Thursday 27 August 2020

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 If these Statutory Instruments are not withdrawn or suspended, the Claimant will challenge their lawfulness and will seek a declaration that the SIs are unlawful, and an order quashing them.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

Thursday 6 August 2020

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

Monday 3 August 2020

Permitted development to demolish and replace buildings


As those readers who have been keeping up to date with the plethora of recent amendment orders and regulations will be aware, by 31 August we shall have (in the order in which they will appear on the printed page) the following Classes of permitted development in the recently introduced Part 20 of the Second Schedule to the GPDO - Class ZA, Class A, Class AA, Class AB, Class AC and Class AD. Then there is also the new Class AA in Part 1.

Today, I am going to focus solely on the last of these new PD rights to be introduced. This is Class ZA, which was brought into being by the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 SI 2020 No.756, which was made on 20 July and will take effect on 31 August, at 10.00 a.m. precisely.

The development that will be permitted by Class ZA comprises two elements, the first of which encompasses the demolition of one or other of any building comprising a single purpose-built detached block of flats, or, alternatively a single detached building, comprising premises established for office use falling within Class B1(a), for research and development falling within Class B1(b) or for a light industrial process falling within Class B1(c) of the Schedule to the 1987 Order, or any combination of these three B1 uses. [To answer a point that one correspondent raised with me, “demolition” in this case must surely mean complete demolition of the entire building, bearing in mind the definition of “Building” in Article 2, to which I draw attention below.]

The second element of the development permitted comprises the construction of a purpose-built detached block of flats, or a single purpose-built detached dwellinghouse. (In either case, this means built as such and remaining as such.) For the purpose of carrying out this development, Class ZA permits operations reasonably necessary for the demolition and construction (which may include the installation of a basement or cellar in the new building, whether or not there is one in the old building) and works for the removal of plant servicing the old building, for the disconnection of services from the old building, for the removal of any means of access to the old building, for the removal of storage and waste from the old building, for the installation of plant to service the new building, for the installation of services to be connected to the new building, as well as works to enable access to and from the new building (including a fire escape), for the construction within the new building of storage, waste or other ancillary facilities to support the new building and the use of scaffolding and other temporary structures to support these operations (during a period starting with their installation no earlier than one month before the beginning of those operations, and ending with their removal no later than one month after the completion of those operations. [It occurs to me that one would not usually expect this level of detail to be required in a planning permission, so it is slightly puzzling that the draftsman of these provisions felt that it was necessary in this case.]

[It should be noted that this PD right does not confer any right to demolish a single detached dwellinghouse as such; and, although you can build a block of flats containing (in theory) an unlimited number of flats, you can in the alternative build only one detached dwellinghouse, even though there might potentially be room on the cleared site for several houses.]

The following definitions specifically applying to Class ZA should be borne in mind. First, this PD right applies only to a whole building and not to part only of a building (and the definition of a “building” in Article 2 has been changed to this effect so far as it applies to Class ZA). “Development” includes any change of use from the use of the old building to the use of the new building within Class C3 in the form in which this Use Class existed on 12 March 2020. [This is another provision which really ought not to have been necessary, as what is authorised is operational development, and so the use of the new building would in any event be governed by section 75 of the 1990 Act.] The “old building” and “new building” respectively mean the building proposed for demolition and the building proposed as replacement [another statement of the absolutely bl***ing obvious which was surely unnecessary], and “services” means water, drainage, electricity, gas, and other services to the extent reasonably necessary for the new building to function as a block of flats or as a single detached dwellinghouse. [Well, who’d have thought that’s what it meant?]

Some of the aspects of development not permitted by Class ZA represent in effect qualifying criteria which, if they are not met, take the development outside the scope of the GPDO. The old building must have been constructed before 1990, and it must still have been in existence on 12 March 2020. [“Built” is not defined, but I think we may take it that the old building must have been substantially completed (as per Sage) no later than 31 December 1989.] The footprint of the old building (i.e. the total area of ground covered by it) must not exceed 1,000 square metres, and the height of the highest part of the roof of the old building above ground level (not including plant, radio masts and antennae) must not be greater than 18 metres at any point.

[I am not sure what purpose is served by the requirement that the old building must still have been in existence on 12 March 2020. The PD rights under Class ZA must surely depend on the continued existence of the old building until prior approval has been granted. If the old building has already been demolished at a date after 12 March, is it implied that the right to erect a new building within the limits set in Class ZA can still be permitted development? I find it hard to believe that this is really what was intended. ]

One particularly important criterion is that the old building must have been vacant for a period of at least 6 months immediately prior to the date of the application for prior approval. However, if the old building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the old building stands, and if it would be practicable to secure safety or health by works of repair or works for affording temporary support, then this too is a disqualification. But keeping the old building vacant does not of itself count as action or inaction.

[The position regarding agricultural tenants is protected (see below), but there does not seem to be any other means of preventing the process of ‘winkling’ by unscrupulous landlords.

A correspondent has correctly raised with me how the LPA is to know, or be able to confirm that the building to be demolished has been vacant for at least six months, when there is no requirement for the applicant to supply any evidence to support this assertion (or assumption). How is the LPA to ascertain when it was vacated? I suppose rating records might be an indication. The same point could potentially arise with regard to the date of construction of the existing building. I think it would perhaps be slightly easier to ascertain whether the building had been completed no later than 31 December 1989. Building Control records should enable this to be confirmed.
]

The footprint of the new building (defined as mentioned above) must fall wholly within the footprint of the old building. Development is disqualified if any part of the footprint of the new building falls outside those limits. Furthermore, no part of any exterior wall of the new building must be nearer the highway than any exterior wall of the old building.

The new building must not have more than two storeys more than the old building. Where the new building has additional storeys compared with the previous building the floor to ceiling height of any additional storey in the new building, measured internally, must not at any point be greater than whichever is the lower of the floor to ceiling height, measured internally, of any storey in the old building, or 3 metres.

There is also an overall limit on the height of the new building; it must not exceed whichever is the lower of 7 metres above the height (not including plant) of old building, or 18 metres in total, although plant, radio masts and antennae on the new building can be left out of account for this purpose. The height of any plant on the roof of the new building as measured from the lowest surface of that roof must not be greater than the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the old building.

There are, of course, various other prohibitions (as you would expect if you are already familiar with similar PD rights elsewhere in the GPDO). Development is not permitted by Class ZA if land covered by, or within the curtilage of, the old building is occupied in any part under an agricultural tenancy (unless the express consent of both the landlord and the tenant has been obtained). It is not permitted if it is or forms part of a Conservation Area, an AONB, the Broads, a National Park or a World Heritage Site [Article 2(3) land, which also includes land specified for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 – no, me neither].

Bearing in mind the disqualification of a building situated within a Conservation Area, it is not clear why the draftsman should also have thought it necessary to prohibit the demolition of an unlisted building in a conservation area (“relevant demolition” for the purposes of section 196D of the Listed Buildings Act).

Development under Class ZA is also prohibited if the site is or forms part of a Site of Special Scientific Interest, of a listed building or land within its curtilage, of a scheduled monument or land within its curtilage or if it is or forms part of a safety hazard area or military explosives storage area, or is within 3 kilometres of the perimeter of an aerodrome.

All this is, of course, subject to a condition requiring a prior approval application to be made before any of this development commences. The matters requiring prior approval in this case are:

(a) transport and highways impacts of the development;
(b) contamination risks in relation to the new building;
(c) flooding risks in relation to the new building;
(d) the design of the new building;
(e) the external appearance of the new building;
(f) the provision of adequate natural light in all habitable rooms of each new dwelling in or comprising the new building;
(g) the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light;
(h) impacts of noise from any commercial premises on the intended occupiers of the new dwellings;
(i) the impact on business and new residents of the development’s introduction of, or increase in, residential use in the area in which the development is to take place;
(j) the impact of the development on heritage and archaeology (which obliges the LPA, so far as they consider reasonably practicable, to consult any bodies that they consider to have heritage and archaeological expertise relevant to their functions under Part 3 of the Act and the GPDO);
(k) the method of demolition of the old building;
(l) the plans for landscaping of the development, including the planting and maintenance of shrubs and trees; and
(m) any air traffic and defence asset impacts of the development, and any impact that, because of the siting of the new building, the development will have on a protected vista identified in the Directions Relating to Protected Vistas dated 15 March 2012 by the Secretary of State, unless no part of the new building (including plant, radio masts and antennae) occupies airspace not occupied by the old building (including plant, radio masts and antennae).

[The matters requiring prior approval still do not specifically include the adequacy of the residential accommodation in terms of the floor area of each dwelling, room sizes, etc. but ”the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light” does for the first time introduce some additional elements of residential amenity into the equation, although only practical experience of the operation of these provisions will show to what extent this might be stretched to embrace such considerations as the adequacy of the new residential accommodation (in terms of size, servicing arrangements and any outside space, etc.).]

The term “commercial premises” (in sub-paragraph (h)) means any premises in the surrounding area which are normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application under, and includes premises licensed under the Licensing Act 2003 or any other place of public entertainment. I won’t repeat other definitions of terms that were explained in my last blog post, such as “air traffic and defence assets”.

Some additional requirements have been added to Part 20 regarding the information to be provided with a prior approval application under Class ZA. (In a Class ZA application, this list replaces the list of requirements that apply to other developments under Part 20.) The complete list of items required under Class ZA comprises:

(a) a written description of the proposed development, which must include details of the building proposed for demolition, the building proposed as replacement and all of the operations listed above (for both the demolition and the new build, all services, plant, etc.);
(b) a plan, drawn to an identified scale and showing the direction of North, indicating the site of the proposed development;
(c) drawings prepared to an identified scale and showing external dimensions and elevations of the building proposed for demolition and of the building scheduled as replacement, showing the direction of North and the positioning of each, together with the applicable information mentioned below**;
(d) a written statement specifying the number of dwellings in the building proposed for demolition, and the number of new dwellings proposed in the building proposed as replacement;
(e) where there is a requirement for the Environment Agency to be consulted (in Flood Zones 2 or 3, or in an area within Flood Zone 1 which has critical drainage problems and which has been notified to the local planning authority by the Environment Agency), a site-specific flood risk assessment;
(f) a written statement in respect of heritage and archaeological considerations of the development;
(g) the developer’s contact address; and
(h) the developer’s email address if the developer is content to receive communications electronically;

This information must of course be accompanied by any fee required to be paid. (To avoid unnecessary repetition, I would remind you of the much increased fees that will be payable in respect of applications under Class 20, which I explained in this blog on Wednesday, 15 July, when I drew attention to draft amendment regulations to the Fees Regs. So far as I am aware, these still remain only in draft at the time of writing , and it is uncertain whether the new scale of charges will have come into force by 1 September.)

**The information referred to in sub-paragraph (c) above, which must so far as practicable show the direction of North and also elevations is —
(a) where the building proposed as replacement is a block of flats, the position and dimensions of windows, doors and walls in the block and in each flat in the new block, and the dimensions and use of all habitable and other rooms in each flat;
(b) where the building proposed as replacement is a single house, the position and dimensions of the windows, doors and walls in it, and the dimensions and use of all habitable and other rooms in it.

The following further conditions also apply to the development:

When the developer makes the prior approval application, the procedure for dealing with such applications under Part 20 (as set out in paragraph B of that Part) applies to the application.

Before beginning the development, the developer must provide the LPA with a report for the management of the construction of the development, which is acceptable to the authority and sets out the method of demolition, the proposed development hours of operation and how any adverse impact of noise, dust and vibration and traffic on occupiers of the new building and adjoining owners or occupiers will be mitigated, the proposed use of materials, and the plans for the disposal and recycling of waste generated by the development and that in carrying out the development the developer must comply with the report.

The development must be completed within a period of 3 years starting with the date prior approval is granted, and the developer must notify the LPA of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing [which can include an email] and must include—
(a) the name of the developer;
(b) the address or location of the development; and
(c) the date of completion.

[In accordance with Article 7, the prior approval application should be determined by the LPA within 8 weeks. However, there is no right to proceed with the development in default of a determination within that period. So what has become known as “the 56-day rule” has no application here. The only remedy for non-determination within a reasonable time is an appeal under section 78(2)(a) of the 1990 Act.]

Any new dwelling created under Class ZA is to remain in use as a dwellinghouse within Use Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

[I am aware that there are multiple issues that this new PD right throws up, some of which have been raised by correspondents in response to other recent blog posts. There is, for example, no reference anywhere in Class ZA to ‘curtilage’. So, if a curtilage is to be provided this would require a separate planning permission.

There is no distinction between development in urban areas and development in rural areas. As one correspondent has pointed out, this could raise a number of issues, including scale and rural impact, which the prior approval application process does not adequately address. However, the restriction of the types of building that can be demolished to buildings in use under Class B1 or purpose-built blocks of flats does perhaps limit the scope for this type of development in the open countryside.

Like quite a few other planning professionals, I am sceptical as to the contribution that permitted development under the various Classes in Part 20 will make to the overall housing requirement. If you add together all the developments that might come forward, I doubt whether they would amount to even 1% of the annual requirement, whilst the other 99% will still have to be found through more orthodox forms of development.
]

© MARTIN H GOODALL