Monday, 30 May 2022

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!


Friday, 6 May 2022

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.


Wednesday, 13 April 2022

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.


Friday, 11 March 2022

Planning Bill, RIP?

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

However, it quickly became clear that the government was in fact nowhere near ready to go ahead with the promised Bill. It emerged in the weeks that followed that as a result of strenuous opposition within Tory ranks, the government was far less determined to press ahead with their planning proposals than the PM made out. Considerable alarm was caused among party loyalists early in May by the loss of control of several councils in the south of the country, as a result of growing public opposition to the perceived threat of development in traditionally Tory-held areas. Following the shock result of the Chesham and Amersham by-election in June, backbench Tory MPs became even more jumpy about the government’s proposed planning ‘reforms’, and the pressure on the government to drop or considerably water down their proposals only intensified.

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

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


Tuesday, 1 March 2022

Permitted Changes of Use – FOURTH EDITION

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

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

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

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

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

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

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

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

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

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

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


Tuesday, 8 February 2022

Pincher leaves DLUHC

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

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

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

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


Monday, 7 February 2022

Upward extensions – effect on amenity and external appearance

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

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

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

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

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

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

This judgement established the following points:

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