Thursday, 9 July 2020

Latest changes to the GPDO

On 26 June, I drew attention to the temporary changes to the GPDO made by The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020 No. 632). In addition to the new temporary PD rights that came into effect on 25 June, these Regulations make permanent changes to the GPDO. The title of this SI is, on the face of it, misleading because the permanent changes to the GPDO that will come into force on 1 August have nothing at all to do with the current coronavirus crisis.

The one change that grabbed the headlines was the introduction of a new Part 20 to the Second Schedule to the GPDO, which will permit the addition of two extra storeys to certain blocks of flats. However, I am not inclined to get too excited about this change, because I suspect that developers will find that the opportunities to avail themselves of this new PD right are, in practice, somewhat limited. I will return to Part 20 in a later post, but I want to concentrate today on the other changes to the GPDO that will take effect on 1 August.

The other changes fall broadly into three categories. First there is a belated tidying up of the drafting of Article 7 (relating to the agreed extension of time for determination of a prior approval application). Second, there are some minor consequential amendments to Part 1 in light of some of the other changes that have been made to the GPDO, and then third come a number of amendments to the drafting of the residential conversion provisions in Part 3 (Classes M, N, O, PA and Q) and also in paragraphs W and X, including an important change with regard to prior approval applications.

Most of us thought that Article 7 was quite clear in its intention and effect, namely that a prior approval application has to be determined within the period specified in the relevant Part of Sch. 2 (or, in the absence of a specified period, within 8 weeks), or within such longer period as may be agreed by the applicant and the authority in writing. But we then had the Warren Farm judgment which (much to everyone’s surprise) ruled that, in practice, time could not be extended by agreement. To general rejoicing, that judgment was reversed by Gluck, which established that Article 7 does mean what it appeared to say. Nevertheless, MHCLG has now decided to tweak the wording of Article 7 to put the matter beyond any possible dispute. Article 7 has now been amended to read that, as an alternative to (a) and (b), the prior approval application may be determined “within such longer period than is referred to in paragraph (a) or (b) as may be agreed by the applicant and the authority in writing.”

Turning to Part 1, an apparent gap in the legislation has now (rather belatedly) been plugged. Last year, the Fees Regs were amended so that prior approval applications for larger domestic extensions would be subject to the payment of a fee of £96. It was intended that this fee would be payable on prior approval applications under Part 1 that were made on or after 19 August 2019. However, MHCLG omitted to amend Part 1 in the Second Schedule to the GPDO to require that the items to be provided to the LPA in connection with a prior approval application must include “any fee required to be paid.”. I don’t know whether somebody took the point that there was no actual requirement in Part 1 itself to pay an application fee, but with effect from 1 August this apparent loophole will now be plugged by the requirement that the listed items must be provided “together with any fee required to be paid” (namely the amount stated in regulation 14(1)(zab) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (S.1. 2012/2920)). I wonder - Would it be open to anyone who had paid a £96 application fee under Part 1 between 19 August 2019 and 31 July 2020 to demand that the LPA refund that fee?

It is worth remembering that Reg. 14(1A) of the 2012 Fees Regs 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.

The conditions attached to Class B include a provision [B.2(b)(ii)] that other than in the case of an enlargement which joins the original roof to the roof of a rear or side extension, no part of the enlargement must extend beyond the outside face of any external wall of the original dwellinghouse. As originally drafted, paragraph B.4 provided that for the purposes of paragraph B.2(b)(ii), roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse were not to be considered part of the enlargement. This has now been amended, so that for these purposes (a) roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse are not to be considered part of the enlargement; and (b) “rear or side extension” includes an original part of, or a subsequent extension of the dwellinghouse that extends from the rear or side of the principal part of the original dwellinghouse.

The PD rights under all Classes in Part 1 are excluded in respect of any dwelling created under the new Part 20 (upward extensions of blocks of flats).

In Part 3, an important change is made in respect of prior approval applications relating to residential conversions under Classes M, N, O, PA and Q. In each of these Classes an additional matter will require approval, namely “the provision of adequate natural light in all habitable rooms of the dwellinghouses” so created. “Habitable rooms” are defined as “any rooms used or intended to be used for sleeping or living” which are not solely used for cooking purposes, (but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms). So a kitchen does not have to have adequate natural light, whereas a kitchen/diner does. There is clearly scope here for dispute as to whether the kitchen is solely provided for cooking purposes, and for no other purpose (such as eating, or informal entertainment of guests).

In addition, paragraph W has also been amended to require that in relation to prior approval applications in respect of any of these five Classes of residential conversion, the application must also be accompanied by “ a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses.” It was perhaps anomalous that this provision was not included in the original drafting. Notwithstanding this, however, the LPA is still not entitled to consider the adequacy of the accommodation in spatial terms; the only additional item that they can now consider is the adequacy of natural light in those rooms that are defined as habitable rooms.

Furthermore, where the application relates to prior approval as to adequate natural light, the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses. This is not a matter for the LPA’s discretion; refusal is mandatory in such circumstances. For the sake of good order, the LPA’s discretion under paragraph W(3) to refuse an application where the proposed development does not comply with any relevant conditions, limitations or restrictions applicable to the development permitted is removed in respect of the provision of adequate light in the case of Classes M, N, O, PA and Q, in view of the absolute requirement to refuse the application where adequate natural light is not provided in such a case.

The inclusion of Class PA in these amendments is puzzling, because paragraph PA.1 in Class PA provides that “Development is not permitted by Class PA if— (c) the prior approval date falls on or after 1st October 2020.” [The “prior approval date” is the date on which prior approval is given, or a determination is given that such approval is not required, and also if the period for giving such a determination (56 days in the case of Part 3) has expired without the applicant being notified whether prior approval is required, given or refused.] So it will only be possible for a few days after 1 August to submit a prior approval application under Class PA for determination in advance of the 1 October prior approval deadline. Are the government perhaps hedging their bets in case they might decide after all to extend Class PA, which they could still do between now and late September? This could possibly explain the otherwise inexplicable addition of sub-paragraph (v) to PA.2(1)(b)].

Some people seem to have been confused by the transitional provisions in Reg. 27. This provides that where a “prior approval event” occurs, the planning permission granted by Class M, N, O, PA or Q of Part 3 of Schedule 2 to the 2015 Order continues to have effect as if the amendments made by Part 2 of these Regulations [i.e. the amendments made by these Regs to the 2015 Order] had not been made. The only effect of this provision that I can discern is that [having regard to the definition of “prior approval event” in Reg. 27(1)] these changes do not have any effect in relation to any PD right in respect of which a prior approval application is either determined before 1 August [or the 56-day rule operates before that date, in the event of non-determination] or, alternatively, where the prior approval application is made before 1 August, but is determined after that date. In other words, the changes have effect only in respect of PD in respect of which a prior approval application is made on or after 1 August. [I really don’t understand why they couldn’t just have said this!]

As I read the new Regs, they do not amend or have any effect on paragraph PA.1(c), which continues to prohibit any PD under Class PA where the prior approval date falls on or after 1st October 2020. There is nothing in the new Regs that preserves or extends the PD right under Class PA for the residential conversion of a light industrial building. The guillotine will still fall on 1 October, and will rule out any PD under this Class where the prior approval date falls on or after that date.


Friday, 26 June 2020

Further temporary changes to the GPDO

The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020 No. 632) were made on 23 June. Most of these amendments come into force on 1 August, but Regulations 20 and 21 came into effect on 25 June. I will confine myself in this post to these two changes, and will discuss the other changes in a later post.

Regulation 20 introduces a new PD right for temporary changes of use in Part 4 of the Second Schedule to the GPDO. This is Class BA (additional temporary use of land). This PD right is additional to the 14/28 day uses permitted by Part 4, Class B. It is also additional to the temporary change of use permitted by Class BA of Part 12 (as to which see below). The development permitted is the use of any land, in addition to that permitted by Class B of Part 4, for any purposes for not more than 28 days in total during the period from 1 July 2020 to 31 December 2020, of which no more than 14 days in total may be for the purposes of the holding of a market, or for the purposes of motor car and motorcycle racing including trials of speed, and practising for these activities, and the provision on the land of any moveable structure for the purposes of the permitted use.

However, development is not permitted by Class BA of Part 4 if:
(a) the land in question is a building or is within the curtilage of a listed building;
(b) the use of the land is for a caravan site;
(c) the land is, or is within, a site of special scientific interest, and the use of the land is for motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; clay pigeon shooting; or any war game, or
(d) the use of the land is for the display of an advertisement.

Regulation 21 introduces a new PD right in Part 12 of the Second Schedule. This is Class BA of that Part, which relates to the holding of a market by or on behalf of a local authority The development permitted is the use of any land for the purposes of holding a market by or on behalf of a local authority and the provision on the land of any moveable structure for the permitted use at any time during the period beginning with 25 June 2020 and ending with 23 March 2021.

Development is not permitted by Class BA of Part 12 if the land is, or is within, a site of special scientific interest.

I confess that the justification for the extra temporary PD rights outlined above has escaped me, other perhaps than a desire on the part of the government to provide more ‘bread and circuses’ for “the ordinary people” as the PM and his boss (D Cummings, Esq) are in the habit of calling us.

Although I'll be dealing with the rest of this SI in a future post, I should perhaps mention that other measures in these regulations are not related in any way to Coronavirus; nor are they temporary. These regulations contain some quite important changes to other PD rights. Watch this space!


Thursday, 25 June 2020

Matters arising - Extension of time for prior approval

Following my webinar on Permitted Development at the end of last month, I was hoping to answer some of the questions that had been submitted, but which there was not time to answer ‘on the air’. Unfortunately, there has been some delay, due in part to our encountering a difficulty in actually downloading the questions from Zoom. In this post I shall concentrate on those questions that related to the extension of time for the determination of a prior approval application.

The first questioner asked whether an LPA’s refusal, despite Gluck, to agree an extended deadline for determination of a prior approval, might be unreasonable behaviour, and therefore grounds for a costs claim. However, one has to remember that the LPA is bound in principle to determine the prior approval application within the relevant time limit, failing which the PD right will be exercisable by default. It is therefore up to the LPA either to determine the prior approval within that deadline or to seek the agreement of the applicant to an extension of time. There is no requirement for an LPA to do this; Gluck merely confirmed that Article 7 of the GPDO does enable time to be extended by the written agreement of both parties.

If the LPA refuses the application within the time limit, rather than seeking an agreed extension of time, I suppose that (in some circumstances) this might amount to unreasonable behaviour justifying an award of costs, if it is clear that an agreed extension of time would have enabled them to grant prior approval. But I stress that this would be very much dependent on the facts of the case. If their refusal of prior approval was justified in any event, then clearly the fact that they did not seek agreement to an extension of time for their determination of the application would not be grounds for an award of costs.

Another questioner had forwarded my blog post on the extension of time limits to the LPA, but they declined to extend time on a Class Q application to enable a Phase 2 bat survey to be completed. A refusal was issued on the ground that incomplete bat survey information had been provided and also that the applicant had failed to sign a section 106 undertaking requiring a payment to be made to the LPA.

Taking the latter point first, I cannot envisage any circumstances in which any payment to the LPA could be required in respect of the matters requiring prior approval under the GPDO. So this would certainly be a potential ground of appeal (and would possibly justify an application for costs against the LPA). The question of the bat survey is, however, slightly more problematic. I am aware of prior approval appeals being dismissed for lack of information on ecological issues (such as a bat survey where this might reasonably be required). On the other hand, I am aware of a condition being imposed on a prior approval granted on appeal requiring a bat survey before the commencement of the permitted development. The questioner might have been justified in expecting this approach to be taken; alternatively, an extension of time could perhaps have been agreed. If an appeal were to be lodged against the refusal of prior approval, there might possibly be time to complete a Phase 2 bat survey, and forward this to the Inspector, although I am not sure whether such ‘late’ information would be accepted by PINS. A better option might be to start again with a fresh prior approval application, having first completed the bat survey.

The next question was - "If an LPA does not determine a Class Q application within 56 days, should they issue a letter to the applicant confirming that they have deemed consent if the proposal is permitted development; or refuse to determine the application and advise the applicant to apply for a Lawful Development Certificate for a determination as to whether it is permitted development?"

I am not convinced that an LPA that misses the deadline for determination is specifically required to do anything. They have missed the boat and, provided the development does actually qualify as PD, the developer is free to proceed with the development. I have always advised developers that they need to be quite sure that the development does qualify as PD and that it does meet all the limitations, restrictions and conditions that apply to that particular development. If there is any doubt about this, or if it is clear that the LPA does not accept that the development does in fact qualify as PD, then it may be advisable to apply for a Certificate as to the Lawfulness of Proposed Use or Development under section 192 before starting work. A gung-ho approach on the part of the developer could be risky unless they have been advised by professional consultants that the development undoubtedly qualifies as PD. The onus is entirely on the developer to satisfy themselves as to the legal position; it really doesn’t matter whether the LPA sends a belated communication or not.

There was then a question as to whether conditions 'bite' when the LPA issues a prior approval after the expiry of the determination period. The answer to this is that, once the deadline has passed, any notice issued by the LPA will be of no legal effect, even a purported notice of approval. It follows that any conditions attached to a purported prior approval issued out of time will be of no effect.

A different aspect of this issue was raised with regard to Part 6, Class A - Although the Order specifies a timeframe for the Council to notify the applicant if prior approval is required, there is no timeframe for the submission of the prior approval details (when they are required), or for the Council to then give or refuse approval of those details. Do the time limits in Article 7 therefore apply to the 'second stage' of the application? The wording would suggest the 8 weeks would run from the date of the application, i.e. the first stage, not the second stage, however the prior approval details may not be submitted within that timeframe. Is there anywhere else in the legislation that would put a time limit on the second stage decision?

This would appear to be a lacuna in the legislation. The LPA must decide within 28 days whether their prior approval will be required as to the siting, design and external appearance of the building, etc. The initial prior approval application will have been accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site, but if the LPA does decide (within the 28-day period) that their prior approval of siting, design, etc, will be required, there may well be a need for more information (such as building elevations, etc.) to be provided. There is no indication as to when the developer should provide this information, nor is there any binding obligation on the LPA to approve the siting, design, etc. within any particular period. The usual 8-week period allowed for the determination of planning applications would appear to apply in principle, but the only remedy for the developer if that further 8-week period expires without a decision would be an appeal against non-determination (deemed refusal). Most applicants would no doubt prefer to wait and see whether an approval is in fact forthcoming.

Finally, a questioner asks whether an extension of time can be agreed with the applicant via email or whether it must be in the form of a letter. This question arose in Gluck. The judge held that an email qualifies as being “in writing”, and no greater formality of communication is required.

I will deal with some questions on Class Q and other particular classes of PD in a future post.


Wednesday, 24 June 2020

Planning permissions to be extended

A few weeks ago correspondents raised in comments on this blog their concern about planning permissions expiring during the current coronavirus crisis without developers being able to commence their development within the time limit specified in the permission.

The Scottish Government tackled this problem some time ago – one of the many examples of the superior performance of Scottish ministers compared with the hapless and hopeless crew appointed by Boris Johnson.

Now Mr R Jenrick (who is believed to be the Hosing and Communities Secretary, at least for the time being) has at last got around to announcing a similar relaxation in England although, typically, the announcement, only in the form of a deliberately vague press release, fails to give any details of exactly how this will work.

We still don’t know the legal mechanism by which the life of planning permissions will be extended. It appears that the relaxation of the time limit for the implementation of planning permission will apply to all permissions expiring since the imposition of the coronavirus lockdown in late March. So does this mean that planning permissions that have expired within the past three months will be retrospectively revived?

I think we all ought to be told exactly what the government is doing about this, rather than having to rely on a half-baked and largely uninformative press release. Maybe Jenrick has been too busy worrying about legal challenges to unlawful planning permissions to Tory donors, or about getting planning permission for a big extension of his Westminster town house, after it was previously rejected on planning grounds by the LPA’s officers. Must try harder.(Or maybe just resign)

UPDATE [25.6.20]: I am grateful to Richard W and Steve Jupp for drawing the Business and Planning Bill to my attention (see comments below). So this is how the government intends to enable time for commencement to be extended. The Bill is in fact the vehicle for various planning and licensing relaxations that have recently been canvassed. The problem is that it is only a Bill (which has only just had its First Reading [a mere formality] today and is yet to begin its passage through both Houses in parliament). It seems that the government intends to fast-track the Bill through the Commons (with all stages being taken next Monday, 29 June) but they have less control over what happens in the Lords.

Clause 17 of the Bill introduces sections 93A and 93B into the 1990 Act. Section 93A substitutes a commencement condition specifying 1 April 2021 as the commencement date in place of a condition in an unimplemented planning permission. However, section 93A is not retrospective in its effect. This section only applies to planning permissions where the original commencement date specified by the condition in the planning permission will expire within the period beginning with the day on which section 17 of the Business and Planning Act 2020 comes into force [as yet unknown] and ending with 31 December 2020.

For those planning permissions that will already have lapsed before the Act comes into effect, section 93B provides a somewhat more complex procedure. It applies where the date for commencement of development falls within the period beginning with 23 March 2020, and ending with the day before the date on which section 17 of the Business and Planning Act 2020 comes into force. This involves the developer in applying for an “additional environmental approval”. If this approval is granted, this too will substitute a commencement condition specifying 1 April 2021 as the commencement date in place of a commencement condition in the unimplemented planning permission.

The precise requirements for an application for an “additional environmental approval” are too complicated to summarise here, but they cover the need for EIA, compliance with the Habitats Directive, and other environmental protections. There does not appear, however, to be any requirement for the application to be determined in accordance with section 38(6) of the 2004 Act. Furthermore, no conditions can be imposed on the additional environmental approval.

My initial impression is that what is now proposed is going to be unduly complicated and too slow, and will involve developers in jumping through hoops to enable planning permissions to be extended. No doubt the complications of section 93B were thought necessary in order to ensure compliance with the relevant environmental protections, merely by reason of the original planning permission having lapsed, but I find it hard to believe that extending the date for commencement of development by less than 9 months would give rise to any fresh environmental considerations, especially when other permissions expiring a little later will not be subject to the requirement for additional environmental approval.

I had always thought that primary legislation might be required to enable the time limits as to commencement of development to be varied. But there were surely simpler ways the government could have gone about this. For example, section 73(5) of the 1990 Act could simply be have been repealed (or its operation suspended for a stated period), enabling a section 73 application to be made to vary the time by which development must be started, or the time by which an application for the approval of reserved matters must be made. If this variation were to be allowed retrospectively, section 75(4) would have to be similarly repealed or suspended.

This would still make it necessary for the developer to make an application to the LPA, but doing this under section 73 would appear to be more straightforward than what is proposed in the new Bill.


Tuesday, 16 June 2020

Compulsory closure of premises – revised rules

The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 (SI 2020 No. 588) are now in force. They further amend the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350). I have not previously commented on the No.3 amendment regulations (S.I. 2020/558), which came into force on 1 June, and so I will cover those as well in this note. However, I shall confine this summary to those regulations that govern the use of premises; I am not therefore commenting on those regulations that continue to govern personal movement.

Where various premises have previously been required to be closed, the proprietor of a business offering goods for sale or for hire can now open it to the public, provided the shop is separate from the premises used for any business that is still required to remain closed. So all shops can now open to the public. “Shops” are not defined in the Regulations, and so it would seem that the definition in Class A1 of the Schedule to the Use Classes Order 1987 (as amended) can be assumed to apply. As before, such businesses are also permitted to make deliveries or otherwise provide services in response to orders received through a website, or otherwise by on-line communication, or by telephone (including orders by text message), or by post.

Again, as before, a café or restaurant may be open solely to sell food or drink for consumption off the premises, provided the café or restaurant is separate from any premises used for a business that is still required to remain closed. For this purpose, a shop, café or restaurant is separate from premises used for the closed business if it is in a self-contained unit, and provided also that it is possible for a member of the public to enter the shop or café from a place outside those closed premises. The list of catering premises that must otherwise remain closed remains the same as it was in Part 1 of Schedule 2 in the original regulations.

There are slight changes to Part 2 of Schedule 2, comprising the list of other premises that must remain closed. Drive-in cinemas are now exempted from the requirement to close cinemas. The prohibition on opening museums and galleries no longer extends to retail galleries, where the majority of the art on display is for sale. (These are galleries that fall in fact within Use Class A1, rather than D1). Betting shops are no longer required to remain closed.

On the other hand, the prohibition on the opening of indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities was extended by the No.3 amendment Regs (on 1 June) to include indoor games, recreation and entertainment venues. Similarly, the prohibition on the opening of funfairs (whether outdoors or indoors) has been extended by the No.3 Amendment Regs to embrace theme parks and adventure parks and activities. These were clearly unintended omissions from the original Regs. For the same reason the prohibition on opening playgrounds etc. has now been tweaked twice, and it now prohibits the opening of playgrounds, indoor sports courts, outdoor gyms and outdoor swimming pools. The listed prohibitions have also been extended to social clubs, model villages and indoor attractions (as defined in the amended paragraph 23E(2)) at aquariums, zoos, safari parks, farms, wildlife centres and any place where animals are exhibited to the public as an attraction. From1 June, aquariums, zoos, safari parks, farms, wildlife centres were added to the list of attractions that must be closed, but from 15 June they can now open, with the exception of any ‘indoor attractions’ (as defined). [Confused? Well I confess that I am.] Indoor attractions must also remain closed at visitor attractions such as botanical or other gardens, biomes or greenhouses; heritage sites or film studios and landmarks, including observation wheels or viewing platforms.

The prohibitions in paragraphs 21, 22 and 23 have been removed, so that it is now lawful to open all types of outdoor market, car showrooms and auction houses.

Although libraries must remain closed, this does not prevent the library from carrying on a business of offering goods for sale or for hire in a shop which is separate from the premises usually used for the provision of library services (“the library premises”); nor does it prevent the making deliveries in any way permitted under the rule mentioned above allowing shops to carry on remote ordering and delivery services; and neither does it prevent a library from operating a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the library premises.

Places of worship must remain closed for public worship, but are now permitted (in addition to providing for funerals, broadcasting an act of worship, whether over the internet or as part of a radio or television broadcast, certain essential voluntary services or urgent public support services, as specified in the Regs) to be open for private prayer by individuals, i.e. prayer which does not form part of communal worship. Furthermore, a place of worship is permitted to carry on a business of offering goods for sale or for hire in a shop which is separate from the place of worship, and to make deliveries or otherwise provide services in response to orders received by the means mentioned above (i.e. online, by phone or by post). A place of worship may also operate a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the place of worship.

For these purposes, a shop, café or restaurant is separate from a place of worship or library premises if it is a self-contained unit, and provided also that it is possible for a member of the public to enter the shop or café from a place outside the place of worship or library premises. It should perhaps be emphasised that the amended regulations do not permit a use of any premises that is not already authorised under the planning legislation; nor do they permit such a use in breach of any planning condition, enforcement notice or other legal constraint on such development.

There are also changes to the list of premises in Schedule 2 that must remain closed. The most important change is the complete removal of Part 3 (which was the part of the schedule that listed premises that could remain open for business), consequent upon the amendment of Regulation 5(1), which now prohibits only the provision of library services (with the exception mentioned above).

Oh, I almost forgot; you will be delighted to know that the prohibition on gyms and other sports facilities no longer extends to facilities for training for elite athletes (including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools and other indoor leisure centres). But before any of you sporty types get overenthusiastic about this, the definition of ‘elite athletes’ is confined to those officially in the running for the British Olympic Team, or at a similar high level in their sports.

And finally, don’t get too used to the rules outlined above, because they are liable to change again in less than three weeks’ time, if the government decides that it’s safe to further relax the coronavirus lockdown. (Alternatively, if recent public behaviour leads to an increase in the rate of infection, rather than a continuing decrease, this could prompt a tightening of restrictions instead.)


Thursday, 14 May 2020

Meet the authors: FREE planning law webinars

I’m pleased to be able to let readers of this blog know about a series of four free 'meet the author' planning law webinars that BATH PUBLISHING are broadcasting during May and June. You can listen in to one, two or all four absolutely free, gratis and for nothing!

In each webinar, one of Bath Publishing’s authors will provide a brief review of recent developments and cases and then open proceedings to questions from fellow panellists and the audience.

The series kicks off a week today, on Thursday 21 May with The Environment Bill – what it means for planners & developers by Tom Graham, who will provide a quick introduction to the impact that the Environment Bill will have on planning and development decisions. Tom’s book on the Bill will be published soon after it has received Royal Assent later this year. He also runs a Planning & Environment blog (to which I have just added a link on the sidebar).

I shall then be presenting the second in the series on Thursday 28th May. This will be a Permitted Changes of Use update, when I shall be highlighting some of the recent changes affecting permitted development that have occurred since publication of the Third Edition of my book, A Practical Guide to Permitted Changes of Use last October.

Among the topics I am hoping to cover will be:

• ‘Qualifying’ purpose for PD (New World Pay Phones – Court of Appeal)
• Extending the 56-day period (Gluck v SSHCLG, reversing the Warren Farm judgment)
• “Used solely for agriculture when last in use”, discussing
(a) whether a material change of use is required in order to override a former agricultural use, and
(b) whether it applies in any event after 20 March 2013
• Plans and drawings required for prior approval applications.

There will also be time to put questions to me and to an expert panel if you join us live.

On Thursday 4 June, Peter Edwards of Planning Progress will present a webinar on “Neighbourhood Planning - Key Questions Answered, when he will review some of the key questions for planners, local authorities and parish councils to consider when preparing a neighbourhood plan. Peter is the author of The Power of Neighbourhood Planning (which is due to be published during May).

Peter is the latest recruit to Bath Publishing’s stable of planning law authors. He is a solicitor specialising in planning and related aspects of law. He also runs Planning Progress Limited, a planning and public affairs consultancy that advises a variety of clients from all sectors, and throughout the UK, on planning and the interaction between planning and the environment. He advises a number of parish councils on all aspects of neighbourhood planning.

Finally, on Thursday 11 June, Alistair Mills of Landmark Chambers will present an NPPF Update. Alistair is the author of Interpreting the NPPF. In this webinar, he will update you on the latest policy developments and cases involving the NPPF, and will then take questions from the audience.

As well as being a busy member of the bar, Alistair is an External College Lecturer in Law at Magdalene College, Cambridge, and is an Assistant Editor of the Encyclopedia of Planning Law and Practice. He also maintains a digest of decisions relating to the NPPF on the Landmark Chambers website.

The timing of these seminars varies, so please be sure to check the time that they are due to go out on the relevant date. Full details can be seen on the Bath Publishing website [ ] , where you can register to join one or more (or even all four) of these webinars.

We look forward to seeing you.


Thursday, 16 April 2020

Completing PD within the 3-year time limit (Class O)

One of the problems associated with the residential conversion of offices has always been how to determine whether the time limit for completion of the permitted development has been met where the development comprises the creation of a number of dwelling units in the building.

Under Class J in the 1995 Order (and also under Class O in the 2015 Order, as originally made), development was not permitted if “the use of the building falling within Class C3 (dwellinghouses)” was begun after 30th May 2016. That provision [paragraph O.1(c)] was repealed in 2016, and was replaced by a condition [set out in paragraph O.2(2)] requiring that development under Class O must be completed within a period of 3 years starting with the prior approval date. The question is – What does “completed” mean in this context?

This is a question that I discussed at some length in the Third Edition of A Practical Guide to Permitted Changes of Use. The change in the time limit was foreshadowed in the First Edition, but when the Second Edition was published (in October 2016), the precise effect of the change remained unclear, except to the extent that the original May 2016 deadline no longer applied at all, even where prior approval had been granted under Class J in the 1995 Order, or before 6 April 2016 under Class O. I discussed the issue of “completion” in paragraph 7.5 of Chapter 7 in the Second Edition, but without reaching any firm conclusion, other than to refer back to paragraph 1.3.2. of Chapter 1, where I discussed the judgments in both Impey v SSE (1984) 47 P. & C. R. 157 and in Welwyn Hatfield BC v SSCLG [2011] UKSC 15.

The question of “completion” under Class O then arose in a planning appeal in the London Borough of Bromley, which was determined in January 2019 [3200876]. (The decision letter was re-issued, subject to a correction notice, in March 2019). That decision was subsequently quashed in the High Court by consent, but I felt that the Inspector’s reasoning in his decision letter had nevertheless been a brave attempt to get to grips with the question of “completion”, notwithstanding that the question would now have to be reconsidered in a redetermined appeal. It was on this basis that I summarised that appeal decision in paragraph 7.5 of the Third Edition of my book.

The decision letter in the redetermined appeal has now been issued (on 14 April). This appeal was made under section 195, against the refusal by the LPA of an LDC application, which had sought to establish the lawfulness of an existing use (at the date of the application) as eight flats (Class C3) pursuant to a grant of prior approval under Class O.

The Inspector recorded that the previous appeal decision had been quashed on the basis that the Inspector had had regard to the judgment in the case of Gravesham as to the definition of a dwellinghouse, that is - ‘does the building in question (or part thereof) meet the definition of a dwellinghouse, i.e. does it have the distinctive characteristic of the ability to afford to those who used it the facilities required for day to day domestic existence?’. He should, however, have had regard to the test in Welwyn/Impey as to when a material change of use can have occurred in the process of conversion to a residential use, as well as considering what that residential use was, and he did not directly do so. The answer he would have come to might have been the same if he did, but in failing to consider the test in Welwyn/Impey and preferring to apply the Gravesham test he may have fallen into error on the correct lawful test to apply.

This matter had a long and somewhat unfortunate history. A dispute with the LPA as to the lawfulness of the proposed development, which gave rise to an earlier LDC application and appeal, decided in the appellants’ favour, caused inevitable delay in the conversion works being pursued (though not, it should be noted, through any fault on the part of the appellants). In the meantime, being aware of the time limits that might apply, the appellants re-started the works in April 2016 in order to try to establish that the change of use had begun by 30 May 2016 as was required at that time by paragraph O.1(c). By 28 May 2016, Flat 1 had been completed and occupied. Drainage trenches had also been dug, and gas, water, electricity, telephone, aerial and satellite feeds had been brought through the building to serve the other seven flats.

By 9 December 2016, Flats 2, 3, 5 and 6 were at a stage such that all services were complete including gas, electrical, water, telephone, satellite, and central heating. Floor finishes were complete, kitchen fixtures had been installed and the flats had been painted and decorated. However, bathroom fixtures had not been installed. Flat 4 had plastered walls with insulation, drainage and all services supplies had been installed, and second fix electrical work completed. There were no kitchen or bathroom fixtures. Flats 7 and 8 were at earlier stage, with drainage installed, walls plastered and insulated, and all service supplies in place, but again there were no kitchen or bathroom fixtures. No entrance doors had been fitted, and common parts were unfinished.

The key to the approach that the Inspector took in redetermining this appeal is to be found in the judgment in Impey, in which Donaldson LJ had observed that “a change of use to residential development can take place before premises are used in the ordinary and accepted sense of the word. The question arises as to how much earlier (than actual use) there can be a change of use, it may be that the test is whether they are usable, but it is a question of fact and degree”. Donaldson LJ proposed that the physical state of the premises is very important, but not decisive, that their actual use, or intended use, or attempted use are important but not decisive, and that these matters have to be looked at in the round. This is a broader view of Impey than I had adopted in my comments on that case in my book and, on reflection, I accept the logic of the Inspector’s approach to that judgment. The Inspector also drew attention to the comment of Lord Mance in Welwyn Hatfield (which I have previously quoted), which supports that approach.

As a matter of fact and degree, the Inspector found that at the end of May 2016 (the original deadline, which had been extended by paragraph O.2(2) to a date falling in December of that year) Flat 1 had been completed and occupied, but the remainder of the building was still a shell. This could not be regarded as completion of the development, when seven of the proposed flats were little more than the building shell. However, nothing turns on this point, in view of the extension of the deadline to December of that year.

By 9 December 2016, in addition to Flat 1 being complete, the partitions, finishes, fixtures and service installations for the other seven flats were all at an advanced stage, with room layouts and circulation areas defined, and the new staircase at the northern end of the building completed. The Inspector appreciated that bathroom fixtures had not been installed in Nos. 2, 3, 4, 5, 6, 7 and 8, and that there were no kitchen fixtures in Flats 7 & 8. However, the works completed were very much integral to, and part and parcel of the alterations necessary for the change of use to eight flats. Any use, or even potential use as offices had clearly ceased by then. In the Inspector’s opinion, the layout, services, fixtures and finishes – even though incomplete - were at such an advanced stage that the conversion to eight flats was readily apparent, and the possibility of reversion to office use essentially impractical.

Looking at the physical state of the building in December 2016, the Inspector accepted that seven of the flats did not offer all the facilities required for day-to-day domestic existence and were not properly habitable. Nevertheless, they had reached a stage where they were recognisably flats rather than offices. The extent and advanced state of the works, and the substantial financial investment made at considerable risk demonstrated the appellants’ clear intention to bring the building into such use. At this point, it appeared to the Inspector as a matter of fact and degree that use of the building had irreversibly changed from office use to use as eight flats, each one a dwellinghouse. He considered, therefore, that on the balance of probabilities the change of use to eight Use Class C3 flats had occurred by 9 December 2016, and that the development was therefore lawful at the date of the LDC application (5 May 2017).

One of the factors which seems to have influenced the Inspector’s approach to the redetermination of this appeal was the unfortunate history of this matter. In my view, it was perfectly proper that the Inspector should take this factor into account. In the ordinary course of things, the grant of prior approval on 10 December 2013 would have allowed reasonably ample time for the appellants to carry out conversion works and effect the change of use by 30 May 2016. In the event, as a result of the uncertainty introduced by the Council’s doubts over the B1(a) use of the building, their failure to determine the appellant’s first LDC application, and the time necessarily taken in the resulting appeal, the conversion works were put in abeyance from October 2014 to April 2016. The appellants had made a serious and determined attempt to achieve completion in the context of a significantly reduced timeframe, and the uncertainty introduced [by the LPA] by doubts over the original B1(a) use. The Inspector stressed that the weight he gave to the appellants’ clear intentions and serious attempts to carry out the conversion played a significant part in coming to his conclusion.

This appears to me to be a just and fair result, in that the delays in the completion of the development were solely due to the conduct of the LPA, and it would ill become an authority to exploit the literal provisions of the legislation to defeat the legitimate objectives of that legislation to facilitate the provision of additional housing by the conversion of office buildings and other premises. This appeal decision demonstrates that a broader interpretation of the judicial authorities, in particular Impey, is possible, whereas a narrowly legalistic approach to the interpretation (of which I confess I have myself been guilty in the past) is not appropriate in determining the question of “completion” under paragraph O.2(2). This requires a broader more purposive approach if the objectives of the legislation are to be fully and fairly realised.

[My colleague Ben Garbett has had the conduct of this case throughout its five-year history, including all three public inquiries and the quashing order obtained in the High Court. This exemplifies the substantial cases that Keystone Law’s planning law team has brought to a successful conclusion on behalf of our clients. Ben has written a commentary on the case in our ‘Keynotes’ series on Keystone Law’s website. The link is here: ]


Thursday, 9 April 2020

Temporary PD right for emergency development

Local authorities and certain health service bodies now have power under the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 [2020 No. 412] to carry out certain emergency development. This amendment order was made on 7 April, and came into force at 10.00 a.m. today (9 April).

The new PD right takes the form of a new Part 12A of the Second Schedule to the GPDO. The development permitted is development by or on behalf of a local authority or health service body on land owned, leased, occupied or maintained by it, for the purposes of preventing an emergency; reducing, controlling or mitigating the effects of an emergency; or taking other action in connection with an emergency.

[The specified health bodies that have this PD right are listed in paragraph A.3(1). ‘Emergency’ for this purpose means an event or situation which threatens serious damage to human welfare in a place in the United Kingdom. There is also a definition in paragraph A.3(2) as to what constitutes an event or situation that threatens serious damage to human welfare. This has the effect of restricting the PD right to this limited category of situations. However, subject to this limitation, this PD right is not confined to dealing with the coronavirus crisis alone, but could embrace other emergencies arising during the period that this PD right continues to apply.]

Development is not permitted if any part of the development is on land which is, or forms part of a military explosive storage area, or a site of special scientific interest; or if the land or building is, or contains, a scheduled monument. [There is, however, no restriction in relation to other environmental or heritage designations, such as an AONB, a conservation area, or the curtilage of a listed building, etc.] Development under Part 12A is not permitted if any part of the development would be carried out within 5 metres of any boundary of the curtilage of a dwellinghouse. There are also detailed height limits (which are too complex to summarise here, but which are clearly set out in paragraph A.1).

There is a condition that, if the developer is not the LPA, the developer (i.e. if it is one of the specified health bodies) must, as soon as practicable after commencing development, notify the LPA of the development. Any use of the land for the purposes of permitted development under Part 12A must cease on or before 31st December 2020. Any building, works, plant, machinery, structure and erection permitted by Part 12A must be removed; and the land must be restored to its condition before the development took place (or to such other state as may be agreed in writing between the LPA and the developer). This must be done before the expiry of a period of 12 months after the use of the land ceases for the purpose of Part 12A.


Monday, 6 April 2020

Virtual planning meetings

The legislation required to authorise virtual meetings for local authorities, including their planning committees, are now in force, The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 were made on 1 April and came into force on Saturday (4 April). So far as meetings of local authorities are concerned, these regulations apply only to England. They apply to local authority meetings that are required to be held, or are held, before 7th May 2021.

I don’t propose to go into the regulations in any detail, but will simply summarise the main points. Part 2 deals with remote attendance at meetings. By Regulation 4 a local authority may hold such meetings at such times and on such days as they may determine, and may alter the frequency, or move or cancel such meetings, without requirement for further notice. Regulation 5 allows ‘virtual’ (remote) attendance at meetings. So a meeting can be held in more than one place, including electronic, digital or virtual locations such as internet locations, web addresses or conference call telephone numbers.

Part 3 of the Regs (Regs 6 to 17) modifies meeting and public access requirements. A member can be “in remote attendance” at a meeting where they are able at that time to hear, and be heard (and where practicable see and be seen) by, the other members in attendance, as well as being heard (and, where practicable, seen) by any members of the public attending the meeting [or the virtual meeting]. (References to a member, or a member of the public, attending a meeting includes a person attending by remote access.) This overrides any existing standing order that would normally prevent this.

A local authority may make other standing orders and any other rules governing remote attendance at meetings of that authority, including provision for voting, member and public access to documents, and remote access of public and press to a local authority meeting to enable them to attend or participate in that meeting by electronic means, including by telephone conference, video conference, live webcasts, and live interactive streaming.

Schedule 12 of the 1972 Act is amended to allow these changes to take place, and several other statutory provisions relating to the meetings of various authorities and public access to them are similarly amended. Basically, a meeting is ‘open to the public’ (and to the press) if there is provision for remote (online) access. Background papers, and minutes or other records of meetings may be published on the authority’s website or by such other means as the authority considers appropriate.

Although these regulations are intended to be only temporary, and were made in response to the current crisis, there are quite a few people who may take the view that they at last bring the law and practice on the conduct of local authority meetings into the 21st Century. Depending on the practical experience of operating these new meeting procedures, the current regulations could be the precursor of more permanent arrangements for the more flexible conduct of local authority meetings in future. It will be interesting to see what elected members and the public make of the operation of the new rules over the next year or so.


Tuesday, 31 March 2020

The Rule of Law – policing the restrictions on movement

As I have made clear repeatedly in this blog, I am a strong believer in the Rule of Law. This, of course, means not only that citizens should obey the law, but also that our government and those charged with policing the law must also act entirely within the law, and must be careful not to exceed their legal authority. However, there has been some controversy recently as to the manner in which some police forces have purported to enforce the recently imposed restrictions on personal movement.

I do not for one moment question the need for such regulations, in order to ensure that social distancing is properly practised so as to limit as far as practcable the transmission of COVID-19. This is clearly crucial. However, certain police forces have not only been over-zealous in seeking to enforce the current movement restrictions, but they have in fact exceeded their legal powers in doing so, and have themselves acted outside the law. (If Derbyshire Police really did pour dye into a freshwater pool, they have almost certainly committed an environmental offence!). Lord Sumption, an eminent lawyer and former Justice of the Supreme Court, has been particularly outspoken on this, and has pointed out that we do not live in a ‘police state’ in this country, and the police must not act as though we do. Avon & Somerset Constabulary, in particular, are completely out of order in encouraging people to ‘inform’ on their neighbours – they are a police force, not the ‘Stasi’.

The function of the police is to enforce the law. They therefore need to be clear as to the actual legal provisions that they are seeking to enforce. In England, these legal provisions are enshrined in The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 [SI 2020 No.350]. They do not include or embrace government ‘advice’ (or purported ‘instructions’) or ministerial pronouncements that do not reflect the actual contents of the above-mentioned regulations.

Regulation 6 of these regulations provides that “During the emergency period, no person may leave the place where they are living without reasonable excuse.” However, (and this is important) there is a list of no fewer than thirteen examples of the needs which constitute a “reasonable excuse”. (Regulation 6(2) in fact simply states that this list “includes” the needs that are referred to, which would appear to suggest that this list is not necessarily definitive, and that other needs could in principle, and possibly in practice, also constitute “reasonable excuse”.) However, in this post I will confine myself to discussing the needs actually listed in Regulation 6(2). All the needs listed are of equal legal status; the order in which they appear in the list does not represent any sort of ranking.

The first item in the list is (a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.

It is important to bear in mind that purchasing any item sold or service provided by a business listed in Part 3 of Schedule 2 is capable of coming within the definition of “supplies for the essential upkeep, maintenance and functioning of the household”. I set out in my last post the premises listed in Part 3 of that Schedule but, just to remind you, they comprise Food retailers, including food markets, supermarkets, convenience stores and corner shops, Off licences and licensed shops selling alcohol (including breweries), Pharmacies (including non-dispensing pharmacies) and chemists, Newsagents, Homeware, building supplies and hardware stores, Petrol stations, Car repair and MOT services, Bicycle shops, Taxi or vehicle hire businesses, Banks, building societies, credit unions, short term loan providers and cash points, Post offices, Funeral directors, Laundrettes and dry cleaners, Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, Veterinary surgeons and pet shops, Agricultural supplies shop, Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part of Schedule 2, Car parks, and Public toilets. Thus a visit to any of these premises does, by definition, come within the needs that constitute “reasonable excuse” for leaving home.

I would endorse the suggestion, made by ministers, that people should avoid going out more frequently or for any longer than is absolutely necessary, and that in any event social distancing should be maintained at all times. But these suggestions are only advice; this advice does not constitute a legal requirement, and it is important that the police and anyone else concerned with the enforcement of the regulations should understand this, and not confuse such advice with the less stringent legal requirements enshrined in the regulations. If it becomes clear at any time that more stringent restrictions may be required in order to contain the continued spread of the coronavirus, then further regulations can and should be made. In the meantime, however, the current Regulations constitute the entire extent of the restrictions that can lawfully be enforced.

It is important to appreciate that the reasonable excuse demanded by Regulation 6(1) is not confined to obtaining “basic necessities”. Furthermore, it is clear that “supplies for the essential upkeep, maintenance and functioning of the household” can include obtaining money, and goods or services from any business listed in Part 3 of Schedule 2. A moment’s thought confirms that it would be a legal nonsense to attempt to distinguish between ‘lawful’ and ‘unlawful’ purchases from such businesses, particularly bearing in mind that it remains lawful for such businesses to remain open for the sale of all the items that they usually offer for sale.

The other point to bear in mind, that it is lawful to go out to buy goods not only for your own family, but also for the household of a vulnerable person (defined in Regulation 1(3)(c) as any person aged 70 or older; any person under 70 who has an underlying health condition, including (but not limited to) the nine underlying medical conditions listed in Schedule 1; and any person who is pregnant). This must necessarily include delivering those goods to the household of the vulnerable person. This need not be a near neighbour. I have had to make deliveries to a family who live a couple of miles away, at least two of whose members are in the vulnerable category, but who have no means of obtaining the supplies that they need in any other way. (They tried, and failed, to order food online.)

The next item in the list is (b) to take exercise either alone or with other members of their household. The English regulations do not specify that this exercise can only be taken once a day, nor do they specify any limit on the time during which this exercise may last or the distance from home to which such exercise may extend. Most important of all, there is nothing in these regulations that prevents a person driving to the point at which they intend to start a run or walk. Those police forces (such as Derbyshire and also Avon & Somerset) which have taken it upon themselves to ‘forbid’ or discourage such journeys are exceeding their powers. They (and we) should remember that the object of the exercise is to ensure that social distancing is maintained. Provided runners or walkers maintain a safe distance [not less than 2m] from other people when they are out, it is clearly immaterial whether they set out on foot or drive to the start of their walk or run.

As one person observed in a TV interview, his local park was crowded, so he drove to nearby woodland to go for a walk ‘far from the madding crowd’, only to find that Mr Plod had left a threatening leaflet on his car. And police really don’t need to get unduly worried if they see a number of cars parked in a car park, as their occupants are unlikely to return to their cars all at the same time. A less flat-footed approach on the part of the police is clearly required. To quote a government minister in a recent interview, people will remember for a long time the manner in which the police conduct themselves during the present crisis, and it is important that they should not undermine public confidence in the fair and proper enforcement of the law, which they risk doing if they exceed their powers by taking an over-zealous approach to the problem that this legislation is designed to address.

[Regulation 7 provides a more effective means of ensuring social distancing, and I suggest that this would be a more appropriate focus for the police than Regulation 6. Regulation 7 prohibits gatherings of more than two people, other than family members in the same household. Here too, however, the regulation provides for exceptions, for which due allowance must be made.]

Reverting to Regulation 6(2), the next item on the list is “(c) to seek medical assistance”, including to access dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, and also veterinary surgeons and pet shops (which is self-explanatory, and calls for no comment). Similarly, one may leave home, in accordance with paragraph (d), ”to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance”; or under paragraph (e) “to donate blood.

Travel to work is covered by paragraph (f) (“to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living”). Clearly, working from home is to be encouraged wherever possible.

Paragraph (g) allows you to attend the funeral of a member of your household, of a close family member, or (if no-one in those two categories is attending) of a close friend.

Under paragraph (h) you may leave home to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings, and under paragraph (i) you may leave home to access critical public services, including childcare or educational facilities (where these are still available to a child in relation to whom you are their parent, or if you have parental responsibility for, or care of, that child). Under this paragraph, you may also leave home to access social services, services provided by the Department of Work and Pensions, and services provided to victims (such as victims of crime).

In relation to children who do not live in the same household as their parents, or one of their parents, paragraph (j) allows the continuance of existing arrangements for access to, and contact between, parents and children (and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child).

Paragraph (k) allows a minister of religion or worship leader, to leave home to go to their place of worship; paragraph (l) allows you to move house “where reasonably necessary” [?] and finally you may lawfully leave your home, to avoid injury or illness or to escape a risk of harm. (So you are not breaking the law if you rush out of the house because it is collapsing or because it is on fire. More seriously, victims of domestic abuse may lawfully seek refuge elsewhere.) With regard to moving house, the government has indicated that this should be put on hold wherever possible, but it nevertheless remains lawful to do so.

This brings me back to the basic point. The essential requirement is that we should all rigorously observe social distancing at all times. That is what these regulations were designed to ensure. My impression is that people are generally complying, and are following ministerial advice, even where it goes further than the regulations. But enforcement must be confined solely to breaches of the regulations themselves and, even then, persuasion and a generally light touch on the part of the police is likely to be more effective than a more heavy-handed approach (let alone the flat-footed actions of certain police forces, which Lord Sumption has roundly condemned).

One final legal note: There are various levels of enforcement. Regulation 8 empowers an authorised person (such as a police officer or a PCSO) who considers that a person is outside the place where they are living without reasonable excuse to direct that person to return to the place where they are living (or to remove that person to the place where they are living). But the belief needs to be a reasonable one, and due regard must be paid to the circumstances discussed above that constitute “reasonable excuse”. So a police officer or PCSO would need to tread very warily in exercising this power, and would need to be well-versed in the detailed provisions of Regulation 6 if they are to avoid possibly adverse legal consequences for themselves or their police force if they get it wrong.

[Officers are likely to find themselves on firmer ground in exercising their powers under Regulation 8(9) where they consider that three or more people are gathered together in contravention of regulation 7. In this case, they may direct the gathering to disperse, or direct any person in the gathering to return to the place where they are living; or they may remove any person in the gathering to the place where they are living.]

Under Regulation 8(11), an officer exercising these powers may also give the person concerned any reasonable instructions they consider to be necessary. However, the lawfulness of such an instruction will inevitably depend on the factors mentioned above. Officers may need some fairly careful training to make sure they get this right. A gung-ho approach would be wholly inappropriate.

Regulation 10 empowers an officer to issue a fixed penalty notice to any person over the age of 18 whom they reasonably believe to have committed an offence under these Regulations. The belief needs to be a reasonable one, and it relates solely to an offence under these regulations; it does not extend to a failure or refusal to observe other ministerial advice that is not covered by the regulations. Similarly, Regulation 9 makes it an offence, without reasonable excuse to contravene a requirement in regulation 4, 5, 7 or 8, or to contravene a requirement in regulation 6. Here again, this refers to the Regulations themselves, and not to any other requirement or purported instruction.

As always, a proportionate approach needs to be taken in the enforcement of these regulations, never forgetting that the most effective form of policing in this country is ‘policing by consent’. It is an essential element in upholding the Rule of Law in its widest sense.


Friday, 27 March 2020

Further compulsory closures

The ‘missing’ Statutory Instruments that I referred to in my blog post on the Coronavirus Act 2020 have now been made. First, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 [SI 2020 No. 350] were made and came into effect at 1.00 p.m. yesterday (26 March). They revoke and replace the Regulations made last week [SI 2020 No.327]. As announced, these new regulations require the closure of a much wider range of premises than last week’s regulations did. They also affect far more aspects of people’s personal lives, including restrictions on movement and other activities.

Dealing first with the closure of premises, this is in three parts. The first part (set out in Regulation 4(1) to 4(3) and Part 1 of Schedule 2 to the regulations) relates to cafes, restaurants and other premises (or any part of the premises) in which food or drink are sold for consumption on those premises. This simply repeats the provisions in last week’s regulations (which these new regulations have revoked and replaced), and I do not therefore propose to repeat that material here. These rules, including certain exemptions and exceptions, were summarised in my first blog post of 23 March - “Compulsory closure of premises”.

The second tranche of premises affected by the new regulations is dealt with by Regulation 4(4) to 4(6) and Part 2 of Schedule 2 to these regulations. Most of these were also covered by last week’s regulations, but for the sake of completeness the entire list of other premises that must be closed comprises:

Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Nail, beauty, hair salons and barbers, Massage parlours, Tattoo and piercing parlours, Skating rinks, Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities, Funfairs (whether outdoors or indoors), Playgrounds, sports courts and outdoor gyms, Outdoor markets (except for stalls selling food), Car showrooms, and Auction Houses.

Paragraph 4(4) does not prevent the use of Cinemas, Theatres, Bingo halls, Concert halls or Museums and galleries to broadcast a performance to people outside the premises, whether over the internet or as part of a radio or television broadcast [but that doesn’t mean broadcasting it on a tannoy to a crowd of people standing outside on the pavement!]. This paragraph of Regulation 4 does not prevent the use of any suitable premises used for the businesses or services listed in Part 2 of Schedule 2 to host blood donation sessions.

If a business that comprises or includes a café, restaurant, bar, etc. forms part of a larger business [other than another business that is required to be closed] the person responsible for carrying on that larger business will still be complying with the requirement in Regulation 4(1) if they close down the café, restaurant, bar, etc. while continuing to operate the larger business. (However, as noted below, hotels must now also be closed.)

Regulation 5 imposes further restrictions and closures during the current crisis. The types of premises that are exempt from this closure order are listed in Part 3 of Schedule 2 to these regulations. With the exception of these exempted premises (listed below), Regulation 5(1) requires the closure of premises and other businesses offering goods for sale or for hire in a shop, or providing library services, other than by making deliveries or otherwise providing services in response to orders received through a website, or otherwise by on-line communication, by telephone, including orders by text message, or by post. Any premises other than those required to carry out what may loosely be described as this ‘mail order’ business [in the widest sense] must be closed. So if a business has a retail shop, the shop must be closed to customers, but the ‘mail order’ business can continue.

The list of premises (set out in Part 3 of Schedule 2) which can remain open to the public is as follows:

Food retailers, including food markets, supermarkets, convenience stores and corner shops, Off licences and licensed shops selling alcohol (including breweries), Pharmacies (including non-dispensing pharmacies) and chemists, Newsagents, Homeware, building supplies and hardware stores, Petrol stations, Car repair and MOT services, Bicycle shops, Taxi or vehicle hire businesses, Banks, building societies, credit unions, short term loan providers and cash points, Post offices, Funeral directors, Laundrettes and dry cleaners, Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, Veterinary surgeons and pet shops, Agricultural supplies shop, Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part of Schedule 2, Car parks, and Public toilets

It appears to me from observation that there are quite a few businesses who thought they would be forced to close (and have closed in some cases) but which are included in this list of businesses that are allowed to remain open. It is perhaps slightly confusing that Schedule 2 is headed “Businesses subject to restrictions or closure”, whereas Part 3 of that Schedule lists businesses that are not subject to restrictions or closure.

In addition to the restrictions described above, Regulation 5(3) requires that a person responsible for carrying on a business consisting of the provision of holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, must cease to carry on that business during the period to which these regulations apply. There is, however, a relaxation of this requirement (in paragraph 5(4)), so that a person carrying on any of these businesses may continue to carry on their business and keep any premises used in that business open in order to provide accommodation for any person, who is unable to return to their main residence, uses that accommodation as their main residence, needs accommodation while moving house, or needs accommodation to attend a funeral; or to provide accommodation or support services for the homeless, to host blood donation sessions, or for any purpose requested by the Secretary of State [for Health], or a local authority.

By Regulation 5(5) places of worship must be closed, except for funerals, to broadcast an act of worship, whether over the internet or as part of a radio or television broadcast, or to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).

By Regulation 5(6) community centres must be closed, except where they are used to provide essential voluntary activities or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).

By Regulation 5(8) crematoria and burial grounds must be closed to the public, except for funerals or burials.

Regulation 6 imposes restrictions on movement, and Regulation 7 imposes restrictions on gatherings. As the restrictions on movement do not affect the use of premises as such, I don’t propose to discuss them here, but that does not detract from their crucial importance. So far as the restriction on gatherings is concerned, it is extremely strict, being limited to no more than two people, with certain very limited exceptions. It does have the effect of precluding many of the activities that would normally be carried on in, for example, sports grounds or public parks, including organised sports or games.

There are, of course, provisions in the Regulations for enforcement, including the creation of offences and penalties, including fixed penalty notices. There appear to have been one or two businesses that were initially reluctant to close, but strict compliance with these Regulations is essential, and will undoubtedly be enforced.

The Secretary of State for Health must review the need for the restrictions and requirements imposed by these Regulations at least once every 21 days, with the first review being carried out by 16 April 2020, and the Regulations will in any event expire at the end of the period of six months beginning with the day on which they came into force (i.e. by 26 September).

The Regulations explained above apply only to England. Similar (but not identical) regulations have been made in Wales and in other UK jurisdictions. The only other relevant SI of which I am currently aware is the Coronavirus Act 2020 (Commencement No.1) Regulations 2020 [SI 2020 No.361] which brings into force certain sections of the Coronavirus Act 2020 which did not take immediate effect. None of those is directly relevant to the subject matter of this blog.


Thursday, 26 March 2020

Coronavirus Act 2020

The Coronavirus Act 2020 received royal assent yesterday and (with certain limited exceptions) came into immediate effect.

Bearing in mind that this blog is devoted solely to town and country planning and related subjects (although I reserve the right to have the occasional rant about Brexit – which, pace Boris Johnson, is still unfinished business), there is very little in the Act which is relevant in the context of this blog. The Act is to a large extent an enabling Act, giving ministers power to make various orders and regulations in the form of Statutory Instruments and to give various ministerial directions.

One section in the Act that is of relevance to development control is section 78, which authorises the Secretary of State for Housing, Communities and Local Government in England [and other relevant national authorities in other parts of the UK] to make regulations relating to the holding of local authority meetings, including timings, frequency, venues, public access and participation and also the availability of documents. The regulations may also provide for a reduced quorum at such meetings. The regulations can disapply any statutory provisions that currently apply to local authority meetings and procedures. This power to make regulations extends only to local authority meetings required to be held, or which are held, before 7 May 2021, i.e. within this and the next municipal year.

The temporary closure of, or restriction of attendance at, schools and other educational institutions (as well as childcare premises) in England and Wales is covered by Part 1 of Schedule 16, which comes into force only on an Appointed Day, when a relevant SI is made by the Secretary of State for Education. An order for closure takes the form of a temporary closure direction or directions made by the Secretary of State for Education under Schedule 16. The Schedule contains lengthy and detailed consequential provisions which it is unnecessary to discuss here. Current closures were announced last week in advance of the Act. I am not inclined to quibble over the legality of this. No doubt the Department for Education will take whatever steps may be necessary, now that the Act is in force, to regularise the position in this regard.

Schedule 22 deals with the power of “the Secretary of State” to issue directions relating to events, gatherings and premises. [I may have missed something, but I have been unable to find in the Act any provision that defines which Secretary of State is referred to in this Schedule.] These powers are extensive. They include the power to issue a direction prohibiting, or imposing requirements or restrictions in relation to, the holding of any event or gathering in England. There is also an unlimited power to issue directions imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in, any premises in England. Such a direction may be issued in relation to specified premises, or premises of a specified description. (This may include a requirement to close those premises.) Criminal offences are created in relation to any failure to obey such a direction.

This leaves us with the problem of finding out precisely what orders or directions have been issued. A trawl through UK Statutory Instruments at 2.00 p.m. today did not reveal any relevant SIs other than those that I have briefly summarised in recent blog posts. It is still not clear what statutory powers ministers currently have for the recently announced restrictions on various activities. They clearly now have the necessary enabling powers under the Coronavirus Act, but appropriate subordinate legislation and formal ministerial directions will then be required to give legal effect to these restrictions. I am not questioning the need for such restrictions, and I have willingly followed government advice and purported ‘instructions’ in the public interest, but as a lawyer I naturally look for appropriate statutory or judicial authority when government seeks to implement various ministerial decisions. Presumably the necessary subordinate legislation and ministerial directions will be made in the next few days. It is particularly urgent to clarify precisely which premises are intended to be closed and which can remain open for the time being, especially bearing in mind the punitive sanctions for non-compliance.

UPDATE (27.3.20): The ‘missing’ SIs that are referred to in the blog post above have now been made. I will publish another blog post here later today explaining the new provisions.


Monday, 23 March 2020

GPDO Amendment - Extended PD for hot food takeaways

When I published my post on compulsory closure of premises this morning, the expected amendment to the GPDO had not yet appeared on the website. It is now online, and takes the form of the The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 (SI 2020 No.330), which was made at 10.42 a.m. this morning, and comes into effect at 10.00 a.m. tomorrow (24 March 2020).

The amendment order introduces a new PD right in Part 4 of the Second Schedule to the GPDO 2015. This is Class DA. This applies to restaurants and cafes, and drinking establishments, and also to drinking establishments with expanded food provision, to enable them temporarily to provide takeaway food. The actual permitted development right comprises development consisting of a change of use of a building and any land within its curtilage from a use falling within Use Class A3 (restaurants and cafes), Use Class A4 (drinking establishments), a mixed use for any purpose within that Class A3 and Class A4 [sic], or a use as a drinking establishment with expanded food provision as defined in Class AA of Part 3 in the Second Schedule, to a use at any time during the period beginning with 10.00 a.m. on 24th March 2020 and ending with 23rd March 2021, for the provision of takeaway food.

This one-year PD right is subject to the condition that the developer must notify the LPA if the building and any land within its curtilage is being used, or will be used, for the provision of takeaway food at any time during the relevant period. For the purposes of the UCO and the GPDO, change of use to the provision of takeaway food under Class DA does not affect the use class which the building and any land within its curtilage had before the change of use. If the developer changes use to the provision of takeaway food under Class DA during the relevant period, the use of the building and any land within its curtilage must revert to its previous lawful use at the end of the relevant period or, if earlier, when the developer ceases to provide takeaway food under Class DA.

For the purposes of Class DA, the “provision of takeaway food” includes any use for any purpose within Use Class A5, and any use for the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises.

The development permitted by the new Class DA in Part 4 of the Second Schedule to the GPDO 2015 cannot be prevented or precluded by an Article 4 Direction. On the other hand, bearing in mind the effect of Article 3(4) in the 2015 Order, a condition in an existing planning permission authorising an A3 or A4 use that prohibits a take-away use or a delivery service would still have the effect of preventing the development that would otherwise be permitted by the new Class DA in Part 4. I wonder whether MHCLG thought of this, or whether they simply could not think of a way of overcoming that particular problem. It would surely have been possible to provide that Article 3(4) would be disapplied in the case of a change of use under Part 4, Class DA. [For some further thoughts on this point, see the comments appended to this blog post].

Unfortunately, MHCLG has failed to take the opportunity that this amendment order presented to prevent the exploitation by unscrupulous developers of the default time limits in Parts 1, 3, 4, 6 and 16 of the Second Schedule, at a time when LPAs may struggle to process prior approval applications and to determine them and notify the applicants of their determination within the relevant time limit (28 days, 42 days or 56 days as the case may be under these various Parts of the Second Schedule).

It would have been a simple matter to provide that instead of the developer being at liberty to proceed with their proposed development in default of the determination of their prior approval application being notified to them by the LPA within that period, the prior approval application would be deemed to be refused at the expiry of the specified period for determination unless determination of the application has been notified to the applicant by the LPA before that date. Alternatively, it might be provided that where the LPA gives notice before the expiry of the stipulated period for determination that they will be unable to determine the application within that period, then the determination period is to be extended by the same period again (for example). Such a provision would have to be temporary (continuing to have effect for, say, no longer than a year).

In the absence of such a temporary amendment, there may be quite a few cases where developers can seize on the failure or inability of LPAs to determine prior approval applications within the relevant period, to forge ahead with proposed permitted development in respect of which the LPA could or should legitimately have refused prior approval. [This point is also discussed in the comments below. The bottom line is that, no matter how difficult it may prove to be in practice, there really is no alternative to LPAs ensuring that they keep on top of this, by giving priority to prior approval applications so as to avoid the default position arising.]


Compulsory closure of premises

The Regulations explained below have now been revoked and replaced by The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 [SI 2020 No. 350], which were made and came into effect at 1.00 p.m. on Thursday 26 March, and are [will be] described in a later blog post.

The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020 No. 327) were made at 2.00 p.m. on Saturday 21 March, and came into effect immediately. [Similar regulations were also made in Wales.] These regulations require the immediate closure of restaurants (including restaurants and dining rooms in hotels or members clubs), cafés (including workplace canteens) [but see below for exceptions], bars (including bars in hotels or members’ clubs) and public houses, and also Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Massage parlours, Indoor skating rinks and Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.

Cafés or canteens at a hospital, care home or school, canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence; and services providing food or drink to the homeless are all exempted from the requirement to close cafés and workplace canteens.

With regard to restaurants, cafés, bars and pubs, the regulations only require the closure of any premises (or part of the premises) in which food or drink are sold for consumption on those premises. If a business sells food or drink for consumption off the premises it must not sell food or drink for consumption on its premises while the regulations remain in force. So seating areas in a take-away must be closed. Nor may outdoor seating areas be used for the consumption of any food sold on the premises. However, food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises. [The effect of the regulations in relation to hotels is that guests will not be able to eat or drink in the hotel, except in their own rooms.]

It is an offence for any of the specified businesses to remain open or to re-open during the period that these regulations are in force, or to infringe any of the other rules outlined above.

These Regulations expire at the end of the period of six months (i.e. after 21 September 2020). In the meantime, the Secretary of State for Health must review the need for the restrictions imposed by these regulations every 28 days, with the first review taking place not later than 19 April. As soon as the Secretary of State considers that the restrictions set out in these regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, he must publish a direction terminating the period during which the regulations apply. Such a direction may exempt all of the businesses covered by these regulations or only some of them.

The main purpose of my drawing attention to this new piece of legislation is to analyse how this relates to the Use Classes Order. Clearly any uses falling within Use Class A1 selling food, such as sandwiches, for immediate consumption must not allow any of that food to be consumed on the premises or in an area (such as a seating area) immediately adjacent to the premises. Shops that have ancillary cafés will have to keep those cafés closed. There is a potential anomaly with regard to Class A1. This relates to Class A1(k) - internet cafés, i.e. where the primary purpose of the premises is to provide facilities for enabling members of the public to access the internet. Clearly they can no longer serve food or drink, but should they perhaps be closed altogether?

Restaurants and cafés within Use Class A3 must all be kept closed, as must pubs and bars within Use Class A4. However hot food take-aways within Use Class A5 can remain open, but must not permit any of the food they serve to be consumed on the premises or in an area (such as a seating area) immediately adjacent to the premises. These regulations do not actually enable A3 and A4 premises to sell hot food for consumption off the premises; so a temporary amendment of the GPDO (or of the UCO) will still be needed for this purpose. Furthermore, there are quite a few planning permissions for cafés or restaurants which contain conditions preventing the sale of hot food for consumption off the premises. An amendment to the GPDO would not in itself have the effect of abrogating any such condition.

Some premises within Use Class D1 are affected by the closure regulations, but others are not. Art galleries must be kept closed (other perhaps than commercial galleries falling within Use Class A1, although in the absence of a definition of “galleries” in the closure regulations this is not entirely clear). Museums must also close, but the closure regulations do not refer to public libraries or reading rooms, nor do they relate to public halls and exhibition halls as such, although concert halls [within Class D2 – see below] do have to be closed. (This does appear to be an anomaly. Maybe the draftsman of the regulations should have looked at the Use Classes Order!) Churches and other places used for worship are, of course, unaffected by the regulations.

Schools, universities and colleges (within Use Class D1(c)) are not affected by these regulations but are, or will be, covered by regulations made by the Secretary of State for Education. I will check this, but have not yet had the opportunity to do so. The 'order' last week to close these institutions must undoubtedly have been (or will be) backed with legislative authority.

So far as Use Class D2 is concerned, many premises within this class are clearly affected by the closure regulations. These include cinemas (as wells as theatres – a sui generis use), concert halls, bingo halls, casinos (another sui generis use), various types of indoor sports facilities, (but not outdoor sports facilities) and also night clubs (yet another sui generis use). As with Use Class D1, there are anomalies in the closure regulations. They do not, for example, refer to dance halls (Use Class D2(d)), unless “other indoor leisure centres” can be stretched to include this category.

Finally, while we are on the subject of sui generis uses, there is no mention of amusement arcades or centres (or fun fairs) in the closure regulations unless, here too, “other indoor leisure centres” can be stretched to include this category. Clearly these regulations were drafted in a tearing hurry, but it might have been a good idea to involve MHCLG in drafting Part 2 of the Schedule to the closure regulations, in order to ensure that no relevant premises were omitted, particularly if they are mentioned in the UCO, either as sui generis uses or within the schedule to that Order.

As this post is published, it seems that the closure regulations may well be extended to a much wider range of uses, possibly embracing the whole of Use Class A1, other than food shops, pharmacies and other essential suppliers, not to mention various uses in other use classes that have not so far been affected by the closure regulations. This is definitely a case of “watch this space”.

UPDATE 8.30 p.m. As I predicted at the end of the blog post above, the Prime Minister has announced that more extensive compulsory closures are now to be introduced with immediate effect. We shall no doubt see the actual subordinate legislation tomorrow. A wide variety of shops within Use Class A1 will now have to be closed, as well as libraries and places of worship, among other premises.