Catching up

Readers will have noticed that three weeks have passed since I last posted anything here, when I reported the arrival of Andrew Hignett as a member of our Planning Law Team; and the last substantive post on a planning issue was three weeks before that. Three of those weeks were taken up with final completion of my forthcoming book (“A Practical Guide to Permitted Changes of Use”) of which I hope to post further details shortly. The remaining time was accounted for by a much needed holiday.

It seems to be an immutable Law of Nature that whenever I go away for more than a week or so, the government seizes the opportunity to rush out major announcements of forthcoming changes to planning law and procedure, and so it proved this time. I will comment on the government’s proposals in due course, although what has been announced so far is a bit light on detail.

Not yet formally announced, but widely anticipated, is the further amendment of the GPDO so as to make permanent the PD right for the residential conversion of offices under Part 3, Class O of the Second Schedule to the GPDO, which is currently due to expire towards the end of May next year. These further changes should occasion no surprise, as they were canvassed in some detail in last year’s consultation paper. It is only their timing that has remained in doubt, and my guess is that an amendment Order will be made so as to come into force at the beginning of October.

Those who followed my various posts on short term lets in Greater London will be aware by now that, following the re-election of a Conservative government, sections 44 and 45 of the Deregulation Act 2015 duly took effect on 26 May so as to allow the short-term letting of dwellings in Greater London, which had previously been restricted by the Greater London Council (General Powers) Act 1973. There had been a possibility that a different election result might have led to the new provisions not taking effect, but now that we are living in a Tory paradise nothing can stop the government doing exactly what they like.

There are various other matters, including some judicial decisions, that may merit comment as soon as I have the chance to write them up, and I rather hope that I can now update this Blog more frequently than I have managed to do in the past couple of months. The same applies to the rather large backlog of comments that are awaiting moderation and publication.

© MARTIN H GOODALL

ANDREW HIGNETT JOINS KEYSTONE LAW

Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning and environment lawyer, Andrew Hignett, has joined KEYSTONE LAW. This further strengthens our well-established planning law team, and now gives us coverage of major infrastructure projects, particularly in the ports sector, in addition to the other specialisations we already cover. It brings the number of planning lawyers in the firm to five, all of whom have substantial experience in planning law at a senior level.

Andrew’s key skills are founded in planning and environmental law, and he principally advises ports and other organisations in the sector on marine-related development, particularly in relation to port infrastructure projects. As well as project work, Andrew advises on regulatory and harbour management issues, including the promotion of Harbour Revision Orders.

He has considerable practical experience on the impact of nature conservation law in both the UK and Europe. Andrew also has experience of the judicial review of development consents, including planning permissions, marine licences, and harbour revision orders.

Andrew is a member of the UK Environmental Law Association and is actively involved in the work of the British Ports Association. He also writes and lectures on issues of concern to the ports industry.

© MARTIN H GOODALL

The 56-day rule – some additional points

NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

A couple of readers have written to me to draw attention to Article 7 of the GPDO. This is a new provision that did not appear in the 1995 Order.

There was no provision in the 1995 Order for any extension of time in respect of the determination of a prior approval application. However, Article 7 (after restating the basic rule that prior approval applications must be determined within 56 days) now allows the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing (which could comprise an exchange of emails).

There is, of course, no obligation on the applicant to agree to such an extension of time, but if they do not do so a prudent authority might then refuse the application fairly promptly in order to avoid the 56-day rule coming into operation, thereby enabling the development to go ahead in any event. It is clear that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. A nil response from the applicant to the LPA’s a request for more time would not prevent time from continuing to run for the purposes of the 56-day rule. There would need to be some written evidence that both parties had agreed to extend time.

One correspondent queried whether sub-paragraphs (a), (b) and (c) in Article 7 do in fact enable time to be extended (or whether sub-paragraph (a) in fact rules this out), but there is no doubt that any one of sub-paragraphs (a) or (b) or (c) may apply; there is a comma after sub-paragraph (a), so it is clear that each is an alternative to the others.

Reverting to appeals against non-determination of a prior approval application, after further representations from the LPA, the Planning Inspectorate subsequently changed their minds in the case I mentioned in my last post, and accepted the appeal, on the basis that the case raised other issues besides the question of non-determination within the 56-day period. In the absence of such additional issues, though, it would appear that it is unnecessary (and in fact impossible) to appeal against the non-determination of a prior approval application. The right to proceed with the development arises automatically. However, if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, it may in such circumstances be advisable to make an application for a Lawful Development Certificate under section 192 of the 1990 Act, as I mentioned previously.

© MARTIN H GOODALL

The 56-day Rule - Some further thoughts

NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Since I wrote my previous posts on this topic on 9 and 13 February and 11 March, I have taken the opportunity to look in more detail at the requirement as to the timing of the LPA’s notification of their determination of a prior approval application.

On the basis of the practical examples that I quoted in those posts, the consensus would appear to be that notification of the LPA’s determination of the prior application must not only be given by the authority within the 56-day period, but must also be received by the applicant within that period, and a proper construction of paragraph W(11), read as a whole, would seem to support this.

In paragraph W(11) of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”, although sub-paragraph (c) merely refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Sub-paragraph (c) relates to both of these two alternative notifications under sub-paragraph (a) or (b), and (by implication) to the third possibility that the notice served by the authority may be to inform the applicant that prior approval is refused. It therefore seems clear from the context that sub-paragraph (c) must also be taken to refer to the receipt by the applicant of such a notice, so sub-paragraph (c) should in practice be read as - “the expiry of 56 days following the date on which the application was received by the local planning authority without the receipt by the applicant from the local planning authority of a written notice as to whether prior approval is given or refused”.

Whilst on this topic, I am grateful to a correspondent for drawing to my attention the position regarding an appeal under section 78 against non-determination of a prior approval application, where the failure of the LPA to determine the application or to notify the applicant of that determination within the 56-day period is the sole determining factor in the appeal.

In such a case, the Planning Inspectorate seems recently to have taken the view that no appeal is required (or can be made) in such a case. I have been shown a letter from the Planning Inspectorate, written in May of this year in response to an appeal which had been made against non-determination of a prior approval application in Gloucestershire, in which they stated that, because it would appear that the LPA did not determine the application within the required 56 day period, the applicant can proceed with the development in these circumstances, and no right of appeal applies. The LPA had the power to refuse the application on the basis that the development was not appropriate for the prior approval process but there was no indication in this case that they did so. In the circumstances, the Inspectorate stated that the appeal appeared to be invalid and no further action would be taken on it. A copy of this letter was sent to the LPA who were asked to note its contents.

This would appear to dispose of the need to appeal against non-determination. If the applicant is correct in their assertion that they have the right to carry out the permitted development, then the expiry of the 56-day period would in principle enable the development to proceed, but if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, or if there is a dispute with the LPA as to the qualification of the site for change of use under the relevant Class in Part 3 (or where the LPA is otherwise challenging the right to carry out the proposed development), caution may suggest that the correctness of the applicant’s assertion as to the lawfulness of the proposed development should be tested by means of an application under section 192, before going ahead with the development.

It may be helpful to readers who are making an LDC application to be reminded of the judgment in F W Gabbitas v SSE and Newham LBC [1985] JPL 630, where it was held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but the legal principles that it set out continue to apply.

© MARTIN H GOODALL

Savings for old provisions in the GPDO

NOTE: For completely up-to-date and comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

When I wrote the other day about Article 8 of the GPDO 2015, I mentioned the possibility that there may be some general rule of statutory interpretation which would preserve the effect of the repealed legislation, but I had not had time to look this up.

I am grateful to Fraser Kerr for reminding me of section 16 of the Interpretation Act 1978. Although we are dealing here with a statutory instrument rather than an Act of Parliament, under section 23 (1) the provisions of this Act apply (unless the contrary intention appears) to subordinate legislation made after the commencement of this Act as they apply to Acts of Parliament. Section 16(1) provides that where an Act repeals an enactment, the repeal does not (unless the contrary appears) affect the previous operation of the enactments repealed or anything done or suffered under that enactment.

This is enough, I think, to protect the effect of a prior approval already granted before 15 April 2015, and this provision should also suffice to enable any pending prior approval applications and/or appeals against their refusal to be determined after 15 April, whereupon any prior approval so granted could be acted upon, even though the prior approval application was made under the provisions of the 1995 Order. It would also appear that the relevant provisions (including any limitations, conditions or restrictions) applying to the permitted development in question would be those under the 1995 Order, rather than the 2015 Order, although I am not absolutely certain about this last point.

In other cases, where no prior approval application had been made before 15 April, or in any cases where no prior approval was required (and where development had not commended before 15 April), the permitted development will now be entirely governed by the provisions of the 2015 Order.

So far so good, but I don’t think this answers the second problem which I posed in my last post, namely whether dwelling units (or floorspace) converted under a relevant class in the 1995 Order (e.g. under Class MB) should be counted towards the numerical limit (or cumulative floorspace limit) in the corresponding Class in the 2015 Order (Class Q in the example given). I am not convinced that the Interpretation Act has that effect. In this connection, I also looked at section 18 of the Interpretation Act, but I am not convinced that this section has the effect of enabling the provisions of the former classes of development in Part 3 of the 1995 Order to be read as if they were equally applicable to the corresponding new Classes in Part 3 of the 2015 Order. But I am open to persuasion on this point.

This last issue is perhaps more important, from a practical point of view, than the first point I raised. I am assuming for the time being that I am right in thinking that the numerical and floorspace limits in respect of development carried out under the 1995 Order do not affect development subsequently carried out under the corresponding provisions of the 2015 Order, but (as before) I would welcome any comments from readers on this point.

[P.S. I wrote this piece before I had seen Tom Bright’s comment, which has now been published under the previous post. I will take a look at the other point he raises, regarding Article 4 Directions, and come back on this subject in a future post.]

© MARTIN H GOODALL

GPDO 2015 - a problem?

NOTE: For completely up-to-date and comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Like most planning professionals, I imagine, I have had my nose buried in the new GPDO since it was published, in an effort to check all the changes (some of them quite subtle) that have been made to this legislation by the new Order. (This, incidentally, explains the relative paucity of posts on this blog in the past few weeks.)

As a result of a question someone asked me (and which I still haven’t answered), I have hit upon a possible problem of statutory interpretation arising from the new GPDO.

Article 8 of the GPDO 2015 revokes all the statutory instruments listed in Schedule 4, including the 1995 Order, and the amendment orders of 2013, 2014 and the most recent amending order of March 2015. One would naturally expect, however, to find a savings provision in the new Order, and Article 8 does indeed contain such a provision. However, the saving in Article 8(2) is solely for the purposes of development specified in Article 6(2) of the March 2015 amendment order, namely in respect only of a temporary change of use, under Class C or Class D of Part 4, of premises used within Use Class A4 (drinking establishments), and certain demolition under what had been Part 31 in the 1995 Order (now replaced by Part 11 in the 2015 Order). There is nothing else to preserve the effect of any of the provisions of the 1995 Order.

Have I missed some obvious general rule, contained elsewhere in the planning legislation? Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way? If not, then it seems to me that the repeal of the 1995 Order and all its amending orders could have two consequences, one which would clearly disadvantage developers and one which could be of benefit to them.

It seems to me that (at least in theory) unless development has actually begun, any planning permission granted by Article 3 of the 1995 Order was revoked with effect from 15 April 2015, even if prior approval had been granted in respect of that development before that date. (Bear in mind that the prior approval is not a planning permission, and does not have the effect of a planning permission; it simply fulfils a condition without which the development could not proceed. The planning permission was actually granted by Article 3.) So does anyone who had intended to carry out development under the 1995 GPDO now have to start again, even if the LPA had notified the developer of their prior approval? If one views each of the 1995 Order (now repealed) and the 2015 Order (effective from 15 April) as being entirely self-contained and mutually exclusive, which in the absence of any relevant saving provision in the 2015 Order would appear to be the case, then this would appear to be the position (as I say, at least in theory) in which a developer could find themselves.

On the other hand, if we take (say) the 3-dwelling limit in the former Class MB and the same limit in the new Class Q (or the floorspace limit under each of those provisions), then arguably any development carried out under Class MB (i.e. commenced before 15 April 2015, even if it has not yet been completed) would not count towards the limits now imposed by Class Q. There is no mention anywhere in the new GPDO, as far as I know (and I really have been through it over and over again with a fine-tooth comb while writing my book on the subject) of development previously carried out under Class MB in the 1995 Order. So, arguably, one could have used up the 3-dwelling limit under Class MB (or the floorspace limit under that class) and still be able to develop another three dwellings under Class Q ! [I appreciate that the ability of the LPA to refuse prior approval because “the location or siting of the building makes it otherwise impractical or undesirable” for the proposed residential conversion might possibly be used as an excuse by an LPA, or even by PINS, to block extra dwellings over and above the three already built under former Class MB, but it is the underlying principle with which I am currently concerned.]

I put these points to my colleagues in Keystone Law’s planning law team, and we all agreed that the apparent result of this legislative change which I have postulated above cannot have been intended by ministers. So far as concerns the apparent revocation of any permission granted by the 1995 Order (even where prior approval has been given in respect of the relevant issues with which it was concerned), the consensus we have reached in the team is that the new GPDO must be construed in accordance with Human Rights legislation, in a way which is compatible with the landowner's rights under Article 1 of the First Protocol, so far as it is possible to do so, and that the permission granted by Article 3 of the 1995 GPDO should not be regarded as having been revoked where prior approval in respect of such a development has been given, bearing in mind the 3-year time limit for commencement under the 1995 Order. We have collectively taken the view that a commonsense approach is required to this issue. Nonetheless, the strict legal position remains uncertain.

We have similarly taken the view that a prior approval application made under the terms of the 1995 Order which has not yet been determined should be treated as an application under the corresponding provision in the 2015 Order and should be processed and determined in accordance with the new rules, with the 56-day rule continuing to run from the day after receipt of the prior approval application by the LPA. This again, however, is a matter of common sense rather than legal interpretation. Planning inspectors in determining planning appeals have certainly taken this approach in recent weeks.

However, as regards the limits on development that were imposed (for example) by Class MB in the 1995 Order, as compared with the same limits imposed by Class Q in the 2015 Order, we take a different view. We have come to the conclusion that it would theoretically be possible to create up to six dwellings within a single agricultural unit – three under Part 3, Class MB in the Second Schedule to the 1995 Order, and another three under Part 3, Class Q in the Second Schedule to the 2015 Order (subject to prior approval under the terms of Class Q). [If my my supposition as to the loss of these permitted development rights if they had not been implemented before the 1995 Order was repealed is in fact correct, these residential conversions would have to have been started before 15 April 2015 in accordance with a prior approval or approvals under Class MB.]

Incidentally, I trust that readers have caught up with the change made in the amending Order made shortly before the consolidating Order itself, which resolved the previous doubt as to whether the 3-dwelling limit applied to all dwellings previously created on the same agricultural unit or only those created as permitted development under the GPDO. That amendment, now carried into the substantive Order, confirmed that it is only dwellings created as permitted development under Class MB of the 1995 Order (and now under Class Q of the 2015 Order) that count towards the 3-dwelling limit.

I would be very grateful if readers could direct my attention to any legislative or judicial authority on the issues I have raised above, and I shall be pleased to publish these as comments on this post.

© MARTIN H GOODALL

Goodbye, Uncle Eric!

The government has announced that Greg Clark [WHO???] has been appointed Secretary of State for Communities & Local Government in place of Eric Pickles. At the time of writing, I am not aware as to what role, if any, Eric Pickles may play in the government in the future. This may emerge in the course of the next few days. Maybe he will be put out to grass, although elevation to the House of Lords might not be an option if the PM wants to avoid a by-election in an Essex constituency where UKIP could no doubt be expected to mount a strong challenge.

Pickles has been possibly the longest serving head of this department and, in his rather plodding way, he has faithfully stuck to his brief, starting after the last election with the Localism Bill, which sought to put into effect the half-baked ideas that the Tories had dreamt up in opposition as a sop to the NIMBYs. However, the Wicked Uncle who resided (and still resides) at 11, Downing Street strangled the infant at birth, and Uncle Eric was then obliged to publish the National Planning Policy Framework, for which he clearly had no real enthusiasm, but he did what he was told, and it was eventually published in March 2012, encouraging much more development than the NIMBYs would have liked, or had been led to expect when the coalition government first took office.

Responding again to the diktats of the Treasury, Uncle Eric’s department then set about the further liberalisation of the planning regime, by amending the GPDO in three tranches (in May 2013, April 2014 and April 2015) to allow residential conversions of a variety of commercial premises and of farm buildings, as well as other changes of use that would otherwise have required planning permission. This met with strenuous opposition from some local planning authorities, but was forced through anyway, and has been backed up by some robust appeal decisions, which have swept aside objections to these developments. Recent amendment of the Use Classes Order has further liberalised the uses to which commercial premises can be put in future.

I will take a look at the new De-CLoG ministerial team in a future post. As I indicated before the election, the pace of change in planning law and practice may slow down somewhat now, especially since the government’s primary focus for the time being will be on other areas. However, there are some controversial infrastructure projects in the pipeline, including HS2 and the demand for additional airport capacity in the South-east (either at Heathrow or at Gatwick). There will no doubt be some unhappiness on the Tory back-benches if the government continues to push ahead with these schemes.

© MARTIN H GOODALL