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Under Class J in the 1995 Order (and also under Class O in the 2015 Order, as originally made), development was not permitted if “the use of the building falling within Class C3 (dwellinghouses)” was begun after 30th May 2016. That provision [paragraph O.1(c)] was repealed in 2016, and was replaced by a condition [set out in paragraph O.2(2)] requiring that development under Class O must be completed within a period of 3 years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:

https://www.keystonelaw.com/keynotes/hill-v-london-borough-of-bromley-round-3-when-is-permitted-development-completed ]

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL