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!

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

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.)

© MARTIN H GOODALL