A Practical Guide to Permitted Changes of Use - THIRD EDITION

The Second Edition of A Practical Guide to Permitted Changes of Use was published in the Autumn of 2016, and the time is fast approaching when a Third Edition of this very popular handbook is going to be required. The manuscript for this new edition has recently been delivered to Bath Publishing, and we are now engaged in the editing process. Publication has been provisionally pencilled in for this Autumn.

In the time that has passed since the Second Edition was published, several further amendments to the GPDO have been made, together with the publication of revised ministerial guidance on the residential conversion of agricultural buildings under Class Q, as well as a number of High Court judgments which clarify various issues relevant to permitted development under Part 3.

The Third Edition of the book has therefore been completely revised and updated to reflect not only further legislative changes since the Second Edition was published but also developing practice in the handling of prior approval applications under the various Classes of Parts 3 and 4. This has resulted in substantial re-writing and a considerable expansion of the text, to provide a truly comprehensive and thoroughly up-to-date practical guide to this subject.

Three additional PD rights have been included in the GPDO (in Part 3, Class AA – A4 with expanded food provision, in 2017, and Class JA – change of use from A1, A2, or A5, or from a Betting Shop, Pay Day Loan Shop or Launderette to a B1 office, in 2019, while Class M was also extended, in 2019, to allow additionally a residential conversion from A5. In Part 4, Class D (temporary changes of use to various ‘flexible’ uses) has been expanded in scope to embrace a wider range of uses and Class CA – temporary provision of buildings, and use as a state-funded school on vacant commercial land, was added in 2017. Meanwhile, the PD right under former Part 3, Class P (residential conversion of a storage building within Use Class B8) has been allowed to lapse, although prior approvals granted before 10 June 2019 can still be implemented within 3 years from the prior approval date.

The text of this new edition has been extensively revised and expanded to include not only the further changes in the GPDO and in other relevant legislation that has taken place in the past three years, but also to reflect developing practice in the handling of permitted development under these provisions. Chapter 9, in particular, (dealing with the residential conversion of agricultural buildings under Class Q) has been largely re-written and substantially lengthened in order to deal with the complex and varied issues that have cropped up in what has proved to be, and is likely to remain, by far the most controversial and the hardest-fought of all the permitted development rights in the GPDO. Appendix D has also been significantly revised to reflect developing practice in dealing with the ‘structural’ issue that arises from the interpretation and practical application of paragraph Q.1(i)(i) in Class Q, and a large selection of appeal decisions specifically on this issue has been summarised in a new appendix – Appendix E.

The opportunity has also been taken to make other revisions to the text, in order to clarify a number of points that have continued to present practical problems for property owners and developers. Some additional appeal decisions have been briefly summarised, where these illustrate or clarify the practical application of the statutory rules

Finally, a number of issues arising from the prior approval process that were previously to be found in various parts of the book have now been drawn together in a new Chapter 16.

Some of the subject matter of the new edition has previously appeared in this blog, but there is great deal of material that is entirely fresh, and which expands considerably on the advice and the professional opinions expressed in the two previous editions of the book. The Third Edition will therefore be an essential tool for all planning professionals, landowners and developers involved in proposals for changes of use that are permitted development under Parts 3, 4 and 5 of the Second Schedule to the GPDO.

Details of publication and price will be posted here in due course. For the moment, though, orders for the new book are not yet being taken, and so readers will have to wait for a few more weeks before placing an order.

© MARTIN H GOODALL

Fees imposed on prior approval applications for domestic extensions

As expected, the fee regime that has applied for some time to prior approval applications under various parts of the Second Schedule to the GPDO is now to be extended to Part 1, so that prior approval applications for larger domestic extensions will be subject in future to the payment of a fee of £96. This is in line with the amount of the application fee applying to various other prior approval applications. The fee will be payable on prior approval applications under Part 1 that are made on or after 19 August.

The statutory provisions that give effect to this change are the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2019 [SI 2019 No. 1154], which amends Regulation 14 of the 2012 Fees Regulations as outlined above.

As is the case in respect of certain other prior approval applications under the Second Schedule to the GPDO, the amended regulation provides that where a full planning application has been made for other [associated] development, and the relevant application fee has been paid in respect of that application, then no fee is additionally payable in those circumstances in connection with the prior approval application for the larger domestic extension.

© MARTIN H GOODALL

All change at MHCLG

The Secretary of State for Housing, Communities and Local Government, James Brokenshire, was one of the casualties in Bojo’s ‘Night of the Long Knives’ this evening (the most dramatic cabinet reshuffle since Harold Macmillan’s purge in 1962 – which was not an encouraging precedent). The new Housing Secretary is Robert Jenrick (aged 37), who is MP for Newark, having won this seat from Labour at a by-election in 2014. It is now considered a safe Tory seat (majority in 2017 : 18,149). Having served as PPS to various ministers, Jenrick became a junior minister in the Treasury in 2018.

He is a qualified solicitor (admitted 2008), and specialised in corporate law before going on to pursue a business career, becoming a director of Christies, the art dealers and auctioneers. Before his appointment to the Treasury, Jenrick’s principal interest as an MP had been in international trade and investment. He is not known to have had any experience of planning, housing or local government, but he is credited as being the effective saviour of Wentworth Woodhouse, one of England’s foremost historic houses, having persuaded the Chancellor of the Exchequer to cough up the cash to purchase the property for English Heritage.

Jenrick’s attitude towards Brexit seems to have been slightly ambivalent. He was opposed to Brexit before the 2016 Referendum, but seems now to be a ‘born again’ Brexiteer, even voting against the government motion in March to extend Article 50 to 31 October, preferring instead to leave the EU without a deal on the originally planned date of 29 March. This is no doubt what qualified him to be a member of Bojo’s cabinet.

Esther McVey has been named as Housing and Planning Minister, and will attend cabinet. Other junior appointments will be announced in the next few days.

Meanwhile, Theresa Villiers has gone to DEFRA, replacing Michael Gove, who is now Chancellor of the Duchy of Lancaster, heading up the Cabinet Office with a supervisory and co-ordinating role over all other government departments. However, unlike his predecessor, David Liddington, Gove is not the effective Deputy PM. That role (as First Secretary of State) has gone to the new Foreign Secretary, Dominic Raab.

Bojo apparently intends to put housing at the forefront of his policy objectives but, until the issue of Brexit has been settled, very little progress is likely to be made on this or any of the other policy objectives that he rattled off on the steps of 10 Downing Street on Wednesday afternoon (leaving aside the probability that, without increased taxation, Bojo’s putative aspirations stand very little chance of being realised). As to what precise initiatives might be announced on housing and planning, we shall just have to wait and see. As explained below, these aspirations may be swept away by a political tsunami within weeks, before they can even be announced.

By Wednesday night, Bojo may already have sown the seeds of his own political destruction, with even more opponents to a ‘No Deal’ Brexit now on the Tory back-benches. (Just to remind you of his inaugural address, what he said was “Wiffle-waffle; wiffle-waffle, wiffle-waffle. Ra! Ra! Ra!”) He has set himself on a head-on collision course with the EU, which is likely to lead inevitably to a ‘No Deal’ Brexit. This, together with Bojo’s brutal purge of the cabinet, combined with its one-sided replacement, makes a fatal parliamentary showdown in September almost inevitable.

There is something about Bojo of a Roman emperor (some of whose reigns were brief and unsuccessful). He should perhaps beware the Ides of September, in fact the whole of the month starting on the 3rd.

© MARTIN H GOODALL

Bojo to run Tory Circus*

[*into the ground]

So there you have it; despite his manifest unsuitability for this or any other position of responsibility, Bojo the Clown has, as expected, been made Chief Clown by the collective membership of the Tory Party, comprising less than half of 1% of the total electoral franchise, with the remaining 99.5%+ of the electorate having no say in the matter. “Roll up, roll up to see Bojo, the Blithering Blatherer! Laugh as he waves his Red Herring around! Special matinée performances every Wednesday lunchtime from September.” The problem is that the audience may no longer be amused, in the circumstances now facing the country.

To misquote Oscar Wilde, the Tory Party leadership contest has been an unedifying spectacle of the Unspeakable in pursuit of the Unattainable, because irrespective of the identity of the Prime Minister, Brexit remains undeliverable. It is like the quest for the Holy Grail; the Brexiteers can see the vision tantalisingly before them, but it is destined always to remain beyond their grasp.

There is no realistic prospect of our shiny new PM being able to re-negotiate the draft withdrawal agreement which Theresa May reached with the EU last year (except perhaps for a few purely cosmetic tweaks to the non-binding and largely meaningless political declaration annexed to the agreement). Bojo will find that his intended technique of bluff and bluster, in order to secure the removal of the Irish back-stop, among other substantive elements in the withdrawal agreement, will cut no ice in Brussels or in any other European capital. The EU has repeatedly made this clear, and individual member states have been equally adamant that they will not be persuaded to depart from the agreed collective position of the EU. It seems, however, that the EU might be prepared to agree a further extension of Article 50, if this is what it takes to avoid a ‘No-Deal’ Brexit on 31 October.

It has become depressingly apparent that a significant number of Tory MPs, and a majority of Tory Party members in the country (not to mention supporters of the Faragiste ‘Brexit Party’) are fervent followers of the Peter Pan view of politics, whereby you only have to wish for something really, really hard and it will magically happen. They are destined to have a very hard collision with reality within a very short time, with a distinct possibility of Bojo’s government being thrown out of office by the House of Commons, or being forced in any event to accept the inevitability of a fresh referendum or a General Election.

As Theresa May was fond of saying, “Nothing has changed.” There is still no parliamentary majority for the only Brexit deal that is available, nor is parliament prepared to countenance a ‘No-Deal’ Brexit. However, it is very unlikely that, without the co-operation or acquiescence of the Executive, parliament could prevent this happening simply by default, short of bringing the government down in a No Confidence vote in the Commons to force a General Election. This is a nettle that moderate Tories will have to grasp sooner rather than later (i.e. during September, rather than October, by which time it would probably be too late). It would be inadvisable to place any great reliance on other parliamentary tactics, such as last week’s amendments to the Northern Ireland (Executive Formation) Bill, designed to limit the new government’s room for manoeuvre. These may not ultimately be effective in preventing a ‘No-Deal’ Brexit. A motion of No Confidence, moved by the Leader of the Opposition in September, and supported by a majority of members in the Commons, would seem to be the only really reliable option that is now left, and those Tory MPs who want to stop a ‘No-Deal’ Brexit will have to decide whether the time has finally come when they must sacrifice their political careers in the national interest.

A General Election could only be held before 31 October if the Commons were to pass a motion of No Confidence in the new government almost immediately after they come back from their summer recess on 3 September. Even then the timetable would be extremely tight, and it might well slip if the government tries to delay the start of the process. So a further postponement of Article 50 would be essential, before parliament is dissolved, in the event of a General Election being held. The timetable for a referendum would require an even longer extension, taking us well into 2020.

I have no illusions about the result of a General Election. The most likely outcome is another hung parliament in which both Labour and the Tories have lost seats to other parties, with no party being in a position to form a government (even with the support of another party), unless it is ether a very unstable minority government, or the fabled ‘Government of National Unity’ formed solely to give the final coup de grace to Brexit.

There is, of course, the possibility that (either by accident or by design) we may reach 31 October without anything being resolved, whereupon the default position kicks in and the UK simply crashes out of the EU without any transitional arrangements, and without any form of understanding as to our future trading relationship with the EU (so that no reliance at all could then be placed on Article XXIV of GATT, contrary to the assertions of some of the Brexiteers). I don’t need to repeat here the dire consequences for the whole country that would immediately follow in that event. The government and the country is even less prepared for a ‘No-Deal’ Brexit now than it was before the previous Brexit deadline in March.

The possibility has been canvassed (not only by Bojo, but also by other head-bangers in the Tory Party) that parliament might be prorogued, with the deliberate intention of bringing this about. The latest wheeze is to pretend that this would be just a routine procedure for bringing the current parliamentary session to a close, before a new session starts with a Queen’s Speech at the beginning of November. However, prorogation at any time before 31 October would be a transparent ploy to force a ‘No-Deal’ Brexit on the country, whether parliament likes it or not.

As I have pointed out previously, the Royal Prerogative (which includes the power to prorogue parliament) must be exercised in a properly constitutional manner. It would be grossly improper for the government (any government) to ask the monarch to prorogue parliament with the express intention of silencing parliament or thwarting its wishes. If our new PM seriously proposes to use this device, I would hope that the Cabinet Secretary would make it abundantly clear to him and to his advisers that prorogation for this purpose (no matter how it may be dressed up) would be a wholly unacceptable exercise of the Royal Prerogative, and would drag the Queen into the political arena in a completely unconstitutional way. The Palace would no doubt make it clear to the Cabinet Secretary in any event that the Queen would strongly deprecate being involved in political controversy, and that the suggested prorogation of parliament for such an improper purpose would be constitutionally unacceptable.

It is a convention of the constitution that the monarch acts on the advice her government, but if she is being advised or requested to act in a manner that would be unconstitutional, the constitutional convention would not in my view require the Queen to accede to her government’s request in those circumstances. It would be entirely proper, in my submission, for the Queen to refuse in such circumstances to prorogue parliament. (In practice, strenuous efforts would no doubt be made behind the scenes to avoid the monarch being put in the invidious position of having to be seen publicly to refuse to carry out her government’s wishes, and it is to be hoped that the PM would be persuaded to back down before that point is reached, in order to avoid a major constitutional crisis.)

No doubt Bojo will be busy in the next few days putting the finishing touches to his Cabinet of Clowns (although wiser Tory MPs – there are a few - might be well advised to sit this one out, rather than having to share the blame when Bojo’s government hits the buffers, as it undoubtedly will). What happens next is anyone’s guess. MPs are due to go off on their hols later this week, almost immediately after Bojo takes office, and so the first parliamentary showdown won’t take place until after the Commons returns from the summer recess in September, when there will be a brief session before everyone goes off again for the party conference season until mid-October (although there is a suggestion that the Commons may have to stick at it through the conference season this year). This will leave precious little time to prevent a car crash Brexit on 31 October, which is why there would appear to be no alternative to a No Confidence motion being passed in the Commons early in September, especially if it has become clear that Bojo, having returned empty-handed from Brussels, is by then heading for a ‘No-Deal’ Brexit. A No Confidence vote would trigger the procedure under the Fixed Term Parliaments Act, leading to a change of government or, more probably, a General Election. At the very least, this would then require a further extension of Article 50.

So Scene II of the Final Act of ‘Brexit – The Play That Goes Wrong’ may prove to be as action-packed with political mayhem as the final scenes of Hamlet and The Duchess of Malfi combined. There is, however, a very un-Shakespearean way in which this tragi-comedy of errors could be resolved without metaphorical blood all over the carpet, and that would be for Bojo’s government to accept that the only way to avoid a looming political disaster would be to revoke the UK’s Article 50 notice to the EU, thus bringing the current Brexit crisis swiftly to an end. I am sure that Bojo is a sufficiently practised illusionist to pretend that this is his cunning plan to out-fox the EU while he plots a much more effective way of delivering Brexit at some future date. That way, the Tories, the Labour Party and the country as a whole will all live to fight another day.

© MARTIN H GOODALL

The Lambeth case – Conditions in a section 73 permission

I have been very busy recently on another major writing project (of which more anon), which has prevented my posting anything on this blog recently. Now that I have a few moments, I have taken the opportunity to look at the Supreme Court decision in Lambeth LBC v SSHCLG [2019] UKSC 13.

It is important to understand what this decision was about, and what it was not about. This case concerned a permission issued pursuant to an application under section 73. It was not about an original ‘stand-alone’ permission for development as such. This is the key to the decision reached by the Supreme Court, and this factor confines the significance of the judgment to cases under section 73. It does not affect the well-established law relating to conditions in planning permissions generally. Thus it does not disturb the long line of authorities starting with the Walton Charities case in the early 1960s, which confirm the general rule that a condition cannot be implied in a planning permission in the entire absence of such a condition on the face of the permission.

This rule has been refined in recent years by the decision of the Supreme Court in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74, to the effect that where a condition does appear on the face of the permission, but is so worded that its intended effect is not fully spelt out in the condition itself, then the missing words in that condition can be implied so as to give proper effect of the intention of the condition. The obvious example is a condition requiring that certain details of a development must be submitted to and approved by the LPA, but which does not go on to say explicitly that the development must be carried out in accordance with those approved details. In light of Trump International, a term to that effect can be implied in that condition, but Trump International does not disturb the general rule that where an intended condition has been wholly omitted from a planning permission it cannot be implied.

The recent judgment in the Lambeth case, does not disturb the previous authorities cited above. What happened in this case is that the LPA granted permission in 1985 for a retail store (i.e. an A1 use), subject to a condition that the retail unit thereby permitted was to be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose. A further planning permission was then granted in 2010, under section 73, which varied the conditions as to the retail uses to which the store could be put, but otherwise reimposed the conditions in the earlier permission. There was then a further section 73 application, granted in 2014, under which the LPA approved a proposed re-wording of Condition 1 so that the store could in future be used “for the sale and display of non-food goods only”, but this appeared only in the operative words of the permission as then issued, and not in the actual conditions attached this 2014 permission. Two other conditions (about refuse storage and the management of deliveries) that had been imposed on the 2010 permission were also omitted from this 2014 section 73 permission.

This prompted the building’s owner to a apply for an LDC, claiming that the effect of the 2014 permission was to give them an unrestricted A1 use of the premises. The LPA’s refusal of that application was overturned by an inspector on appeal, and the LPAs challenge to the Inspector’s decision was dismissed both by the High Court and by the Court of Appeal. I don’t propose to rehearse the arguments in the courts below, but reference was made (among other cases) to I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, which I have always regarded as the classic case relating to failure to impose a condition, but ruling out the suggestion that such a condition was intended and should therefore be implied. In that case a permission had been granted which, in its operative words, was stated to be for a limited period, but there was no condition in the permission to that effect, requiring that the use should cease at the end of the stated period. The permission therefore took effect as an open-ended permission, unlimited as to time.

Lambeth LBC’s mistake was a classic one, which all LPAs should avoid. The 2014 permission should not have been framed as a permission to vary the 2010 permission. It is well settled law that a section 73 permission takes effect as a fresh permission and, as a matter of good practice, it should be in substantially the same form as the permission whose conditions it varies, and all those conditions should be expressly included in the new permission, subject only to the omission and/or variation of those conditions that the LPA has agreed to remove or vary, because a permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. The new permission can, of course, contain additional conditions if appropriate. However, both the High Court and the Court of Appeal held that in wording the section 73 permission as they did, and in failing to include a condition that governed the future use in the manner intended by the permission, the LPA had actually granted an unconditional permission, so far as the extent of the retail use of the premises was concerned.

The Supreme Court did not attempt to go behind this aspect of the decisions in the courts below. Instead they concentrated on the effect of the section 73 relative to the previous permission. Whilst the new permission expressly varied the wording of a condition in the 2010 permission, it did not discharge it. When a planning permission is implemented, all its conditions then take effect, and remain in effect until or unless discharged or unless removed or varied by a later permission under section 73. The 2010 permission was undoubtedly implemented, and so its conditions, including Condition 1 limiting the scope of retail sales on the premises, had taken effect and remained in effect.

The court derived support for this from the judgment in Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin). Permission in that case had been granted for a transport depot subject to 12 conditions. The landowner applied under section 73 for development described as “retention of the use of the land without compliance with condition 2 (improvements to public highway)”. The LPA granted permission as asked, but imposed no conditions on this new permission. However, in giving judgment on the disputed effect of the section 73 permission, Sullivan J held that the grant of the new permission did not mean that the other conditions were no longer effective. On the other hand, he did not intend to say that the other 11 conditions were by implication to be treated as included in the new permission, or that the old permission was superseded. Rather the new permission, confined as it was to the retention of the use without complying with Condition 2, and involving no inconsistency with the old permission and the remaining conditions, had no effect on their continuing effect as conditions subject to which the development had been carried out.

This does involve two planning permissions being extant in relation to the same planning unit at the same time, but (as Lord Carnwath JSC put it) it will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions (see the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 144). In the present case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding - not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.

This Supreme Court judgment is a useful clarification of the legal effect of a planning permission granted under section 73. Whilst the conditions in the earlier permission cannot be taken to be implied in the new permission if they are omitted from it, they nevertheless continue to have effect (except to the extent that the section 73 permission has varied them). Nevertheless, it is still good practice, which all LPAs should follow, to repeat in the section 73 permission all the unamended conditions from the earlier permission, as well as those that have been amended.

© MARTIN H GOODALL

Supreme Court allows Lambeth appeal

Judgment was handed down this morning in Lambeth LBC v SSHCLG ([2019] UKSC 33).

Lambeth's appeal was allowed.

I haven't had time yet to read the judgment, but will post a summary shortly.

MARTIN H GOODALL