Use Classes Order - “All change, please.”

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757), which were made on 20 July and take effect on 1 September 2020, make important changes to the already much amended 1987 Use Classes Order. The changes are quite complex, because of the need to take account of various knock-on effects and the consequent requirement to include various transitional provisions to ensure a reasonably smooth move to the new and revised Use Classes.

Parts A and D of the original Schedule to the UCO are entirely revoked, which puts an end to Use Classes A1, A2, A3, A4 and A5, and Classes D1 and D2. These are replaced by new Use Classes in Schedule 2, except for those listed below that have now become sui generis uses. Class B1 is also abolished as a separate Use Class, and is also subsumed within a new Use Class in Schedule 2. Use Class B2 remains in what is now Schedule 1, in an amended form. Rather than discussing these changes piecemeal, I will summarise the new, revised and surviving Use Classes below.

Several of the uses previously within specified Use Classes have now been added to the list of sui generis uses set out in Article 3(6). These are uses:

(p) as a public house, wine bar, or drinking establishment [formerly A4],
(q) as a drinking establishment with expanded food provision [which fell awkwardly between A4 and A3],
(r) as a hot food takeaway for the sale of hot food where consumption of that food is mostly undertaken off the premises [formerly A5]
(s) as a venue for live music performance [formerly within D2, and possibly also an ancillary use in some cases within other Use Classes],
(t) a cinema [formerly D2(a)],
(u) a concert hall [formerly D2(b)],
(v) a bingo hall [formerly D2(c)],
(x) a dance hall [formerly D2(d)].

[This has a number of potential consequences. First, where several of these uses fell under one and the same Use Class in the previous version of the UCO (such as, for example, a cinema, a concert hall, a bingo hall or a dance hall - all of which fell within Use Class D2) a change of use between any of those uses would not have been development.

Now that each of these uses is a sui generis use, a change of use from one of these uses to another use, even though it was formerly within the same Use Class will now constitute development, and will require planning permission. However, these changes do not take effect until 1 September, and so (at the time of writing) there is a five-week period in which somebody wishing to make a change of use from, say, a cinema to a bingo hall can still do so without requiring planning permission. However, it might be advisable to preserve dated documentary and photographic evidence of the change of use, and even possibly to exhibit that material to a statutory declaration recording the change of use, in order to counter any allegation in future that the change of use required planning permission and was therefore a breach of planning control. After 31 August, however, it will no longer be possible to make such changes of use without planning permission (unless they are permitted by the GPDO).

The effect that this and the other changes described below may have on permitted development under the GPDO is covered (at least for the next year) by a saving provision which I will explain later in this note.]

The former Schedule to the UCO (now SCHEDULE 1) contains the following Use Classes:

PART B

Class B2. General industrial

Use for the carrying on of an industrial process other than one falling within the uses described in Schedule 2, Class E, sub-paragraph (g).

Class B8. Storage or distribution

Use for storage or as a distribution centre.

PART C

[This part is not affected by the amendment regulations, and so does not require further summary here. Use Classes C1, C2, C2A, C3 and C4 therefore continue unchanged.]

The new SCHEDULE 2 contains the following Use Classes:

PART A (Commercial, Business and Service)

Class E. Commercial, Business and Service

Use, or part use, for all or any of the following purposes—

(a) for the display or retail sale of goods, other than hot food, principally to visiting members of the public [formerly A1],

(b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises [formerly A3],

(c) for the provision of the following kinds of services principally to visiting members of the public [all formerly within A2] —
(i) financial services,
(ii) professional services (other than health or medical services), or
(iii) any other services which it is appropriate to provide in a commercial, business or service locality,

(d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public [formerly within D2(e)].

[Although this new Use Class makes no mention of a gymnasium, the phrase “indoor sport, recreation or fitness” would appear to be wide enough to embrace such a use, which has not been specifically added to the list of sui generis uses in Article 3(6). Similarly, although swimming baths and skating rinks are specifically included in Use Class F, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. As with several other queries of this nature, I have not yet understood the ramifications of this apparent confusion.]

(e) for the provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner [formerly D1(a)],

[I cannot see why there is a need to distinguish between E(c)(ii) (which does not include health or medical services) and E(e), which comprises those services, when both are now in one and the same Use Class (Class E).]

(f) for a crèche, day nursery or day centre, not including a residential use, principally to visiting members of the public [formerly D1(b)],

(g) for—
(i) an office to carry out any operational or administrative functions [formerly B1(a)],
(ii) the research and development of products or processes [formerly B1 (b)], or
(iii) any industrial process [formerly B1(c)],
- being a use [in all three cases, as in the former Class B1] which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.

[One potentially problematic change is that the list of other uses that were formerly included in Use Class A1 (shops) are omitted. Without that listing, quite a few of those uses would not have come within the A1 Use Class, because they did not comprise or include (except as a purely ancillary use in some cases) the retail sale of goods. They included (among other uses) use as a post office, a travel or ticket agency, hairdressing, a funeral business, or a hire shop.

The new Use Class E does include “any other services which it is appropriate to provide in a commercial, business or service locality”, and it may be that all the uses formerly listed in Use Class A1 would now come within this category. If so, the new Use Class could be even wider than the Use Classes that it replaces, and might well embrace other services that one might reasonably expect to find in a commercial, business or service locality. These could include, for example, a nail bar, a tattoo parlour, a body toning salon, a tanning studio, etc. etc. If this interpretation is correct, then there is scope for a very wide range of uses that would previously have been regarded as sui generis.

On the other hand, there have in the past been appeal decisions in which it was held that a ‘weight loss centre’, a ‘body toning salon’, a ‘tanning shop’ and a ‘tattoo studio’ did not come into the category of “other services which it is appropriate to provide in a shopping area”, and it would seem to be entirely possible that planning inspectors might similarly determine in future (as a matter of fact and degree) that such uses do not properly fall within this category and therefore remain sui generis. The resulting ambiguity in the drafting of the new regulations is unfortunate, and is likely to cause difficulty for developers, building owners and the proprietors of businesses and also for LPAs.]

PART B (Local Community and Learning)

Class F.1 Learning and non-residential institutions

Any use not including residential use—

(a) for the provision of education [formerly D1(c)],
(b) for the display of works of art (otherwise than for sale or hire) [formerly D1(d)],
(c) as a museum [formerly D1(e)],
(d) as a public library or public reading room [formerly D1(f)],
(e) as a public hall or exhibition hall [formerly D1(g)],
(f) for, or in connection with, public worship or religious instruction [formerly D1(h)],
(g) as a law court [formerly D1(i)].

Class F.2 Local community

Use as—

(a) a shop mostly selling essential goods, including food, to visiting members of the public in circumstances where—
(i) the shop’s premises cover an area not more than 280 metres square, and
(ii) there is no other such facility within 1000 metre radius of the shop’s location,

[These uses were formerly within A1, and it would appear that they are also capable of falling within new Use Class E, because there is no provision that excludes the uses in new Class F.2 from alternatively, falling within Class E. The ramifications of this apparent confusion will only become apparent as the interpretation of these new provisions is explored in practice.]

(b) a hall or meeting place for the principal use of the local community,

[This use (formerly within D1(g)) would also appear to be capable of falling within new Use Class F.1, because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class F.1. Here again, I have not yet understood the ramifications of this apparent confusion],

(c) an area or place for outdoor sport or recreation, not involving motorised vehicles or firearms [formerly within D2(e)],

(d) an indoor or outdoor swimming pool or skating rink [also formerly within D2(e)]

[So far as an indoor swimming pool or skating rink are concerned, here again, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. This is another case in which I have not yet understood the ramifications of this apparent confusion.]

You may wonder why, following the abolition of the Use Classes in Parts A and D of the former Schedule to the UCO, the new Use Classes have been designated as E, F.1 and F.2. Well, as Polonius observed, though this be madness, yet there is method in’t. As we shall see below, the former Use Classes that have been removed from the UCO will still have a ghostly after-life. So to avoid confusion with these wraith-like entities, the new Use Classes have been given entirely new designations.

The most significant effect of the recast Use Classes is to produce much larger classes of uses that are covered by each of Parts E and F (Classes E, F.1 and F.2). In accordance with Article 3(1) of the UCO, where a building or other land is used for a purpose of any class specified in Schedule 1 or Schedule 2, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land. This is slightly modified by paragraph (1A), so that (additionally) the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. Section 55(2)(f) of the 1990 Act also continues to apply in this context.

So to take a few random examples, a change of use between a retail shop and a restaurant, a bank or building society (or any other kind of office, whether it was formerly in Use Classes A2 or B1(a)), a doctor’s or dentist’s surgery, a light industrial use or a crèche, day nursery or day centre, which are all now with Use Class E, will not constitute development and will not therefore require planning permission. Where any changes of use between these uses was formerly PD under the GPDO those permitted development rights will no longer be required, and any restrictions, limitations or conditions applying to such PD will no longer apply.

In the case of Class F.1, all the uses listed in this Use Class were formerly within Class D1, and so there is no change in that regard, except that the scope for changes of use that do not constitute development is slightly reduced, because the provision of medical and health services and use as a crèche, day nursery or day centre are no longer in the same Use Class (as they now fall within Class E).

The purpose and effect of Use Class F.2 is somewhat puzzling. Quite apart from the overlap of certain ‘community’ uses with similar uses in other Use Classes which I have noted above, it appears to be the intention that a use such as a community hall could have its use changed (in whole or in part) to a community shop, without needing planning permission.

The observations I have set out above represent only my first impression of the new provisions, and there may be other ramifications and unforeseen consequences that I have not yet identified.

Now, excuse me while I wrap a wet towel around my head to prevent my brain from overheating, and I’ll try to explain the transitional, savings and consequential provisions.

First of all, between 1 September 2020 and 31 July 2021, any references in the GPDO to the uses or use classes specified in the Schedule to the Use Classes Order are to be read as if those references were to the uses or use classes which applied on 31st August 2020 (i.e. before the UCO was amended by the current regs). If between those two dates, a prior approval application is made under Part 3 of the Second Schedule to the GPDO, or if an Article 4 Direction is made, modified or cancelled, it is the pre-September 2020 uses, use classes and definitions that are to apply to that application or to that Direction. If an Article 4 Direction is made before 1 September 2020, references in the Direction to pre-September 2020 uses or use classes are to continue to be read as references to those uses or use classes.

In the same way, if a planning application (including an application for PiP or an application for the approval of reserved matters) is made before 1 September 2020, referring to a pre-September 2020 use or use class, that application must be determined by reference to that pre-September 2020 use or use class. (There are one or two other minor transitional provisions which I don’t propose to go into here.)

On the other hand, where a building or other land is being used for the purpose Class A1 (Shops), Class A2 (Financial and professional services), Class A3 (Restaurants and cafes), or Class B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for the corresponding purpose specified in Class E (Commercial, business and service) in Schedule 2.

Most readers are no doubt aware of the provision in Article 3(4) of the UCO which provided that where land on a single site or on adjacent sites used as part of a single undertaking is used for purposes consisting of or including purposes falling within use classes B1 and B2, those classes could be treated as a single class in considering the use of that land for the purposes of the UCO, provided that the area used for a purpose falling within Class B2 was not substantially increased as a result. This provision is now replaced by a similar provision which refers to the use described in Schedule 2, Class E, sub-paragraph (g) and the modified Class B2 in Schedule 1, so that those classes may be treated as a single class in considering the use of that land for the purposes of this Order, so long as the area used for a purpose falling within Class B2, or Class B2 as modified, is not substantially increased as a result.

Now, I must take a deep breath before plunging into the No.2 and No.3 amendment orders to the GPDO, with their interesting new permitted development rights. Such fun!

ADDENDUM: When writing the blog post above, I was focusing on the amendments to the Schedule to the Use Classes Order. I should also have drawn attention to Regulation 7 of the Use Classes amendment regulations. This provides that for the purposes of the Use Classes Order, if a building or other land is being used for a purpose that, on 31st August 2020, fell within any of Use Classes A1 (Shops), A2 (Financial and professional services), A3 (Restaurants and cafes), or B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for a purpose specified within the new Class E (Commercial, business and service).

Thus, those uses that were expressly specified as being within Use Class A1 (such as, among other things, use as a Post Office, as a Travel Agent, for hairdressing, or for the direction of funerals, etc. etc.) will definitely come within Use Class E. I am sorry that I failed to spell this out.

UPDATE (28.8.20): Two minor corrections have had to be made to the drafting of the UCO amendment regs, by the Town and Country Planning (Use Classes) (Amendment) (England) (No 2) Regulations 2020 (SI 2020 No.859) and ditto (No.3) Regs (SI 2020 No.895). The first correction relates to CIL, and preserves references to the Use Classes that applied when an LPA adopted a charging schedule. The second correction relates to a local community shop falling within Use Class F.2. The definition as originally drafted referred to the shop’s premises covering an area not more than “280 metres square”. The corrected version changes this to “280 square metres”.

© MARTIN H GOODALL

More changes to the GPDO and to the UCO

As quite a few of you will already be aware, the government has rushed out (just in time before the parliamentary recess) three new statutory instruments, two of which introduce further amendments to the GPDO. The other makes important changes to the Use Classes Order.

None of these changes comes as a surprise, as the government has been promising / threatening these changes for some considerable time. In fact, the only aspect of the timing that calls for comment is the government’s failure to get on with it earlier. These new provisions have had a gestation period that would make an elephant green with envy.

No doubt there will be numerous comments in the press about the new changes, but I would prefer to digest the details before pronouncing on them. I will blog on the new legislation in the next week or two, concentrating primarily on what these changes actually do (as distinct from the grandstanding and hyperbole that is an inevitable accompaniment in today’s government press release).

© MARTIN H GOODALL

Extension of planning permissions – update

I was asked yesterday when the government might have the legislation in place to extend the time limits on existing planning permissions.

The Business and Planning Bill is being fast-tracked through parliament. The next stage will be the committee stage in the House of Lords (due on 20 July).

My guess is that the government wants to get the Bill to Royal Assent before the summer recess (i.e. by 29 July).

Extension of planning permissions is governed by Clause 17 of the Bill, which will come into force at the end of the period of 28 days beginning with the day on which the Act is passed. So it should be in force by late August.

Extension of an existing planning permission that has not yet been implemented will be automatic if it has not expired by that date. If the permission has expired by that time, it will require an additional environmental approval.

UPDATE: My guess was correct (although I got the date of the beginning of the parliamentary recess wrong, by a week). The Bill got royal assent just before the end of term, on 22 July, so was in force by late August as predicted. The automatic extension of permissions will now end on 1 May 2021. Additonal environmental approval is required only if it is development that required an EIA. The environmental approval is deemed to be granted if the LPA does not determine it within 28 days. The deadline for environmnetal approvals is 31 December, but this could be extended by the Sectretary of State.

© MARTIN H GOODALL

Upward extension of certain blocks of flats

The one change to the GPDO that got all the journos excited was the long-anticipated introduction of a permitted development right to extend certain blocks of flats by the addition of up to two extra floors. With effect from 1 August 2020, this will be enshrined in the new Part 20 of the Second Schedule to the GPDO. [Some indication of future intentions can be gleaned from the fact that the overall title of Part 20 is “Construction of New Dwellinghouses”, and that the addition of “new dwellinghouses on detached blocks of flats” comprises Class A in this Part of the Second Schedule. One may reasonably surmise that another Class, which may be added to Part 20 later this year, will comprise the demolition of existing buildings and the construction of new dwellings on the site, although the precise mechanism governing this has yet to be revealed, and may still be the subject of some debate within MHCLG.]

The development permitted by Class A of Part 20 consists of works for the construction of up to two additional storeys of “new dwellinghouses” (i.e. flats) immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats, together with any or all engineering operations reasonably necessary to construct the additional storeys and new flats, as well as works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new flats, works for the construction of appropriate and safe access and egress to the new and existing flats, including means of escape from fire, via additional external doors or external staircases, and works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new flats.

“Block of flats” means a building which is divided horizontally and consists of separate and self-contained premises constructed for use for the purposes of a dwelling, and any ancillary facilities constructed solely for use by occupiers of the building; and “purpose-built” means a building that was built as and remains as a block of flats. “Detached” means that the building does not share a party wall with a neighbouring building; and “flat” means separate and self-contained premises constructed for use for the purposes of a dwelling.

These definitions in paragraph C of Part 20 represent significant constraints on the types of building that can be extended under Class A. So, for example, if the existing flats were created by converting an existing house, this building cannot be extended under Class A (because the building was not purpose-built as a block of flats). Similarly, the building must be free-standing, so if it is attached in any way to any other building, it cannot be extended under Class A. The definition of a “flat” also excludes any dwelling that was created by a change of use from any other use; it must have been constructed for residential use in the first place.

In addition to the restricted scope of permitted development under Class A, as a result of the definitions set out in paragraph C, Paragraph A.1 of Class A prohibits development under this PD right in in a variety of specified ways. First, development is not permitted by Class A if the permission to use any building as a dwelling or dwellings was granted only by virtue of Class M, N, O, P, PA or Q of Part 3 (i.e. residential conversion of various buildings under Part 3). [It seems somewhat unlikely that a detached block of flats will have been created as PD under Classes M, N, P, PA or Q, but it is entirely possible that a detached block of flats may have been created under Class O, and further extension of such a building under Part 20 is therefore precluded. Strictly speaking, this prohibition in paragraph A.1 is unnecessary, because any building containing flats created by the conversion of an existing building falls outside the definition of a ‘purpose-built flat’ in paragraph C.]

Paragraph A.1 also prohibits development under Class A if the building is less than 3 storeys in height above ground level. [I think we may take it that this means actual ground level, not the storey comprising the ground floor of the building; so any building that is less than three storeys high (not four) is excluded.]. Development is also excluded if the building was constructed before 1st July 1948, or after 5th March 2018. Furthermore, development is not permitted by Class A if the additional storeys are constructed other than on the principal part of the building. (“Principal part” means the main part of the building excluding any front, side or rear extension of a lower height, whether this forms part of the original building or a subsequent addition.)

Development under Class A is also prohibited if the floor to ceiling height of any additional storey, measured internally, is more than the floor to ceiling height of any of the existing storeys, or more than 3 metres in height (whichever is the lesser). It is also prohibited if the new dwellings are not flats, i.e. if they extend over more than one storey.

There is also an overall height limit. The overall height of the roof of the extended building must not be greater than 7 metres higher than the highest part of the existing roof (not including existing plant); and the building as a whole, as extended (but not including plant), must not be greater than 30 metres in height. There are also limitations with regard to support structures. The engineering operations required to construct the additional storeys, and the new flats, must not include the provision of visible support structures on or attached to the exterior of the building upon completion of the development. Such engineering operations are in any event restricted to works within the existing curtilage of the building to strengthen existing walls, to strengthen existing foundations, or to install or replace water, drainage, electricity, gas or other services. Engineering operations falling outside these parameters are prohibited.

Works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new flats are not permitted if there is no existing plant on the building. In the case of new or replacement plant, the height of such new or additional plant as measured from the lowest surface of the new roof on the principal part of the new building must not exceed the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the existing building.

Any works for the construction of access to the new and existing flats, including fire escapes, via additional external doors or external staircases, must not extend beyond the curtilage of the existing building. [‘Curtilage’ for this purpose is not defined, and so the generally accepted definition of the word should be applied – see Sinclair Lockhart’s Trustees, Dyer v Dorset CC, Skerritts of Nottingham, etc.] Any works for the construction of storage, waste or other ancillary facilities for the new flats must not extend beyond the curtilage of the existing building, nor must any part of them be situated on land forward of a wall forming the principal elevation of the existing building, or be situated on land forward of a wall fronting a highway and forming a side elevation of the existing building.

Development under Class A is also prohibited if the land or site on which the building is located, is or forms part of, “Article 2(3) land” (i.e. a Conservation Area, an Area of Outstanding Natural Beauty, the Broads, a National Park or a World Heritage Site). [The exclusions in Article 2(3) also apply to any area specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 (as amended by sections 20 and 24 of, and Schedules 3 and 4 to, the Agriculture Act 1986, Schedule 3 to the Norfolk and Suffolk Broads Act 1988, Schedule 10 to the Environment Act 1995 and Schedules 11 and 12 to the Natural Environment and Rural Communities Act 2006), relating to enhancement and protection of the natural beauty and amenity of the countryside. However, I am not aware of any such areas ever having been so specified.]

The prohibition of development also extends to a Site of Special Scientific Interest, a listed building or land within its curtilage, a scheduled monument or land within its curtilage, a safety hazard area, a military explosives storage area; or land within 3 kilometres of the perimeter of an aerodrome. The definitions of “safety hazard area” and “military explosives storage area” are explained in the Third Edition of my book, A Practical Guide to Permitted Changes of Use.

I think readers will agree that the combined effect of the definitions in paragraph C and the prohibitions in paragraph A.1 significantly cut down on the number of buildings that can in practice be extended under Class A of Part 20.

In addition to the restrictions discussed above, this PD right is hedged around with various conditions, the most important of which is a requirement to make a prior approval application before beginning the development (and, of course, await its determination). The matters that may require the LPA’s prior approval are:

(a) transport and highways impacts of the development;
(b) air traffic and defence asset impacts of the development;
(c) contamination risks in relation to the building;
(d) flooding risks in relation to the building;
(e) the external appearance of the building;
(f) the provision of adequate natural light in all habitable rooms of the new flats
(g) impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and
(h) whether because of the siting of the building, the development will impact on a protected view identified in the Directions Relating to Protected Vistas dated 15 March 2012 issued by the Secretary of State. [This is a reference to the following online document: https://www.london.gov.uk/what-we-do/planning/implementing-london-plan/planning-guidance-and-practice-notes/londonview-Management]

A “defence asset” is a site identified on a safeguarding map provided to the LPA for the purposes of a direction made by the Secretary of State in exercise of the powers conferred by article 31(1) of the Procedure Order or any previous powers to the like effect. [This refers to Joint Circular 01/2003 issued on 27th January 2003 by the Office of the Deputy Prime Minister.]

“Technical sites” has the same meaning as in Annexe 1 of the Town and Country Planning (Safeguarded Aerodromes, Technical Sites and Military Explosives Storage Areas) Direction 2002. [This too can be found in Circular 01/2003.]

The definition of “habitable rooms” is set out in paragraph C, and is the same as the definition that has been added to Part 3. (See my recent post, dealing with those changes, where I pointed out that a kitchen does not have to have adequate natural light, whereas a kitchen/diner does, with a resulting risk of disputes as to the correct identification of such a room, if it has no or limited natural light.)

Note that, in contrast to other PD rights relating to residential development under the GPDO, overlooking, privacy and the loss of light are all issues to be considered in the case of this Class of permitted development. The provision of adequate natural light in all habitable rooms of the new flats is an issue that must also be considered, but other aspects of residential amenity are not subject to prior approval. So, for example, the LPA is not entitled to consider the adequacy of the accommodation in spatial terms.

In order to ensure that the prior approval application is validly made, it is essential that the applicant complies strictly with all of the requirements set out in paragraph B of Part 20. The application must be accompanied by—

(a) a written description of the proposed development, which, in relation to development proposed under Class A, must include details of any flat and other works proposed under paragraphs A(a) to (d) (i.e. engineering operations for the construction of the additional storeys and new flats, works for the replacement of existing plant or installation of additional plant on the roof, works for access, fire escape, etc. and works for the construction of storage, waste or other ancillary facilities)
(b) a plan drawn to an identified scale and shows the direction of North indicating the site and showing the proposed development;
(c) floor plans drawn to an identified scale and show the direction of North indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the existing and proposed elevations of the building;
(d) a written statement specifying the number of new flats proposed by the development that is additional to the number of flats in the building immediately prior to development;
(e) a list of all addresses of the flats within the existing block of flats;
(f) the developer’s contact address;
(g) the developer’s email address if the developer is content to receive communications electronically; and
(h) where there is a requirement [see below] the Environment Agency to be consulted, a site-specific flood risk assessment,

together with any fee required to be paid [see below].

For the first time, there is a requirement for the submitted plans to be drawn to an identified scale and show the direction of North. (N.B. This requirement still does not apply to applications under Part 3.) Despite the requirement to provide plans indicating the dimensions and proposed use of each room, and the position and dimensions of windows, doors and walls, the only issue the LPA can consider is the adequacy of natural light in those rooms that are defined as habitable rooms; they cannot refuse the application in relation to any other aspect of residential amenity such as the adequacy of the accommodation in spatial terms.

As regards the payment of an application fee, Regulation 14 of the 2012 Fees Regs will be amended to provide that the application fee payable on a prior approval application for new flats created under Part 20 of the Second Schedule to the GPDO will be £334 for each flat, where less than 50 are to be created in accordance with the prior approval for which application is being made. Where the number of new flats proposed in this prior approval application is more than 50, the fee will be £16,525, plus £100 for each new flat in excess of 50, subject to a maximum fee of £300,000.

However, the new fees will not be in place when Part 20 comes into effect on 1 August. The change is intended to be made by the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2020. For the time being, these are draft regulations, which are subject to approval by a resolution in both the Commons and the Lords before they are made. They will come into force on the 28th day after they are made. It seems, therefore, that if canny developers can get their act together quickly, they may be able to bang in a prior approval application under Part 20 in the first half of August absolutely free, gratis and for nothing. This is confirmed by Regulation 3 of the draft fee regs amendment, so that no fee is payable in respect of a prior approval application under Regulation 14(1)(c) (i.e. an application under Part 20) if the application is made before the date on which the amended fee regulations come into force.

It is the much higher application fees that will apply to prior approval applications for developments under Part 20 that has prompted a proposed change to the Fees Regs to allow a ‘free go’ on a second prior approval application under Part 20. Regulation 2(3) will introduce for the first time a ‘free go’ for a second prior approval application for permitted development under Part 20, thus bringing the fees regs for this type of prior approval application into line with those that apply to planning applications. This ‘free go’ for a second prior approval application, however, will apply only to applications under Part 20. There continues to be no ‘free go’ for second applications under other Parts of the Second Schedule to the GPDO.

Before looking at other conditions attached to PD under Part 20, I’ll deal briefly with the procedural requirements for the consideration and determination of prior approval applications under Part 20. Unsurprisingly, these are substantially similar to the rules applying to applications under Part 3. Rather than repeating these in detail, I would simply refer readers to Chapter 14 of the Third Edition of A Practical Guide to Permitted Changes of Use. In addition to those rules, where the application relates to prior approval as to the impact on air traffic or defence assets, the LPA must consult in addition any relevant operators of aerodromes, technical sites or defence assets and where appropriate the Civil Aviation Authority and the Secretary of State for Defence. Where an aerodrome, technical site or defence asset is identified on a safeguarding map provided to the LPA, the authority must not grant prior approval contrary to the advice of the operator of the aerodrome, technical site or defence asset, the Civil Aviation Authority or the Secretary of State for Defence.

As in the case of Part 3, where the application relates to prior approval as to natural light, the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the flats. Where the application relates to prior approval as to the impact on protected views, the LPA must consult Historic England, the Mayor of London and any local planning authorities identified in the Directions Relating to Protected Vistas dated 15th March 2012 (referred to above).

In addition to posting a notice of the proposed development near the site, the LPA must also serve a notice on all owners and occupiers of the flats within the existing block of flats, and also on any adjoining owner or occupier. When determining the application, the LPA must take into account any representations made to them as a result of this consultation process (although the LPA can only take note of those representations that are addressed to the matters requiring prior approval, and must exclude from their consideration any representations that are addressed to other issues.)

When I originally published this post this afternoon, I wrote that there is no time limit for the determination of a prior approval application under Part 20. I had overlooked Article 7, which provides that where no period is specified as to the period within which a prior approval must be determined, it must be determined within a period of 8 weeks following the receipt of the application by the LPA. However, as I correctly stated, the “56-day rule” does NOT apply. The applicant is NOT entitled to proceed with their development in default of the determination of the prior approval application within the 8-week period. The development must not, therefore, begin before the receipt by the applicant from the LPA of a written notice giving their prior approval. The only remedy open to the developer in the event of non-determination within the 8-week period (or such longer period as may be agreed in writing by both parties) is an appeal under section 78 against such non-determination.

Any development under Class A is permitted subject to the condition that before beginning the development, the developer must provide the LPA with a report for the management of the construction of the development, setting out the proposed development hours of operation and how any adverse impact of noise, dust, vibration and traffic on occupiers of the building and adjoining owners or occupiers will be mitigated.

The development must be carried out in accordance with the details approved by the LPA and must be completed within a period of 3 years starting with the date on which prior approval is granted. Bearing in mind that the development permitted by Class 20 is built development (not a change of use), ‘completed’ means physically completed in this case; actual residential occupation is not required within the 3-year time limit. The test, I suggest, should be the same as the House of Lords proposed in Sage, even though that case itself was concerned with the interpretation of the term “substantially completed” in section 171B(1) for the purposes of the time limit for enforcement. The developer must notify the LPA of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing and must include—

(a) the name of the developer;
(b) the address or location of the development; and
(c) the date of completion.

Any new flat created under Class A must remain in use as a dwellinghouse within the meaning of Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

There is, of course, power for the LPA to impose conditions on their prior approval. However, this does not give the LPA carte blanche to impose any conditions they please; the conditions must be reasonably related to the subject matter of the prior approval. The approval does not relate to the entirety of the proposed development, but only to those matters which are specified for approval under Class A of Part 20. It does not allow the imposition of more wide-ranging conditions of the kind that are frequently imposed on planning permissions.

In particular, it is not within the power of an LPA to impose conditions on a prior approval under Class A of Part 20 which seek the provision of, or any contribution to, affordable housing or any other form of financial contribution. Equally, an LPA cannot impose any conditions as to the provision of public open space, play areas and the like. It is not open to an LPA to impose a condition as to the time within which development must be commenced or completed, because this is already governed by paragraph A.2(2).

There is one final point that should be borne in mind, both by developers and by the residents of existing flats in any block that is affected by proposed development under Part 20. This relates to the law of landlord and tenant (and so is not a planning issue as such, and will not therefore be of concern to the LPA when considering and determining a prior approval application under Part 20). It may nevertheless be an important issue as between flat owners or occupiers and their landlord. Flat owners should take expert legal advice from an experienced property lawyer as to their legal position in relation to any such proposal. It will entirely depend on the terms of their lease as to whether they have any right to prevent the development, and so it is not a matter on which I can usefully comment in this blog, other than to flag it up as a matter of legitimate concern that may need to be addressed.

As to whether there will be a significant number of developments under Class A of Part 20, it very much depends on the practical effect of all the prohibitions, restrictions and conditions that govern these developments. As I have suggested above, they may prove to be a stumbling block in quite a few cases, and may reduce (perhaps to a substantial extent) the number of such developments that will in practice be carried out.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL