Musical Chairs, anyone?

When we were small children, Musical Chairs was a favourite party game. It seems that it is still popular with Tory prime ministers. This week’s Secretary of State for Levelling Up, etc. is Michael Gove again. He previously held the post from 15 September 2021 to 6 July 2022 in Bojo the Clown’s government. Unlike other ministers who resigned in the dying days of Bojo’s government, Gove was sacked, apparently in belated revenge for having stymied Bojo’s original ambition to be PM in 2016.

In reality, not a lot has changed as a result of Rishi Sunak’s having taken over the reins of government. Sunak cannot claim, any more than Truss before him, that his is a ‘new’ government. These are the same tired crew who served under both Johnson and Truss. Sunak himself served continuously under both May and Johnson, having first been appointed as a junior minister in the newly re-named Ministry of Housing, Communities and Local Government in January 2018, during Theresa May’s premiership, then as a senior member of the Treasury team in Bojo’s government from July 2019 until his resignation as Chancellor of the Exchequer, when the Chief Clown’s government fell apart in July of this year.

I have deliberately refrained from commenting on emerging planning policy in recent months, because the situation was so fluid that was impossible to tell which parts (if any) of various planning changes that had been canvassed would be implemented in practice. At the moment, there is continuing uncertainty. Sunak is keen on promoting ‘free ports’ - a wizard way to facilitate money laundering and tax avoidance in those areas, as well as diverting existing jobs and investment from other areas. Truss was all set to promote ‘investment zones’ (effectively free ports on steroids), although it was being hinted that Jeremy Hunt, as Chancellor, was concerned at the cost of these, when he is desperate to find savings in government spending. So enterprise zones may prove to be still-born, although Sunak may still want to press ahead with his free ports project.

Other aspects of planning and development policy are still up in the air, and will depend on efforts to resolve the fundamental differences within the Tory party as to how much new development would be acceptable, particularly in the South of England. This is what prevented the implementation of the previous White Paper and led to the demise of the promised Planning Bill during Bojo’s time at No.10. So watch this space over the coming months to see what (if anything) actually comes forward, and whether significant resistance on the Tory backbenches might still defeat such proposals.

© MARTIN H GOODALL

The Environment Act: A Guide for Planners & Developers

Readers of this blog may recall that Bath Publishing held a seminar on this subject in London (and online) last November. This had been intended to launch Tom Graham’s new book on the subject. The government, however, completely messed up the plans for publication of the book by considerably delaying the final stages of the Bill, with numerous last-minute changes to the legislation, so that Tom Graham had to do an extensive re-write (every legal author’s nightmare). Now at last this vital legal guide to the important new rules on environmental protection and bio-diversity can be published, and I am confident that it will serve as an essential guide for developers and for all planning professionals.

The Environment Act 2021 eventually gained Royal Assent on 9 November last year, and created a new governance framework regulating how the nation manages biodiversity, water resources and air pollution, and introducing conservation covenant agreements as an option for developers.

This new regime leans heavily on the planning system, with environmental considerations becoming a key factor in planning and development decision making. Everyone involved in considering or advising on new developments needs to know how the new regime could impact on those plans. In particular, the provisions around biodiversity net gain are set to kick in this November so it is essential that planners, developers and their professional advisers take these new requirements into account now.

So join us to get up to speed in this seminar where Tom Graham, author of The Environment Act: A Guide for Planners & Developers, will be joined by a team of experts in planning law and environmental management to examine some of the key issues surrounding how the environmental considerations will impact on the planning process including:

• a look at the wider policy considerations,
• an update on the biodiversity metric,
• the impact of climate change on planning decisions
• an overview of the practical considerations for planning applications in the light of the new law.

All delegates will receive the print and digital editions of The Environment Act: A Guide for Planners & Developers free (worth £60) which makes for a comprehensive package of resources to get you up to speed with the new regime.

Who should attend?

• Planning consultants
• Planning and environmental lawyers
• Property developers
• Environmental consultants
• Local authority planning officers

Programme

09.30 - 10.00: Registration and refreshments
10.00 - 10.10: Introduction from the Chair (Martin Goodall)
10.10 - 10.40: The Environment Act and National Planning Policy - Alistair Mills
10.40 - 11.10: Biodiversity Metric 4.0 - an update on what's coming - Dr Nick White
11.10 - 11.30: Refreshments
11.30 - 12.00: Climate change & Planning (speaker to be confirmed)
12.00 - 12.30: The Environment Act 2021 - Practical Considerations for Planning and Development - Tom Graham
12.30 - 13.00: Q & A / Round up from Chair

Speakers include:

• Chair: Martin Goodall, author of A Practical Guide to Permitted Changes of Use and The Essential Guide to the Use of Land and Buildings
• Alistair Mills, barrister, author of Interpreting the NPPF and co-author of the Fourth Edition of A Practical Guide to Permitted Changes of Use
• Dr Nick White, Natural England
• Tom Graham, barrister, author of The Environment Act: A Guide for Planners & Developers and A Practical Guide to Planning, Highways and Development

Date & Venue

Date: Thursday 3 November 2022 (from 10.00 - 13.00),
In-person
One Great George Street
London
SW1P 3AA
Online
Via Zoom

Price: £150+ VAT - includes print and digital editions of The Environment Act: A Guide for Planners & Developers worth £60

If you attended last year’s seminar, don’t assume that this is just a re-run of that event. Things have moved on considerably since then, and there is yet more material with which everyone is going to have to get to grips. This book and the seminar will ensure that you can “hit the ground running” (but a lot more successfully than someone else who used that phrase in the recent past!).

I look forward to seeing you there on 3 November, if not in person then online.

P.S. TO MAKE IT EASY FOR YOU TO BOOK FOR THE SEMINAR AND ORDER TOM GRAHAM'S BOOK, I HAVE NOW ADDED A LINK IN THE LEFT-HAND MARGIN ON THIS PAGE SO THAT YOU CAN MAKE YOUR BOOKING DIRECT FROM HERE WITH JUST ONE CLICK.

MARTIN H GOODALL

All Trussed-up and ‘oven-ready’

The Tory Party may well be in for a roasting under Truss and her Truss-pots, but there’s no point in speculating how it’s all going to turn out. Judging by her various pronouncements at sundry Tory leadership hustings, our new PM seems to have been modelling herself not so much on the Blessed Margaret as on Lewis Carroll’s White Queen, who “believed as many as six impossible things before breakfast”. But we should perhaps pay less attention to what politicians say, and concentrate more closely on what they actually do (or don’t do).

Truss’s first actions as PM have been to appoint the members of her cabinet. Far from being an ‘inclusive’ selection from all parts of her party, it represents an almost complete exclusion of those former ministers who supported Sunak’s leadership bid. More significantly, the new cabinet includes many of ‘the usual suspects’. Truss can hardly claim that this is a ‘new’ government. These are the warmed-over remnants of Johnson’s tired crew. Truss herself has served continuously as a senior minister under all three of her Tory predecessors as PM. She cannot escape collective responsibility for the actions of those governments, from George Osborne’s disastrous austerity drive, through the whole ghastly saga of Brexit and its aftermath, and the mis-steps in dealing with the covid virus pandemic, including the scandals surrounding the improper award of lucrative contracts to Tory cronies. She was one of the nodding donkeys around the cabinet table throughout the entire Whitehall farce.

And so we come to the new Secretary of State for Levelling Up, Housing and Communities (a name which does not seem to have been changed, despite Ms Truss having made no mention of “levelling up” in her recent pronouncements). As I predicted only two months ago, Greg Clark’s tenure of this office was destined to be unusually brief. His successor is Simon Clarke, who is the MP for Middlesborough South and East Cleveland. He had previously spent some 18 months in the department, having been a Minister of State (for Regional Growth and Local Government) in what was then ‘De-CLoG’ from 13 February 2020 to 15 September 2021. Clarke has only been in the Commons since 2017, when he won the seat from Labour with a small majority. His majority in 2019 was significantly greater, but this remains a ‘red wall’ seat, which must be at some risk in the next General Election.

New junior ministers in the Ministry will no doubt be appointed in the next day or two.

As to what planning policies the Truss government will pursue, your guess is as good as mine. As I indicated at the beginning of this post, we can’t place much reliance on politicians’ random statements on the subject up to now. We shall just have to wait and see what emerges in practice.

© MARTIN H GOODALL

Greg Clark appointed new Housing Secretary

Greg Clark is Michael Gove’s replacement at DLUHC. He is MP for Tunbridge Wells.

Clark was a junior minister in DeCLoG (the predecessor to DLUHC) from 2010 to 2012, and later went back to DeCLoG as Secretary of State in 2015. He was the Secretary of State between the 2015 General Election and the appointment of Theresa May as PM in 2016, when he was moved to the post of Business Secretary, serving in that office under Theresa May from 2016 to 2019.

Following the replacement of Theresa May as PM by Boris Johnson in July 2019, Clark (who was opposed to a ‘No Deal’ Brexit) voted against the EU Withdrawal Bill, whereupon Boris Johnson withdrew the Tory whip from him and other Tory rebels. (The whip was restored in the following month.) He is regarded as a Tory moderate.

So, rather unusually, his new department is one that is familiar to the new Secretary of State. (Complete inexperience in and ignorance of the subject with which the new minister will be dealing is more usual!)

Politics is still in a state of some flux, and it is uncertain how long Clark will serve in his new post. This will depend on how long Boris Johnson continues as PM. All ministerial posts will be at the disposal of a new PM when he or she takes over from Johnson.

© MARTIN H GOODALL

Gove out!

The Department for ‘Levelling Up’, Housing and Communities has lost its Secretary of State this evening. Unlike other ministers who have left the government in the past few days, Gove was sacked. At the time of writing (10 p.m. on 6 July), the PM’s reason for this sacking has not yet been made public.

A new Secretary of State will no doubt be appointed in the next day or two (provided that the besieged Chief Clown can find one). It is too early to say what effect this will have on the so-called Levelling Up and Regeneration Bill. This may well depend on the fate of Bojo the Clown. Tonight he is fighting like mad to face down his critics, but if he does not resign in the next day or two, his hash may be settled by Tory MPs next week.

The new Secretary of State (if/when appointed), like other newly appointed ministers, may have a very short term in office.

Watch this space!

UPDATE (7.7.22): News came through just ater 9 a.m. this morning that Johnson has bowed to the inevitable and will step down as Chief Clown and leave the circus. However, there is coninuing controversy this morning over whether he should continue as Prime Minister pending the election of his successor as leader of the Tory Party, or whether he should be replaced now by a caretaker PM. This leaves considerable uncertainty over the refilling of nearly 60 ministerial posts that have been vacated in the past 48 hours. Even greater uncertainty centres on the position of Secretary of State for Levelling Up, Housing and Communiites, bearing mind that Gove was the only cabinet member who has been sacked, as opposed to resigning.

© MARTIN H GOODALL

Brexit wrecks it

My last piece in this blog about Brexit appeared on “Black Friday” (31 January 2020) - the day on which the UK formally ceased to be a member state of the European Union. Re-reading it almost 2½ years later, I have not found any need to alter a single word of what I wrote in that piece.

For a year or two, the government hid behind the covid virus pandemic as a convenient excuse for the consequences of their actions (or, in some cases, inaction), but the fog is clearing now, and it is becoming increasingly clear that Brexit itself has been and will continue to be a significant factor in the economic problems our country is facing. The economy is already 5% smaller than it would have been if the UK had not left the EU. Investment is more than 13% down, as is trade between the UK and the EU. Brexit has cost the government (and hence taxpayers) £30 billion, and growth in our GDP next year is set to be the second lowest of any G20 country except Russia. Farmers are no longer getting the payments they received under Common Agricultural Policy, which the government has failed to replace, and the fishing industry is being devastated by their inability to sell fish into the lucrative European market as they did before Brexit.

Of course, we could have negotiated much more favourable terms for continued trading arrangements with the EU, but the present government, having bluffed and blustered about the possibility of leaving the EU with no deal at all to provide for our future trading relations with Europe, eventually agreed minimal terms at the last minute in order to deliver the ‘hard’ Brexit that their Brextremist right wing demanded, and they have been whingeing ever since about the terms that they themselves signed up to, threatening unilaterally to break the treaty by which the UK is bound in international law.

What the Brextremists on the right-wing of the Tory Party have never understood, and would prefer to ignore, is that the UK is now a ‘third country’ which is in the same position as any other country in the world that is not a member of the EU. It is this (almost certainly wilful) ignorance of the position that leads these Brextremist idiots to wail that the EU is ‘punishing’ the UK for having left the club. But the UK is being treated no differently than any other non-member. You can’t resign from the Golf Club and still expect to have free use of the clubhouse and its facilities or to be able to play on the course in the same way as you did when you were a member. Terms would nevertheless have been available for a much more advantageous relationship that would have preserved the close trading links which this country enjoyed with the EU for nearly 50 years, and which the present government has so wantonly trashed.

The sad fact is that the government has not “got Brexit done”, because Brexit was not a single event; it is a continuous and never-ending process, which will involve constant negotiation and re-negotiation between the UK and European Commission for years to come, in order to sort out the numerous loose ends and anomalies thrown up by the slipshod trade agreement that our Chief Clown cobbled together at the last minute with his mate ‘Frosty’.

What is clearly needed is an urgent effort to repair our relationship with the EU. Clearly the present government is unwilling to take any such step. In fact they seem intent on worsening an already troubled relationship and destroying any trust that the EU might previously have had in this country’s good faith and reliability as a business partner. So it will take an entirely new government of a different political complexion to restore a sensible working relationship with the EU.

The process will be a gradual one, starting with quiet and patient diplomacy to restore trust. From this foundation the new government must then move on to a friendly and sensible discussion with a view to restoring frictionless trade and closer and mutually beneficial trading terms between the UK and EU, starting with the removal of unnecessary non-tariff barriers and avoidable red tape. This will necessarily involve the abandonment of the present government’s stubborn insistence on ‘freeing’ itself from European rules and standards. Many small and medium enterprises dependent on importing from or exporting to Europe are crying out for re-alignment with the common regulatory regime that used to guarantee frictionless trade across the Channel. Only a fool could seriously advocate the abandonment of common food and environmental standards that underpinned cross-border trade, or the even sillier (and utterly impractical) idea of trying to turn Britain into a kind of ‘Singapore-on-Thames’.

No dramatic action will be needed to resolve any operational issues associated with the Irish Protocol. Most businesses in the province are happy with the current arrangements, which are generally advantageous to them. It is really only the DUP’s barmy army that are making a fuss about it, for purely doctrinaire political reasons. Any necessary or desirable adjustments to the protocol are likely be minor, and can be agreed as an integral part of the negotiations referred to above.

This is in fact what the Labour Party is now proposing. In his speech on 4 July, Sir Keir Starmer promised a plan “that will deliver on the opportunities Britain has, sort out the poor deal Boris Johnson signed and end the Brexit divisions once and for all. It is a proper plan to make Brexit work.”

The first step, he said, will be to sort out the Northern Ireland protocol. “If you’re going to make Brexit work, that has to be the starting point.” Labour, he promised, will get the protocol working and we will make it the springboard to securing a better deal. As well as building trust, Labour would eliminate most border checks created by the Tory Brexit deal with a new veterinary agreement for agri-products between the UK and EU. And they will work with business to put in place a better scheme to allow low-risk goods to enter Northern Ireland without unnecessary checks.

The second step Labour would take is to tear down unnecessary barriers. Starmer frankly admitted that outside of the single market and a customs union, we will not be able to deliver completely frictionless trade with the EU. This is the weak point in his plan, but he explained that there are things that can be done to make trade easier. Labour would agree a new veterinary agreement with the EU to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries, which should benefit exporters “at a stroke”.

Starmer’s avowed intent is to ‘unclog’ the Tory Brexit deal, and all the red tape and bureaucracy this has created, which is hampering the flow of British business. Labour’s intention is to break that barrier down, unclog the arteries of our economy and allow trade to flourish once more. A Labour government would also seek mutual recognition of professional qualifications, ensuring UK services can compete and restoring access to funding and vital research programmes. Another important objective will be to strengthening security cooperation with our European neighbours, and an agreement to share data, intelligence, and best practice, and set up joint intelligence working in partnership with Europe.

This, then, is Labour’s plan “to make Brexit work”, hoping to put the divisions of the past behind us and to help everyone from exporters to musicians thrive. But I must confess, as an enthusiastic Europhile, that Starmer’s blunt assertion that under Labour, Britain will not go back into the EU (and that “We will not be joining the single market. We will not be joining a customs union” coupled with the undertaking that “We will not return to freedom of movement to create short-term fixes”) was extremely disappointing. Freedom of movement was never a short-term fix; it was fundamental to the fair and open operation of the Single Market. Far from British workers rushing to fill the jobs in the UK that before Brexit were being done by workers from the EU, many of those jobs have remained unfilled; crops have been left to rot in the fields, and the shortage of nurses and care workers has become even more acute. Freedom of movement in fact works both ways, as tourists, students and professional musicians in our post-Brexit world will ruefully attest. I wish I still had an EU passport!

Starmer’s stance seems to me to be unwise. Given goodwill and flexibility on both sides (especially on the part of UK negotiators, compared with previous performance), it should prove possible over time to move towards an agreement that would enable the UK to rejoin the EU’s Customs Union and the Single Market, as well as rejoining the Horizon scientific research programme as a full member, and other EU institutions, including Europol, the Erasmus programme and other Europe-wide arrangements.

After the history of the last few years, rejoining the European Union may be a bridge too far, for the Europeans as much as for us, but one of the promises of the Brexiteers in the 2016 referendum campaign was that this country could reach terms with the EU which would be just as favourable as the terms of our membership of the EU. They even averred that the UK could remain a member of the Customs Union and stay in the Single Market. So, in moving towards this type of arrangement, a future UK government would be doing no more than the Brexiteers themselves promised.

© MARTIN H GOODALL

The sands of time ……

Just a quick reminder to anyone wanting to avail themselves of permitted development rights for ‘protected development’ - You have barely a month left in which to do so, before ‘protected development’ ceases to be permitted development under the GPDO after 31 July.

‘Protected development’ is development that was permitted development before 1 August 2021, and which continues to come within the definition of development under section 55 of the 1990 Act, but which has ceased to be permitted development following the amendment of the GPDO in August 2021. So, in effect, there was a year’s grace in which to implement the PD rights for those changes of use that had been removed from the GPDO in 2021.

It would take too long to list here the classes (and sub-classes) of PD in Part 3 of the Second Schedule to the GPDO that constitute ‘protected development’, but full details can be found in paragraph 1.6.3 of Chapter 1 in the Fourth Edition of A Practical Guide to Permitted Changes of Use [“PCU4”].

‘Protected development’ is of two types. First there is development that does not require a prior approval application. ‘Protected development’ of this type must be completed no later than 31 July 2022. This means that the permitted change of use must actually have taken place by that date.

The second type of ‘protected development’ is one in respect of which a prior approval application must be made. In this case, such an application must be made before the 31 July deadline. In practice, this means that the prior approval application must reach the LPA not later than Friday 29 July 2022. Provided that this deadline is met, the further steps in the prior approval procedure can then follow on, irrespective of the fact that they may take place after 31 July. The 56-day rule will operate in the usual way, and the right to proceed with the permitted development will take effect on the happening of the prior approval event. The 3-year time limit within which the permitted development must be completed will run from the prior approval event. So if a prior approval application is submitted in the next four weeks or so, and is then refused but is subsequently allowed on appeal, the 3-year time limit for completion of the protected development might possibly not expire until some time in 2026.

A refusal of prior approval can still be appealed under section 78 of the 1990 Act after 31 July 2022 and will take its normal course.

The consequences of missing the 31 July deadline depend on whether the development in question required a prior approval application or not. If a prior approval application was not required, any ‘protected development’ that is not completed by that date (by the actual change of use taking place) will no longer be lawful. The only way of regularising the position where a development that would otherwise have been ‘protected development’ remains uncompleted on 31 July will be to apply for full planning permission under Part III of the 1990 Act. In the absence of such planning permission being obtained, it would be open to the LPA to take enforcement action in respect of the uncompleted development.

The position where the ‘protected development’ required a prior approval is more straightforward. In the absence of a prior approval application being received by the LPA before 31 July, the development will no longer be permitted development, and simply cannot go ahead as such. It will then be development that can be authorised only by a planning permission issued under Part III of the 1990 Act.

As explained in PCU4, the usual rules continue to apply to those classes of development that continue to be permitted development under the GPDO. It is only a minority of classes (or sub-classes) of development that are ‘protected development’ until the end of next month.

© MARTIN H GOODALL

A waste of paper - the Levelling Up and Regeneration Bill

Out of idle curiosity, I took a look the other day at the so-called Levelling Up and Regeneration Bill introduced in the Commons on 11 May (when it received its purely formal First Reading).

We can dispose very quickly of the “levelling up” content of the Bill. It comprises a mere six sections, which are among the most meaningless legislative provisions that have ever been drafted. Ministers are enjoined to publish statements of “levelling-up missions” for their ministries, replete with targets and progress reviews. Those of us who have ever worked in any kind of corporate body are depressingly familiar with meaningless and content-free mission statements, which are promptly forgotten before the ink has even had time to dry on them. This pathetically thin part of the Bill is no more than the regurgitation of an empty slogan, devoid of any policy or plan actually to deliver any meaningful change or improvement to the lives of citizens in those parts of the country that have been left behind as a result of de-industrialisation, lack of public investment in infrastructure and, above all, lack of revenue support from central government for vital public services. In truth, the idea of ‘levelling-up’ is entirely devoid of content. The government has absolutely no idea how to deliver on their election promises to those parts of the country that have suffered from the government’s previous long-term neglect, and they have no real intention of doing so.

As for “Re-generation”, this appears only in the title of the Bill. There is apparently an unwritten assumption that re-generation will miraculously occur, simply through the magical thinking of ministers. Harry Potter-like they have only to intone “Regeneramus!” and, lo, it will happen (although don’t ask how or when). [It seems from the Explanatory Memorandum that ministers are relying on Parts 6 and 7 of the Bill, dealing with Urban Development Corporations and Compulsory Purchase, to deliver ‘regeneration’. But where’s the funding?]

The rest of the Bill is a mish-mash of miscellaneous tinkering with local government and the planning system. So far as the structure of local government is concerned, the Bill provides for more ‘regional’ mayors, presiding over combined county authorities. There are currently 12 of these combined authorities. We already have one of these in the West Country, and so far it has been absolutely useless and its Mayor a mere cipher.

The provisions relating specifically to Town and Country Planning are really designed only to tinker with various administrative procedures. Some minor reforms are welcome, for example beefing up temporary enforcement notices, and some additional protection against unlawful works to listed buildings, but the overall impact of the changes to the planning system is minimal.

Even the much vaunted proposal for ‘street votes’ [Clause 96] is only a skeleton provision, giving the Secretary of State power to make regulations (which may or may not be forthcoming). The universal mirth that has greeted this proposal may prove to be fatal to the concept, and I strongly suspect that this bright idea may turn out to be dead on arrival. No doubt ministers will huff and puff, and claim that this Bill will herald a wonderful new dawn for the country, but any such claims are nonsense. Like so many other initiatives of this government, there is an almost complete lack of substance, and this Bill will not deliver any significant economic benefits, let alone ‘levelling-up’ those parts of the country that are in dire need of government support – not simply a rag-bag of infrastructure projects that it will take years to deliver, and some of which may be quietly dropped on grounds of cost once the fanfare with which they are announced has been forgotten. What is really needed, and which the present government will never deliver, is a major increase in current revenue support to local authorities and other public bodies at a local level to boost existing public services.

Roll on the next General Election!

© MARTIN H GOODALL

Permitted Changes of Use – unravelling the increasing complexities of the GPDO

As readers of this blog will be aware, the changes to the GPDO last year, following on from the substantial amendment of the Use Classes Order in 2020, has necessitated the publication of a FOURTH EDITION of A Practical Guide to Permitted Changes of Use. Bath Publishing organised another very successful seminar yesterday to launch the new edition. This was held once again in the splendid surroundings of the Institution of Civil Engineers in Great George Street, Westminster and also online. The seminar was ably chaired by Lee Mallett. Qualified as a chartered surveyor, with an MA in urban design, Lee is an urbanist, writer and regeneration consultant. He directs the Urbik consultancy, and is co-editor and publisher of Planning in London magazine. In addition to chairing the event, Lee delivered an interesting introduction and personal insight into the current state of the planning system.

This Fourth Edition of the book, which we tend to refer to among ourselves as “PCU4”, has been a joint effort on the part of Alistair Mills, David Evans and myself. Each of us addressed the seminar in turn, and a particular point we touched on during the course of the morning is the increasing complexity of the law governing permitted changes of use, so that what was originally billed as a ‘simplification’ of planning law requires a book which (including its Tables, introductory notes, Appendices and Index) totals some 550 pages. It was Alistair Mills who put his finger on the underlying reason for this. The primary motivation on the part of the government was not to simplify the planning system; it was conceived as a political device to curtail the ability of local planning authorities to resist certain types of development that they would otherwise seek to resist in their areas. This particularly applies to the residential conversion of agricultural buildings (under Class Q) and of offices (formerly under Class O), now widened to embrace all buildings in business, commercial or service use within the very broad Use Class E (under Class MA).

LPAs do, of course, have the power to make Article 4 directions to prevent these types of permitted development in their areas (or in some parts of them), but ministers made it abundantly clear last year, both in a written ministerial statement and in a new paragraph 53 of the NPPF that Article 4 Directions, where they relate to change from non-residential to residential use, should be limited to situations where the Direction is necessary to avoid wholly unacceptable adverse impacts (such as the loss of the essential core of a primary shopping area which would seriously undermine its vitality and viability), but they should rarely extend to the whole of a town centre. Article 4 Directions should, in all cases, be based on robust evidence and should apply to the smallest geographical area possible. The Secretary of State has power to cancel Article 4 Directions, and has done so in the past. It is clear that he is fully prepared to make more use of this power in future where LPAs attempt to use Article 4 Directions too widely in their areas.

David Evans pointed out that, notwithstanding this, Kensington & Chelsea has made a Borough-wide Article 4 direction (not yet in force) banning residential conversions of business and commercial premises under Class MA. Meanwhile, in Richmond-upon-Thames the Council has made a similar direction in 67 separate areas of the Borough, and the Cities of London and Westminster both have plans in train to make similar directions. David also drew attention to the Mayor of London’s Strategic Evidence to support London Borough Article 4 Directions. This was published on 31 July 2021. Its timing may have been fortuitous, but it is a remarkable coincidence that it followed so hard on the heels of the ministerial guidance referred to above.

All three of us drew attention to various pitfalls that await both developers and LPAs. Some of these have been a problem for quite a time, and yet developers and LPAs continue to fall into them. They really should buy our book, and read it! There nevertheless remain a few unresolved issues, some of which were raised in the Q&A session at the end of the morning, and even the combined brainpower of the joint authors was unable to resolve some of these. One delegate asked whether some of the more contentious issues that have arisen might be addressed by sensible amendments to the GPDO designed specifically to tackle them. However, the panel could not discern any appetite on the part of the present government to deal with these issues. It would take a change of government to make this possible, and even if a government of a different political complexion were to take office after the next General Election, there can be no guarantee that they would necessarily grasp this particular nettle.

Since the Third Edition of A Practical Guide to Permitted Changes of Use was published in November 2019, there has continued to be a steady stream of High Court challenges to appeal decisions in prior approval cases, which are dealt with in the new edition of the book, and Alistair Mills took the audience through some of these, together with some of the more noteworthy Inspectors’ decisions in prior approval appeals. There isn’t time to summarise those here, but you will find succinct summaries of them in the book.

My own contribution to the seminar included a look at ‘protected development’ under the transitional provisions in last year’s amendment order. This is development that was permitted by the GPDO before last August and which continues to be development (because the pre-existing and the new use do not both fall into Use Class E following the 2020 changes to the Use Classed Order, so that such a change of use is not covered by section 55(2)(f) of the 1990 Act) but is no longer permitted development, because it has now been removed from the GPDO. Getting one’s head around this new (temporary) type of permitted development is not made any easier by the omission from the amendment order of any list identifying the Classes of development that are ‘protected’. However, we have identified these classes of PD in the book (in paragraphs 6.1, 6.1.1, 6.1.2 and 6.1.3 of Chapter 1) and have drawn attention to the 31 July deadline for either completing this development or, where a prior approval application is required, making an application. In the latter case, the other steps in the prior approval process can then follow on, including an appeal against refusal, plus the three-year period from the prior approval event for completing the development. As we point out in the book, some of this ‘protected development’ could potentially have a ghostly after-life of several years in some cases. If you want further details of this ‘protected development’, then I strongly recommend that you study the relevant paragraphs in Chapter 1 of this new edition of the book. The relevant paragraphs where these Classes of development are also be found in the main text are listed in the revised Table 1 at the end of Chapter 1.

So “PCU4” has been well and truly launched, and I hope that it will be as valuable a resource to property owners, developers and planning practitioners (including local authority planning departments and the Planning Inspectorate) as each of the three previous editions.

© MARTIN H GOODALL

Permitted Changes of Use - FOURTH EDITION goes to press

The new FOURTH EDITION of A Practical Guide to Permitted Changes of Use went to press a fortnight ago. It was delivered to the printers on 31st March, and so copies should become available by the end of this month.

After having written the three previous editions of this book, I am very grateful to Alistair Mills and David Evans for accepting the invitation of Bath Publishing to become Joint Editors with me of this Fourth Edition. They have brought to this new edition a wealth of legal knowledge and experience, not only in updating the text to reflect the latest amendments to the GPDO but also in contributing additional insights into the law and practice in this complex area of development management. The preparation of the new edition has been a rewarding collegiate exercise, and I am confident that readers will continue to find this work a valuable and even essential resource in tackling the issues that the book explains.

Alistair Mills is a Fellow of Magdalene College, Cambridge and Dias College Lecturer in Law there. He is a practising barrister, and an Associate Member of Landmark Chambers in London. David Evans is a Consultant Solicitor with 20 years’ experience specialising in planning law. As for me, as readers of this blog are aware, I retired as a Solicitor last year after more than 40 years specialising in planning law.

As we await the publication of “PCU4”, bookings continue to flow in for our launch seminar in London (and online) on Thursday 5 May and we are looking forward to welcoming delegates to this event. It promises to be another interesting exploration of some of the many issues that the complex and convoluted provisions of the subordinate legislation on permitted changes of use have thrown up.

There is still time to book for the seminar, or to order a copy of the new edition of the book (if you can’t attend the seminar in person or online). Don’t forget that a seminar booking gets you a free copy of the book. You can make your booking and/or order the book by clicking on the link on the left-hand side of this page. This will take you straight to Bath Publishing’s website.

© MARTIN H GOODALL

Planning Bill, RIP?

A long time ago (well, June 2021 seems a long time ago after everything that has happened since then), I published a blog post under the title “Planning radicalised – or a damp squib?” You may recall that on the day before the Queen’s Speech last May, the PM made a great noise (accompanied by much ballyhoo in the press) asserting with his usual hyperbole that the government was definitely going ahead with the revolutionary changes to the planning system that had been promised in the heavily criticised White Paper that had been published in 2020. A Planning Bill was duly announced in the Queen’s Speech the following day.

However, it quickly became clear that the government was 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 was 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. Following the shock result of the Chesham and Amersham by-election in June, backbench Tory MPs became even more jumpy about the government’s proposed planning ‘reforms’, and the pressure on the government to drop or considerably water down their proposals only intensified.

For a time, ministers tried to bluff and bluster their way through this ‘noise’, and Robert Jenrick (then the Secretary of State) was sent out to ‘reassure’ Tory backbenchers that it wasn’t going to be as bad as all that. This, however, clearly failed to quell the disquiet in Tory ranks, which continued to intensify in light of the worrying election results and polling . As a result, it became increasingly clear that there would be substantial further delay in the introduction of the promised Planning Bill, while the government tried to decide how much of their proposals could still be taken forward. I predicted that a complete U-turn on the part of the government could not be ruled out, and I suggested that it would not be altogether surprising if the promised Planning Bill did not in fact come forward in the current parliamentary session, despite its announcement in the Queen’s Speech.

It seems that this is what has transpired. There are now apparently well-informed reports that the government has indeed dropped any intention of introducing a Planning Bill. To save face, ministers seem to be hinting sotto voce that they may instead pursue ‘incremental’ reforms to the planning system. Well, as I said before, let’s wait and see.

© MARTIN H GOODALL

Permitted Changes of Use – FOURTH EDITION

“The time has come, the Walrus said, to talk of many things” - in this case, the important changes to the GPDO that became necessary last year as a result of the substantial recasting of the Use Classes Order the previous year.

The extensive changes to the Use Classes Order in September 2020 were clearly going to be followed by consequential amendments to the GPDO, especially to permitted development rights for changes of use in Parts 3 and 4 of its Second Schedule.

This has led to the most radical shake-up of these provisions since permitted development rights for changes of use began to be significantly expanded from 2013 onwards.

The new provisions came into force on 1 August 2021, and the forthcoming FOURTH EDITION of A Practical Guide to Permitted Changes of Use will contain a fully updated text explaining these legislative changes in detail.

Some significant expansion of PD rights has been brought about, notably Class MA, which permits the residential conversion of the wide range of buildings in commercial, business or service uses that now fall within Use Class E.

A number of PD rights have now been removed. A few of these were simply redundant, as a result of both the pre-existing use and the new use now falling within one and the same Use Class, so that a change of use from one to the other is no longer development at all.

Others have been replaced by new or enlarged PD rights under other Classes. For example, the revised and expanded Class A now embraces previous PD rights under Classes A, B, C, D, E and F (to the extent that some of these have not been rendered altogether redundant by the revised Use Classes Order).

This has left a number of PD rights that have been removed from the GPDO altogether without being replaced in any way. These are defined as ‘protected development’, and their life has been extended for a limited period. All these former PD rights are identified in the book, and the transitional rules that apply to them are explained in detail.

This FOURTH EDITION of A Practical Guide to Permitted Changes of Use will be an essential resource for property owners, developers and their professional advisers, giving them a completely up-to-date guide to this increasingly complicated and much-amended legislation.

Publication is due in a few weeks’ time, and will be followed on 5 May by a seminar in London to launch this new edition. These Bath Publishing seminars have proved to be extremely popular, and spaces are already filling up fast.

So, if you want to come to the seminar (with a copy of the book thrown in) or you just want to buy the book by itself, all you have to do is to click on the relevant button on the left-hand side of this page, and you will be taken straight to the Bath Publishing website, where you can get full details of the book and the seminar, and place an order.

© MARTIN H GOODALL

Pincher leaves DLUHC

So Christopher Pincher joins the list of former Housing and Planning Ministers to bite the dust when he had hardly had time to warm the office chair with his posterior [1]. But then Housing and Planning are such unimportant subjects, so much less sexy than sorting out the chaos resulting from Brexit or cutting public services and benefits. After all, it’s not as if any significant legislation on Town and Country Planning is in the offing in the foreseeable future, so a tyro Housing and Planning Minister with no knowledge or experience in this area of policy (Stuart Andrew MP, previously a Deputy Whip) can be confident of a quiet snooze in his new post, er, can’t he?

Other ministers who have been shuffled out of their jobs today have moved straight to other ministerial posts, but at the time of writing, Pincher does not seem to have a new job. He was tipped to become Chief Whip, but that post has gone to Chris Heaton-Harris. [2]

[1] He had in fact been Housing Minister for 2 years; his role was redesignated in Septemebr 2021, which is the date of appointment that was shown on the Gov.UK website. So he turns out to have been 'long-serving' by ministerial standards!

[2] Pincher was in fact appointed as Deputy Chief Whip, after a delay of 5 hours, which led some political journalists to wonder why.

[Postscript (5 July 2022): On that final point, I think we now have an inkling of what may have occasioned that 5-hour delay in Pincher's appoointment as Deputy Chief Whip. What is surprising in retrospect is not that it was delayed (presumably due to certain misgivings in offcicial circles) but that it went ahead at all. In the event, his appointment didn't last very long.]

© MARTIN H GOODALL

Upward extensions – effect on amenity and external appearance

I am acutely aware that I have not posted on this blog since November. This is largely due to my current involvement in yet another writing project, of which more anon.

So to kick off anew, I am taking a quick look today at Cab Housing Ltd v SSLUHC [2022] EWHC 208 (Admin), heard jointly with two other challenges on the same points.

One of the matters requiring prior approval under Class AA in Part 1 of the Second Schedule to the GPDO is the impact of the proposed development on the amenity of any adjoining premises including overlooking, privacy and the loss of light. The claimants submitted that an LPA’s consideration of impact on amenity should be limited to effects on properties contiguous with, or abutting, the subject property and solely to those effects limited to overlooking, privacy and loss of light. The contention of the Secretary of State, in defending three appeal decisions by his Inspectors, was that this control embraces the impact upon all aspects of the amenity of neighbouring premises.

A second issue before the court was whether the LPA’s control of the external appearance of the subject dwelling is limited to the design and architectural features of its principal elevation and any side elevation fronting a highway, and whether it is further limited to the effects of those matters upon the subject dwelling itself. The claimants contended for the latter interpretation so that, in their submission, the authority is not allowed to consider the effects of external appearance upon any property outside the subject dwelling. The Secretary of State’s reply was that the control covers all aspects of the external appearance of the proposed development, and not simply the two elevations specifically referred to in paragraph AA.2(3)(a)(ii)), and also the impact upon other premises, and not simply the subject dwelling itself.

The issues in this case also affect the proper construction and ambit of permitted development rights granted by the 2015 GPDO under Classes ZA, A, AA, AB, AC and AD of Part 20. These provide for up to two storeys of multiple units of residential units to be erected on top of an existing purpose-built block of flats, or on top of detached or terraced buildings in commercial or mixed use or residential use. This issue may also impinge on Class A of Part 6, relating to the erection or extension of an agricultural building.

Holgate J set out a thorough and detailed analysis of these arguments, which (for the sake of brevity) I will refrain from rehearsing here. His conclusion was that the approach of the Inspectors to these issues was, as the Secretary of Stage had argued, a correct interpretation and application of the provisions of the GPDO. This interpretation was also consistent with the relevant provisions in the NPPF. So the decision of each Inspector was entirely lawful.

This judgement established the following points:

• In paragraph AA.2(3)(a)(i) of Part 1, “impact on amenity” is not limited to overlooking, privacy or loss of light. It means what it says.
• The phrase “adjoining premises” in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property.
• In paragraph AA.2(3)(a)(ii) of Part 1, the “external appearance” of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations.
• Instead, the prior approval controls for Class AA of Part 1 include the “external appearance” of the dwelling house.
• The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality.

© MARTIN H GOODALL