Monday 16 November 2020
GPDO – Yet more amendments
The government has been promising for some time to introduce a minimum space standard for new residential units created as permitted development under the GPDO. The Secretary of State also announced recently that he would extend the temporary PD right for hot food takeaways. Both of these changes to the GPDO have now been made by the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020 [SI 2020 No.1243] which were made on 9 November.
With effect from 6 April 2021, the GPDO will not permit any residential conversion where the gross internal floor area is less than 37 square metres in size, or which does not comply with the nationally prescribed space standard issued by the Department for Communities and Local Government on 27th March 2015. (The adequacy of natural light had already been added to the matters requiring prior approval.)
It is noteworthy that, whilst various other issues (including the adequacy of natural light) are listed as matters that require prior approval, and are therefore dependent on the LPA notifying the applicant of its determination of the prior approval application within 56 days, the absolute prohibition on development that does not comply with the stated space standards does not depend on the determination of any prior approval application, but will apply even in those cases where a development could otherwise proceed in the event of the LPA’s failure to determine the prior approval application within (in the case of Part 3) the 56-day period. The space standards apply to all permitted development under the GPDO involving the creation of new dwellings, including for example the various forms of development permitted under Part 20.
The other point that readers will immediately spot is that there is quite a generous window of opportunity for developers to put forward proposals for ‘rabbit hutch’ or ‘broom cupboard’ dwellings before the space standards kick in. Although this provision is stated to come into force on 6 April 2021, the transitional provisions define the precise timing by reference to the ‘prior approval event’. These transitional provisions are one the finest examples of gobbledygook that I have ever encountered. In fact, the convoluted way in which the transitional provisions are set out in Regulation 12 deserves some sort of booby prize for outstandingly opaque legislative drafting.
Boiled down to their bare essentials, what they mean is that the provisions outlined above will not apply to a development in respect of which a prior approval application is made before 6 April 2021 (irrespective of the fact that the prior approval or expiry of the 56-day period, in the case of Part 3, will occur after that date); nor will they apply where prior approval is granted on appeal, where the appeal against a refusal of prior approval is lodged within the 6 months following the date of refusal [or non-determination] of a prior approval application that had been made before 6 April 2021. This relates to prior approval applications for residential development under both Part 3 and Part 20.
As mentioned above, the temporary change of use to use as a hot food take-away under Class DA of Part 4 has been extended [by Regulation 5] for an extra year, from its previous expiry date of 23 March 2021 to 23 March 2022. As I pointed out when originally reporting on this temporary use right, it does not override any condition in a planning permission that precludes use as a hot food takeaway.
One other change worth noting is set out in Regulation 6, which comes into force on 3 December 2020. This amends the PD right for demolition of buildings under Part 11, Class B. Apart from excepting from this PD right the demolition of any unlisted building in a conservation area, Part 11 did not previously exclude the demolition of any particular type of building, but this amendment now excludes from the PD right under Class B of Part 11, the demolition of any building that is used, or was last used, for the purpose of—
(i) a concert hall;
(ii) a venue for live music performance; or
(iii) a theatre.”
These are all sui generis uses, but the exclusion has not been extended to the demolition of a cinema, bingo hall or dance hall, or any of the other sui generis uses listed in Article 3(6) of the UCO.
As with other PD rights, the transitional provisions in Regulations 12 provide that where the prior approval application that is required under Part 11 is made prior to 3 December 2020 the exclusions noted above will not apply; nor will they apply where prior approval is granted on appeal, where the appeal against a refusal of prior approval is lodged within the 6 months following the date of refusal [or non-determination] of a prior approval application that had been made before 3 December 2020. [This prior approval does not relate to the principle of demolition, but only to the method of demolition and any proposed restoration of the site. Except in strictly limited circumstances, specified in the GPDO, commencing demolition before a prior approval application has been submitted, and determined, is not permitted development, and may lead to enforcement action being taken.]
© MARTIN H GOODALL
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Do you think that applications need to be validated by 6th April or just submitted by that date?
ReplyDeleteThere is no procedure for the ‘validation’ of a prior approval application (see Murrell v SSCLG). So if the prior approval application reaches the LPA no later than 5 April 2021, the development will escape the requirement as to compliance with the minimum space standard.
DeleteThe only proviso is that in order to beat the deadline, the application must be complete and correct, it must be accompanied by all the information that the GPDO requires, and the correct application fee must be paid on or before that date.
Do extant Prior Approvals (with under sized units) need to be build out before the 6th April?
ReplyDeleteWhat Regulation 3 of the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020 [SI 2020 No.1243] actually does is to add two new paragraphs to Article 3 of the GPDO:
Delete(9A) Schedule 2 does not grant permission for, or authorise any development of, any new dwellinghouse —
(a) where the gross internal floor area is less than 37 square metres in size; or
(b) that does not comply with the nationally described space standard issued by the Department for Communities and Local Government on 27th March 2015.
(9B) The reference in paragraph (9A) to the nationally described space standard is to that standard read together with the notes dated 19th May 2016 which apply to it.
By Regulation 1(3) of the amendment regulations, this change to the GPDO comes into force on 6 April 2021. However, Regulation 12 makes it clear that where a prior approval event occurs, the planning permission granted by Class M, N, O, P, PA or Q in Part 3 of Schedule 2 (or by Class A, ZA, AA, AB, AC or AD in Part 20 of Schedule 2) continues to have effect as if the amendments made by regulation 3 of these Regulations had not been made. Furthermore, the amendment made by regulation 3 does not have effect in relation to development under those Classes in Part 3 (and in Part 20) where an application for prior approval is submitted before 6 April 2021. So the minimum space standard does not apply if you get your prior approval application in no later than 5 April (in just over 4 weeks’ time).
So to answer Tom Kilvert’s question: Extant prior approvals (with under-sized units) do NOT need to be build out before the 6 April. In fact, if a valid prior approval application were to be received by the LPA on 5 April, prior approval could be given (and notified to the applicant) at any date up to and including 14 May, assuming the LPA’s officers are not still hard at work at their desks on Saturday or Sunday 15 or 16 May (!). The 56-day default period would in fact expire on 16 May. So new dwellings not complying with the new space standards could be completed as late as mid-May 2024 (if that date is within 3 years of the prior approval date or prior approval event).