ENVIRONMENT ACT 2021

Having retired from legal practice, the first thing I did after that was to go and chair a planning law seminar in London last week, at the invitation of Bath Publishing. The subject was Biodiversity for Planners & Developers: The New Law. This very successful conference (which was held both as a live event and online) was an excellent introduction to the important changes in planning procedure that will be brought about by the recently passed Environment Act, which obtained Royal Assent on 9 November.

The provisions of the Act will be phased in gradually, and it will be some two years before the important changes that will govern how developers structure and present planning applications, but it is abundantly clear that everyone involved in planning and development is going to have to get thoroughly to grips with these changes in good time before they become a binding statutory requirement.

Perhaps the most important aspect of the Act (and which was the focus of last week’s seminar) will be the requirement to demonstrate how significant biodiversity net gain [“BNG”] will be achieved through the proposed development. There is, of course, a lot more in that Act than this, and I do not for one moment belittle the importance of other parts of the Act, which aim to improve the natural environment and will set up the Office for Environmental Protection as an independent monitoring body and regulator. Other parts of the Act deal with waste and resource efficiency (including waste management and enforcement) and air and water quality (including the regulation of water and sewerage undertakers).

But it is Part 6 of the Act, dealing with nature and biodiversity, and the requirement for biodiversity in planning, which strikes me as the part of the Act which it will be most important for planning professionals to understand. Coupled with this will be the introduction of conservation covenants, which are dealt with in Part 7 of the Act.

Three extremely interesting and helpful papers were presented at our seminar last week, by Alistair Mills, of Landmark Chambers, who is a Fellow of Magdelene College, Cambridge and a law lecturer at that college, as well as being a contributor to Garner’s Environmental Law among his other writing credits (giving us a general overview of the new Act), followed by Dr Nick White, Principal Adviser on Net Gain at Natural England, who has been intimately involved in developing the concept of BNG and successive iterations of Natural England’s Biodiversity Metric, which will become a legally sanctioned tool under the Act, and finally Tom Graham, barrister, legal author and a very experienced planning lawyer, whose paper addressed the practical considerations for planning and development that arise from the new Act. The event was rounded off by a lively Q&A session which threw up some interesting and thought-provoking points.

At present, only a few of the Act’s numerous provisions are in force (out of a total of 149 sections and no fewer than 21 detailed schedules). They are sections 22 to 24, 26, 44 to 47, 63, 142 to 149 and Schedule 1. On 9 January, sections 51 to 56, 58, 66, 70, 80, 88, 89, 90, 92, 93, 97 and Schedules 5, 6, 7, 8, 9 and 10 will come into force. Other provisions of the Act will be brought into force by future Commencement Orders. There is also going to be a huge raft of subordinate legislation, none of which has been published yet (unless, unbeknown to me, anything has appeared in the past few days). The NPPF will also have to be revised again to reflect the new regulatory regime.

Nick White stressed the fundamental importance of the Biodiversity Metric to net gain. The Metric calculates the baseline and forecasts outcomes. It is intended to provide confidence in its methodology and ensure consistency of approach. It was clear from Nick’s paper that considerable work has been done within Natural England in developing the Biodiversity Metric as a robust and reliable tool for ensuring the achievement of BNG. The Metric applies the core principles of BNG, i.e. that it secures additionality and does not countenance trading down of biodiversity. The resulting tool (currently version 3.0, to be replaced in January 2022 by version 3.1, incorporating minor changes, and accompanied by the publication of supporting case studies) is extremely sophisticated; its calculation tool and condition assessment are supplemented by both a User Guide and a Technical Supplement. Next year the Secretary of State is expected to consult formally on the Biodiversity Metric, followed by the publication of Metric 4, the final pre-mandatory BNG version before it becomes a statutory requirement, following which it will be reviewed every 5 years or so.

Some of the larger housing developers are already familiar with BNG, and have test flown their own biodiversity metrics. Similarly, a number of LPAs have developed BNG as a development management tool. Now this is all to be put on a statutory basis, and Natural England’s official Metric will become the sole benchmark, with which all developers and LPAs must comply. Present expectations are that this will come into force in about two years’ time.

Tom Graham’s paper also stressed the Biodiversity Net Gain objective and the mitigation hierarchy, drawing attention to the scope for purchasing biodiversity conservation credits. There will in future have to be a biodiversity gain plan and, overall, the biodiversity gain objective must be achieved. There remains at present, however, a degree of doubt as to the practical means by which this is to be secured. One limitation of the Biodversity Metric (which Nick White also flagged up in his talk) is that it measures habitats, rather than species as such, although it could be said that habitats are in effect a proxy for the species they support.

There is still some uncertainty as to the mechanisms by which all this is to be secured on individual sites. A Construction Environmental Management Plan (aka CEMP), a Landscape & Ecological Management Plan (aka LEMP) and species specific measures will ned to be part of the package. Tom expressed misgivings about the suitability of planning conditions to secure BNG, which may not be an adequate mechanism to deal with changes to the Biodiversity Gain Plan or to guarantee the enforceability of these requirements. Offset or land transfers may be alternative mechanisms, but would require a legally binding agreement to secure them (although a Grampian condition might be a useful first step towards this). The same would apply to financial contributions. Even a planning obligation carries with it some risk as to whether the developer is capable of delivery, and as to maintenance mechanisms and long term financial security. (What happens, for instance, if the management company goes bust? My own answer to this would be for the developer to provide a bond, backed by a substantial financial institution). There are also questions as to the suitability of a 106 agreement, compared with a conservation covenant agreement.

Many of these points will no doubt become clear in time, and will be refined and perfected as practical experience is gained in the operation of these provisions and procedures. In the meantime, however, the final message of Tom Graham’s paper, and of the whole seminar, was to emphasise the crucial importance of familiarisation and training of personnel at all levels, for developers, their staff and their professional advisers, as well as local planning authority staff. Two years is not as long as it may seem in which to get to grips with the new regulatory regime.

Next year, we shall all have the assistance of Tom Graham’s new book - The Environment Act 2021 – A Guide for Planners and Developers to guide us through the new legislation. If the government had not taken such an inordinate time to get its legislation through parliament, Tom’s book would have been published by now. Last week’s seminar had originally been planned as a launch event for the book, and it is no fault of either Tom or Bath Publishing that the book has been delayed. Late changes to the legislation, right up to the last minute, have made re-writes of some chapters unavoidable, but I have seen the manuscript and it is already at an advanced stage of preparation. So readers can pre-order the book, confident in the expectation that it will prove to be an essential companion in navigating around this legislation, with sound practical advice on the day-to-day operation of the statutory procedures.

© MARTIN H GOODALL

Winding down

After some 44 years in practice as a solicitor, during nearly the whole of which I have specialised in the law and practice of Town and Country Planning, not to mention the years that I spent in the profession before being admitted as a solicitor, I have finally decided that it is high time that I retired. Planning law is an area of work that I have always enjoyed, and it was for this reason that I carried on for some considerable time after what most people would think of as a ‘normal’ retirement age. But none of us can go on for ever, and so I have finally hung up my metaphorical wig. (As you are no doubt aware, solicitors don’t actually wear a wig, but I did do a great deal of heavy-weight advocacy at planning inquiries, and long ago lost count of the number of public inquiries and hearings in which I had appeared.)

I first opened the pages of the Planning Encyclopedia as long ago as 1967, if only for the purpose of filing new loose-leaf pages, and I drafted my first notice of appeal (on behalf of my principal) in 1970. It was addressed to the Minister of Housing and Local Government (just a few months before Ted Heath created the Department of the Environment as a new ‘super-department’), as well as drafting some written representations in a couple of planning appeals.

It took me a lot longer to qualify as a solicitor than it should have done, due to my having got involved in politics, which proved to be a considerable distraction. However, I realised that I really did have to concentrate on the two papers in the solicitors’ finals that I had repeatedly failed – Revenue Law and Equity & Succession. I really don’t know how I eventually managed to get through these two papers; the Rule in Earl of Chesterfield’s Trusts and the doctrine of election are as much a mystery to me now as they ever were. Just as well, then, that my interest even at that time was focused on town and country planning, and that I took the opportunity of pursuing this as my career.

I gave up politics ‘temporarily’ in order to concentrate on my finals, but I never went back to politics. I have never lost my interest in the subject, but purely as a spectator and commentator. If I am asked what alternative career I would like to have pursued, it would have been as a political journalist. (I fear that this may have been all too obvious at times from the contents of this blog.)

To echo the words of Theresa May, I have decided that “Retirement means Retirement”, and so I am not tempted to continue in some sort of consultancy role. However, I shall not be closing this blog, but now that I have retired from active legal practice, posts are likely to appear rather less frequently in future. In fact, you may already have noticed a reduction in the number and frequency of posts. But I am sure that I shall be unable to resist commenting on planning topics from time to time, and I have no intention of taking down my previous posts, which will remain available to be read by anyone who’s interested.

And then of course there are also my two books (A Practical Guide to Permitted Changes of Use and The Essential Guide to the Use of Land and Buildings under the Planning Acts). Both of these will clearly require new editions in due course.

So maybe I shan’t be riding off into the sunset just yet.

© MARTIN H GOODALL

Biodiversity book and seminar

As you know, I am a great fan of Bath Publishing, who continue to expand their planning and environment law list, in addition to the other areas of the law that they cover.

Tom Graham is a practising lawyer with many years of experience in environment and planning law, and is an established legal author whose book, A Practical Guide to Planning, Highways and Development is a ‘must have’ title from Bath Publishing’s catalogue. Bath Publishing will shortly be launching Tom’s latest book, The Environment Act 2021: A Guide for Planners and Developers. This book could hardly be more topical, and will be published almost before the ink has had time to dry on the new Act. So it will be one of the first books available to provide a comprehensive overview of the Act specifically for the planning sector.

This new book answers the questions that planners and advisers will need to consider such as:

• The interpretation of the Environment Act
• Conservation biology and the planning system
• What is Biodiversity Net Gain and how will it interact with the planning system?
• What is the "precautionary principle" and how is this to be reflected in the planning process?
• Can local planning authorities push a "green agenda"?
• Section 106 agreements, conservation covenants, planning conditions and ecology
• How will local planning committees get to grips with the complexities of the Act?
• How will the act impact on developers? Is it a benefit or a problem?

As well as practical commentary, the book includes the relevant sections of the Act, annotated by the author, so you will have the sources you need in one, handy volume. Due for publication shortly after Royal Assent is granted in the Autumn, it will be the essential, practical guide to help navigate the new regime efficiently and profitably.

• Paperback
• 200 pages approx
• £40 inc free digital edition if you pre-order
• ISBN 978-1-9163023-1-0

In order to launch this important new book, Bath Publishing have organised a seminar in London later this month, which will also be available online.

Attend the seminar and get the book free! This seminar, Biodiversity for Planners & Developers: The New Law, is being held on Thursday 25 November 2021. You can attend in person or online and you'll get a free book as part of the package. The event is being held at One Great George Street, London SW1P 3AA between 10am and 1pm, and I am honoured to have been invited to chair this event. The speakers will be Tom Graham, Dr Nick White and Alistair Mills, all of whom are experts in this area of law and practice.

As a special offer to readers of this blog, the ‘early bird’ offer for seminar bookings, giving you access to the seminar (with book included) of £150 + VAT has been extended to 12 November 2021. (The price will be £175 + VAT if booked after 12 November). So readers of this blog have just one week to snap up this generous offer, and save £25! [To get this discount, you will need to quote this code: BDMG1121 ]

I should mention that the availability of 'in-person' tickets is now limited (due to a rapid take-up of bookings). There is a need to keep the numbers fairly limited in order to minimise covid risks, so far as possible. Bath Publishing is offering everyone the option to swap to remote attendance if preferred.

UPDATE (17 November) : As readers are no doubt aware, it took the government until 9 November to get the Environment Bill through its final stages in parliament, and it became the Environment Act 2021 on that day. Tom Graham's book is now at an advanced stage of preparation, but it could not be finalised until after Royal Assent had been achieved (because important changes to the Bill were in the offing right up to the last minute). So, through no fault of Tom's, the book will not be ready as soon as everyone had hoped. The seminar on 25 November will nevertheless be a valuable opportunity to learn about the new Act and the way it will affect the way we do development in future. Attendees will, of course, be entitled to a copy of the book when it is published, and in the meantime they will find the seminar very helpful as a timely introduction to this important new legislation.

MARTIN H GOODALL

THE GREAT POST OFFICE SCANDAL : An important new book

As regular readers of this blog will know, Bath Publishing has gained a well-deserved reputation as publishers of very useful and accessible books on various legal topics, including employment law and family law. In 2015 they published the first of my two books on planning law, and they have subsequently published several other planning law titles. Having now worked with Bath Publishing over a period of more than six years, I hold them in very high regard and have been very pleased to see this firm’s growing success and reputation.

So I was excited to hear of Bath Publishing’s latest and very interesting publishing venture. This is the publication of THE GREAT POST OFFICE SCANDAL: The story of the fight to expose a multimillion IT disaster which put innocent people in jail

About the book

On 23 April 2021, the Court of Appeal quashed the convictions of 39 former Sub-postmasters and ruled their prosecutions were an affront to the public conscience. It is a scandal that has been described as one of the most widespread and significant miscarriages of justice in UK legal history.

The 39 were just a few of the 738 people who, between 2000 and 2015, had been prosecuted by the Post Office for theft, false accounting and fraud. The prosecutions were based largely on evidence drawn from Horizon, the Post Office’s deeply flawed software system that threw up duplicate entries, lost transactions and made erroneous calculations. If these errors resulted in apparent losses, Sub-postmasters were forced to settle the discrepancies from their own pockets, sometimes for tens or hundreds of thousands of pounds. Those who could not pay were sacked and taken to court. Proud pillars of their communities were stripped of their jobs and livelihoods. Many were forced into bankruptcy and/or borrowed from friends and family to give the Post Office thousands they did not owe. The really unlucky ones were sent to prison.

This is the story of how these innocent people fought back to clear their names against a background of institutional arrogance and obfuscation, a fight dragged out by the Post Office’s refusal to accept responsibility for its failings.

Nick Wallis, an award-winning freelance journalist and broadcaster, has been pursuing this story since 2010 when he met a taxi driver who told him his pregnant wife had been sent to prison for a crime she did not commit. Since then, he has recorded interviews with dozens of victims, insiders and experts, uncovering hundreds of documents to build up an unparalleled understanding of the story.

Using these sources, Nick has been instrumental in bringing the scandal into the public eye. He broadcast his first investigation for the BBC in 2011. In the same year he took the story to Private Eye. He has subsequently made two Panoramas, a Radio 4 series, and raised thousands of pounds to crowdfund his own court reporting for the Post Office Trial website.

Nick has now written the first definitive account of the scandal. He takes us from the ill-fated deal that brought Horizon into existence, through years of half-truths and obstruction, to the tearful scenes at the Court of Appeal this year. He exposes the secrecy and mistrust at the heart of the story, and the impact that it had on the victims. He also chronicles how this story’s hero, Alan Bates, started as a lone public voice of dissent but went on to beat the Post Office - against overwhelming odds – at two of the highest courts in the land, and win some redress for the victims.

This book will be available from Bath Publishing from 18 November 2021.

Price: £25.00 in Hardback

Horizon Scandal Fund: Bath Publishing and the author are donating 10% of the revenue from the book sales to a 'fighting fund' so that Sub-postmasters can continue their quest for proper redress and compensation.

Daft name competition

And the winner is ……….Mr Alexander de Piffle Johnson of London SW1, who came up with the stunningly daft name of “The Department for Levelling Up, Housing and Communities”. Well done Mr Johnson, a cheque (by way of a generous donation to the Conservative Party) is on its way to you, subject to a little something back in the New Year’s Honours List, please.

When it was called the Department for Communities and Local Government, various people (including those in PINS) used to refer to it as “DeCLoG”, a name I delighted to use in this blog. The new name does not so readily lend itself to being turned into an acronym, although I suppose “DeLUge” might be a possibility? So the previous incumbent, Robert Jenrick can now go around Westminster intoning “Après moi, le DeLUge!”

Unhelpful and sarcastic suggestions for other acronyms or epithets would be welcome, provided they are printable.

© MARTIN H GOODALL

Gove IN ; Jenrick OUT

There is little point in speculating on the reasons for Robert Jenrick’s summary dismissal from the cabinet in yesterday’s cabinet reshuffle, although a certain air of sleaziness (no matter how unfair of unjustified it may have been) seemed to hang around him.

Whether Michael Gove is any more clued up about town and country planning, local government or any of the other subjects for which he will now have ministerial responsibility than any of his recent predecessors is a moot point, but he is certainly the most high profile politician to fill this post for some considerable time. He has always struck me as rather an odd-ball, and his recent rather bizarre behaviour has done nothing to dispel that impression.

Gove does at least have a reputation for being effective in getting things done, although it is difficult to identify any particular achievements that he could claim in his most recent role as Chancellor of the Duchy of Lancaster [Cabinet Office Minister] in which he was supposed to play a co-ordinating role across Whitehall to ensure that Bungling Boris’s will (insofar as it could be ascertained from day to day) was done. He retains responsibility for the government’s “levelling up” agenda, which is still no more than a slogan and a hodge-podge of infrastructure projects that will take several years to come to fruition.

I always thought that adding “Housing” to this ministry’s title, and giving it prominence as the first word in that title was an unwise hostage to fortune. 300,000 homes a year still seems to be an unachievable target. Meanwhile, Gove will have a lot of other problems on his ministerial plate, including what to do about the wildly unpopular planning ‘reforms’ that Bungling Boris has decreed and over which ministers and Tory MPs are still arguing furiously. Then there is the question of how to tackle the cladding scandal after five years of inaction following the disastrous Grenfell Tower fire, among several other political hot potatoes.

The man actually responsible for town and country planning will be one of the Parliamentary Under-Secretaries in MHCLG. There may well be a secondary reshuffle today of junior minsters, and it remains to be seen (at the time of writing) who will end up in that role, as what the press will no doubt refer to as the ‘Housing Minister’ or the ‘Planning Minister’. (The same junior minister usually combines both roles.)

So where to now with town and country planning? Frankly, your guess is as good as mine. Bungling Boris appears to be in a particularly gung-ho mood at the moment, and seems to think he can push whatever he wants through parliament. But I still remain profoundly sceptical of the chances of a Planning Bill being introduced until well into the New Year, and what will emerge still remains extremely uncertain. My prediction is that, if it comes forward at all, its provisions are likely to be considerably watered down compared with what was in last year’s White Paper, and it is very unlikely that it will simplify or speed up the planning system in practice.

© MARTIN H GOODALL

GPDO tidied up (continued)

In my first post on this topic on 20 July, I confined myself to the changes to Part 3 of the Second Schedule to the GPDO (dealing with permitted changes of use).

The changes to Part 4 (temporary buildings and uses) are mainly cosmetic, but one provision that caught my attention is the deletion from paragraph C.1(e) of the reference to Use Class A4 and the substitution of a reference to Class F.2 (local community use). The first point to note is that the removal from paragraph C.1 of the prohibition of a temporary change of use under Class C from use as a drinking establishment (formerly Class A4) to use as a state-funded school (within Class F.1(a)) does not now allow such a temporary change of use, because use as a drinking establishment is now sui generis, and Class C does not permit a change of use from any sui generis use in any event. On the other hand, a temporary change of use to use as a state-funded school from the new local community use (within Class F.2) is specifically excluded from Class C.

In Part 4, Class CA (provision of temporary school buildings on vacant commercial land), the definition of “vacant commercial land” has been changed. This definition previously referred to land which was last used for a purpose falling within Class B1 (business), Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class D2 (assembly and leisure) . The definition now refers to land which was last used for a purpose falling within Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class E (commercial, business and service).

Class D in Part 4 (temporary use of various business premises) is amended, so that the change of use that it now permits is from use as a betting office, a pay day loan shop or hot food takeaway, or from Class E (commercial, business and service) to a flexible use falling within Class E (commercial, business and service), Class F.1(b) (display of art), Class F.1(c) (museum), Class F.1(d) (public library or public reading room) or Class F.1(e) (public hall or exhibition hall).

An additional temporary PD right was introduced in Part 4 during the current covid crisis. This is Class DA (permitting restaurants etc. temporarily to provide takeaway food). As now amended, this permits development consisting of a change of use of a building and any land within its curtilage from use as a drinking establishment, or as a drinking establishment with expanded food provision, or Class E(b) (sale of food and drink mostly for consumption on the premises) or from a mixed use as a drinking establishment and as a café or restaurant, to a use, up to and including 23 March 2022, for the provision of takeaway food. [As I have previously pointed out, a condition in a planning permission that prohibits hot food take-aways still prevents the temporary change of use permitted by Class DA, due to the effect of Article 3(4) of the GPDO.]

One of my complaints when changes were previously made to the GPDO (particularly in 2015) was that there were inadequate transitional and saving provisions. This time, that previous omission has been repaired.

The first transitional provision relates to changes of use which no longer constitute development. Where a change of use of a building or land was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition requiring a prior approval application but, with effect from 1 August 2021, no longer constitutes development because the change is between uses that both now fall within Class E in the UCO, the change of use may proceed notwithstanding any undetermined prior approval application or related appeal proceedings. [In fact, irrespective of this provision, such a change of use can now be made even if there was a previous refusal of prior approval and even if an appeal against the refusal of prior approval was dismissed, because it is simply not development now, by virtue of section 55(2(f). But before anyone gets too excited about this, just remember that the existing use and the new use must both now be within one and the same use class, failing which section 55(2)(f) has no application.]

There is then a transitional provision for development no longer subject to a condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) without being subject to a condition that is the same, or substantially the same, as the previous condition, the development may proceed notwithstanding any non-compliance with the previous condition (but the development must comply with any other condition imposed by the new provision).

Next, we come to a transitional provision for development subject to a new condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) which imposes a new condition which is not the same, or substantially the same, as a condition which applied under the previous provision, then if it began, or a prior approval application was made, before 1st August 2021, the development may proceed irrespective of whether the new condition has been complied with (but the development must comply with any other condition imposed by the previous provision).

Finally, there is a transitional and saving provision for development which is no longer permitted by the GPDO. This applies to development (“protected development”) which was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) but is no longer permitted by the GPDO on or after 1st August 2021, provided that the land or building was in use immediately before 1st August 2021 for a purpose which qualified it for PD under the previous provision. In this case, the GPDO has effect in relation to such protected development up to and including 31 July 2022 as if the amendments made with effect from 1 August 2021 had not been made. This saving extends beyond 31 July 2022 in relation to the processing and determination of any prior approval application made in respect of such protected development on or before 31 July 2022, and also the determination of any appeal proceedings related to such a prior approval application. In the same way, this saving provision applies to the completion of such protected development which began, or in respect of which a prior approval application was made, on or before 31 July 2022, as if the amendments the GPDO that took effect on 1 August 2021 had not been made.

Where this saving provision applies, a reference in the GPDO to a use or use class specified in the Use Classes Order is a reference to the previous version UCO before the 2020 changes to the use classes in that Order. However, where the protected development consists of a change of use of a building under paragraph I(a) of Class I (industrial and general business conversions) in Part 3, as it applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (g) (business uses) of Use Class E (commercial, business and service), the building must not, in the absence of further planning permission, be used for any other purpose within Class E.

Furthermore, where the protected development consists of a change of use of a building under Class S (agricultural buildings to state-funded school or registered nursery) or T (business, hotels etc to state-funded schools or registered nursery) in Part 3, as they applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (f) (registered nurseries etc) of Use Class E, the building must not, in the absence of further planning permission, be used for any other purpose within Class E (including another purpose within Class E(f)).

© MARTIN H GOODALL

GPDO tidied up

We have known throughout the past year that the GPDO was going to have to be amended to bring it into line with the changes to the UCO that took effect last September. Transitional provisions saved references in the GPDO to the pre-September Use Classes for the purposes of permitted development. However, these transitional provisions expire at the end of this month, and so it was essential for the government to make appropriate amendments to the GPDO to bring it into line to the revised version of the UCO. This has now been done in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 [SI 2021 No.814], which was made on 7 July, laid before parliament on the 9th and will come into force on 1 August.

The new order makes amendments to the provisions of Parts 1, 3, 4, 7, 8, 11 and 20 of the Second Schedule to the GPDO but, for the moment, I shall confine myself to the changes made to Part 3, dealing with permitted changes of use.

Class A, in its original form permitted a change of use from A3, A4 or A5 to A1 or A2. The right to make this change of use from A4 was later removed. As now amended, Class A will in future permit a change of use from a casino, betting office, pay day loan shop or hot food takeaway to a use falling within Class E (commercial, business and service use), but will still not permit a change of use from a public house, wine bar or drinking establishment. [Change of use from a café or restaurant to some other commercial, business and service use no longer needs its own PD right, because it is no longer development at all.] The PD right under Class A is subject to the condition that, before beginning the development, the developer must notify the LPA in writing of the date on which the use of the building will change. No prior approval application is required.

Class AA, as now re-drafted, will permit a change of use from public house, wine bar or drinking establishment to the same use with expanded food provision and it will also permit the converse change.

Classes B, C, D, E and F are now formally removed from Part 3 (as they have now been rendered redundant).

Class G is amended to reflect last year’s changes to the UCO. It will now permit change of use from a use within Class E to a mixed use for any purpose within that Class and as up to two flats. This Class will also permit a change of use from a betting office or pay day loan shop to a mixed use for any purpose within Class E and as up to two flats.

There is now an added requirement in Class G, before beginning development, to apply for prior approval as to:
- contamination risks in relation to the building,
- flooding risks in relation to the building,
- impacts of noise from commercial premises on the intended occupiers of the development,
- the provision of adequate natural light in all habitable rooms of the dwellinghouses, and
- arrangements required for the storage and management of domestic waste.

Class H is similarly amended to reflect the change to the UCO. It will now permit a change of use from a mixed use for any purpose within Class E and as up to two flats, to a use for any purpose within that Class, and also a change of use from a mixed use comprising a betting office or pay day loan shop and as up to two flats to use for any purpose within Class E. The exclusion in paragraph H.1 is also re-worded to bring it into line with the revised wording of the UCO.

Class I formerly permitted changes of use from B2 or B8 to B1, or from B1 or B2 to B8 (subject to certain floorspace limits). As re-redrafted, it will be limited to the change of use of a building from any use falling within Class B2 to a use within Class B8, subject to a 500 sq m floorspace limit.

Classes J, JA and K are now removed from Part 3.

Class L, which permits a change of use from C3 to C4 and vice versa, remains unchanged.

Class M has been largely replaced by Class MA, but has been retained to deal with certain residential conversions that are not covered by Class MA. As revised, Class M will now permit the residential conversion of a launderette, betting office, pay day loan shop or hot food takeaway, and also the residential conversion of a building in a mixed use combining use as a dwellinghouse with use as a launderette, betting office or pay day loan shop (whether that use was granted permission under Class G or otherwise). Class M(a) permits only a change of use, but Class M(b) permits both the change of use itself and also building operations reasonably necessary to convert the building for residential use. This reflects the current position.

The matters requiring prior approval under Class M previously included the ‘retail impact’ of the proposed residential conversion of the building. No corresponding provision was included in the new Class MA. Thus, (as previously note in relation to Class MA), any general retail impact is no longer a matter with which the LPA can concern itself. Even the impact on the sustainability of a key shopping area is no longer relevant. With one exception, the issue of retail impact has now been similarly removed from Class M, so that it now applies only to the impact on the adequate provision of services of the sort that may be provided by a launderette (but only where there is a reasonable prospect of the building being used to provide such services).

The new Class MA, has been amended even before it had come into force. This change comprises the introduction of a requirement for fire risk assessment to be taken into account in some circumstances. In any such cases, the LPA must approve the fire safety impacts on the intended occupants of the building. (This provision is really too complicated to explain in detail here.) Where the application relates to prior approval as to fire safety impacts, on receipt of the application, the local planning authority must consult the Health and Safety Executive.

Also in Class MA, approval of highways impacts of the development must include particularly the need to ensure safe site access.

Class N is unaffected by the changes to Class 3, rare though residential conversions under this Class may be in practice.

Class O will be replaced with effect from 1 August by Class MA, but the previous amendment regulations provided that any prior approval application under Class O can be made up to 31 July 2021, and Class O will continue to operate after that date where a prior approval application had been made by that deadline. To that extent, Class O remains for the time being in Part 3, but will die a lingering death as Class O applications in the pipeline on 1 August slowly work their way through the system and are subsequently implemented, rather in the same way as the former Class P and Class PA (although the latter has in effect been revived by the introduction of Class MA).

As noted previously, Classes P and PA are now effectively redundant, except as regards the implementation of prior approvals granted under those two Classes. I note that even now there are a few late appeals under these provisions working their way through the system.

Everyone will no doubt breathe a great sigh of relief that no further amendments have been made to Class Q.

As redrafted, Class R will now permit development consisting of a change of use of an agricultural building to a flexible use falling within one or other of Classes B8, C1 or E.

Class S, will no longer permit change of use to use as a registered nursery. So, in future, this Class will permit a change of use only to a state-funded school. The scope of Class T will be similarly limited from now on. The uses from which a change of use can now be made under Class T will be C1, C2, C2A and E.

Similar changes are made to Part 4 (temporary changes of use), but I was rapidly losing the will to live by the time I got to this part of the amendment order, so I’ll leave it there for now.

I should just mention finally that there are transitional and savings provisions that are set out in the Schedule to the amendment order, which preserve for a time the effect of certain PD rights that have now been removed from the GPDO and which provide for the transition between the old and new rules. I will return to these in a later post.

© MARTIN H GOODALL

Can actual qualification as PD be determined in the context of a prior approval application?

On 29 March, in a blog post on the scope of a prior approval application, I drew attention to a case that was then pending in the High Court which raised this issue of whether LPAs have the power when considering a prior approval application to determine whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. At the time, I did not know the subject matter of the dispute in that case, nor did I know under what Part or Class in the Second Schedule to the GPDO the proposed development was alleged to fall, but I was hoping that the High Court judgment in this case might perhaps help to remove the remaining uncertainty that I had identified with regard to prior approval applications under Part 3, one way or the other.

Unfortunately, my hopes were not to be realised, as it turns out that this case R (Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) was yet another case on agricultural PD under Part 6, so it doesn’t shed any further light on the treatment of prior approval applications under Part 3 (in respect of which the legislative rules differ slightly from those applying to Part 6). It is nevertheless an important judgment for two reasons.

On one reading of the Court of Appeal’s judgment in Keenan v Woking BC, it is possible to conclude that under the terms of Part 6, the LPA does not have the power to determine whether or not a proposed development under that part of Schedule 2 does or does not qualify as permitted development, and the Court of Appeal had stressed that this is so, despite the fact that the guidance in paragraph E14 of Annex E to former PPG7 might have been read as encouraging it to do so. Clearly, however, Keenan is capable of being distinguished, as it has been in Smolas.

The argument in Keenan had been that, as a result of the LPA’s having ignored a Part 6 prior approval application, the applicant had been entitled to proceed with his development in default (under the ’28-day’ rule). This argument was rejected both at first instance and in the Court of Appeal. Keenan ruled conclusively that if a development simply does not qualify as PD in any event, what (if anything) the LPA does in response to a prior approval application in respect of that application cannot make the development lawful. The failure or refusal of the LPA in such circumstances to respond to the prior approval application cannot give rise to a right to proceed with the development in default. The ’28-day rule’ does not come into operation in these circumstances.

What is clear from the judgment in Smolas is that if the LPA concludes that the proposed development does not qualify as PD, it is perfectly entitled to give that as a reason for refusing prior approval. The LPA was not exceeding their powers in dealing with the matter in that way. To that extent the decision in Keenan has been distinguished. In this case, the Council had issued a decision notice that simply stated that Planning Permission would be required for this development because they were not satisfied that the development was reasonably necessary for agriculture on that planning unit. This, the court held, was perfectly lawful. I am bound to say that this appears to me to be an eminently sensible conclusion.

The judgment in Smolas also resolves another issue that has been the subject of debate for some time. Is it lawful for an LPA to determine that their prior approval under Part 6 will be required and to grant or refuse such prior approval at one and the same time? The argument that has sometimes been put forward is that the LPA, having determined that their prior approval will be required should then give the applicant the opportunity to put forward further information in support of their proposed development (in the case of Part 6, as to the siting and design of the development). The counter-argument to this is that if the LPA considers that the application before them already gives them sufficient information to determine the siting/design issue, then they are not obliged to go through any additional procedure, but can decide whether or not to grant prior approval on the basis of the material already before them. The judgment in Smolas confirms that the latter approach is perfectly proper.

In normal circumstances, the appropriate remedy for a developer refused prior approval in this way would be to appeal against that refusal under section 78 of the 1990 Act. In the case of Smolas, however, the court accepted that the argument as to whether or not this was within the LPA’s powers made it necessary for the matter to be pursued by way of an application in the High Court for judicial review under CPR Part 54. However, in the vast majority of cases, an appeal under section 78 would be the only appropriate remedy.

© MARTIN H GOODALL

Planning radicalised – or a ‘damp squib’?

Last year, the government published a controversial and much criticised White Paper on some wide-ranging planning ‘reforms’, which canvassed radical proposals for shaking up the English planning system. There was another fanfare (with the accompanying ballyhoo in the press) when, on the day before the Queen’s Speech last month, the Prime Minister announced with his usual hyperbole that the government was definitely going ahead with these revolutionary changes. The Queen’s Speech duly contained the announcement of a Planning Bill to put these proposals into legislative form.

After that, however, it quickly became clear that the government is in fact nowhere near ready to go ahead with the promised Bill. It emerged in the weeks that followed that as a result of strenuous opposition within Tory ranks, the government is far less determined to press ahead with their planning proposals than the PM made out. Considerable alarm was caused among party loyalists early in May by the loss of control of several councils in the south of the country, as a result of growing public opposition to the perceived threat of development in traditionally Tory-held areas.

For many years, there has been unresolved tension inside the Tory party between the gung-ho free marketeers on the one hand and a more conservationist faction (NIMBYs, if you like) on the other hand. The latter clearly had the upper hand when the Conservatives got back into government in 2010, having campaigned on a policy of ‘localism’, and promising electors that in future they would have local control over development in their area. Eric Pickles, as Secretary of State for Communities and Local Government, immediately set about putting this localism agenda into action, with the abolition of government-imposed Regional Spatial Strategies and the introduction of locally formulated Neighbourhood Plans.

Those of us who had been professionally involved in planning and development for many years did not believe that this new approach could be maintained and, as we expected, ‘localism’ was gradually watered down until, with the publication of last year’s White Paper, it seemed that the last vestiges of ‘localism’ were to be swept away, to be replaced by a radically overhauled planning system which would put an end to local residents’ ability to query and oppose unwanted development in their area. Unsurprisingly, this led to considerable push-back at a local level from Tory councillors and local party members, which in turn led to increasing pressure on backbench MPs to resist these proposals.

The government’s initial reaction was a robust reaffirmation of their determination to push ahead with their proposals, as evidenced by the PM’s statement on the eve of this years’ Queen’s Speech. Then Robert Jenrick (the current Secretary of State) was sent out to ‘reassure’ Tory backbenchers that it wasn’t going to be as bad as all that. This, however, has clearly failed to quell the disquiet in Tory ranks, which has only intensified in light of last month’s worrying local election results. As a result, there have been increasing hints that the government itself is now rowing back from its earlier gung-ho approach to their proposed planning ‘reforms’.

It would not be altogether surprising if the promised Planning Bill does not in fact come forward in the current parliamentary session, despite its announcement in the Queen’s Speech, or if it does that it may be delayed until later in the session. Any expectation, raised by the PM’s pre-Queen’s Speech announcement, that the promised Planning Bill would be introduced almost immediately was clearly misleading. At present, it is not even possible to predict which proposals from last year’s White paper will in fact survive to be included in the Bill. There is now a widespread expectation, even among government supporters, that what may emerge is likely to be a considerably watered-down version compared with the government’s original proposals, which will be much less radical in its effect than the government had hoped.

Even if we set aside speculation about the timing and contents of the Planning Bill, long experience has taught me that it is unwise to get too excited about parliamentary bills when they are first introduced. They usually look very different by the time they get to Royal Assent, mainly due to the government having second and third thoughts as the Bill goes through parliament. Opposition amendments are usually voted down (especially when the government has an 80-seat majority), although in this case, threatened backbench revolts on the government side over the Bill’s contents may persuade the government to back down on some clauses in the Bill if these still prove to be unacceptable to a significant number of their own backbenchers.

So I am prepared to predict that the resulting Planning Act, when it eventually reaches the statute book, is unlikely to work in the way the Prime Minister suggested ahead of the Queen’s Speech. It may become easier to gain planning permission for housing development; but this isn’t guaranteed, and many of the delays and expensive procedural hurdles for developers may continue to hamper the actual delivery of new housing. So my overall conclusion is that those of us in the planning and development sector will just have to “Wait and see”.

UPDATE (21.6.21) : Following the shock result of the Chesham and Amersham byelection last week, it comes as no surprise that backbench Tory MPs are getting even more jumpy about the government's proposed planning 'reforms'. There will clearly be intensified pressure on the government to row back from its more radical proposals, if not to drop them altogether. It seems that ministers are still trying to bluff and bluster their way through this 'noise', but at the very least I would expect some substantial further delay in the introduction of the promised Planning Bill while ministers decide how far they might be able to go in implementing their original proposals. A complete U-turn on the part of the government cannot be ruled out, so don't be surprised if we don't even see the Planning Bill introduced this year.

© MARTIN H GOODALL

Partial demolition in advance of permitted development

In paragraph 9.4.3 of Chapter 9 in the Third Edition of A Practical Guide to Permitted Changes of Use, I discussed works carried out to an agricultural building in advance of its residential conversion (and in advance of a prior approval application being made under Class Q of Part 3). However, I did not deal in that chapter with the question of partial demolition of the building in advance of such conversion.

The position regarding the entire demolition of a nearby or adjoining building that is physically separate from the subject building is straightforward. In many cases, such demolition will be permitted development under Class B of Part 11 (subject to compliance with the terms set out in Part 11).

However, the position in respect of the demolition of a complete building is wholly different from that applying to the partial demolition (or the demolition of part only) of a building. Although Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168 related to a listed building (and specifically to the provisions of the ‘Listed Buildings Act’ of 1990), the judgment of the House of Lords in that case dealt with the issue of whether the definition of ‘demolition’ includes the demolition of part only of a building, or whether such partial demolition is in fact to be treated as an ‘alteration’.

This point was discussed in the speech of Lord Hope, where he observed on page 183: “According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. I agree therefore with Millett L.J. [1995] 1 E.G.L.R. 167, 169, when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone.” Conversely, therefore, partial demolition (or demolition of part only) of a building amounts to an alteration, rather than ‘demolition’.

The Town and Country Planning (Demolition - Description of Buildings) Direction 2021 (which, by virtue of section 55(2)(g), exempts from the definition of “development” in section 55 the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities) makes it clear that the reference to “building” in that direction does not include part of a building. Furthermore, although Class B in Part 11 of the Second Schedule to the GPDO permits “any building operation consisting of the demolition of a building” subject to certain restrictions and also a requirement for a prior approval application to ascertain whether the approval of the LPA is required as to the method of demolition and any proposed restoration of the site (in addition to certain other requirements), Article 2 of the GPDO provides that, in this Order, “building” includes any part of a building, except [inter alia] in Class B of Part 11. So this permitted development right does not extend to partial demolition (or the demolition of part only) of a building.

Demolition of an entire building can clearly be carried out as permitted development under Class B of Part 11, but partial demolition needs planning permission, but if it is an agricultural building, such partial demolition might possibly be permitted development under Part 6, either within Class A(a) [the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of works for the erection, extension or alteration of a building] or Class B(a) [the carrying out on agricultural land comprised in an agricultural unit, of not less than 0.4 but less than 5 hectares in area, of development consisting of the extension or alteration of an agricultural building], but only where the development is reasonably necessary for the purposes of agriculture within the unit, and subject to a prior approval application being made.

The problem here is that paragraph Q.1(f) specifically rules out permitted development under Class Q of Part 3 if development has been carried out anywhere on the established agricultural unit since 20 March 2013 under Part 6, Classes A(a) or B(a) (or, where the development under Class Q begins after 20 March 2023, within 10 years before the date when development under Class Q begins). So the only partial demolition of the building that could be carried out without jeopardising the PD right under Class Q would be the demolition of internal partitions or other internal features which (provided that any such works affect only the interior of the building or do not materially affect the exterior appearance of the building) would be exempt from the definition of ‘development’ by virtue of section 55(2)(a) of the 1990 Act.

Partial demolition of an agricultural building will only be permitted development under Part 6 if it has been the subject of a prior approval application (and if it meets the agricultural need test). However, partial demolition of an agricultural building without planning permission (whether under Part III of the 1990 Act or under Article 3 and the Second Schedule of the GPDO) would be unlawful. Article 3(5) of the GPDO provides that the permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful. It might conceivably be argued that any unlawful partial demolition of the agricultural building could not have amounted to “building operations involved in the construction of that building”, but this would still appear to me to be problematic. It might, for instance, be argued against this that the building in its current (partially demolished) form results from building works to produce the building in that altered form, and that such building operations were therefore “involved in the construction” of the building to arrive at that altered form.

So the conclusion must be that partial demolition of an agricultural building in advance of its residential conversion without the risk of jeopardising the permitted development right under Class Q of Part 3 can only safely be undertaken under the terms of a planning permission granted under Part III of the 1990 Act. There should be no need in making such a planning application to demonstrate any agricultural or other need for such partial demolition, and there should in most cases be no planning objection to such partial demolition (assuming that the building is not a heritage asset, either designated or undesignated).

It is clear, despite the views expressed by some planning officers, that when a prior approval application under Class Q is submitted, the physical form and condition of the building must be considered as at that date. Where there has been any alteration to the building before the submission of the prior approval application, such as structural strengthening or partial demolition within the building, this will be immaterial if, by virtue of section 55(2)(a), it did not constitute development. Where that alteration (or those alterations) did amount to development under section 55, then it would fall to be considered in the manner outlined above. The point is that any such previous alterations cannot be taken into account by reference to paragraph Q.1(i) (because they do not form part of the development in relation to which the prior approval application is made); they will only be relevant to the question of possible disqualification under Article 3(5) or under paragraph Q.1(f).

Just to ensure that no-one is under any misapprehension, entire demoiltion of the subject building would result in the complete loss of permitted development rights, which can only subsist in respect of an extant building. If the building ceases to exist (for whatever reason), all existing use rights are lost, as is any permitted development right that might otherwsie have attached to that building.

© MARTIN H GOODALL

Class MA - Some further points

In my post yesterday, I briefly summarised the provisions of the new Class MA in Part 3. However, it is worth bearing in mind some other points to which I did not have time to draw attention yesterday, including one or two deliberate omissions from Class MA.

Residential conversion of several types of premises that are sui generis uses is not permitted by Class MA. Thus, in contrast to Class M, this PD right does not extend to hot food take-aways, betting offices, pay day loan shops or launderettes. I do not know whether this omission was deliberate or inadvertent, or whether the government may add these to Class MA in the future.

Second, also in contrast to Class M, the PD right under Class MA does not include any building operations. This is in line with Classes O and PA, which Class MA also replaces. So, planning permission will be required in the vast majority of cases for external alterations to the building, including new doors and windows, and other external details. LPAs should bear in mind, however, that planning permission for the change of use itself is already granted by Article 3 of the GPDO (as well as all internal alterations to convert it to residential use – covered by section 55(2(a)). It follows that the only issues for the LPA to consider in determining a planning application for such building operations are those that relate strictly to those building operations themselves, including aesthetic and other material considerations (if any).

In Class M, the requirement for a prior approval application included the following matter:

- whether it is undesirable for the building to change to a residential use because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Use Class A1 (shops), Use Class A2 (financial and professional services) ……… , but only where there is a reasonable prospect of the building being used to provide such services, or (where the building is located in a key shopping area) on the sustainability of that shopping area.

This requirement is not repeated in Class MA, so the retail impact that may result from the residential conversion of retail premises, even in a key shopping area, is no longer a matter with which an LPA can concern itself. The only ‘protected’ uses whose loss must be considered are NHS health centres and registered nurseries. Clearly, therefore, (despite ministerial protestations to the contrary) the government is content to preside over the decline and death of England’s town centres.

Furthermore, Class MA (unlike former Class PA) does not include as a matter requiring prior approval:

- where the authority considers the building to which the development relates is located in an area that is important for providing industrial services………, whether the introduction of, or an increase in, a residential use of premises in the area would have an adverse impact on the sustainability of the provision of those services

Instead, the relevant matter that may require the LPA’s prior approval under Class MA is the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses [which is not the same thing at all]. Here again, the LPA is precluded from considering the impact of the loss of industrial premises. So planning officers can forget any idea of protecting employment land where residential conversion is proposed under Class MA.

A couple of final points are worth bearing in mind. First, although prior approval is required in respect of the provision of adequate natural light in all habitable rooms of the dwellinghouses, and there is no reference here to the adequacy of the residential accommodation, Article 3(9A) makes it clear that Schedule 2 does not grant permission for, or authorise any development of, any new dwellinghouse where the gross internal floor area is less than 37 square metres in size, or that does not comply with the nationally described space standard issued by the former DCLG on 27 March 2015. On the other hand, adequacy of amenity space, provision for refuse storage, etc. is not a matter with which the LPA can concern itself in relation to Class MA.

The second point is that paragraph W of Part 3 applies to the processing of all prior approval applications under Part 3, and so the 56-day Rule will apply to Class MA in the same way. Planning officers must therefore be alert to the need to issue a determination within the 56-day period, which commences on the day following receipt of a completed application. So LPA officers should not waste time in deciding whether of not to ‘validate’ the application. If it does not comply with the rules, it can be rejected under paragraph W(3).

I dare say there are other ramifications to Class MA that will become clear in the light of experience, but that will do for now. Happy town planning!

© MARTIN H GOODALL

Government goes ahead with new PD rights

Readers are no doubt getting used by now to the meaning of the word “Consultation”. The government announces a proposed legislative change (in this case making important changes to the GPDO). They invite comments, prompting numerous vociferous objections. Then they totally ignore these responses and go ahead with the changes anyway. That’s “Consultation”.

The opposition in this case came not merely from ‘the usual suspects’, but also from important elements in the property industry, who might perhaps have been expected to support the greater freedom to redevelop commercial property. So concerned are the professional bodies with the potential impact of these changes that even after these amendments to the GPDO were made last week, the RTPI, the RIBA, the RICS and also the CIOB [Chartered Institute of Building] wrote to the Prime Minister to express their concern that these latest PD changes could present a real risk to the country’s town centres and to small businesses in particular. However, I doubt whether the government will take any notice.

The latest changes to the GPDO came in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 [SI 2021 No. 428], which was made on 30 March and comes into force on 21 April, although (as explained below) the new PD rights do not in fact take effect until 1 August. It applies both to England and to Wales. [But is this right? What about the devolution of planning powers to Welsh Ministers? See comment below for an explanation.]

I am not going to attempt to set out the new provisions in any detail. What follows is simply a summary of some of the main points. In Part 3, Class M (the residential conversion of buildings formerly within Use Classes A1 and A2) and Class O (the residential conversion of offices formerly within Use Class B1(a)) will cease to apply after 31 July, and will be replaced by the new Class MA, which (subject to the restrictions and limitations mentioned below) will extend to all buildings falling within the current Use Class E.

This new PD right will also have the effect of replacing (and in effect reviving in a new form) the lapsed PD right that was formerly granted by Class PA. Only Class N (the residential conversion of an amusement arcade or centre, or a casino, each of which is a sui generis use) remains in its original form. Whether it was an unintentional oversight or a deliberate change, the effect of the abolition of Class M is to put an end to the PD right for the residential conversion of betting offices and pay day loan shops (with or without flats above them). This aspect of Class M has not been subsumed within the new Class MA.

There are the usual restrictions, which exclude certain buildings from this PD right. The most important of these is the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval [although this would hardly seem long enough to prevent the practice on the part of unscrupulous landlords of ‘winkling out’ existing tenants].

Another essential qualification is that the use of the building must have fallen within one or more of the old ‘town centre’ and similar use classes (i.e. A1, A2, A3, B1, D1(a), D1(b), or D2(e) (other than use as an indoor swimming pool or skating rink) and/or the new Class E, for a continuous period of at least 2 years prior to the date of the application for prior approval. The cumulative floor space of the existing building changing use under Class MA may be up to a fairly generous limit of 1,500 square metres. Some of the usual exclusions apply to buildings or their curtilage will apply to Class MA (SSSI, Listed Building, Scheduled Monument, Safety Hazard Area, Military Explosives Storage Area, AONB, the Broads, National Park or World Heritage Site and also if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained).

PD under Class MA will be subject to a prior approval application being made in respect of transport impacts of the development (particularly to ensure safe site access), contamination risks in relation to the building, flooding risks in relation to the building, impacts of noise from commercial premises on the intended occupiers of the development, the provision of adequate natural light in all habitable rooms of the dwellinghouses, the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, or for waste management, storage and distribution, or a mix of such uses. Where the development involves the loss of services provided by a registered nursery, or a health centre maintained under section 2 or 3 of the National Health Service Act 2006, the impact on the local provision of the type of services lost, this will also be a matter requiring prior approval.

Although the location of the building within a conservation area is not a disqualification in the case of Class MA, the impact of that change of use on the character or sustainability of the conservation area will be a matter requiring prior approval, but only where the development involves a change of use of the whole or part of the ground floor.

An application for prior approval for development under Class MA may not be made before 1 August 2021. Development must be completed within a period of 3 years starting with the prior approval date, and any building permitted to be used as a dwellinghouse by virtue of Class MA is to remain in use as a dwellinghouse Use Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the use as a dwellinghouse.

Various changes have also been made to Parts 7, 8, 11 and 20 in Part 2 of the Second Schedule to the GPDO, which I haven’t got time to discuss here. One important transitional provision is to preserve the effect of existing Article 4 Directions in respect of PD under Class O for a further year. Until the end of 31 July 2022, a direction issued under article 4(1) of the GPDO that is in effect immediately before 1st August 2021,and which withdraws permission for all or any development, or for any particular development, granted for Class O of Part 3 of Schedule 2 to the GPDO, and which has not been cancelled in accordance with the provisions of Schedule 3 to the GPDO, will remain in effect as if a reference to any development permitted under Class O included a reference to the equivalent development under Class MA of Part 3 so far as that development would, but for the direction, be permitted under Class MA.

Finally, there is one minor amendment to the Use Classes Order. This change has the effect of excluding use as a swimming pool or skating rink from Class E, so that these two uses will now fall solely within Class F.2(d). I commented on the apparent anomaly of a swimming pool or skating rink falling alternatively within either Class E or Class F.2 on page 360 of the Revised Edition of The Essential Guide to the Use of Land and Buildings under the Planning Acts (pages 16/17 in the November 2020 Supplement). I also pointed out one or two other anomalies of a similar nature in the UCO as revised last year, and it will be interesting to see whether the government takes the opportunity to deal with those too in future amendments to the UCO.

© MARTIN H GOODALL

The scope of a prior approval application

One of the issues that has arisen in relation to prior approval applications is whether in determining either that their prior approval will not be required or that prior approval is granted, the LPA is impliedly determining that the proposed permitted development does qualify as such, so that the LPA cannot subsequently resile from their decision on the ground that the development does not in fact qualify as permitted development.

This problem became particularly acute following the judgment in Hibbitt regarding the permissible extent of building operations under Part 3, Class Q. Several LPAs, having granted prior approval for Class Q developments then sought to go behind the prior approval they had granted, because they then came to the conclusion in light of Hibbitt that the development in respect of which they had granted prior approval could not in fact be carried out as PD.. I discussed this issue in paragraph 16.2 of Chapter 16 in the Third Edition of my book on Permitted Changes of Use.

So far as permitted development under Part 6 is concerned (allowing certain agricultural building or engineering operations), the Court of Appeal in Keenan v Woking BC was clear that under the terms of Part 6, the LPA does not have the power to determine whether or not a proposed development under that part of Schedule 2 does or does not qualify as permitted development, and it was stressed that this is so, despite the fact that the guidance in paragraph E14 of Annex E to former PPG7 might have been read as encouraging it to do so.

Some LPAs have assumed that Keenan is authority for the general proposition that a grant of prior approval does not amount to a determination that the development in question does qualify as PD. However, as I pointed out in the book, the wording of paragraph W.(3) does appear to give an LPA that power in relation to proposed development under Part 3. Paragraph W.(3) provides that the LPA may refuse an application where, in the opinion of the authority, the proposed development does not comply with (or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with) any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It was on this basis that I expressed the view that there is at least an implication in paragraph W.(3) that the LPA may (and probably will) consider not only the specific matters requiring prior approval, but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question.

It is therefore arguable, I suggested, that in giving its prior approval in respect of the prescribed matters, the LPA impliedly accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W.(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. I suggested that It is arguable that, for this reason, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I suggested that further support for this proposition may perhaps be derived from the judgment of May J in R v Sevenoaks DC Ex p. Palley [1994] E.G. 148 (C.S.), and went on to summarise that judgment and the various judicial authorities that were reviewed in that case. In doing so, I nevertheless conceded that Ex p Palley can have no application in Part 6 cases, in light of the clear decision of the Court of Appeal in Keenan. I also added a caveat that Ex p Palley was decided some years before the House of Lords decision in Reprotech, which perhaps throws some doubt on the extent, if any, that reliance can still be placed on Ex p Palley in other prior approval cases. So my remarks in paragraph 16.2 ended on a somewhat tentative note, with the observation that there could be no guarantee that an argument based on the judgment in Ex p Palley would necessarily be accepted if it were to come before the High Court or the Court of Appeal.

My reason for raising this issue again now is that I have noticed that a case is due for hearing in the High Court on 11 May (R (Smolas) v Herefordshire Council) which raises this issue of whether LPAs have the power when considering a prior approval application of also determining whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. I do not know the subject matter of the dispute in Smolas, nor do I know under what Part or Class in the Second Schedule to the GPDO the proposed development is alleged to fall, but I am hoping that the forthcoming decision in the High Court may perhaps help to remove the remaining uncertainty that I had identified, one way or the other.

© MARTIN H GOODALL

Lawful use – the need for continuity clarified

In my book The Essential Guide to the Use of Land and Buildings under the Planning Acts I pointed out that when an application for a Lawful Development Certificate is made in respect of an existing use, that use (in addition to having been continuous and uninterrupted throughout the 4-year or 10-year period, whichever is applicable) must also be in existence when the application is made. What I wrote (in paragraph 19.5.1 of Chapter 19) was:

“There is, however, a requirement that the use must actually subsist on the date when an application for a Lawful Development Certificate is made, although (having regard to Panton and Farmer) this does not imply that the use must have been continuous since the date on which it became lawful, following 10 years’ continuous use in breach of planning control.”

This statement is correct, but it occurs to me that I should perhaps have explained this proposition in a little more detail. The authority that I had in mind was a passage in the judgment of Robin Purchas QC in Nicholson v SSE [1998] J.P.L. 553, at page 561, where he pointed out that the need for continuity of the breach of a planning condition seemed to him to be consistent with the linked provisions in section 191 for LDCs in respect of uses and operations :

“By section 191(1)(a) the purpose of the application in respect of uses is to ascertain whether “any use of buildings or other land is lawful”. It is plain accordingly that in respect of uses the use must exist at the time of the application. The question is itself also directed to that time. Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past in that generally they will already have taken place. However, the question is asked, as with “existing uses” and matters of non-compliance, in the present as at the time of the application. In the context of the section as a whole, I find no difficulty in reading that as a requirement that the operation should continue to be in existence in some physical sense, be it as a building or other structure or as may be. That seems to me to fit with the definition of lawfulness in section 191(2). As with section 191(3), lawfulness for uses and operations requires under (b) consideration whether they “do not constitute a contravention” of an enforcement notice then in force. As I have said, that seems to me to presuppose that there is something in existence at the time of the application which would be capable of contravention if there was in fact a relevant enforcement notice then in force. Equally, under (a), the requirement that “no enforcement action may then be taken” implies that there is something in existence against which enforcement action might be taken if it were not for the absence of requirement for permission or the grant of permission or the expiry of time for enforcement action. To my mind, the natural reading of section 191 in respect of uses and operations is that the section requires that the uses and operations should exist at the time of the application in the sense that I have indicated. That would be consistent with the approach that I have taken to non-compliance. Any other interpretation would seem to me somewhat to strain the language used and should only be adopted if the natural construction plainly conflicts with the object of the Act or otherwise leads to an absurd or illogical result.”

This passage was obiter but Nicholson was nevertheless cited with approval in the Court of Appeal in Swale BC v FSS [2005] EWCA Civ 1568, at para. 6 (Keene LJ), and was further discussed in Ellis v SSCLG [2009] EWHC 634 (Admin).

In paragraph 19.5.1 of The Use of Land….. I also pointed out that, having regard to Panton and Farmer v SSETR [1999] J.P.L. 461, the need for the actual existence of the use at the time of the LDC application does not imply that the use must have been continuous since the date on which it became lawful, following 4 years’ or 10 years’ continuous use in breach of planning control (whichever is applicable). The relevant passage in Panton is to be found on page 468:

“Mr Albutt's skeleton argument appeared to suggest that an "existing" use for the purposes of section 191(1) described one which was active at the time of the application. During the hearing I suggested the term "dormant use", as representing a use which had arisen by way of a material change of use, but was now inactive, possibly for a long period of time. Such decline, even cessation, of physical activity could, of course, occur in countless different circumstances. The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above.

It is clear that a dormant use, in this sense, can be an "existing" use for the purposes of section 191(1), and this position was in terms accepted by the first respondent. This becomes clear when one appreciates that the LDC provisions have to be construed in the context of the enforcement provisions as a whole. Section 191 (1) enables the grant of a certificate where a use is lawful, one example of lawfulness being immunity from enforcement through the passage of time. By section 171B(3) the relevant period of time (in relation to a use other than as a single dwelling-house) is the passage of10 years from the date of the breach. The subsection is silent on any requirement for continuation of the use. Indeed; this approach is consistent with the fundamental principles of statutory development control in relation to material changes of use. The provisions are concerned with the carrying out of development, that is to say not use, but material change of use.

Further, this approach to the term "existing", shared by the first respondent in this case, is consistent with the approach taken by the Secretary of State in relation to the former provisions. Under the previous provisions relating to established use certificates, the use had to have "continued since the end of 1963", and be "subsisting at the time of the application". In a number of appeal decisions, the Secretary of State accepted that these provisions could apply to an inactive, or dormant, use, provided that it had not been abandoned.

Finally, there is nothing inconsistent, in my view, between this approach and the judgment of Mr Robin Purchas Q.C. (sitting as a deputy High Court judge) in Nicholson v. SSE (1998) 76 P. & C.R. 191. That decision concerned the time limits for enforcement in relation to breaches of condition. Mr Purchas held that an LDC could only be granted where the non-compliance with the planning condition was current at the date of the application. As Mr Purchas pointed out, if there were a period, following non-compliance, of compliance with the condition, the breach would be at an end, and a later breach would constitute a fresh breach, in relation to which time would begin to run again under section 171B(3). As he pointed out: "In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use". The learned deputy judge continued in the following terms at page 199:

"That construction seems to me consistent with the linked provisions in section 191 for lawful development certificates in respect of uses and operations ... It is plain, accordingly, ……. [the passage I have quoted above] ………. would be consistent with the approach that I have taken to non-compliance."

There is nothing inconsistent, in my view, between those remarks and the approach that I take in the present case, an approach accepted by the first respondent. The burden of Mr Purchas' s reasoning is that there must be, at the date of the application, a use or operation at the land upon which an enforcement notice could "bite". An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense.”

The only other point that needs to be borne in mind when considering the judgment in Panton is that the Court of Appeal made it clear both in SSETR v Thurrock BC [2002] EWCA Civ 226 and in Swale BC v FSS [2005] EWCA Civ 1568 that the remarks in Panton regarding a use being dormant do not apply to the period before immunity from enforcement is achieved, i.e. during the 4-year or 10-year period, throughout the whole of which the use must be both active and continuous. The rule in Panton nevertheless applies once immunity has been achieved under the 4-year or 10-year rule.

Thus there is no contradiction between what I wrote in my book on The Use of Land….. and what Richard Harwood wrote in the Third Edition of Planning Enforcement, viz: “If the active use ceased after it became lawful, a CLEUD application should only be refused if the use was then abandoned or otherwise terminated”. In paragraph 19.5.1 of my book I did not intend to imply that the use has to be active at the time when an application for an LDC is made; merely that it still has to exist (in the sense of not having permanently ceased or been abandoned). I fully accept that a use, once it has become lawful may then become dormant but still remain extant. The judgment in Panton and Farmer is clear authority for this and, in these circumstances, an application for an LDC in respect of an existing use must be granted accordingly.

© MARTIN H GOODALL

Confiscation orders – Panayi over-ruled

Back in April 2019, I reported on a decision of the Court of Appeal in R v Panayi [2019] EWCA Crim 413, which seemed to cut down the scope of a confiscation order that could be made under the Proceeds of Crime Act 2002 (‘POCA’). In that case, the defendant had been charged with being in breach of an Enforcement Notice "on or about 18 February 2016". The LPA had sought a confiscation order calculated on the basis of the gross rental income from two self-contained flats occupying an unauthorised enlargement of the property in question, from the date by which the Defendant should have complied with with the Enforcement Notice (12 February 2005) to the date of conviction (26 September 2016).

However, the Court of Appeal held in that case that the offence charged had to be interpreted as relating to a criminal offence committed on a single day in February 2016, on or about the 18th of that month. That was the only criminal conduct of which the appellant was convicted. It was up to the LPA, as the prosecuting authority, to decide the period over which the conduct charged should extend. As the Court of Appeal pointed out, section 179(6) of the 1990 Act gives the option to the prosecutor of charging by reference to any day or longer period of time, but it had chosen in this case to charge the offence in respect only of a single day, and so a confiscation order had to be limited to the same period.

I expressed considerable reservations about this decision at the time, because it had previously been my understanding that a confiscation order can be made in repect of “an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence", although this provision is not satisfied unless the defendant obtains relevant benefit of not less than £5,000. It was on this basis that the Court of Appeal had previously upheld a substantial compensation order in Basso & anor v. R. [2010] EWCA Crim 1119.

I ended by confessing my confusion at the apparent inconsistency between Basso (and other similar cases) and the decision that had been reached by the Court of Appeal in Panayi, and I suggested that this apparent discrepancy raised an issue that would have to be reviewed, either by a differently constituted Court of Appeal in a future case, or by the Supreme Court.

This finally occurred when R (Haringey LBC) v Roth [2020] EWCA Crim 967 reached the Court of Appeal in July 2020. I became aware of this case within a day or two of its being decided, but other priorities in the meantime have delayed my reporting on it. In this case, the matter was treated as one of benefit from particular criminal conduct. No reliance was sought to be placed on the criminal lifestyle provisions. The relevant provision was therefore section76 (4) of POCA, which provides that: “A person benefits from conduct if he obtains property as a result of or in connection with the conduct”, and Section 76 (7) provides that: “If a person benefits from conduct his benefit is the value of the property obtained.” As in Panayi, the offence was charged in respect of a single day (in this case, 18 May 2017), whereas the enforcement notice had required that the unlawful use should cease by 9 March 2013, and the Statement of Facts accompanying the summons stated that the defendant had been in breach of the Enforcement Notice for 53 months and had gained a financial benefit from non-compliance in the sum of approximately £508,800. In the confiscation proceedings before the Crown Court, the amount of benefit was agreed at £527,887.55, and this was the amount that the Defendant was accordingly ordered to pay.

In appealing against this order to the Court of Appeal, the Defendant sought to rely on the Court’s decision in Panayi, pointing out that the offence charged was of breaching the requirements of the Enforcement Notice on just one day, i.e. 18 May 2017. In consequence, it was argued, a confiscation order reflecting a period of criminality in excess of four years was not within the Crown Court’s powers. However, Davis LJ, in giving the decision of the Court observed that such an outcome, on so literalistic a reading of the charge, could scarcely appeal to a sense of the merits, and in any event the present case was, in the Court’s opinion, plainly distinguishable from Panayi.

In Panayi the only reference dates in the charge were the date when the Enforcement Notice was actually issued (which would not be the actual time by which compliance was required to take place) and the date of the rejection of a challenge to the refusal to issue an LDC. In the present case, however, the summons did identify the date from which the (criminal) non-compliance had started: i.e. 9 March 2013. The summons, though it was undoubtedly clumsily drafted, sufficiently identified the date when the criminal conduct started (9 March 2013).

Furthermore, the accompanying Statement of Facts, also made it clear that it was the entire period which had been identified that was the subject of the summons. The gross amount of the rent receipts for the relevant period was actually agreed for the purposes of calculating benefit, and the appellant had known the case he had to meet. So, even if there were technical deficiencies in the drafting of the summons, they were not fatal. The Court also noted that where a defendant has positively assented to the counts being treated as specimen counts, even though not specifically so charged, then there is no objection to them being so treated.

The Court also referred to the decision of the House of Lords in Hodgetts v Chiltern DC [1983] 2 AC 120 (a case not referred to in Panayi). That case decided that failure to comply with an Enforcement Notice by ceasing to use the land as required by the notice constituted a continuing offence, and not a succession of individual offences occurring on each day. It was held in that case that an information charging the offence as “on and since May 27, 1980” was validly drafted and was not bad for duplicity, although Lord Roskill (with whose speech the other members of the House agreed) had gone on to say that it might be preferable if such offences were charged as having been committed between two specified dates, starting with the date when compliance with the enforcement notice became due and ending with a date not later than the date of the summons (or the date when the enforcement notice had been complied with, if this had occurred). The Court of Appeal suggested that this guidance might usefully continue to be borne in mind by those drafting summonses under section 179 of the 1990 Act. However, although this undoubtedly represents best practice, it is clearly not a legal requirement.

The Court of Appeal also rejected the appellant’s other arguments, basing themselves both on both Del Basso [2010] EWCA Crim 1119 and Hussain [2014] EWCA Crim 2344. There was no basis or reason for departing from these authorities, and on the contrary the Court endorsed them. The Court also noted that a similar approach had been taken in Evangelou [2019] EWCA Crim 1414.

It is therefore clear that the Court of Appeal has decisively rejected the approach taken to confiscation orders by a differently constituted court in Panayi, and that (provided the period of the breach of an enforcement notice is made clear in the documentation before the Court) a confiscation order can be made by the Crown Court for the gross proceeds received by the defendant throughout the period of the unremedied breach of planning control, even if the summons itself is framed in terms only of a sample charge covering a shorter period or even a single day. It is nevertheless advisable that an LPA should frame the charge to embrace the longer period, thereby obviating any disputes of the type that arose in Roth.

© MARTIN H GOODALL