UPDATED Use of Land Book and Webinar

In a blog post in July, I briefly outlined the important changes to the Use Classes Order that were due to take effect on 1 September. As I explained at the time, this was only a first stab at the subject, and I have now completed a much more thorough examination of the changes and their practical effect, in the form of a Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts, which is due to be published shortly.

The previous Use Classes will remain relevant until well into next year, and so this Updated Edition of the book will continue to be an essential resource for everyone concerned with the planning aspects of the use of land buildings. A complete new edition of the book would be premature at present, because there are clearly important further changes still to come, but I have taken the opportunity to update the main text of the book to reflect the recent changes and to flag up their relationship to the previous Use Classes.

Readers can choose from several options in buying this important new material. For the most complete coverage of the subject, I would recommend the purchase of the Updated 1st Edition of the book, which comes complete with the bound-in Supplement. For the same price as the original edition (£50.00), this is an excellent bargain. If you really don’t want to replace your (now out-of-date) First Edition of the book, then you can buy the Supplement alone for £15.00, but this means you won’t have access to the updated text of the main book.

Whichever option you choose, another absolute bargain will be available in the form of a Webinar (via Zoom) on the UCO changes, to be broadcast on Thursday, 26 November from 10.00 to 11.30 a.m. You can book for the Webinar, as well as buying the Updated 1st Edition of the book, with bound-in Supplement, for only £75.00. (This means that you’ll pay only £25.00 to attend the Webinar.) If you really don’t want the updated edition of the book, you can book for the Webinar, and still received the Supplement separately for a price of £40.00 (which again means paying only £25.00 for the webinar).

The topics covered in the Supplement, which will also be discussed in the Webinar are:

• the new sui generis uses
• the new Use Class E
• the new Use Classes F.1 and F.2
• transitional provisions and other changes
• some problems of interpretation
• the effect on Permitted Development

There will be an extended Q&A session at the end of the Webinar, to enable participants to put questions to me and to my colleagues from Keystone Law’s Planning Law Team on the practical effect of the UCO changes.

All Webinar delegates will receive a recording of the webinar with an office licence, so everyone in your team can watch it later.

If you don’t want to attend the Webinar, you can still buy either the Updated 1st Edition of the book (complete with bound-in Supplement) for £50.00, or the Supplement alone for £15.00

Ordering and booking are really easy. All you need do is to click on either the 'Pre-order' or 'Book Now' buttons in the left-hand margin of this page, then read more and place your order.

© MARTIN H GOODALL

LPA bitten by 56-day rule

In my book, A Practical Guide to Permitted Changes of Use, I stressed the absolute necessity of an LPA’s notifying their determination in respect of a prior approval application within the time limit laid down (56 days in the case of Part 3), and I carefully explained the detailed rules for establishing both the start date and end date of the 56-day period. Yet some LPAs still seem to get it wrong, especially if a public holiday occurs just after the application is received.

Just to remind you, there are no dies non for the purpose of calculating the 56-day period. The 56-day period (and similar time limits for determining other prior approval applications under the GPDO) continue uninterrupted throughout weekends and public holidays, and it is essential that LPAs should take this into account when working out how long they’ve got in which to make a determination and to communicate it to the applicant.

I was recently sent an appeal decision in Wellingborough [3248384] in a case where the prior approval application under Part 3, Class R had been delivered to the LPA by hand at 10.07 a.m. on Christmas Eve. It was deposited in a letter box for incoming mail at the council’s office. However, the letter box had been emptied earlier that morning, and was not then opened again until 2 January. At the time of delivery, the council’s office was, nevertheless, open for business. It closed for Christmas at 4.00 p.m. that day. The Council sought to argue that the application should be deemed to have been received on 2 January, not 24 December, and that the 56-day period should be calculated accordingly.

Their contention was that this office is only accessible to the public by appointment, and that if customers wish to drop off planning application forms, documents or samples, they are requested to call the planning department on the relevant phone number. Furthermore, they said, the Council’s Christmas opening hours were displayed on the letter box and also advertised on the Council’s website throughout December, making it clear that the council’s offices were closed from 4pm on Christmas Eve to 1 January 2020, and would not re-open until 2 January.

Rules relating to the delivery of documents outside a council’s business hours relate only to delivery by electronic means. [For those rules, see Article 2(9) of the GPDO and section 336(4A) of the 1990 Act, summarised in paragraph 13.8.1 of Chapter 13 in the Third Edition of my book.] There are no rules in the GPDO governing the physical delivery of documents at times when the council’s offices are closed, but this does seem to be a ‘grey’ area (unless someone can remind me of a general rule as to the service of documents that would cover this). Subject to that parenthetical proviso, it seems to me that the legal position might not have been entirely clear if (in this case) the physical delivery of the prior approval application had been made by depositing it in the council’s letter box at, say, 4.15 p.m. on Christmas Eve, after the office had closed. However, that point did not arise in this case, because delivery in the council’s letter box took place almost six hours before the office closed for the holiday.

The Inspector was entirely clear in his finding that there was nothing to prevent or prohibit the applicant from hand posting the application in the letter box at the council’s office on Christmas Eve. Responsibility rested with the council to ensure that applications it receives, including those received immediately prior to a holiday period, are processed within the statutory time limit. Weekends and bank holidays or other public holidays did not ‘stop the clock’, nor could it be suspended during the extended closure of the council’s office in this case. Day 1 of the 56-day period in this case was therefore 25 December, and the council had accordingly failed to notify the applicant as to whether prior approval was required or was given or refused within 56 days of its having received the application on 24 December.

The Inspector nevertheless pointed out that the proposed development could only lawfully proceed if it was in fact permitted development having regard to the relevant conditions and limitations imposed on the planning permission granted by the GPDO. There appears, however, to have been no contention on the LPA’s part that the development would not be compliant with the restrictions, limitations or conditions applying to Class R. Furthermore, (due to the council’s being out of time to determine the prior approval application) it was no longer necessary to consider whether prior approval as to the transport and highways, and noise impacts of the development would or should be required.

The appellant applied for, and was granted, a full award of costs. The appellant had sought on at least two occasions to persuade the council that it was out of time, but the council persisted in denying this. In the circumstances, it was unlikely that the council would have granted an LDC if the appellant had made a section 192 application. So it was clear that the applicant had no viable option but to appeal under section 78, despite having taken all reasonable steps to avoid such a situation. As a result, the applicant had been put to the cost of an appeal that should have been avoided by the LPA’s acceptance that the 56-day period had elapsed. This amounted to unreasonable behaviour resulting in unnecessary or wasted expense, and an award of costs was therefore justified.

This should be an object lesson to all LPAs. In order to avoid running out of time for determining a prior approval application, they should make a working assumption that physical delivery of an application (discovered in their letter box on returning to the office after a weekend or public holiday) was effected before the closure of the office for the weekend or before that holiday period, and ensure that the timescale within which the application must be determined is calculated on that basis, so that the application is in practice determined within that shortened period.

© MARTIN H GOODALL

Legal challenge to GPDO and UCO changes moves forward

The High Court (Holgate J), has directed that this action (on which I reported on 27 August) will be heard in a “rolled-up” hearing in the first half of October. This means that the Court will deal with both the application for leave to proceed and with the substantive claim at the same time. This is a procedure that is sometimes adopted in cases of urgency.

I did wonder whether this case might be thought to be of sufficient importance to be heard by a Divisional Court, rather than by a single judge, and this is indeed what has been decided. One advantage of this (for both sides) is that if the case is decided by a strongly constituted Divisional Court, the losing side may possibly be able to appeal under the ‘leap-frog’ provision direct to the Supreme Court, without first having to pursue an appeal through the Court of Appeal.

The claimant also sought confirmation from the Court that this case would be governed by the Aarhus Convention (which limits the costs that can be awarded against a losing claimant in an environmental case), and the Court has confirmed that this case will be covered by the convention.

In view of the early substantive hearing of this case, the claimant has decided not to pursue its original application for interim relief, but at the hearing it will simply seek the final relief which has been claimed.

In the meantime, the offending SIs have been ‘prayed against’ in parliament (which is parliamentary language for having the matter debated). This will at least give opposition parties a chance to voice their concerns about this radical new subordinate legislation, although the government’s substantial majority will ensure that these political objections will be brushed aside.

The legal challenge to the legislation is far more serious, and the grounds on which this challenge is based raise important legal issues, especially in relation to the failure to carry out a Strategic Environmental Assessment. The alleged failure to take proper account of the responses to consultation, or to consider the government’s own specialist advice, also raises a serious Wednesbury issue.

I am sure that I am not the only lawyer who is salivating at the prospect of a juicy legal battle in October.

UPDATE: The case was heard by a two-judge Dvisonal Court last week, and (as is usual in such cases) judgment was reserved. I am not aware of any estimate as to how soon judgment may be exepected.

© MARTIN H GOODALL

Application fees for prior approval under Part 20

The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2020 (SI 2020 No.936), which were made on 5 August, came into force on 2 September. Readers will recall that the new fees for prior approval applications were announced some time ago, so these new fees were entirely as expected. In the event, the potential window of opportunity to bang in a prior approval application under the new PD rights without having to pay a fee lasted for only one day. I wonder if any lucky applicants managed to get their applications in on 1 September, and so avoided having to pay the application fee?

The fee for a prior approval application under Part 20 (construction of new dwellings) where the number of new dwellings proposed is 50 or fewer is £334 for each new dwelling; but where the number of new dwellings proposed by the development exceeds 50, the fee is £16,525, plus an additional £100 for each new dwelling in excess of 50, subject to a maximum in total of £300,000.

As I mentioned in an earlier post, there is a ‘free go’ for a second application under Part 20 within 12 months, in circumstances similar to those applying to planning applications; but this ‘free go’ does not extend to prior approval applications under other Parts of the Second Schedule to the GPDO.

© MARTIN H GOODALL

GPDO and UCO amendments under challenge

I am grateful to a correspondent for drawing to my attention an application for Judicial Review in respect of the recent amendments to both the General Permitted Development Order and the Use Classes Order. Solicitors acting for “Rights: Community: Action Ltd” [Keystone Law are not acting in this case] sent a letter before action to the Secretary of State on 21 August notifying him of the legal grounds of a proposed challenge to this subordinate legislation. If these Statutory Instruments are not withdrawn or suspended, the Claimant will challenge their lawfulness and will seek a declaration that the SIs are unlawful, and an order quashing them.

As someone who is strongly pro-European, I was pleased to see that one of the principal grounds of challenge is the government’s failure to comply with “the Strategic Environmental Assessment Directive” and the Environmental Assessment of Plans and Programmes Regulations 2004. The second ground of challenge is the government’s failure to comply with section 149 of the Equality Act 2010, which created “the public sector equality duty”. The potential claim is based, thirdly, on the government’s failure to take account of consultation responses and other material considerations, both by failing conscientiously to consider consultee responses and by failing to take into account the government’s own expert advice. Thus, it is alleged, in closing his mind to the issues raised regarding these proposed reforms, the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed reforms.

In their letter before action, the claimant’s solicitors require the Secretary of State to suspend the coming into effect of the SIs, pending the required SEA, impact assessments and Parliamentary debate. If he does not, the Claimant proposes to seek an urgent interim order suspending the operation of the SIs until the legal challenge is resolved.

I am led to understand that an application for leave, settled by leading and junior counsel in Landmark Chambers, has now been lodged in the High Court. At this stage, I am making no prediction as to whether permission to proceed will be granted by the High Court; and I certainly would not attempt to forecast the ultimate outcome of this litigation in the event that the claimant obtains the leave of the Court. I shall nevertheless follow the progress of the action with great interest.

© MARTIN H GOODALL

Ghastly extensions

I suppose I’d better summarise the remaining new PD rights for extensions to existing buildings that come into effect next week (on 31 August) although, as you may already have gathered, I am distinctly unenthusiastic about them, as are many other planning professionals. These new PD rights comprise Class AA in Part 1, and Classes AA, AB, AC and AD in Part 20 of the Second Schedule to the GPDO. They were introduced by The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (SI 2020 No.755).

[There have already had to be some corrections to the provisions to Class A of Part 20. I don’t propose to discuss these here. They can be found in Article 4(2) of the No.2 amendment order.]

In brief, the additional PD rights are as follows:

Part 1

AA - Construction of an extension of up to two extra storeys on an existing dwellinghouse comprising two storeys or more, or one extra storey on a bungalow.

Part 20

AA - Construction of up to two extra storeys of flats [number unspecified, and therefore apparently unlimited] immediately above existing premises that are not less than three storeys in height used within Use Classes A1* (shops), A2* (financial and professional services), Class A3* (restaurants and cafes), Class B1(a)* (offices) or as a betting office, pay day loan shop or launderette, or which are in mixed use as a dwellinghouse or dwellinghouses (Class C3) together with one of those uses. [*These commercial Use Classes continue to apply for the purposes of the GPDO, notwithstanding their abolition and replacement by Class E in the UCO.]

AB - Construction of up to two extra storeys of flats [number again unspecified, and therefore apparently unlimited] on an existing terrace building (i.e. a building which is not detached) of two or more storeys, used in the same way as described above, or one extra storey on such a building that currently comprises only one storey.

AC - Construction of up to two extra storeys of [an unspecified number of] flats above a single C3 dwellinghouse of two or more storeys in a terrace, or one extra storey on such a dwellinghouse that currently comprises only one storey in a terrace.

AD - Construction of up to two extra storeys of [an unspecified number of] flats above a single detached C3 dwellinghouse of two or more storeys, or one extra storey on such a dwellinghouse that currently comprises only one storey

In relation to the number of storeys, any floors below ground level and any existing loft conversion or roof extension must be excluded in counting the qualifying number of storeys for the purposes of Class 20. It follows from this that the existing accommodation in the roof must be counted as taking up one of the storeys permitted in the upward extension of the building.

In all cases in Part 20, the permitted development includes (within appropriate limits) necessary engineering operations, replacement or provision of plant, and the construction of storage, waste or other ancillary facilities.

However, before gung-ho building owners and developers start charging off in all directions with proposals for ugly and unneighbourly extensions, we should all be aware of the prohibitions that restrict the scope for such extensions.

Those applying to Class AA of Part 1 differ somewhat from the restrictions that apply under Class 20. The following is not a complete list of the prohibitions in paragraph AA.1 but, among these, development under Part 1, Class AA is not permitted :

- if the existing dwelling is situated within a Conservation Area, an Area of Outstanding Natural Beauty, the Broads, a National Park or a World Heritage Site (“Article 2(3) land”) or a Site of Special Scientific Interest (SSSI) [Note that, whilst in this case these prohibitions do not extend to a listed building or a building within its curtilage, the provisions of the Listed Buildings Act would nevertheless apply, and any such development would undoubtedly require Listed Building Consent, which in many cases it would be unlikely to get];

- if permission for its use as a dwellinghouse was granted only by virtue of Class M, N, O, P, PA or Q of Part 3;

- if it was constructed before 1st July 1948 or after 28th October 2018. The building must have been in its existing qualifying use on 5 March 2018,so if that use permanently ceased before that date, it does not qualify. [Note that “in use” in this context would, in my view, include a ‘dormant’ use, i.e. a use which was no longer active on that date, but in respect of which the existing use right for planning purposes had not been lost.];

- if, at any time following its original construction, the existing house has been enlarged by the addition of one or more storeys (whether with or without planning permission, or in reliance on PD under Class AA or otherwise)

There are also strict height limitations, which are too complicated to summarise here. The extension can only be built above the principal part of the dwellinghouse (i.e. the main part of the dwellinghouse excluding any front, side or rear extension of a lower height, whether this forms part of the original dwellinghouse or is a subsequent addition).

[This PD right is subject to a prior approval application first being made in respect of the matters listed in paragraph AA.2. I am not going discuss the details here, nor have I got time to run through the other conditions that apply.]

Development under Classes AA, AB, AC and AD of Part 20 is not permitted if the site is:

(i) article 2(3) land [see above];
(ii) a site of special scientific interest;
(iii) a listed building or land within its curtilage;
(iv) a scheduled monument or land within its curtilage;
(v) a safety hazard area;
(vi) a military explosives storage area; or
(vii) land within 3 kilometres of the perimeter of an aerodrome.

Development under these Classes is also precluded if the works exceed the permitted internal and external height limits, or if the permitted engineering operations exceed the specified limitations both as to their nature and as to their physical extent.

These PD rights are subject to strict conditions, the most important of which is the requirement to make a prior approval application. In addition to the ‘usual’ matters that may require prior approval (with which we have all become familiar under Part 3), other matters that will require attention include:

- the provision of adequate natural light in all habitable rooms of the new flats;
- impact on the amenity of the neighbouring premises including overlooking, privacy and the loss of light;
- whether, because of the siting of the building, the development will impact on a protected view identified in the Directions Relating to Protected Vistas dated 15th March 2012 issued by the Secretary of State,

also [in the case of Classes AA and AB only but not AC and AD]:
- impacts of noise from any commercial premises on the intended occupiers of the new flats;
- impacts of the introduction of, or an increase in, a residential use of premises in the area on the carrying on of any trade, business or other use of land in the area;

Any development under Classes AB, AC and AD is permitted subject to the condition that the development must not include a window in any wall or roof slope forming a side elevation of the building. In the case of Classes AC and AD, the materials used in any exterior work must also be of a similar appearance to those used in the construction of the exterior of the existing building and, following the development, the roof pitch of the principal part of the building must be the same as the roof pitch of the principal part of the existing building.

There is a condition that the development permitted must be completed within a period of 3 years starting with the date prior approval is granted. As in other cases, approval of construction management and methods will be required, including mitigation of construction noise, dust, vibration and traffic on occupiers of the building and adjoining owners or occupiers. Notice of completion of the development must also be given to the LPA by the developer. Following the development, every dwelling in the building must remain in use as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

The procedure for processing and determining the prior approval application is largely similar to the process that has become familiar over the past seven years. No time limit is stated in Part 20, but Article 7 provides that where no period is specified for the determination of the prior application, it is to be determined within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or within such longer period as may be agreed by the applicant and the authority in writing. However, in contrast with the provisions in Parts 1, 3, 6 and 16, there is no default provision that would entitle the developer to proceed with their development in the absence of determination within the 8-week period. The only remedy open to the applicant in these circumstances is an appeal against non-determination under section 78(2) of the 1990 Act.

I have deliberately confined this note to the main points, and have omitted some of the legislative detail. Readers should therefore refer to the actual text of SI 2020 No.755 for a complete picture of this legislation.

© MARTIN H GOODALL

Wait and see

I am not getting excited about today’s publication of the Planning White Paper. Ignore all the overblown ministerial hyperbole and spin, and the overdramatic reactions that this has prompted. We shall need to read and digest the actual proposals, and try to understand what their real impact is likely to be.

There is a 12-week consultation period, which takes us to early November. The government must then, at the very least, go through the motions of considering responses. This will take another few weeks, although no doubt they will cut this down to the shortest interval they think they can get away with before ploughing on with their proposals regardless. The government will then have to introduce primary legislation to change the Development Plan system and to scrap and replace CIL with a nationally imposed development levy mechanism, not to mention various other changes to the 1990 Act. They will be doing well if they can introduce a Bill before the Christmas recess.

So we will be into the New Year before parliament gets to grips with the legislation. It is too early to say whether the Bill will wend its way through parliament in the usual manner or whether it will be fast-tracked in order to get to Royal Assent as fast as possible. This legislation may well prove to be controversial (even on the Tory backbenches), so the government may not get away with trying to railroad it through the legislature.

The bottom line is that it will be the Summer of 2021 before the dramatic changes the government is promising can actually be implemented. In practice, I foresee a potentially rough ride for the government over this, because they are going to get opposition not only from the usual suspects, but from their own supporters in Middle England (the stalwarts of the constituency Conservative Associations), which will feed through to concern on the Tory backbenches.

So, as the heading of this article says………… wait and see.

© MARTIN H GOODALL