Lisbon Treaty. Although this case is solely focused on this question (and is not concerned with the referendum result, or with how Brexit is to be managed once Article 50 has been activated), it is a case of immense juridical importance, because it goes to the heart of the constitutional relationship between Parliament and the Executive.

Montesquieu was probably wrong when he wrote about the separation of powers. There has always been an element of common membership and interaction between Parliament, the Executive and the Judiciary, although the independence of the judiciary remains of paramount importance, and has been reinforced in recent years by a change in the person and functions of the Lord Chancellor, and the creation of the Supreme Court to take over the judicial function formerly exercised by the House of Lords.

Another fundamental constitutional principle, which continues to be of the greatest importance to the protection of our liberties, is the sovereignty of Parliament over the Executive. It is this essential principle which lies at the heart of the case on which the Supreme Court is currently deliberating.

No-one who has ever studied Constitutional and Administrative Law will have been the least bit surprised by the judgment of the High Court in this case (handed down by the most strongly constituted Divisional Court that I can ever remember). I find it hard to believe that the government stands any chance whatever of overturning that decision in the Supreme Court, and the only remaining question is whether it will be an 11-0 decision in favour of the Respondents (which seems most likely), or whether there could possibly be just one, or maybe two, dissenting judgments.

I am bound to say that David Pannick had four centuries of overwhelming judicial authorities on his side, by contrast with which the Attorney General’s case seemed largely to consist of bluff and bluster. On the other hand, it seems to me that the respective cases for the Scottish and Northern Irish governments, whilst persuasively argued, stand much less chance of being accepted by the court, because the law would not appear to be on their side so far as their constitutional relationship with the UK government is concerned. I have a great deal of sympathy with both of these regional governments; they have a strong moral case in favour of a separate settlement with the EU for their own countries. But it will have to be argued in the political arena, rather than through the courts.

One final point before we get back to Planning Law. I mentioned above the crucial importance of the independence of our judiciary; it is an essential component of the Rule of Law in this country. It is therefore immensely damaging when ill-informed newspaper editors print scurrilous allegations that senior judges are “Enemies of the People”, and question their integrity and their personal character. As I have observed above, the decision of the Divisional Court was inevitable; it flowed naturally from the law that the Court had to apply. There is no question of the judges having allowed their personal opinions, political affiliations or leanings or any other extraneous factors to influence their judgment; they were under a duty to apply the law as it exists to the facts before them, and they did so fearlessly and fairly. I am in no doubt that what the Daily Mail subsequently printed was a gross contempt of court, and the Editor and others concerned in writing and publishing this scurrilous material can count themselves lucky that they were not hauled before the Court and committed to prison until they had purged their contempt, by making a grovelling apology in person to the Court and printing an unqualified retraction of their statements. There must certainly be no repetition of this conduct in the wake of the Supreme Court judgment. In the event, however, that it were to be repeated, the journalists concerned should be swiftly proceeded against for any such contempt of court.

After the expected excitement of the Supreme Court judgment on Article 50 in January, there are two other cases that may well prove interesting. In February, the High Court is expected to hear the case of East Herts DC v. SSCLG. If judgment is reserved, we may expect to get the result by early March. This is a challenge by the LPA to ministerial advice in the online PPG that ‘sustainability of location’ should not be taken into account in determining a prior approval application under Class Q in Part 3 of the Second Schedule to the GPDO. The legal people at East Herts got rather hot under the collar when I suggested in a blog post a few months ago that they appeared to be ‘spoiling for a fight’ on this issue, but this case seems to suggest that this is precisely the exercise on which they were embarked. However, I have to say that if I were a gambling man, my money would be on the Secretary of State to win this one.

Then in mid-March, the Court Appeal is due to hear the appeal in Dunnett Investments v. SSCLG. This concerns preclusive conditions in planning permissions which may, or may not, have the effect of preventing either changes of use within the same use class (under section 55(2)(f)) or permitted development under the GPDO (or both). There is no doubt as to the preclusive effect of a condition that contains a clear reference to one or other of these statutory provisions; the difficulty arises where the condition is prohibitively worded, but without clearly referring either to section 55(2)(f) [or Art. 3(1) of the UCO] or to the GPDO.

I won’t rehearse the issue in any more detail here; I blogged on it a few months ago in light of the High Court decision in Dunnett Investments, and I have also discussed this case in detail in Appendix A to the Second Edition of A Practical Guide to Permitted Changes of Use (see paragraph A.5). I don’t know how counsel intends to argue his case before the Court of Appeal, but one point that appears to me to be relevant (and possibly determinative) is the distinction to be made between the legal effect of section 55(2)(f), compared with the legal effect of Art. 3(1) of the GPDO. Previous judgments, including the first instance judgment in Dunnett Investments, seem to have conflated the effect of allegedly preclusive conditions in relation to these two separate and rather different statutory provisions.

In light of later judgments, the proposition put forward in the judgment in Carpet Décor may have been too sweeping in embracing both section 55(2)(f) as well as the GPDO. However, it seems to me that the proposition accepted by the court in Royal London Mutual Insurance should be construed only as precluding the operation of section 55(2)(f), but not as such to precluding the operation of the GPDO in accordance with Art. 3(4) of that Order. In my view, the Court of Appeal decision in Dunoon Developments remains the leading authority, so far as the GPDO is concerned.

I imagine that a reserved judgment in Dunnett Investments can be expected before (or perhaps just after) Easter. No doubt other judgments will be forthcoming on a number of planning topics during the next twelve months. The flow of cases never stops.

Meanwhile, the Neighbourhood Planning Bill will continue its passage through parliament, and can be expected to receive royal assent this spring (and certainly before the current parliamentary session ends in May). Early amendment to the DMPO can then be expected to give effect to the government’s intention to bring the use of conditions in planning permissions under more effective legal control.

It remains to be seen what further amendments may be made to subordinate legislation. Further amendment of Part 3, Class O in the GPDO cannot be ruled out, although I remain sceptical about this (as previously explained). The possible consolidation of the Use Classes Order was canvassed when the UCO was further amended during 2015. It is certainly overdue for consolidation in view of the many amendments it has undergone in the past 30 years. I have a more than passing interest in this, as the writing project on which I am currently engaged deals extensively with the UCO, and we naturally do not want to go to press later this year, only to find that the UCO is then extensively overhauled.

Further primary legislation is also in prospect. A planning bill (whatever its title) seems to have become an annual event in recent years, and one wishes that ministers would resist the temptation of endlessly tinkering with the planning legislation. The Planning Acts are also arguably overdue for consolidation, having suffered a plethora of amendments since 1990, starting as early as 1991 when the ink was hardly dry on the principal Act. We shall just have to wait and see, although with so much else going on in government, it would be understandable if consolidation of the primary legislation remains on the back burner for the time being.

So, Happy New Year (even, dare we hope, a prosperous one). We’ll just have to keep our heads down and keep on with the work in hand, despite whatever nonsense the politicians and the press are getting up to.

© MARTIN H GOODALL

Reforming the use of planning conditions

One really good piece of news in the Neighbourhood Planning Bill is that ministerial guidance on the use of planning conditions, which has been so widely ignored by local planning authorities for many years, is at last to be given statutory force.

While the Bill is continuing on its passage through parliament (currently awaiting Second Reading in the House of Lords on 17 January, having already completed its passage through the Commons), the government is wasting no time in preparing the subordinate legislation that will be put in place as soon as possible after the Neighbourhood Planning Bill comes into force following Royal Assent, probably in the Spring. The government has consulted on these proposals and has published their response to the consultation with commendable speed.

The first major subject of the consultation is the issue of pre-commencement conditions. Whilst the government recognises the importance and value of certain pre-commencement conditions in ensuring that necessary safeguards are put in place for important matters, including heritage and the natural environment, they remain determined to ensure that the principles in their Planning Practice Guidance (formerly set out in Circular 11/95) are observed by LPAs, and this will include agreeing proposed conditions with an applicant before a decision is taken, and as early in the planning application process as possible.

The Government remains of the view set out in the consultation paper that it should be the responsibility of the LPA to choose the most appropriate time to seek agreement of the applicant to any pre-commencement conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. Nonetheless, the government agrees that there should be a default period to avoid undue delay in the process where there is no response from the applicant. They therefore propose a default period of 10 working days (although there will be an option for LPAs to agree a longer timescale with the applicant).

The intention is that the default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and has sought the agreement of the applicant. The default period would then elapse 10 working days (two weeks) later, unless a longer period had been agreed between the LPA and the applicant.

The alternative of introducing a dispute resolution procedure (such as a fast-track mechanism for appeals) would only add a further formal step to the process which would be likely to cause delays, and could actually discourage effective discussions between applicants and local authorities, who might simply wait to use the mediation route as an alternative to meaningful engagement early in the process.

The government expects that the new approach will reduce the workloads of authorities following the issue of a planning permission, by reducing the number of pre-commencement conditions that then have to be discharged.

The second main issue dealt with in the consultation document is the proposed prohibition of conditions that infringe the principles laid down in the ministerial guidance on the use of conditions. Planning officers predictably asserted in response to the consultation document that the guidance is already sufficient without further provision being made in legislation, but experience over many years has shown that in practice this guidance is widely ignored. The government believes (and I entirely agree) that it is necessary to ensure that conditions applied by local planning authorities meet the six policy tests in the NPPF. The government has therefore confirmed its intention to do this through secondary legislation, expressly prohibiting each of the following types of condition:

1: Conditions which unreasonably impact on the deliverability of a development - e.g. disproportionate financial burden;
2: Conditions which reserve outline application details [i.e. details that should have been specified as reserved matters at the outline permission stage];
3: Conditions which require the development to be carried out in its entirety;
4: Conditions which duplicate a requirement for compliance with other regulatory requirements - e.g. the Building Regulations;
5: Conditions requiring land to be given up; and
6: Positively worded conditions requiring payment of money or other consideration

The second of these prohibitions will not restrict the ability of local authorities to impose conditions on outline applications requiring the submission of details of reserved matters for approval at a later date. What it is aimed at is conditions attached to a full permission or to consent to details (i.e. the approval of matters that should have been reserved by an outline permission) which require the subsequent approval of further details. The latter type of condition should be entirely unnecessary.

However, what the government’s proposals do not appear to address is the unnecessary requirement in many conditions for certain details to be approved before the commencement of development, when the condition could simply require that certain matters be approved at a later stage in the development; it could indeed to be adequate that the approval of a few matters should simply be required “prior to the first occupation of any part [or of the relevant phase] of the development.

With regard to the prohibition of conditions requiring the completion of a development in its entirety, there is no reason why a developer should be under a legal obligation to carry out the whole of a development that has been approved. LPAs already have the ability to serve completion notices, to encourage the completion of partially-built development. The Government has therefore confirmed its intention to prohibit this type of condition.

As regards conditions that duplicate other regulatory requirements (in particular the Building Regulations), this is an issue on which many of us feel strongly. There is no excuse for trying to drag into the development management process matters that are properly the subject of compliance with the Building Regulations or other legislation. The government, however, does seem to have conceded (inadvisedly, in my view) that a condition might legitimately impose a requirement over and above the minimum standards stipulated by the Building Regulations. The answer, surely, if there are circumstances where a higher standard of construction is required, is to vary the Building Regulations themselves. There has been an unfortunate tendency in recent years to attempt to regulate through the planning system matters that should not properly feature in the development control process. The government really ought to set its face firmly against this trend.

Responses to the consultation exercise included a number of other conditions which it was suggested should be prohibited. These included:

- Conditions which duplicate or split conditions across different regulatory regimes;
- Conditions which restrict hours/methods of working on a building site;
- Conditions which require a completion date;
- Conditions which require material samples to be agreed up front before development can commence;
- Conditions which require pre-approved drawings to be duplicated and re-submitted for approval; and
- Conditions attached to temporary permissions, when the development has a short lifespan.

Some of these suggested prohibitions fall within the conditions that the government intends to prohibit in regulations, including conditions added upon the approval of reserved matters, conditions that duplicate other regimes and conditions requiring a completion date, all of which are covered by the government’s proposed prohibitions mentioned above.

There is perhaps just one other type of condition that requires specific prohibition. This relates to conditions attached to a prior approval under a relevant part of the Second Schedule to the GPDO (particularly Part 3) if it purports to deal with issues that go outside the scope of the specific matters requiring approval under the relevant Class of permitted development. Section 100ZA (which will be added to the 1990 Act by the Neighbourhood Planning Bill) makes it clear that the permissions referred to include development permitted by a development order, and so this provision will include conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended accordingly. However, the subordinate legislation ought specifically to prohibit such conditions, in order to reinforce the provision in paragraph W(13) in the GPDO that the conditions must be “reasonably related to the subject matter of the prior approval”.

© MARTIN H GOODALL

Demolition and replacement of offices still on PD agenda

I have previously expressed some scepticism as to delivery of the government’s avowed intention (dating originally from 2014) to add the demolition and replacement of office buildings to Class O in Part 3 of the Second Schedule to the GPDO.

I referred a few weeks ago to a footnote in an obscure press release that came out during the Tory party conference in October, where this proposal was repeated; but the fact remains that the proposal, if it were to be pursued, would be fraught with all sorts of practical difficulties, and would require the consideration of a whole raft of additional matters in any prior approval application relating to such development. In the circumstances, it seems to me that little, if any, advantage would be gained by this means as compared with a straightforward application for planning permission.

Notwithstanding my scepticism, the government’s intention to pursue this proposal has been repeated in their response to the report of the House of Lords Select Committee on the Built Environment, published in November 2016 [CM 9347], which contains this passage in paragraph 198:

“We are to extent [sic] permitted development rights even further, to allow for demolition of offices and replacement with housing on a like-for-like basis. This could provide around 4,000 new homes by the end of 2021.”

This comment was added, perhaps rather irrelevantly, to the government’s response to an observation by the House of Lords committee (quoted in paragraph 194) that “the Government should also consider strengthening the priority given to brownfield development, including considering the reintroduction of a ‘brownfield first’ policy at national level.”

The 4,000 figure was originally quoted in the October press release referred to earlier, although on what evidence (if any) is unclear. It looks very much like an unsubstantiated guess of the “think of a figure and double it” variety.

At our very successful seminar at the RIBA in November, launching the Second Edition of A Practical Guide to Permitted Changes of Use, Arita Morris, Director of Child Graddon Lewis, architects & designers, delivered an interesting paper on the practicalities of office conversions under Class O, which made it clear that many office conversions require planning permission for physical alterations and extensions in any event, bearing in mind that such operational development is excluded from the development permitted by Class O, so that the only physical alterations that can be carried out to the building without a separate planning permission are internal works not affecting the external appearance of the building, and which do not therefore constitute development by virtue of section 55(2)(a) of the 1990 Act.

In the past 30 years or so, it has been the practice to erect ‘deeper’ office buildings, which do not easily lend themselves to residential conversion, due to the lack of natural daylighting towards the centre of the building. It is presumably these more recent office buildings that would potentially be candidates for demolition and replacement if Class O were to be extended to allow this. There would nevertheless remain a question mark over the commercial viability of such a scheme, and the practicalities of this type of development might, as I have suggested, make a planning application a simpler way of dealing with a development of this sort.

So I am not expecting a further extension of permitted development rights under Class O any time soon. We shall have to see what 2017 brings, but don’t hold your breath.

© MARTIN H GOODALL

Basement excavation may not be permitted development

I have been extremely busy for the past few weeks, and so there has been an inevitable hiatus in posting items on this blog. The blog is concerned with the whole range of legal issues affecting town and country planning, but today I find myself returning once again to the issue of permitted development under the GPDO, this time under Part 1 of the Second Schedule to the Order.

Basement developments (especially in London) have been the subject of controversy for a number of years. As a general rule, it has been assumed that many such developments are permitted development (as discussed below), although some LPAs have made Article 4 Directions, so that in those areas a planning application will be required for basement extensions.

The legal background is theoretically straightforward, but it is in the detail that difficulties have arisen. Section 55(2)(a) of the 1990 Act is often cited as authority for the proposition that building operations which affect only the interior of a building or which do not materially affect the external appearance of the building are not to be taken to involve development of the land. As originally enacted, the predecessor of this section would have had the effect of exempting from the definition of development building operations to provide additional living space by forming or extending a basement under an existing house. However, section 55(2)(a) does not exempt works begun after December 5, 1968 involving the provision of additional space in the building underground. So digging a basement does constitute ‘development’ for the purposes of section 55.

The necessary planning permission for basement works is provided in most cases by Part 1, Class A of the Second Schedule to the GPDO. This permits the enlargement, improvement or other alteration of a dwellinghouse and, in principle, none of the exclusions or limitations in that Class would prevent the excavation or enlargement of a basement as permitted development. However, an interesting judgment was delivered in the High Court on 2 December in the case of Eatherley v. Camden LBC [2016] EWHC 3108 (Admin), which indicates that there may be practical limitations on such developments.

This was an application for the judicial review of a Lawful Development Certificate issued by Camden LBC, whereby they had confirmed that it would be lawful to carry out proposed works comprising the excavation of a basement beneath the footprint of the existing dwellinghouse. The proposed depth of the basement was approximately 2.85m, with the width (side to side of the house) a maximum of 4.5m and length (front to back of house) a maximum of 7.5m. A single internal staircase was proposed to link the existing ground floor with the proposed basement.

One issue that the council had considered was whether the engineering activities associated with basement construction were within Class A. Local residents had claimed that the proposals involved excavation works which, as a matter of fact and degree, constituted “an engineering operation” which did not benefit from any permitted development right under Class A. The council’s officers had concluded that the basement works would, by necessity, involve temporary engineering works associated with protecting the structural stability of the house and neighbouring building. However it was considered that these works would be entirely part of the basement works to the house, and that they would not constitute a “separate activity of substance” which would not be ancillary to the activity that benefitted from permitted development rights.

However, this issue was the basis of the legal challenge to council’s decision in the High Court, namely (1) that the proposed development included a substantial engineering operation which was not within the permitted development right relied upon in the LDC, (2) that the Council misdirected itself in concluding that the engineering works proposed were not a separate activity of substance, and (3) that the interpretation of the Class A permitted development right as including the engineering works proposed in this case frustrated the legislative purpose of section 59 of the 1990 Act [the enabling power under which the GPDO was made] and of the GPDO itself, and was therefore ultra vires. In the event, only the second of these submissions was accepted by the Court, although this was sufficient in itself to require the quashing of the LDC.

I haven’t got time to summarise Cranston J’s very interesting and instructive discussion of the background to these permitted development rights, but it is well worth reading in its entirety. In Cranston J’s view, the crucial issue was the meaning of the plain words of the planning permission granted by Article 3(1) of the GPDO for the Classes of development described as permitted development in Schedule 2. In relation to Part 1, Class A the issue revolves around the meaning of “the enlargement, improvement or other alteration of a dwellinghouse”.

The difficulty with a basement development, his lordship observed, is the absence of any boundaries to the permission. Yet there must be a point where the excavation, underpinning and support for a basement for a dwellinghouse becomes an activity different in character from the enlargement, improvement and alteration of that dwellinghouse. For that reason, engineering operations for the basement are at some point different in character to those involved in the preparation of foundations for a house.

The answer, drawn from the legal authorities, is whether, as a matter of fact and degree, the single process of making the basement amounts to different activities, each of substance, so that the one is not merely ancillary to the other. The principal authority relied on was : West Bowers Farm Products v. Essex CC (1985) 50 P & CR 368, as applied in Wycombe DC v. SSE [1995] JPL 223 and this was the law that Cranston J applied.

The first of these cases was concerned with agricultural PD under Part 6. The proposal in that case was for an irrigation reservoir on a farm of some 18 acres in extent and 6.5 metres in depth. The construction of the reservoir necessitated the extraction of large quantities of sand and gravel, which were to be sold. The Court of Appeal (upholding the judgment at first instance) held that if the development involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission. In that case, the Court was in no doubt that the construction of the reservoir would involve two activities, each of substance. The extraction of so much gravel would not merely be ancillary to the carrying out of the engineering operations under Part 6. This was a question of fact and degree.

In the Wycombe case, the front garden of a dwellinghouse in an elevated position above the adjoining road was almost totally excavated, leaving a hard standing for vehicles level with the road - 6.8 metres wide, 4.5 metres deep and 2 metres in height at the rear. The Secretary of State decided on appeal that there was no breach of planning control because what was done was permitted under Part 1, Class F. However, the High Court held that the Secretary of State had not determined what was incidental to the provision of a hard surface. He had referred to the “sole purpose of the excavations” and went on to find that “the removal of the necessary quantity of earth to achieve that aim took place as an integral part of the operation”. However, the Secretary of State was fatally in error in omitting to consider the correct test, and in applying tests which were not appropriate.

In the present case, Cranston J held that in the context of an original “two up two down” terrace house in suburban London, the development of a new basement, when there is nothing underneath at present, could well amount, as a question of fact and degree, to two activities, each of substance. There is the enlargement, improvement and alteration aspect, but there is potentially also an engineering aspect of excavating a space and supporting the house and its neighbours. That is the position, even though the latter is necessary to achieve the developer’s aim; indeed is indivisible from it. If there is this separate aspect in the development, it requires planning permission. The Class A right grants planning permission for one of the two activities of the development but not for the engineering aspect.

The officer’s report, advising the Council to grant the certificate, accepted that the basement works would, “by necessity”, involve temporary engineering works associated with protecting the structural stability of the host and neighbouring buildings. However, it added, these would be “entirely part of the basement works”, and did not constitute a separate activity of substance which would not be ancillary to the activity that benefitted from permitted development rights. In Cranston J’s judgment, the planning committee asked itself the wrong question with its focus on the works being “entirely part” of the overall development, which would “by necessity” involve engineering works. It concluded that because this was the case it followed that the works did not constitute a separate activity of substance.

That is not the approach laid down in the authorities. The Council’s conclusion that the engineering works were not a separate activity of substance followed from a misdirection. It should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance. The Council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.

In other words, if the planning committee had asked itself the right question, it would have needed to assess the additional planning impacts of the engineering works to decide whether they amounted to a separate activity of substance. It would have been in a somewhat difficult position in undertaking that task without any description of the engineering works required in support of the application, although it may have been able to draw on its own experience of the common and predictable ramifications of this type of basement development with this type of terrace house in this area. The issue was one of planning judgment, but since the planning committee misdirected itself as to the issue, it never got as far as properly exercising that judgment.

The LDC was therefore quashed on this ground.

© MARTIN H GOODALL

‘Convertibility’ of agricultural buildings

Class Q(a) in Part 3 of the Second Schedule to the GPDO permits the change of use of a building and any land within its [restrictively defined] curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). The wording of Class Q(a) does not refer to “conversion”, but it will clearly be necessary in order to bring about the permitted change of use to carry out various physical works to the building in order to enable this change of use to be made. Certain other Classes of permitted development in Part 3 (such as Class O, relating to the residential conversion of office buildings) do not permit any development comprising building operations, so that the only works that can be carried out within the scope of Class O are purely internal alterations. However, in the case of an office conversion these may be extensive, including new internal walls, new floors in some cases, considerable plumbing and electrical work, and a general re-arrangement of the internal layout of the building. These will all be covered by section 55(2)(a) of the 1990 Act, which exempts such purely internal works from the definition of development.

In the case of the residential conversion of an agricultural building under Class Q, there can in my view, be no objection to similar internal alterations and re-arrangements. In addition, Class Q(b) permits certain building operations, but paragraph Q.1(g) provides that development is not permitted by Class Q if the development would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and paragraph Q.1(i) also precludes development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, the installation or replacement of water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse.

Notwithstanding the very wide definition of a “building” that has been adopted by the courts over the years (see Cardiff Rating Authority v Guest Keen Baldwin [1949] 1 KB 385, Skerritts of Nottingham v SSETR (No.2) [2000] 2 P.L.R 102; [2000] J.P.L. 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)), it has always been clear that the development permitted by Class Q (and by its predecessor, Class MB in the 1995 Order) does not, and was never intended to, authorise the substantial demolition and reconstruction of the pre-existing building, nor does it enable the extensive rebuilding of an insubstantial structure so as to create what would in substance be a new building.

Even before the government amended its online planning practice guidance (PPG) in March 2015, it was clear from appeal decisions that where existing structures, and the materials from which they were constructed, were so insubstantial that the buildings would require almost complete reconstruction in order to meet the requirements of the Building Regulations, the extent of the proposed building operations would inevitably be seen as going beyond the extent of the works that were envisaged by the terms of Class Q(b) [or the former Class MB(b)] as being “reasonably necessary” for the building to function as a dwellinghouse, and could also be sufficient to disqualify the building from residential conversion under Class Q(a). As I put it in A Practical Guide to Permitted Changes of Use: “This imposes a practical constraint on the convertibility of some buildings. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.”; and I have cited (on page 107 in the Second Edition) two appeal decisions issued in January and February 2015 respectively which reached exactly this conclusion.

In light of this, the High Court judgment last week in Hibbitt v. SSCLG [2016] EWHC 2853 (Admin) is unsurprising. It simply confirms this well understood principle. It is not even necessary to call in aid the revised wording of the PPG in order to interpret the plain words of the GPDO. I don’t propose to go into the facts of this case. Suffice it to say that it is over-optimistic to expect that a building comprising a light steel frame supporting a corrugated iron roof, which is largely open to the elements on three sides (except for limited cladding up to a few feet from the ground in some cases) is capable of being converted to residential use without building operations that would be so extensive as to go well beyond the scope of the operations permitted by Class Q, and would amount either to substantial rebuilding of the pre-existing structure or, in effect, the creation of a new building.

For this reason, the excitement and/or consternation (depending on your viewpoint) that Hibbitt seems to have aroused in some quarters appears to me to be misplaced. This judgment does no more than to re-affirm the principle that was clearly to be derived from the wording of Class Q itself, as already applied in a number of prior approval appeals, including the two which I cited in the book.

We should be wary, on the other hand, of reading more than this into the Hibbitt judgment. What I have called “the structural issue” has in effect two limbs. The first is the fundamental point discussed above, which was dealt with by Hibbitt, but the second aspect of this structural issue is the question of how much internal work can be carried out inside the building within the scope of Class Q. It is this latter aspect of the matter that I have discussed in detail in the new Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use. In my view, the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

I don’t propose to re-rehearse here the arguments that are canvassed extensively in my Appendix D. On reflection, the problem stems not so much from the actual wording of the revised PPG, as from an unduly restrictive interpretation of those words by LPAs (and by some inspectors). I believe that in revising the PPG ministers were simply trying to explain the fundamental principle that is now confirmed (if confirmation were needed) by the judgment in Hibbitt. However, taking account of section 55(2)(a), it seems to me that there is still scope, without infringing that basic principle, and without going outside the limitations of Class Q, to carry out internal works that may be quite extensive, even including some structural alterations, provided that these are purely internal. Rather than attempting to enlarge on this proposition here, I will leave it to readers to study Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use.(One reader has already described it as “a good read”!)

UPDATE: Readers may have seen the various comments appended to this post, discussing the effect of this judgment on existing prior approvals. Following discussions with my colleagues in Keystone Law’s planning law team, I have now published a post (16 January 2017) under the title "Can an LPA override a prior approval?” in which I have set out a revised view compared with that expressed in my original reply to comments on this issue.

© MARTIN H GOODALL

This year’s Seminar - last chance to book

It is only just a week to our seminar at the RIBA in Portland Place (London W1), so time is now very short in which to book your place, and get a complementary copy of the Second Edition of A Practical Guide to Permitted Changes of Use within this price. This package really is an excellent bargain, and it would be difficult to find better value for a CPD event. Just click on the button in the left-hand margin to place your order. [If you are using a smart phone to read this, or if you have an out-of-date or unsupported browser, and the book/seminar ordering details are not displayed on your side-bar, an easy alternative is to go onto Bath Publishing’s website at http://www.bathpublishing.com/ and click on the links on that site to access the booking details.]

If there is anyone who is holding off from buying the Second Edition in the hope of buying a third edition later, I should make it clear that the Second Edition will probably remain current for two years or more, certainly for at least a year as a minimum. Planning professionals frankly cannot afford to be without the fully updated Second Edition now, which contains much additional material compared with the First Edition.

The possibility of further changes to the GPDO that would justify a third edition in the foreseeable future (such as the demolition and reconstruction of offices) is frankly negligible. As I observed in a recent blog post, I do not take a mere footnote in an obscure press release at a party conference, which happened to mention the demolition of offices, as indicating any serious intention on the part of ministers to pursue this. It strikes me as “a bridge too far”, and would be simply too difficult to shoe-horn into the structure of the GPDO without stretching the concept of permitted development beyond any sensible limits. Rather than a prior approval that would be required for a whole host of extra issues, this type of development clearly needs to be dealt with by means of an application for full planning permission, and to be considered and determined in accordance with the full range of material considerations that apply to the determination of planning applications.

Just a final reminder of the subject matter of the Seminar: Last year we focused on barn conversions; this year we are looking more closely at the residential conversion of offices - both the legal framework and some of the practical issues that need to be addressed. We will also be touching on various recent changes in the legislation, as well as judgments and appeal decisions relating to permitted changes of use.

Among new material in the Second Edition of the book, the Orange Communications case is discussed in relation to the effective law applying to a prior approval (paragraph 1.6 in Chapter 1) and also in relation to a change in the GPDO or in a designation, such as a Conservation Area, after prior approval but before implementation (paragraph A.10 in Appendix A). There is a useful note on the treatment of residential conversions for the purposes of VAT (paragraph 5.0.1 in Chapter 5); the addition of the conversion of launderettes is covered in Part 5.2 of Chapter 5; the changes that have been made to Class O (residential conversion of offices) will be found in Chapter 7; and the residential conversion of light industrial buildings under Class PA is described and explained in the new Part 8.2 of Chapter 8.

The new provision as to the registration of prior approval applications is outlined in paragraph 14.0 of Chapter 14, and there is additional discussion on the use of conditions in paragraph 14.5 of Chapter 14, including the future restrictions on the imposition of pre-commencement conditions in a Note appended to that paragraph. A new section on the removal or variation of conditions in light of the Pressland judgment will be found in paragraph 14.5.1 of Chapter 14. Additional discussion of the requirement to notify the applicant of the LPA’s decision on a prior approval application is included in paragraph 15.5 of Chapter 15, and changes to the rules about the temporary use of land or buildings for film-making are covered in Chapter 18.

There is also important new material in the discussion of preclusive conditions in paragraph A.5 of Appendix A in light of the High Court judgment in Dunnett Investments, and an entirely new Appendix D which discusses in detail the issue of structural alterations in relation to residential conversions, especially under Class Q. This is not to mention the numerous appeal decisions that have been added to the text (now with their appeal reference numbers in most cases) and a number of other new judgments, such as Pratt (on evidence as to agricultural use), the East Herts case (on sustainability of location) and Pressland (mentioned above, on conditions), among a number of others.

So if you think you can get by without the Second Edition, think again! And you will gain even more benefit from the new edition by attending the seminar next week. We look forward to seeing you there.

© MARTIN H GOODALL

Further amendments to the GPDO

My publishers and I had a momentary panic when, just after the first print run of the Second Edition of A Practical Guide to Permitted Changes of Use had been delivered from the printers, we learnt of the General Permitted Development (England) (Amendment) (No.2) Order 2016 [SI 2016 No. 1040], which was made on 31 October, laid before parliament on 3 November and comes into force on today (4 November).

But as the late Frankie Howard would have said, “Panic ye not.” This amendment order relates purely to Part 16 of the Second Schedule, which deals with developments by telecoms code operators. I have made a passing reference to Part 16 in the book, in the context of the 56-day rule, but the revised provisions do not alter anything in that regard.

There is, however, something on the horizon which could potentially make a third edition of the book necessary in due course. This is the possible revival of the proposal to allow the demolition and replacement of office buildings under Class O. As I have observed at the end of Chapter 7, in the event that these proposals are revived at any time in the future, they would most probably be foreshadowed by a further ministerial statement setting out ministers’ intentions in the matter at that time, and I would also expect a consultation exercise regarding the additional matters that would require prior approval in respect of proposals for demolition and reconstruction of office buildings. I do not in fact take a mere footnote in an obscure press release, which happened to mention the demolition of offices, as indicating a serious intention on the part of ministers to pursue this at present. (But we shall see.)

© MARTIN H GOODALL

Planning Jungle

Regular readers of this blog will have seen occasional references to the Planning Jungle website. As many planning professionals are already aware, this is an extremely valuable research resource, which deserves to be better known.

This website, www.planningjungle.com, provides a comprehensive survey of appeals against the refusal or non-determination of prior approval applications under Part 3 of the Second Schedule to the GPDO (relating to permitted changes of use), where appeal decisions have been classified, analysed and summarised in accordance with the issues that were considered in each appeal. The site also covers permitted development under Part 1 (domestic extensions and other operational development within the curtilage of a dwellinghouse), as well as a wide range of LDC appeals under section 195.

Full access to the materials available on the Planning Jungle website requires the payment of a membership subscription, but this will give you access to more than 800 appeal decisions on that site relating to Part 3 of the GPDO alone, as well as the other appeal decisions I have mentioned above, and also notes alerting readers to new legislation and other changes in this area of planning law and practice.

Whilst I have no commercial or professional connection with Planning Jungle, I am happy to commend it to readers as a valuable research resource. I have added a link to the website on the sidebar of this blog.

© MARTIN H GOODALL

Stripey house – another twist in the tale

The saga of the house in Kensington that was painted in red and white stripes has become a lengthy and complex legal war of attrition.

There is no time or space to recount the whole story here. We came in at the point where an appeal from the magistrates’ court in respect a section 215 notice was dismissed by the Crown Court (see “Section 215 Notice – House Painting”, posted on Monday, 15 August 2016).

There had already been a long planning and legal battle by this time, in which neighbours had fought to resist the house owner’s development plans for the property. I have no intention of taking sides in this matter. Neighbours are understandably resistant to major development on their doorstep, especially where it involves basement excavations. On the other hand the owner of the property must have found the repeated thwarting of her development proposals deeply frustrating.

The owner, a Mrs Lisle-Mainwaring, has now won two planning appeals in respect of her development proposals, only to see both of these appeal decisions quashed in the High Court. The latest setback came in a judgment in the High Court last month (Carroll v. SSCLG [2016] EWHC 2462 (Admin)). This turned on a detailed examination of the correct approach to the determination of a planning application, and also of an appeal against the refusal of planning permission under section 78. The planning history of the house in question is somewhat complex. Having originally been a house (Use Class C3), the property had then become an office (Use Class B1), then a warehouse or storage facility (Use Class B8), both of which had been perfectly lawful changes of use.

The owner now wished to reinstate the original residential use, and to construct a double-storey basement, or alternatively, to demolish the building and replace it with a new dwelling. The Inspector refused permission for a basement extension, but he granted planning permission for demolition of the existing building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential, subject to conditions. He also allowed an appeal granting planning permission for change of use to Class C3 residential use. It was the appeal decisions granting these planning permissions that were challenged in the High Court by a neighbour.

In the appeal, the Inspector had found that although the property had previously been in Class B1 office use, the current use of the property was Class B8 storage use. The LPA accepted there had been Class B8 storage use since at least January 2014 (although this was disputed by the Claimant neighbour). The Inspector held that a change of use from B8 to C3 would not be in breach of adopted planning policies. However, it was a material consideration that the use could revert to Class B1 office use from Class B8 storage use, as permitted development, whereas the possibility of a reversion to Class B1 would be lost if the use was changed to Class C3 residential use. Class B1 use would justify protection under the relevant local plan policy. Nonetheless, the prospects of reversion to Class B1 and the loss of that use, contrary to the planning policy in question, was given minimal weight by the Inspector.

In her High Court judgment, Mrs Justice Lang examined the proper approach to the determination of planning applications (and appeals). I do not propose to attempt a summary of this lengthy, but very helpful, exposition of the legal principles involved. But this passage in the judgment will no doubt serve as a very useful guide to planners and lawyers in the future.

The conclusion was that the Inspector had misdirected himself in law in his consideration of the possible future reversion to Class B1 use as a material consideration. When considering the weight to be accorded to the potential reversion to Class B1 use, it was relevant for the Inspector to consider, from an objective standpoint, what the likely future actions of the owner of the property would be (whether the owner was the appellant herself or another owner in the future). The Inspector had erred in disregarding this consideration, apparently on the grounds that “it is not appropriate subjectively to interpret her past conduct or anticipate her future actions regarding the appeal property”. On the authorities and in the circumstances of this case, he was required to make an objective assessment of the likelihood of reversion to Class B1 use, when deciding the question of weight, and his Decision Letter indicated that he did not do so. Furthermore, there was substantial evidence at the Inquiry that a reversion to Class B1 use from Class B8 use was likely, on commercial grounds, if planning permission for residential use was refused.

In her ladyship’s judgment, the Inspector’s erroneous approach to the material consideration of potential reversion to Class B1 use may have affected the outcome of the appeals, and so it would not have been appropriate for the Court to exercise its discretion not to quash the decision, and the decision was accordingly quashed.

So the saga of the stripey house continues. The owner might possibly try to pursue this matter to the Court of Appeal; alternatively, there will be a re-opened appeal to be determined, and it is not beyond the bounds of possibility that another Inspector might be persuaded to grant planning permission, while avoiding the legal error into which the previous inspector was found to have fallen. Clearly, the lengthy legal battle over the future of this controversial property still has some way to go.

© MARTIN H GOODALL

SECOND EDITION – the book and the seminar

Final proof-reading of the Second Edition of my book - A Practical Guide to Permitted Changes of Use has delayed my posting on this blog recently, but I am pleased to tell you that the book has now gone off to the printers and should be available shortly. The text of this new edition runs to 316 pages (not counting Tables and Index, etc.) compared with the 242 pages of the First Edition; so you can see how much more substantial this text has become. No-one who has any involvement in permitted changes of use under the GPDO should be without the latest edition of this essential handbook.

The imminent publication of the new edition of the book means that you now have only a limited time in which to take advantage of the remarkable pre-publication bargain that Bath Publishing are offering - both the print version and the digital version of the book for only £50. After publication, they will be £50 each. (Just click on the pre-order button on the left-hand side of the page to get your copy.)

In the meantime, places at our seminar linked to the publication of this new edition of the book are filling up fast. Benefitting from our experience last year, we have booked the main lecture theatre again at the RIBA at 66 Portland Place, London W1B 1AD. This is central and is easy to reach by public transport, and will ensure that we don’t have to disappoint anyone who would like to attend. Nevertheless, we came close to selling out last year. So don’t delay if you think you might want to come; get your booking in now. You can book your place very easily by clicking through on the link on the left-hand side of this page. We have extended the early-bird booking offer by just one week to 31 October.

This year, in response to popular demand, we are focusing particularly on the residential conversion of offices under Class O, having concentrated on barn conversions in last year’s seminar. I shall be explaining the legislative changes to Class O, and Arita Morris, Director of Child Graddon Lewis, Architects, will look at the practical aspects of Office to Residential conversions.

We shall also be covering the other changes made to Part 3 in the GPDO this year, including the residential conversion of light industrial buildings under Class PA, as well as the addition of launderettes to the types of building that can be converted to housing under Class M.

My colleague Ben Garbett and I will also be explaining various appeal decisions and judgments relating to permitted changes of use that have emerged over the past year. So it will be a good morning’s CPD, at a very competitive price. We look forward to seeing you there.

© MARTIN H GOODALL.

Neighbourhood Planning Bill

Readers are no doubt aware by now that the Neighbourhood Planning Bill was introduced in the House of Commons on 7 September. The Second Reading is due to take place on 10 October. I don’t propose to attempt to examine the Bill in detail, but the Bill’s provisions are of much wider application than the ‘neighbourhood planning’ of the title. There are two provisions in the Bill which will be of particular importance in day-to-day planning practice.

Up to now, applications for, and grants of, prior approval required by the Second Schedule to the GPDO have not been included in the planning register maintained by each LPA under section 69 of the 1990 Act. The Neighbourhood Planning Bill will add section 69A to the 1990 Act, which will provide that in future the planning register kept by a local planning authority under section 69 must (in addition to the information already included in the register) also contain information [to be prescribed in a development order] as to prior approval applications (and prior notifications) made in connection with planning permission granted by a development order, and the manner in which such applications have been dealt with by the authority (or any actions taken by the authority following a prior notification).

It should be clearly understood, however, that the introduction of this requirement for prior approval applications to be registered in future will not mean that prior approval applications must be registered or ‘validated’ before they can be treated as having been duly made for the purposes of the 56-day rule. Registration of a prior approval application will be a purely administrative task for the LPA which will not affect the processing and determination of the prior approval application in any way. Any LPA that delays the processing of the prior approval application until it has been registered will risk running out of time under the 56-day rule.

The second of these new provisions relates to the use of conditions in planning permissions (and in other forms of consent). The Neighbourhood Planning Bill will add section 100ZA to the 1990 Act, which will give the Secretary of State power to make regulations prohibiting the imposition of conditions in respect of certain types of consent, prohibiting certain conditions generally, and restricting the circumstances in which certain conditions can be imposed.

The purpose of these regulations will be to ensure that any condition imposed on a grant of planning permission is necessary to make the development acceptable in planning terms, relevant to the development and to planning considerations generally, sufficiently precise to make it capable of being complied with and enforced, and reasonable in all other respects. This means that statutory teeth will at last be given to long-standing, but widely ignored, ministerial policy on the use of conditions (currently contained in the online PPG, and previously set out in Circular 11/95). (However, the new section will have effect only in relation to conditions on a grant or modification of planning permission that occurs after the coming into force of this section.)

The references in section 100ZA to “a grant of planning permission” are to any grant of permission under Part III of the 1990 Act, including where permission is granted by an order made under Part III. This therefore includes the permission granted by Article 3 of the GPDO, and so will govern conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended to refer to this.

Section 100ZA(5) will provide that planning permission for the development of the land may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition (although this requirement may not apply in certain circumstances that may be prescribed by the Secretary of State). A pre-commencement condition in the case of a change of use means a condition that must be complied with before the change of use is begun.

The government has launched a consultation on the way in which the restriction on pre-commencement conditions would work in practice, and whether the subordinate legislation, when it is introduced, should prohibit the use of certain types of condition altogether.

There are two significant omissions from the Bill. The proposed privatisation of the Land Registry has been shelved, after widespread opposition. The government claims only to have postponed this proposal, but it remains to be seen whether it will ever resurface. The other surprise is the absence from the Bill of the expected provisions to place the National Infrastructure Commission on a statutory footing.

© MARTIN H GOODALL

Additional development in connection with PD

I have pointed out before that it is open to anyone who wishes to carry out development under Part 3 of the Second Schedule to the GPDO (involving various changes of use) also to make an application for planning permission for building works which do not fall within the scope of the development permitted by the GPDO. A planning application for other works can be made at the same time as or after a prior approval application in respect of the change of use of the same building. It has occurred most commonly in relation to the residential conversion of offices under Class O, but there is no reason why a similar planning application should not be made in connection with other changes of use, including the residential conversion of an agricultural building under Class Q.

The planning application could not practicably be determined before the determination of the prior approval application, but this is the only constraint so far as the timing of such a planning application is concerned. The principle of the residential conversion is established by the planning permission that is granted by Article 3 of the GPDO (and Class Q in Part 3), subject only to prior approval. So it is only the additional building operations themselves that would fall to be considered in any planning application for those additional works.

This does not seem to be fully understood by some councils. An appeal in Shropshire which was allowed earlier this month provides a clear example. Prior approval had been granted under Class Q to create three dwellings, and the residential conversion was proceeding. A planning application was then made for change of use of an adjoining area of agricultural land to residential use so as to provide private gardens for the new dwellings, and the construction of two car ports. (Fencing was also proposed, although this should surely have been permitted development under Part 2.) The LPA sought to resist this development on the grounds that the change of use in respect of which prior approval had been given had not yet taken place. However, works for the conversion of the building were proceeding apace, and the Inspector had no reason to consider that this would not be completed in a timely manner, leading to residential occupation.

A second ground on which the LPA sought to oppose this appeal was that there are specific limits in Class Q as to the extent of permitted development that is acceptable. The Inspector observed that this is so, but is solely in the context of what is permissible under the prior approval. It does not preclude further planning applications in connection with buildings converted under that procedure. It is reasonable for such applications to be considered in the context of the surroundings and nature of the site to which they relate, rather than to assume harm from the outset on the basis of the Class Q limits, which did not apply to the subsequent planning application.

The main issue was therefore the effect of the proposed development on the character and appearance of the host site and the surrounding countryside. The Inspector observed that it was a reasonable expectation for the individual residential dwellings to have the benefit of a decent-sized garden, storage/tool shed and appropriate car parking facilities, ideally covered, in this rural location. The proposed change of an area of land adjacent to the development to residential use would enable that provision whilst the further area to the north of the farmhouse would replace the car parking area that it was losing. The farmhouse, immediately to the west of the appeal site, was already a residential dwelling with a large domestic garden to the rear. There were a number of other residences in the surrounding area which also had defined garden areas similar in scale to the proposal. So it would not appear out of character in its size, and the proposed development was not into virgin countryside. The Inspector concluded that the proposal would not harm the character and appearance of the existing buildings at this farm or the surrounding countryside.

Incidentally, Regulation 14(1A) of the 2012 Fees Regulations provides that no application fee is required for the prior approval application where an application fee is paid for a planning application made in respect of proposals for development of a site which includes buildings or other land which are the subject of the prior approval application, provided that the application for planning permission is made on the same date and by or on behalf of the same applicant as the prior approval application.

These points, among many others, are discussed in detail in the new edition of my book, A Practical Guide to Permitted Changes of Use. This is just a taster of the mine of useful information and practical advice that the book contains. You can place an order by clicking on the red button on the sidebar on the left of this page. (And why not come along to our seminar as well?)

© MARTIN H GOODALL

SECOND EDITION – and now the Seminar

In addition to publishing the Second Edition of my book, “A Practical Guide to Permitted Changes of Use”, BATH PUBLISHING are organising another seminar on this subject, in conjunction with KEYSTONE LAW, which is to be held at the RIBA at 66 Portland Place, London W1B 1AD on Friday 18 November.

This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £135 +VAT if you book before 25 October and includes a copy of the Second Edition of my book, (both the print & digital versions worth £75 when published), which will be sent to all delegates on publication.

The seminar will cover those topics that have been the subject of change in 2016 and, by popular demand, this time we have included two panel discussions to give delegates an extended opportunity to put questions to the speakers.

The seminar will be chaired by Brian Waters, principal of the Boisot Waters Cohen Partnership, who is the well-known Chair of the London Planning Forum.

I shall be speaking on Changes to Class O, the new Class PA and the residential conversion of launderettes, plus an update on the issue of structural alterations (particularly under Class Q).

Arita Morris, Director of Child Graddon Lewis, Architects, will look at the practical aspects of “Office to residential conversions: what you need to know now”

And my colleague Ben Garbett will give an update on appeal decisions and judgments in the past year. (Topics covered may include transport issues and planning obligations, sustainability of location, other matters requiring prior approval, and preclusive conditions in the light of Dunnett Investments.)

You can read more about the programme and venue or book online on the Bath Publishing website here.

Professional delegates will be able to claim 2½ hours’ CPD for this event.

Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button below the seminar icon on the left-hand side of this page, by calling Bath Publishing on 01225 577810 or by completing the booking form available here and returning it with your payment and full contact details to:

BATH PUBLISHING LIMITED 27 Charmouth Road Bath BA1 3LJ

Guide to Changes of Use – SECOND EDITION

I am delighted to announce the forthcoming publication of the Second Edition of A Practical Guide to Permitted Changes of Use. A pre-order offer can be found in the left-hand margin of this page. The discounted price for the softback + digital edition of the book is a remarkable bargain compared with the recommended cover price, saving £25 on the combined price when the book is published. All you have to do is to click on the red button to add the book to your basket, and then follow the online payment instructions.

This new edition has been completely revised. It contains all the changes to Part 3 of the Second Schedule to the GPDO that have been made in 2016, as well as many additional prior approval appeal decisions, and several important High Court judgments on this subject. The opportunity has been taken to expand the text with additional material on several topics, which has added some 70 pages to the text.

The modest increase in price reflects the amount of extra information that the book now contains. The new edition will rapidly become the essential text for all planning practitioners and developers dealing with permitted changes of use. It contains much practical advice on the actual conduct of prior approval applications and numerous examples of appeal decisions on the thorny issues which have arisen under the prior approval procedure.

Everyone who purchased the first edition of A Practical Guide to Permitted Changes of Use will want to buy this new edition, so as to ensure that they are working from the up-to-date text. If you didn’t buy the first edition, this is your chance to get completely up to speed on this subject, with a sound practical guide that will steer you around the many traps and hazards that await the unwary and the uninformed.

We are hoping that the new edition will be available by mid-October, so there are only a few short weeks in which to take advantage of the generous pre-publication offer price.

© MARTIN H GOODALL

Preclusive conditions again

Some readers may be wondering why, having written on several previous occasions about the issue of conditions that appear to preclude the operation of either or both section 55(2)(f) of the 1990 Act and/or permitted development rights under the GPDO (in accordance with Article 3(4) of that Order), I have been so slow to comment on the case of Dunnett Investments Limited v. SSCLG[2016] EWHC 534 (Admin), in which judgment was handed down on 11 March this year. There were two reasons for this. First, Keystone Law had been professionally involved in this case (although we did not have the conduct of the action at trial in the High Court) and it did not seem appropriate to comment on it while the case was still in progress. Secondly, following the judgment in the High Court, I was aware that an application had been made for permission to appeal to the Court of Appeal, and I was waiting to see whether the case might proceed further. At the time of writing, I have no further news of this, so have decided to deal with the case here in any event. I will report on any further developments in the case if or when they occur. [See now the Update printed at the end of this post.]

Until the judgment in Dunnett, in March of this year, no judgment since Dunoon Developments had suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) (and to Article 3(1) of the UCO) and, it has always been my view that they could not properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition (i.e. containing no specific reference to the GPDO).

The facts in Dunnett were somewhat complex, but the wording of the condition in question in that case was:

“The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

and the reason for the imposition of the condition was:

“In order that the Council may be satisfied about the details of the proposal due to the particular character and location of this proposal.”

An application for prior approval was made by the claimant in respect of a proposed residential conversion of this building. It was conceded that the LPA had failed to determine this application within the 56-day period, although they had sent a letter a few days outside this time limit in which they purported to refuse the application on the ground that it was precluded by this condition, in accordance with Article 3(4) of the GPDO. The claimant sought an LDC that it was now entitled to proceed with the proposed development. This was refused by the LPA for the reason previously stated, and an appeal under section 195 was dismissed. It was this appeal decision that was now challenged in the High Court.

The LPA contended that the condition (and the stated reason for its imposition) showed a clear intention to limit the scope of the planning permission to only the use permitted (Class B1), and that this was done to satisfy the Council regarding the details of the proposal on account of its particular character and location. It was therefore the Council’s view that the use of the site remained restricted by this condition to Use Class B1 (business) of the Town and Country Planning (Use Classes) Order 1987 (as amended). It would consequently prevent a change of use to the proposed residential use without express planning permission.

Three submissions were made on behalf of the claimant, each in the alternative –

(1) that a change of use was only precluded by the condition until express planning consent was granted. Planning permission was granted here through the operation of Class J of the 1995 GPDO; it did not mean that only the Council could grant the permission required;

(2) that “express planning consent” included the prior approval procedure under paragraph N of the 1995 GDPO. The effect of the Council’s failure to issue a response to the claimant’s application gave the claimant the right to commence development and so was a planning consent within the terms of the condition;

(3) that the condition did not implicitly preclude the ability to implement a planning permission granted by the GPDO.

Both the claimant and the Secretary of State drew attention to the judgment of the Supreme Court in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74. Although the situation before the Supreme Court in Trump was dealing with a different statutory regime, the judgments of Lord Hodge and Lord Carnwath were found to be of assistance in defining where the law on planning conditions is now. They had moved the law on in relation to implied conditions and may have reformulated some of the previously accepted principles. From their judgments Mrs Justice Patterson distilled the present position to be as follows:

1) Planning conditions need to be construed in the context of the planning permission as a whole;

2) Planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible;

3) Consistent with that approach a condition should not be construed narrowly or strictly;

4) There is no reason to exclude an implied condition but, in considering the principle of implication, it has to be remembered that a planning permission (and its conditions) is “a public document which may be relied upon by parties unrelated to those originally involved”;

5) The fact that breach of a planning conditions may be used to support criminal proceedings means that “a relatively cautious approach” should be taken;

6) A planning condition is to be construed objectively, not by what the parties may or may not have intended at the time but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand;

7) A condition should be clearly and expressly imposed;

8) A planning condition is to be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood;

9) The process of interpreting a planning condition, as for a planning permission, does not differ materially from that appropriate to other legal documents.

Applying these tests, the judge held, in respect of the first ground of challenge, that there was no “express planning consent” within the meaning of the condition. As the Secretary of State had submitted, “express planning consent” means a planning application resulting in a written consent. The phrase goes further than a Development Order grant as envisaged under section 58 of the 1990 Act.

Furthermore, the condition continued “and for no other purpose whatsoever, without express planning consent from the local planning authority first being obtained.” The reason for the imposition of the condition makes it clear that control is retained by the local planning authority so that it can be satisfied about the details of any proposal due to the particular character and location. In other words, the sensitivity of the area to potentially unsympathetic uses was protected.

Consent can be granted by the GPDO, as the claimant submitted, but that was not the case here. The wording of the condition was clear and precise, not to say emphatic, with its phrase “and for no other purpose whatsoever.” The words used meant that planning permission was granted solely for B1 (business) use and nothing else without obtaining prior express consent from the local planning authority. The words used were unequivocal – they excluded consent being granted by the operation of the statutory provision under the GPDO. Were that to occur under the GPDO, this would be without any reference to “the particular character or location” of the proposal which was the reason for the imposition of the condition. Class J of the 1995 GPDO [added to the GPDO in 2013] was simply not envisaged in 1995, as the claimant accepted. The prior approval scheme under the GPDO circumscribes what the local planning authority can consider to transport and highways impacts, contamination risks and flooding risks. It does not permit an LPA to have regard to the location of the development, save in those three particular areas. On the claimant’s approach, the decision making exercise on the part of the local authority would be circumscribed in a way which was not intended when the condition was imposed.

Further, the condition itself restricted any change of use from Class B1 (business) until after the approval of the local planning authority has been “first…obtained”. The words used in the condition were consistent with the LPA retaining control over any other development that might be contemplated on the site. If that were not the case the words used would be otiose. They set a clear planning purpose for the imposition of the condition.

Ground 2 of the challenge was similarly dismissed.

Under Ground 3, the claimant submitted that, applying the ratio in Dunoon and Carpet Décor, there needs to be something explicit in the condition itself to exclude GPDO rights. Not only that; the wording used in a condition has to be unequivocal, specific and bear in mind the prospect of criminal sanctions if the condition is not complied with. According to this submission, it was clear that the wording used was inadequate to exclude the GPDO. The approach to construction here needs to be cautious as it will result in the exclusion of statutory rights that would otherwise accrue to the claimant.

In considering the condition, the judge pointed out that the first phrase deals with the use of the building and circumscribes that to Class B1 (business). The second part of the condition (“and for no other purpose whatsoever without express planning consent from the local planning authority first being obtained”), in her ladyship’s judgment, was designed to, and did, prevent the operation of the GPDO, for the following reasons:

first, the second part of the condition serves no other purpose. Without that meaning the second part is irrelevant to this condition;

second, “for no other purpose” is a clear prohibition on use for any other purpose. That means that any other purpose otherwise permitted under the GPDO would be contrary to the condition;

third, the word “whatsoever” is emphatic and, in context, refers to any other use, howsoever arising or under any other power. Read together, and considering the plain and ordinary meaning of the words used, in her judgment, it was clear that the GPDO was excluded.

fourth, the last clause required express permission for what would otherwise not require planning permission because of the GPDO. It could only be given a sensible meaning if the condition in fact removed GPDO rights. The words used were sufficiently specific and unequivocal. It was similar to the tailpiece to the condition considered in R (Royal London Mutual Insurance Society) v SSCLG [2014] JPL 458; and

fifth, the reason for the condition confirmed that any other use would need to be the subject of an express application due to the particular character and location of the site.

The judge held that this approach is entirely consistent with the cases of Dunoon and Carpet Decor relied upon by the claimant.

It followed that, in context, the wording of the condition read together with the reason for its imposition was sufficient to exclude the operation of the GPDO.

I confess to having misgivings about this judgment. Whilst it appears on the face of it to be consistent with other recent judgments on this issue, it would seem to continue an unfortunate trend in conflating the arguments relating to two separate statutory provisions (section 55(2)(f) of the 1990 Act, which relates to changes of use within the same use class, and Article 3(4) of the GPDO which precludes permitted development contrary to a condition in a planning permission).

The judgment in Royal London Mutual Insurance was specifically addressed to a condition which excluded the operation of section 55(2)(f) (and of Article 3(1) of the Use Classes Order). Arguably, different considerations should apply to such a condition compared with a condition which is intended to preclude permitted development under the GPDO. The judgment in Dunnett, whilst asserting that the approach adopted in the instant case was entirely consistent with the judgments in Dunoon and Carpet Decor, did not explain how this approach could in fact be reconciled with the clear words of the passages quoted from those judgments.

In my view, a distinction should be drawn between these two separate statutory provisions, which differ not only in their wording but also in their purpose and effect. For this reason, it should not be assumed that a condition that appears on the face of it to preclude the use of a building or land for a purpose other than that which is expressly authorised by the terms of that planning permission necessarily has the effect of excluding the operation of both of these statutory provisions.

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither of these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the Classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. Contrary to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

There has, as I have said, been a tendency (exemplified again by the judgment in Dunnett) to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development which would otherwise be permitted by the GPDO, and it is all too easy to see the effect of a preclusive condition as applying equally to the operation of section 55(2)(f) and to permitted development under the GPDO. However, such an assumption may not necessarily be correct.

What does not previously appear to have been noticed is that the judicial authorities that are frequently cited in this connection may not be universally applicable to the preclusion of both categories of statutory provision mentioned above. Certain judgments relate specifically to conditions that exclude the effect of section 55(2)(f).

Bearing in mind that simply negativing the effect of section 55(2)(f) does not have the effect of removing a planning permission that would otherwise enure for the benefit of the land, it is understandable that in this case, the condition in question need not necessarily refer expressly to section 55(2)(f) or to Article 3(1) of the UCO. This is confirmed by those judicial authorities that have dealt with this issue. The first of these was City of London Corporation v SSE. Two later cases - Rugby Football Union v SSETR [2001] EWHC 927, and R (Royal London Mutual Insurance Society Limited) v SSCLG [2013] EWHC 3597 (Admin)) - were similarly decided. However, the essential point in all these cases is that they related solely to the exclusion of section 55(2)(f) (and Article 3(1) of the UCO). None of these cases related to a condition that had the effect of precluding permitted development under the GPDO.

Although a condition worded like those in the City of London, RFU and Royal London Mutual Insurance cases may be sufficient to exclude the effect of section 55(2)(f), there are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by a clear reference to the relevant statutory instrument in the wording of the condition (as was clearly established by Carpet Decor and also by Dunoon Developments).

When one takes these points into account, it does not seem to me that the precise effect of a condition that does not expressly refer to the GPDO, but is alleged to exclude its operation in accordance with Article 3(4) of the Order, has yet been conclusively determined, notwithstanding the judgment in Dunnett Investments. I fear that it may require further litigation, and maybe a trip to the Court of Appeal sooner or later, before this issue is finally laid to rest.

UPDATE: I am very grateful to Giorgio Wetzl, Planning Researcher at Nathaniel Lichfield & Partners, for confirming that the Court of Appeal has granted permission to appeal in the case of Dunnett Investments. I understand that the appeal is due to be heard by the Court of Appeal on 15/16 March 2017. Let us hope that the Court of Appeal may finally settle the matter in their hearing of this appeal.

© MARTIN H GOODALL

Section 215 Notice - House painting

Readers may have seen the case of the red-and-white striped house in London reported in the papers. A section 215 notice was served in respect of the painting of the house, requiring it to be repainted plain white. This was appealed to the magistrates court under section 217, who upheld the notice. A further appeal from there to the Crown Court was dismissed by Judge Johnson on 12 July - Lisle-Mainwaring v Kensington and Chelsea RLBC.

The appellant contended that section 215, which is normally used to require the tidying up of rubbish and detritus on unkempt open land, could not be used for this purpose. However, there are certainly cases where the section has been used in situations where it is alleged that the amenity of the area is adversely affected by the condition of a building. The amenity of an area would not normally be adversely affected by the external decoration of a building, but this was a house in a conservation area, and painting the house in red-and-white vertical stripes was unsightly. The judge therefore held that the notice had been properly served under section 215 and should be upheld.

The case arose out of a long-running battle with neighbours over planning permission. In March 2015, the appellant (apparently to spite her neighbours) ordered her contractor to repaint the front of her property with red-and-white stripes. The neighbours complained to the LPA, who responded to these complaints by issuing a section 215 notice which required the appellant to "to remedy the condition of the land" by repainting the house white.

It was the appellant’s submission that a section 215 notice can be used only to require the repair of a property in disrepair which is adversely affecting the amenity of the area. She contended that amenity is adversely affected only in a case that raises issues of repair and maintenance. Therefore, she argued, mere painting of the building did not affect "the condition of land" within section 215.

In dismissing the appeal Judge Johnson held that "amenity" is a broad concept, not defined by the section. It is a question of judgement on the part of the LPA, taking a broad view of the condition of the site, the impact that this has on the surrounding area and also having regard to the scope of the council’s powers under section 215. (See Berg v. Salford City Council [2013] EWHC 2599 (Admin).) The "condition of land" refers to the current state of the land, and a section 215 notice can be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. (See also Allsop v Derbyshire Dales DC [2012] EWHC 3562 (Admin).) Something that affects visual amenity is enough to justify issuing a section 215 notice.

Painting the outside of a building would not in the ordinary way adversely affect amenity. However, one of the key features of the conservation area in which the subject property was situated was its visual integrity, with only a limited range of neutral colours on painted buildings. Painting the property in garish stripes was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly, and section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

The appellant was ordered to repaint the property white within 28 days of this judgment.

© MARTIN H GOODALL

Amalgamating two or more dwellings (5)

My colleague Ben Garbett has summed up the combined effect of the Richmond and Kensington & Chelsea judgments in this way:

(1) The effect of the loss of housing of a certain type must not be disregarded when judging materiality for the purpose of section 55(1) (Richmond);

(2) The absence of a specific Development Plan policy does not mean that such material considerations inevitably carry no weight (Kensington & Chelsea).

I was perhaps guilty of over-simplifying the position in glossing over the second point in my comments on the Kensington & Chelsea judgment earlier this week. Ben correctly queries my conclusion that the outcome may depend on the state of Development Plan policies in the LPA area. It is entirely possible, he points out, that the underlying housing shortage in the area in question could make the loss of housing units through amalgamation material for the purposes of the rule in Richmond, even where there is no relevant Development Plan policy that addresses this issue. On reflection, I agree with him. This is the implication (or one of the implications) of the Kensington & Chelsea judgment.

However, this makes the uncertainty resulting from what I have called ‘the rule in Richmond’ even more of a problem for property owners and developers, and for their professional advisers. The amalgamation of as few as two existing dwellings might be a material change of use requiring planning permission, if it turns out that in the LPA area in question there is an identifiable housing shortage which would be exacerbated by amalgamations of this sort, even if this has not been formally identified and stated in an adopted planning policy. On the other hand, upon objective investigation, this might not be so after all. Whether or not the amalgamation (even of just two dwellings) is a material change of use, and whether it would therefore be lawful or unlawful without planning permission, might be entirely dependent on the outcome of this imponderable question. How is the property owner or developer to ascertain the answer without expert local knowledge of the housing situation in that area? It would appear that in practice it is likely to depend in the first place on the opinion of the LPA itself (even in the absence of an appropriate Development Plan policy) or, on appeal, the judgment of an Inspector. This can hardly be what parliament intended in enacting section 55 of the 1990 Act.

My objection is to the legal uncertainty that arises from the rule in Richmond. I am not confident that the position would necessarily be resolved even if the Court of Appeal were to rule on this issue as I suggested in my previous article. I would have no problem with the proposition that the use as a single dwellinghouse of any building previously used as two or more separate dwellings should be treated as a material change in the use of the building. But this would require an amendment of section 55(3) of the 1990 Act, rather than the less than certain intervention of the courts. Parliament passed the Town and Country Planning Act 1990, including section 55 in its current form, and if it is felt that the loss of residential units through amalgamation is a problem (particularly in some of the Inner London Boroughs), then it is parliament who should amend the Act to resolve this issue and bring certainty to the law.

© MARTIN H GOODALL