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