Time marches on

I am acutely aware of the hiatus in posting material on this blog in the past couple of weeks. As longer-standing readers will be aware from previous experience, this happens from time to time when I am really busy.

There are several topics on which I intend to blog “when I get a round tuit”. One of these is (or was) the important Court of Appeal decision in Suffolk Coastal DC v Hopkins Homes [2016] EWCA Civ 168, which clarified the interpretation of paragraphs 47 and 49 of the NPPF in relation to how the requirement to demonstrate that the LPA has a 5-year housing land supply is to be dealt with, and the consequences that follow where such a 5-year supply cannot be shown.

I have written “was” above, because both Cheshire East DC (who were involved in a similar case) and Suffolk Coastal DC are seeking permission to appeal to the Supreme Court. They have first to surmount the hurdle of actually getting permission to go to the Supreme Court, but I would guess that they stand a reasonable chance of getting that permission in view of the importance of the issues that this and other related cases have thrown up. If so, then the two councils are hoping that the case will be heard by the Supreme Court later this summer.

In the circumstances, I may delay for the time being commenting on the Court of Appeal decision in Suffolk Coastal, until we know whether this case will in fact be going to the Supreme Court.

In addition to this, there are several issues arising from the amendments to the GPDO that came into effect earlier this month which I still want to cover (not to mention some points that arise from the 2015 Order itself).

There are also some other judgments that deserve attention, involving the non-applicability of the ejusdem generis rule in construing a planning permission and, in another case, the issue of agricultural buildings in the Green Belt. There has also been an interesting appeal decision on concealed development, and one or two other appeal decisions which readers and colleagues have drawn to my attention.

Finally, the Housing and Planning Bill is close to completing its passage through parliament, and should receive Royal Assent before the end of the parliamentary session next month. I have refrained from commenting on the Bill while it was still subject to amendment but, once it is on the statute book, it would clearly merit attention.

So watch this space in the coming weeks and months.

© MARTIN H GOODALL

Eye in the Sky

I wonder whether it is the imminent release of the film of this name (a thriller starring Helen Mirren and the late Alan Rickman) that prompted the Daily Torygraph’s Chief Political Correspondent, Christopher Hope, to pen a piece in Monday’s paper on the use by local authorities of drones for various purposes, including planning. It seems that some 10 or more councils have bought or hired these machines (correctly referred to as “unmanned aerial vehicles” – UAVs). No doubt more local authorities will do so in the future.

The Telegraph spoke to Epping Forest DC, who explained that theirs would be used for various photographic purposes, not just planning control. Other authorities are believed to be using them for a wide variety of functions, including looking at coastal erosion, examining dangerous structures and surveying the state of repair of council buildings (where it obviously saves the expense of erecting scaffolding). The use of drones for planning purposes seems to be fairly limited at the moment. For example, Moray Council in Scotland say they can help them get a better impression of application sites where permission is being sought for wind turbines.

The use of drones nevertheless raises concerns about the possibility of ‘snooping’ for the purposes of planning enforcement. The Lib Dems seem to be particularly exercised by this possibility, and their spokesman is reported by the Telegraph to have said that councils should not be spending tax-payers money on owning or renting drones. “It is busy-body government at its worst”, he is reported to have said, and went on to suggest that there should be a code of practice on the use of UAVs by councils.

Others have expressed concerns, including the intrusion on privacy and possible safety issues if these machines are to be flown over built-up areas. The Information Commissioner is also said to be concerned, and is reported to have suggested that local authorities should consider whether the use of drones is “necessary and proportionate”.

The use of drones for the purposes of planning enforcement will require careful consideration. As a general rule, notice ought to be given to owners and occupiers of property which it is intended to overfly and/or photograph. Any covert surveillance would be governed by the legislation in RIPA.

There are no reports so far of drones having been used in connection with planning enforcement, as opposed to ordinary development management, and they are unlikely in practice to be able to yield any useful information that could not be gained by an orthodox site inspection. (It does occur to me, on the other hand, that they might be used to photograph illegal advertisements mounted on farm trailers, which one frequently sees stationed on farmland near motorways.)

One area in which aerial photography has proved to be helpful is in establishing whether particular buildings, structures or other objects were present on land either before or after a particular date. Aerial photographs (both vertical and oblique) are available from several sources, both public and private, although their coverage is not always complete. This source has been supplemented in recent years by satellite imagery, although there have been issues about the reliability of the recorded dates of satellite images, which have proved to be inaccurate in some cases.

Using drones to supplement this existing information may be a helpful tool in future, not only for councils but for the owners and occupiers of land and buildings. If drones were used for this purpose, as distinct from ‘spying’ on any one property, I cannot see any serious objection to their use for that purpose.

Nevertheless, the use of drones by local authorities is likely to remain controversial until some clearer ground rules are established that will specify the precise purposes and the circumstances in which they may be used, and also the procedures for giving notice to property owners who could potentially be affected by their use. Several different bodies are likely to be involved in this, including the Civil Aviation Authority, the Information Commissioner, and also the Home Office in relation to the operation of RIPA and other legislation governing the use of investigatory powers. It may be necessary to convene a working party, possibly under the auspices of De-CLoG as the department primarily responsible for planning and local government, to hammer out these issues.

© MARTIN H GOODALL

Mr Fidler’s castle comes down

The BBC reported on Thursday that Mr Fidler has begun to demolish the house he built in the Green Belt, in order to comply with the High Court injunction requiring him to do this by early June. According to the BBC, Mr Fidler has now confirmed that demolition has begun, after initially denying this.

UPDATE: (6 June). Today’s the day. Mr Fidler had to comply with the court order by today’s deadline, or face jail. In fact, it had become clear last week that demolition was already well advanced. At this morning’s scheduled hearing, the council itself asked the judge to give Mr Fidler more time to complete the demolition and clear the site. Today’s hearing (which the judge had fixed when the matter was last before him) was therefore adjourned for four weeks to give Mr Fidler time to finish the job.

© MARTIN H GOODALL

Parliamentary challenge to GPDO changes

Michael Bach has kindly drawn my attention to two early day motions that have been put down in the Commons following the recent amendment order to the GPDO (which is due to take effect on 6 April). The first of these seeks to annul the Statutory Instrument by which these changes to the GPDO are made.

Before anyone gets too excited about this, I should make it clear that I don’t seriously think this attempt to resist the current changes to the GPDO stands any realistic chance of getting the amending order rescinded. At best, it may get the Opposition a debate on the subject in the Commons but, on recent performance, I doubt whether they will make anything of it, and on this occasion it is extremely unlikely that they would have the support of the Scottish Nationalists (who are entirely unaffected by English planning law), even if a few discontented Tory back-benchers could be persuaded to join in opposing these changes to the GPDO.

I can’t help feeling that this early day motion is simply tilting at windmills, as the time to oppose the liberalisation of permitted development would have been when these provisions were first introduced, and then successively widened, in 2013, 2014 and 2015. As explained in my recent post on the current GPDO changes, the effect of the amendment order is a good deal less dramatic than was expected, due to the omission of permitted development rights for the demolition and reconstruction of office buildings. Making the permitted development right for the residential conversion of offices permanent after it has already been in force for three years hardly seems sufficiently controversial to justify an attempt to overturn it. LPAs in the exempted areas have been given a further three years in which to get Article 4 Directions in place to prevent the loss of office space in the most vulnerable locations, and other LPAs can do likewise, although in those cases a year’s delay would be necessary in order to avoid compensation claims.

The other early day motion notes that launderettes continue to be a vital part of our communities as well as being an important safety net for many people, especially those on low-incomes or living in privately-rented housing; regrets the Government's decision to remove planning protections that currently prevent launderettes from being changed to other types of shop or housing without the owners obtaining planning permission; and calls on the Government to remove launderettes from the scope of the GPDO.

Whilst I am not entirely unsympathetic to this argument, the previous omission of launderettes from the permitted development right for residential conversion under Class M was purely the consequence of their having been made a sui generis use by the Use Classes Order, not because they are in need of special protection, but because a change of use from A1 (shop) to launderette was thought to give rise to possible problems for neighbours. Their exclusion from the UCO simply made it necessary to apply for planning permission for any change of use to or from use as a launderette.

All other ‘town centre uses’ i.e. A1 (shops) and A2 (‘retail services’, i.e. offices open to the public, such as banks, building societies, etc.), as well as amusement arcades and casinos, are already open to residential conversion under the GPDO, and in light of this it does seem anomalous to continue to exclude launderettes from this PD right. This second early day motion really serves no useful purpose, other than to allow the Opposition to make a political point, and it remains to be seen if any parliamentary time can be found to debate it on the floor of the house.

© MARTIN H GOODALL

Residents’ parking permits banned by 106

My retired colleague David Brock recently posted an item in his blog drawing attention to two High Court decisions which confirm that a covenant in a section 106 agreement (or unilateral planning obligation under that section) that seeks to prevent residents from applying to the council for a parking permit in a CPZ is unlawful, because such a restriction is not within the scope of section 106.

The recent case to which David’s blog post refers is R (Khodari) v. Kensington and Chelsea RLBC [2015] EWHC 4084, in which judgment was given on 18 November 2015. David reminds his readers that this is nothing new. The point was decided as long ago as March 2013, in Westminster City Council v. SSCLG [2013] EWHC 690 (Admin), on which David had also commented in his blog at that time.

In the earlier case, it had been the LPA that was challenging the grant of planning permission on appeal, where the planning inspector had taken into account a planning obligation proffered by the appellant, in which they undertook “not to apply to the Council for a Parking Permit in respect of the Land nor to knowingly permit any owner or occupier of the Land to apply to the Council for a Parking Permit and if such a permit is issued in respect of the Land it shall be surrendered to the Council within 7 days of written demand”. The illegality of the obligation led to the quashing of the appeal decision.

In the recent case involving Kensington & Chelsea, it was a third party objector who successfully challenged a grant of planning permission by the LPA. The council had granted permission for development of a neighbouring property on the basis of a section 106 agreement which contained a covenant in exactly the same terms as those in issue in the earlier Westminster case, except that the obligation required this term to be written into the leases of the new dwellings as cross-covenants on the part of both the lessor and the lessees. Given the judge’s findings in respect of the invalidity of the section 106 agreement, it followed that the planning permission had to be quashed.

The legal consequences of an unlawful planning obligation (such as those in both the cases cited above) can be markedly different, depending on the circumstances. Clearly a planning permission granted by an LPA or by a planning inspector on appeal is vulnerable to challenge in the High Court (and the same would apply to a prior approval under Part 3 of the Second Schedule to the GPDO) if it was dependent on an unlawful planning obligation, but in all these cases there is a six-week time limit for launching such a challenge. Time can be extended in exceptional circumstances, but only for a short period in most cases.

Absent a timeous legal challenge, however, the planning permission or prior approval will stand, but the unlawful section 106 agreement will be unenforceable. Thus, whilst it would be inadvisable for a developer to offer or agree to a planning obligation that seeks to prevent applications for residents’ parking permits, because of the risk of the permission being quashed if challenged in the High Court, where there is an unlawful 106 but there has been no High Court challenge to the planning permission, there would appear to be nothing to prevent residents applying for parking permits, notwithstanding the purported prohibition in the section 106 agreement. (It should be borne in mind, however, that the lease term that was to be entered into in the Kensington & Chelsea case might have proved more difficult to break.)

© MARTIN H GOODALL

Demolition and reconstruction of offices under the GPDO

Having fired off my last blog post in a great hurry at the end of a hectic week, I have now had the chance to look a little more carefully at the recent GPDO amendments (which come into force on 6 April).

I am grateful to readers for pointing out a couple of matters that I missed or misinterpreted in my haste. I have already corrected the references to the new Class PA in my original post, and so readers who have not already seen these corrections should perhaps revisit that blog post, where they will see the corrected text.

I promised that I would look at Class PA in more detail in a future blog post, but in view of the fact that it will not take effect for another 18 months, I think further discussion of Class PA might as well await the second edition of my book (“A Practical Guide to Permitted Changes of Use”). In the meantime, anyone eager to carry out a residential conversion of a light industrial building is just going to have to be patient for the next a year and half.

Turning back to the residential conversion of office buildings, and the strange omission of demolition and rebuilding from the amendments to Class O, I am grateful to Jennie Baker and her colleagues at Nathaniel Lichfield & Partners for doing a bit of sleuthing to reveal the real reason behind this glaring omission, following the very definite announcement by ministers last October that demolition and reconstruction of office buildings was to be included in the GPDO.

As readers are well aware, the Housing & Planning Bill is slowly wending its way through parliament, and is currently at its committee stage in the House of Lords. I have deliberately refrained from commenting on the Bill up to now, because it has (as I predicted) been subject to numerous government amendments during its passage, and we may see yet more amendments to the Bill before it finally reaches Royal Assent.

However, one clause which Nathaniel Lichfield & Partners have drawn to my attention is Clause 138 (as currently numbered), which will amend section 60 of the 1990 Act. Section 60 allows the inclusion in a development order of certain specific provisions. It is, of course, purely an enabling power, and it is the actual provisions of the development order that govern the relevant permitted development itself. As currently drafted, section 60(2) provides that where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.

As things stand at present, therefore, any inclusion in the GPDO of a permitted development right for the demolition and reconstruction of office buildings could only require prior approval of the design or external appearance of the building. The building operations, including limited demolition, permitted by certain other Classes in Part 3 (notably Class Q) were clearly felt not to present any problem, whereas ministers and their advisers have presumably concluded that the wholesale demolition and reconstruction of office buildings will necessitate the prior approval of a rather wider range of matters, such as the method of demolition among other things.

The new section 60(1A) in the 1990 Act will provide that where planning permission is granted by a development order for building operations in England, the order may require the approval of the local planning authority, or the Secretary of State, to be obtained for those operations, or with respect to any matters that relate to those operations, or to the use of the land in question following those operations, as specified in the order. This is a fairly subtle change, but it will give ministers power to include a requirement in the GPDO to obtain prior approval of a wider range of matters than they can at present.

Incidentally, this power relates to all those PD rights in the GPDO where prior approval is required in respect of building operations (including demolition), and so it would be open to ministers, if they were so minded, to require in any future amendment of the GPDO that prior approval of additional matters should be sought by applicants not only in respect of Class O but also in respect of other Classes in Part 3 that include building operations, and also under other parts of the Second Schedule (such as Part 1 – larger domestic extension, Part 11 – demolition, and Part 16 – telecoms developments).

With a following wind, the Housing & Planning Bill should receive Royal Assent within a few weeks, so that De-CLoG should be able to make a second amending order dealing with Class O in Part 3 of the Second Schedule to the GPDO (and perhaps one or two other things) by this Autumn, although it could just as easily be postponed until next Spring. The precise extent of this extended PD right still remains uncertain for the time being, and there must also remain some uncertainty as to its precise timing. But ministers have already indicated that the demolition and reconstruction of office buildings through the mechanism of the GPDO is still on the agenda, so we can expect these proposals to emerge in one form or another at some time within the next year or so.

UPDATE (31.3.16): Margaret Baddeley, Planning Director at Nathaniel Lichfield & Partners, has alerted me to the Impact Assessment that has just been published in respect of Clause 138 of the Housing and Planning Bill. This confirms what we had already deduced :

‘The first use of the new provision is likely to be in support of the Government’s intention, announced on 12 October 2015, to bring forward the proposal to allow the demolition of an office building and its replacement with a residential building on a like for like basis’. It adds: ‘The detail on the permitted development right for the demolition of an office building and its replacement with a residential building is being developed. It is therefore too early to estimate the impacts on business within this Impact Assessment.’

This conveniently glosses over what we might euphemistically refer to as “an administrative oversight” in De-CLoG, which prevented the inclusion of demolition and reconstruction of office buildings in the recent amendment of the GPDO. (I used a slightly more colourful term when I first heard about it.)

© MARTIN H GOODALL

The GPDO is amended at last

There seems to be an immutable Law of Nature that as soon as my back is turned something dramatic happens on the legal front. Over the past week I have been kept out of the office every day until today, at a series of meetings, site visits, etc., so that it was not until this afternoon that I had the chance to catch up on the legal news. Whereupon I discovered that at the end of last week, without any kind of fanfare or announcement, the government had made and laid before parliament the long-awaited Amendment Order to the GPDO. This is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (SI 2016 No. 332), which comes into force on 6 April.

I will look at the most important changes in today’s article, and will defer to a future post the other amendments to the GPDO that this new Order makes.

As expected, the wording of Class M has been amended to include launderettes among the types of building uses that may be converted to residential use under this Class. Paragraph M.2(1)(d)(i) has been amended to refer additionally to launderettes in relation to the test as to the impact of the change of use on adequate provision of services of the sort that may be provided by such a building.

However, the most eagerly awaited amendments are the changes in the rules relating to the residential conversion of offices under Class O.

The previous deadline for the completion of a residential conversion under Class O (31 May 2016) is entirely removed, by the deletion of paragraph O.1(c), which had imposed this deadline. However, there is now a condition (which is already found within a number of other Classes of permitted development in Part 3) that the development under Class O must be completed within a period of 3 years from the prior approval date. Where prior approval under Class O has already been given, this means that the three-year time limit for completion of the development is calculated from that date, which in some cases may not leave developers who got prior approval some time ago with too much extra time within which to complete their development. I have discussed the calculation of time limits and what constitutes “completion” in my book (A Practical Guide to Permitted Changes of Use), so I won’t repeat that material here.

One of the promised changes was the removal of the exclusion of permitted development under Class O in the ‘exempted areas’ (Article 2(5) Land). As previously announced, this exclusion of exempted areas is to be extended in order to give LPAs the opportunity to put Article 4 Directions in place in those areas. The government seems to have been in two minds as to how long should be allowed for this purpose, but they have now decided to extend this period for a further three years. A prior approval application in respect of the proposed residential conversion of offices in one of the exempted areas cannot therefore be made before 30 May 2019 (or, as the GPDO amendment puts it, the change of use will not be permitted development if the prior approval application is made before that date).

Article 2(5) will then disappear with effect from 31 May 2019, as will the list of exempted areas (currently in Part 3 of Schedule 1 to the GPDO). For the sake of good order, the prohibition on prior approval applications under Class O in exempted areas before 30 May 2019 will also disappear from the Order on that date.

Note also that the impact of noise from commercial premises on the intended occupiers of the development has now been added to the matters requiring prior approval in all cases under Class O (in addition to the existing requirement for prior approval in respect of transport and highways impacts, contamination risks on the site, and flooding risks). For this purpose, “commercial premises” means any premises normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application, and includes any premises licensed under the Licensing Act 2003 or any other place of public entertainment.

And now we come to the big surprise. Despite very clear ministerial promises, the revisions to Class O make no provision for any demolition or rebuilding of the office building. The position remains, therefore, that any building operations (whether for partial or more substantial demolition, or for any new build, even of quite a minor nature) will still require a separate planning permission. In principle, there is no reason why such a planning application for ‘associated works’ should not accompany (or follow shortly after) the prior approval application, and this has already been the practice for several years under the existing provisions. Any such planning application will have to be dealt with on its own merits, but the change of use itself will not be a material consideration in the determination of that application, because the change of use is in any event permitted development, subject only to the prior approval of the specified matters relating to that change of use.

It seems that ministers were advised that the enabling power in section 60 of the 1990 Act does not currently allow them to require prior approval of a wider range of matters beyond just the design or external appearance of the building in prior approval applications for building operations, and so demolition and reconstruction of offices under Class O will have to await the amendment of section 60, to enable this additional PD right under Class O to be added to the GPDO.

On the other hand, ministers have kept their promise to add a new Class of permitted development (Class PA) that will allow the residential conversion of premises that have been in light industrial use, although there will be only a limited window of opportunity within which this can be done.

Development is not permitted by Class PA if a prior approval application in respect of the development is received by the local planning authority before 1 October 2017. So contrary to what I originally wrote in this blog post, everyone one will have to wait for almost 18 months from now before the window of opportunity for the residential conversion of light industrial buildings will open. I am sorry if I caused some unnecessary excitement by suggesting the converse when I originally wrote this post.

This window of opportunity will nevertheless be of limited duration. Development is not permitted by Class PA if the prior approval date falls on or after 1st October 2020. (The ‘prior approval date’ is the date on which prior approval is actually given or the date on which the 56-day period expires without the LPA having notified the applicant of the determination of the application.). So there will be a three-year time slot (actually 8 weeks less than three years) in which prior approval can be sought under Class PA. To be on the safe side, a prior approval application under Class PA ought to be submitted no later than July 2020.

There is also the now standard proviso that development under Class PA is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date. As with the various other Classes of PD in Part 3, the provisions are quite detailed, and I will explain these in a future blog post.

[FOOTNOTE: When I originally wrote this blog post, I was focusing primarily on Class O, and only threw in a brief note on Class PA as an afterthought. In my haste (at the end of a very busy week), I misread the time limits applying to this new permitted development right, and I am grateful to Gary Mickelborough MRTPI for alerting me to the error in my original post, which I have now corrected.]

UPDATE (6.5.16): In case there are any readers who do not habitually look at the comments appended to blog posts, I would draw their attention to some important clarification from De-CLoG on the interpretation of the time limit under Class O that is set out in the latest comments posted below.

© MARTIN H GOODALL