Latest changes to the GPDO

On 26 June, I drew attention to the temporary changes to the GPDO made by The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020 No. 632). In addition to the new temporary PD rights that came into effect on 25 June, these Regulations make permanent changes to the GPDO. The title of this SI is, on the face of it, misleading because the permanent changes to the GPDO that will come into force on 1 August have nothing at all to do with the current coronavirus crisis.

The one change that grabbed the headlines was the introduction of a new Part 20 to the Second Schedule to the GPDO, which will permit the addition of two extra storeys to certain blocks of flats. However, I am not inclined to get too excited about this change, because I suspect that developers will find that the opportunities to avail themselves of this new PD right are, in practice, somewhat limited. I will return to Part 20 in a later post, but I want to concentrate today on the other changes to the GPDO that will take effect on 1 August.

The other changes fall broadly into three categories. First there is a belated tidying up of the drafting of Article 7 (relating to the agreed extension of time for determination of a prior approval application). Second, there are some minor consequential amendments to Part 1 in light of some of the other changes that have been made to the GPDO, and then third come a number of amendments to the drafting of the residential conversion provisions in Part 3 (Classes M, N, O, PA and Q) and also in paragraphs W and X, including an important change with regard to prior approval applications.

Most of us thought that Article 7 was quite clear in its intention and effect, namely that a prior approval application has to be determined within the period specified in the relevant Part of Sch. 2 (or, in the absence of a specified period, within 8 weeks), or within such longer period as may be agreed by the applicant and the authority in writing. But we then had the Warren Farm judgment which (much to everyone’s surprise) ruled that, in practice, time could not be extended by agreement. To general rejoicing, that judgment was reversed by Gluck, which established that Article 7 does mean what it appeared to say. Nevertheless, MHCLG has now decided to tweak the wording of Article 7 to put the matter beyond any possible dispute. Article 7 has now been amended to read that, as an alternative to (a) and (b), the prior approval application may be determined “within such longer period than is referred to in paragraph (a) or (b) as may be agreed by the applicant and the authority in writing.”

Turning to Part 1, an apparent gap in the legislation has now (rather belatedly) been plugged. Last year, the Fees Regs were amended so that prior approval applications for larger domestic extensions would be subject to the payment of a fee of £96. It was intended that this fee would be payable on prior approval applications under Part 1 that were made on or after 19 August 2019. However, MHCLG omitted to amend Part 1 in the Second Schedule to the GPDO to require that the items to be provided to the LPA in connection with a prior approval application must include “any fee required to be paid.”. I don’t know whether somebody took the point that there was no actual requirement in Part 1 itself to pay an application fee, but with effect from 1 August this apparent loophole will now be plugged by the requirement that the listed items must be provided “together with any fee required to be paid” (namely the amount stated in regulation 14(1)(zab) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (S.1. 2012/2920)). I wonder - Would it be open to anyone who had paid a £96 application fee under Part 1 between 19 August 2019 and 31 July 2020 to demand that the LPA refund that fee?

It is worth remembering that Reg. 14(1A) of the 2012 Fees Regs provides that no application fee is required for the prior approval application where an application fee is paid for a planning application made in respect of proposals for development of a site which includes buildings or other land which are the subject of the prior approval application, provided that the application for planning permission is made on the same date and by or on behalf of the same applicant as the prior approval application.

The conditions attached to Class B include a provision [B.2(b)(ii)] that other than in the case of an enlargement which joins the original roof to the roof of a rear or side extension, no part of the enlargement must extend beyond the outside face of any external wall of the original dwellinghouse. As originally drafted, paragraph B.4 provided that for the purposes of paragraph B.2(b)(ii), roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse were not to be considered part of the enlargement. This has now been amended, so that for these purposes (a) roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse are not to be considered part of the enlargement; and (b) “rear or side extension” includes an original part of, or a subsequent extension of the dwellinghouse that extends from the rear or side of the principal part of the original dwellinghouse.

The PD rights under all Classes in Part 1 are excluded in respect of any dwelling created under the new Part 20 (upward extensions of blocks of flats).

In Part 3, an important change is made in respect of prior approval applications relating to residential conversions under Classes M, N, O, PA and Q. In each of these Classes an additional matter will require approval, namely “the provision of adequate natural light in all habitable rooms of the dwellinghouses” so created. “Habitable rooms” are defined as “any rooms used or intended to be used for sleeping or living” which are not solely used for cooking purposes, (but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms). So a kitchen does not have to have adequate natural light, whereas a kitchen/diner does. There is clearly scope here for dispute as to whether the kitchen is solely provided for cooking purposes, and for no other purpose (such as eating, or informal entertainment of guests).

In addition, paragraph W has also been amended to require that in relation to prior approval applications in respect of any of these five Classes of residential conversion, the application must also be accompanied by “ a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses.” It was perhaps anomalous that this provision was not included in the original drafting. Notwithstanding this, however, the LPA is still not entitled to consider the adequacy of the accommodation in spatial terms; the only additional item that they can now consider is the adequacy of natural light in those rooms that are defined as habitable rooms.

Furthermore, where the application relates to prior approval as to adequate natural light, the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses. This is not a matter for the LPA’s discretion; refusal is mandatory in such circumstances. For the sake of good order, the LPA’s discretion under paragraph W(3) to refuse an application where the proposed development does not comply with any relevant conditions, limitations or restrictions applicable to the development permitted is removed in respect of the provision of adequate light in the case of Classes M, N, O, PA and Q, in view of the absolute requirement to refuse the application where adequate natural light is not provided in such a case.

The inclusion of Class PA in these amendments is puzzling, because paragraph PA.1 in Class PA provides that “Development is not permitted by Class PA if— (c) the prior approval date falls on or after 1st October 2020.” [The “prior approval date” is the date on which prior approval is given, or a determination is given that such approval is not required, and also if the period for giving such a determination (56 days in the case of Part 3) has expired without the applicant being notified whether prior approval is required, given or refused.] So it will only be possible for a few days after 1 August to submit a prior approval application under Class PA for determination in advance of the 1 October prior approval deadline. Are the government perhaps hedging their bets in case they might decide after all to extend Class PA, which they could still do between now and late September? This could possibly explain the otherwise inexplicable addition of sub-paragraph (v) to PA.2(1)(b)].

Some people seem to have been confused by the transitional provisions in Reg. 27. This provides that where a “prior approval event” occurs, the planning permission granted by Class M, N, O, PA or Q of Part 3 of Schedule 2 to the 2015 Order continues to have effect as if the amendments made by Part 2 of these Regulations [i.e. the amendments made by these Regs to the 2015 Order] had not been made. The only effect of this provision that I can discern is that [having regard to the definition of “prior approval event” in Reg. 27(1)] these changes do not have any effect in relation to any PD right in respect of which a prior approval application is either determined before 1 August [or the 56-day rule operates before that date, in the event of non-determination] or, alternatively, where the prior approval application is made before 1 August, but is determined after that date. In other words, the changes have effect only in respect of PD in respect of which a prior approval application is made on or after 1 August. [I really don’t understand why they couldn’t just have said this!]

As I read the new Regs, they do not amend or have any effect on paragraph PA.1(c), which continues to prohibit any PD under Class PA where the prior approval date falls on or after 1st October 2020. There is nothing in the new Regs that preserves or extends the PD right under Class PA for the residential conversion of a light industrial building. The guillotine will still fall on 1 October, and will rule out any PD under this Class where the prior approval date falls on or after that date.

© MARTIN H GOODALL