The 56-day Rule – CA upholds agreed extension of time

On 5 February this year, I summarised the judgment of Holgate J in Gluck v SSHCLG - a challenge to an appeal decision in circumstances where there had been a purported extension of time for determination of the prior approval application, which the LPA alleged had been agreed with the applicant. That decision departed from the previous ruling in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), in which a Deputy Judge had been persuaded that Article 7 of the GPDO did not permit an extension of the 56-day period in the case of a prior approval application made under Part 3 of the Second Schedule to the GPDO.

This issue has now come before the Court of Appeal, in Gluck v SSHCLG [2020] EWCA Civ 1756, which has upheld the judgment at first instance on both the points that were in contention in this case. The importance of this Court of Appeal decision is that it puts this issue beyond doubt, and resolves any lingering doubt that there might have been over any potential incompatibility of the High Court judgment in this case with the previous judgment in Warren Farm. I don’t need to rehearse the issues again here, as the Court of Appeal has endorsed the decison at first instance on both of the points that were in contention between the parties.

The position, as now confirmed by the Court of Appeal, is that:

(1) The wording of Article 7 of the GPDO, after setting a time limit for the determination of a prior approval application, allows a prior approval application under the GPDO be determined in all cases within such longer period as may be agreed by the applicant and the authority in writing.

(2) The phrase “agreed by the applicant and the authority in writing” does not require any formal document. Agreement can be sufficiently evidenced by an exchange of emails. The only requirement is that there must be sufficient evidence in writing (which may be in electronic form) to show that one party had proposed an extension of time and that the other party had assented to that proposal. The evidence of such agreement in this case was clear beyond doubt.

Mr Gluck’s appeal against the judgment of the High Court was accordingly dismissed. Time had been duly extended in the manner provided by Article 7, and so Mr Gluck was not entitled to proceed with his development in default of the determination of his prior approval application within the 56-day period.

© MARTIN H GOODALL

Matters arising – More Q&A on the UCO changes

In our webinar at the end of November, I said I would try to answer some of the points we could not cover in the time available in the Q&A session at the end of the webinar.

Unsurprisingly, there is still some confusion over the effect of the transitional provisions, although I did my best to explain these, both in the Supplement to my book and in our webinar. I have selected a few of the questions that were troubling some of our delegates.

If you have a use which now falls under Class E, will that use then benefit from all permitted development changes of uses of all previous use classes which are now contained within Class E?. [Another question put it this way: I am unclear as to the Prior approval position with respect to changes from the new Use Class E (commercial) to C3 (residential) during the period to 31.8.21.]

The answer to the first of these questions is a definite ‘No’ (at least for the time being). The transitional provisions make it clear that the development permitted by the GPDO is confined to the Use Classes as they existed prior to 1 September 2020. So any PD rights in relation to an existing use are confined to the narrower classes of use specified in the GPDO. The government has, however, consulted on a possible widening of PD rights for uses in Class E, including residential conversion of a wide range of commercial premises (partially covered at present by Classes M, N and O in Part 3 plus, formerly, Class PA). This new PD right will probably not take effect until August of next year, and its precise terms remain to be settled.

This further question was then posed: Provided there is no Article 4 restriction, would it be possible to change a B8 to B1 (less than 500sqm) under GPDO so that, once implemented, the unit would then be open Class E?

In contrast to the previous answer, the answer in this case is ‘Yes’. Once a planning unit is in use in a particular Use Class (in this case, Class E), section 55(2)(f) then allows a change of use to any other use within that same use class. However, caution suggests that the use permitted by Class I(a) in Part 3 should be more than merely nominal before the further change of use that is allowed under section 55(2)(f) takes place. The rule established by Kwik Save Discount Stores v SSW might also apply, by analogy, to a change of use under section 55(2)(f). I would suggest that the use permitted by Class I(a) should be confined to a use that remains within the scope of the former Class B1 for more than six months at the very least (and preferably for a year or more) before a further change of use within Class E is then made in reliance on section 55(2)(f).

The next question was: If a planning condition prevented change to “any other use within Class D1” how would this be applied/understood, as D1 uses are now all categorised in different places?

Conditions that limit the scope of a use authorised by a planning permission will remain in full force and effect (and not only during the ‘material period’, but indefinitely). Such conditions are unaffected by the changes to the UCO. So if a PP authorised a specified use that previously fell within Use Class D1, but contained a condition that prevented a change of use to “any other use within Class D1”, it will continue to prevent a change to any other use that formerly fell within that Use Class. So, (just to take one example) if the authorised use was covered by Class D1(a) (now E(e)), the condition quoted would still prevent its use within Class E(f) (formerly D1(b)). Similarly, if the authorised use was covered by Class D1(c) (now F.1(a), this condition would still prevent its use within Class F.1(b) (formerly D1(d)), F.1(c) (formerly D1(e)), F.1(d) (formerly D1(f)), F.1(e) (formerly D1(g)), F.1(f) (formerly D1(h)) or F.1(g) (formerly D.1(i)). The quoted condition would not, however, prevent a use within any other category in the Use Class into which the authorised use now falls which did not fall within the previous Class D1.

I referred above to the Rule in Kwik Save, and one delegate asked: “With regard to the Kwik Save “colourful implementation” point, you mentioned the relevance of that for uses using PD rights from one use class to another. Does it apply to changes within the same (and now much wider) Use Class?”

Kwik Save itself dealt solely with a change of use that was formerly permitted under Part 3 of the Second Schedule to the GPDO from a specified sui generis use to a use within Class A1, and the rule clearly applies to other PD under the GPDO. I have expressed the opinion, here and elsewhere, that the rule in Kwik Save may also apply “by analogy” to changes of use within the same Use Class under section 55(2)(f). I am not aware of any judicial authority that would expressly support this proposition, but I strongly suspect that if this were to be disputed, the courts might well take the same view as they did in Kwik Save and for the same reasons. I can’t guarantee that I am right about this; it is simply my professional view, based on instinct and experience.

The questioner went on to ask whether implementation is bound by the description of development (which begs the question, they suggest, whether developers ought to apply for permission by reference to a Use Class for an use class rather than a particular use).

It is true that the initial use of a development is strictly limited by its description in the planning permission. (See Wilson v West Sussex CC and East Suffolk CC v SSE.) But a change of use within the same Use Class can then be made under section 55(2)(f), although here too I have always taken the view that the Rule in Kwik Save may well apply to the timing of such a subsequent change of use (a point I have made in the book).

On the second point, I often used to think that it might be advisable to frame a planning application by reference to a Use Class, rather than a specific use, but in practice very few planning officers would be prepared to accept this approach, and they will usually insist on a more precise description of the proposed development. In any event, permissions are frequently conditioned to limit changes of use in one way or another. The government has indicated that such conditions ought not to be imposed on new Class E uses, but I bet many LPAs simply won’t be able to resist the temptation to do so. In that event, a plethora of section 73 applications can be expected, followed by appeals if these are refused. LPAs may well find themselves at risk of an award of costs against them in such cases.

I will deal with some further questions in a future post.

© MARTIN H GOODALL

UCO and GPDO – Some joined-up thinking

It was obvious to many of us that the changes to the Use Classes Order that came into effect on 1 September were only part of a more comprehensive suite of changes that would necessarily embrace the GPDO as well, in order to maintain consistency in the overall scheme of delegated legislation. Left to their own devices, MHCLG would no doubt have co-ordinated the changes to the UCO with relevant changes to the GPDO in a single set of amending regulations, which would probably have emerged in the course of 2021. It seems, however, that the Ministry came under insistent pressure from 10 Downing Street (lately under the management of D.Cunning-Plans, Esq.) to get something out immediately, in order to demonstrate the government’s dynamic determination [sic] to shake up the planning system. The immediate result, in the form of the recent changes to the UCO, bore all the hallmarks of a rushed job, and I have pointed out both in this blog and, in more detail, in the Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts some of the resulting anomalies and potential problems which the UCO changes have created.

The unfortunate decoupling of the UCO changes from co-ordinated amendments to the GPDO necessitated the rather clunky transitional provisions in the recent UCO amendment regulations, which preserve the old Use Classes for the purposes of permitted development under the GPDO until the end of next July, by which time the MHCLG no doubt hopes to be able to amend that Order, so that the UCO and the GPDO are once more brought into alignment.

Sooner, perhaps, than some may have expected, MHCLG has now published a consultation document outlining their initial proposals for changes to the GPDO. The consultation period has been nicely timed to start in the run-up to Christmas and to straddle the Christmas and New Year break, with a deadline for responses on 28 January. That ought to cut down somewhat on the stroppy reaction that can be expected from various planning professionals, and especially from planning officers in LPAs, whose dismay at the UCO changes will now be intensified by further blows in the GPDO to their fading hopes of preserving the vitality and viability of their town centres.

The scope of the proposed changes will occasion no great surprise, as they were perhaps predictable from the general thrust of the recent UCO amendments, particularly the creation of the very wide Commercial, Business and Service use class (Class E). It is now therefore proposed that the PD right for the residential conversion of certain commercial premises (originally from offices within Use Class B1(a) – under Class O, and then also from A1 shops, A2 financial and professional services, A5 hot food take-aways, Betting Offices, Pay day loan shops, and Launderettes – all under Class M, as well as from an Amusement Arcade or Casino – under Class N) should be expanded to enable the residential conversion of any Commercial, Business and Service premises now in Class E. [The consultation paper does not mention the existing and new sui generis uses that currently benefit from this PD right under Classes M and N, but these will presumably still be included in the new expanded PD right for residential conversions.]

It is not proposed that there should be any size limit on the buildings that can benefit from this PD right, which would allow for either the whole building or part of the building to be converted to residential use but, in order to qualify for this PD right, the premises must have been in use within Use Class E on 1 September 2020. As the consultation document points out, Use Class E applies everywhere in all cases, not just on the high street or in town centres. However, the disqualifications that currently apply would continue to apply in National Parks and AONBs, and World Heritage Sites, as well as to buildings in SSSIs, or which are listed buildings or within their curtilage, sites that are (or contain) scheduled monuments, or are in safety hazard areas or military explosives storage areas, as well as sites subject to an agricultural tenancy. On the other hand, this PD right would not be excluded (as it has been up to now) in conservation areas, although there would be a requirement in a conservation area for prior approval of the impact of the loss of the ground floor use to residential.

There would in any event be a widened range of matters requiring prior approval. In addition to flooding, transport impacts and contamination, these matters would include the impacts of noise from existing commercial premises on the intended occupiers of the development, the provision of adequate natural light in all habitable rooms, fire safety (to ensure consideration and plans to mitigate risk to residents from fire) and the impact on the intended occupiers from the introduction of residential use in an area the LPA considers is important for heavy industry and waste management. [The general prohibition on developments that do not comply with nationally prescribed space standards will also apply to the new PD right in any event.]

I don’t propose to comment on the merits or demerits of the proposals outlined above, but readers will recognise the potentially wide implications and possible impact of these changes in policy terms. If you feel strongly about this, then I recommend that you send in a robustly worded response to this consultation. You can draft it over the quiet Christmas holiday that we’re all going to have, instead of playing Monopoly or Cluedo (which Chris Whitty says you shouldn’t be doing anyway!).

So far as Part 3 of the Second Schedule is concerned, the consultation paper addresses only the residential conversion of Commercial, Business and Service premises now in Class E (previously covered, in part, by Classes M, N and O). However, it occurs to me that this change would also have the effect of reviving the lapsed Class PA, which allowed the residential conversion of light industrial premises. There will have to be other consequential changes to the GPDO to bring various PD rights into line with the new and revised Use Classes, but presumably those other changes would not involve the significant widening of those PD rights.

© MARTIN H GOODALL