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.

© MARTIN H GOODALL

GPDO tidied up

We have known throughout the past year that the GPDO was going to have to be amended to bring it into line with the changes to the UCO that took effect last September. Transitional provisions saved references in the GPDO to the pre-September Use Classes for the purposes of permitted development. However, these transitional provisions expire at the end of this month, and so it was essential for the government to make appropriate amendments to the GPDO to bring it into line to the revised version of the UCO. This has now been done in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 [SI 2021 No.814], which was made on 7 July, laid before parliament on the 9th and will come into force on 1 August.

The new order makes amendments to the provisions of Parts 1, 3, 4, 7, 8, 11 and 20 of the Second Schedule to the GPDO but, for the moment, I shall confine myself to the changes made to Part 3, dealing with permitted changes of use.

Class A, in its original form permitted a change of use from A3, A4 or A5 to A1 or A2. The right to make this change of use from A4 was later removed. As now amended, Class A will in future permit a change of use from a casino, betting office, pay day loan shop or hot food takeaway to a use falling within Class E (commercial, business and service use), but will still not permit a change of use from a public house, wine bar or drinking establishment. [Change of use from a café or restaurant to some other commercial, business and service use no longer needs its own PD right, because it is no longer development at all.] The PD right under Class A is subject to the condition that, before beginning the development, the developer must notify the LPA in writing of the date on which the use of the building will change. No prior approval application is required.

Class AA, as now re-drafted, will permit a change of use from public house, wine bar or drinking establishment to the same use with expanded food provision and it will also permit the converse change.

Classes B, C, D, E and F are now formally removed from Part 3 (as they have now been rendered redundant).

Class G is amended to reflect last year’s changes to the UCO. It will now permit change of use from a use within Class E to a mixed use for any purpose within that Class and as up to two flats. This Class will also permit a change of use from a betting office or pay day loan shop to a mixed use for any purpose within Class E and as up to two flats.

There is now an added requirement in Class G, before beginning development, to apply for prior approval as to:
- contamination risks in relation to the building,
- flooding risks in relation to the building,
- impacts of noise from commercial premises on the intended occupiers of the development,
- the provision of adequate natural light in all habitable rooms of the dwellinghouses, and
- arrangements required for the storage and management of domestic waste.

Class H is similarly amended to reflect the change to the UCO. It will now permit a change of use from a mixed use for any purpose within Class E and as up to two flats, to a use for any purpose within that Class, and also a change of use from a mixed use comprising a betting office or pay day loan shop and as up to two flats to use for any purpose within Class E. The exclusion in paragraph H.1 is also re-worded to bring it into line with the revised wording of the UCO.

Class I formerly permitted changes of use from B2 or B8 to B1, or from B1 or B2 to B8 (subject to certain floorspace limits). As re-redrafted, it will be limited to the change of use of a building from any use falling within Class B2 to a use within Class B8, subject to a 500 sq m floorspace limit.

Classes J, JA and K are now removed from Part 3.

Class L, which permits a change of use from C3 to C4 and vice versa, remains unchanged.

Class M has been largely replaced by Class MA, but has been retained to deal with certain residential conversions that are not covered by Class MA. As revised, Class M will now permit the residential conversion of a launderette, betting office, pay day loan shop or hot food takeaway, and also the residential conversion of a building in a mixed use combining use as a dwellinghouse with use as a launderette, betting office or pay day loan shop (whether that use was granted permission under Class G or otherwise). Class M(a) permits only a change of use, but Class M(b) permits both the change of use itself and also building operations reasonably necessary to convert the building for residential use. This reflects the current position.

The matters requiring prior approval under Class M previously included the ‘retail impact’ of the proposed residential conversion of the building. No corresponding provision was included in the new Class MA. Thus, (as previously note in relation to Class MA), any general retail impact is no longer a matter with which the LPA can concern itself. Even the impact on the sustainability of a key shopping area is no longer relevant. With one exception, the issue of retail impact has now been similarly removed from Class M, so that it now applies only to the impact on the adequate provision of services of the sort that may be provided by a launderette (but only where there is a reasonable prospect of the building being used to provide such services).

The new Class MA, has been amended even before it had come into force. This change comprises the introduction of a requirement for fire risk assessment to be taken into account in some circumstances. In any such cases, the LPA must approve the fire safety impacts on the intended occupants of the building. (This provision is really too complicated to explain in detail here.) Where the application relates to prior approval as to fire safety impacts, on receipt of the application, the local planning authority must consult the Health and Safety Executive.

Also in Class MA, approval of highways impacts of the development must include particularly the need to ensure safe site access.

Class N is unaffected by the changes to Class 3, rare though residential conversions under this Class may be in practice.

Class O will be replaced with effect from 1 August by Class MA, but the previous amendment regulations provided that any prior approval application under Class O can be made up to 31 July 2021, and Class O will continue to operate after that date where a prior approval application had been made by that deadline. To that extent, Class O remains for the time being in Part 3, but will die a lingering death as Class O applications in the pipeline on 1 August slowly work their way through the system and are subsequently implemented, rather in the same way as the former Class P and Class PA (although the latter has in effect been revived by the introduction of Class MA).

As noted previously, Classes P and PA are now effectively redundant, except as regards the implementation of prior approvals granted under those two Classes. I note that even now there are a few late appeals under these provisions working their way through the system.

Everyone will no doubt breathe a great sigh of relief that no further amendments have been made to Class Q.

As redrafted, Class R will now permit development consisting of a change of use of an agricultural building to a flexible use falling within one or other of Classes B8, C1 or E.

Class S, will no longer permit change of use to use as a registered nursery. So, in future, this Class will permit a change of use only to a state-funded school. The scope of Class T will be similarly limited from now on. The uses from which a change of use can now be made under Class T will be C1, C2, C2A and E.

Similar changes are made to Part 4 (temporary changes of use), but I was rapidly losing the will to live by the time I got to this part of the amendment order, so I’ll leave it there for now.

I should just mention finally that there are transitional and savings provisions that are set out in the Schedule to the amendment order, which preserve for a time the effect of certain PD rights that have now been removed from the GPDO and which provide for the transition between the old and new rules. I will return to these in a later post.

© MARTIN H GOODALL

Partial demolition in advance of permitted development

In paragraph 9.4.3 of Chapter 9 in the Third Edition of A Practical Guide to Permitted Changes of Use, I discussed works carried out to an agricultural building in advance of its residential conversion (and in advance of a prior approval application being made under Class Q of Part 3). However, I did not deal in that chapter with the question of partial demolition of the building in advance of such conversion.

The position regarding the entire demolition of a nearby or adjoining building that is physically separate from the subject building is straightforward. In many cases, such demolition will be permitted development under Class B of Part 11 (subject to compliance with the terms set out in Part 11).

However, the position in respect of the demolition of a complete building is wholly different from that applying to the partial demolition (or the demolition of part only) of a building. Although Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168 related to a listed building (and specifically to the provisions of the ‘Listed Buildings Act’ of 1990), the judgment of the House of Lords in that case dealt with the issue of whether the definition of ‘demolition’ includes the demolition of part only of a building, or whether such partial demolition is in fact to be treated as an ‘alteration’.

This point was discussed in the speech of Lord Hope, where he observed on page 183: “According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. I agree therefore with Millett L.J. [1995] 1 E.G.L.R. 167, 169, when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone.” Conversely, therefore, partial demolition (or demolition of part only) of a building amounts to an alteration, rather than ‘demolition’.

The Town and Country Planning (Demolition - Description of Buildings) Direction 2021 (which, by virtue of section 55(2)(g), exempts from the definition of “development” in section 55 the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities) makes it clear that the reference to “building” in that direction does not include part of a building. Furthermore, although Class B in Part 11 of the Second Schedule to the GPDO permits “any building operation consisting of the demolition of a building” subject to certain restrictions and also a requirement for a prior approval application to ascertain whether the approval of the LPA is required as to the method of demolition and any proposed restoration of the site (in addition to certain other requirements), Article 2 of the GPDO provides that, in this Order, “building” includes any part of a building, except [inter alia] in Class B of Part 11. So this permitted development right does not extend to partial demolition (or the demolition of part only) of a building.

Demolition of an entire building can clearly be carried out as permitted development under Class B of Part 11, but partial demolition needs planning permission, but if it is an agricultural building, such partial demolition might possibly be permitted development under Part 6, either within Class A(a) [the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of works for the erection, extension or alteration of a building] or Class B(a) [the carrying out on agricultural land comprised in an agricultural unit, of not less than 0.4 but less than 5 hectares in area, of development consisting of the extension or alteration of an agricultural building], but only where the development is reasonably necessary for the purposes of agriculture within the unit, and subject to a prior approval application being made.

The problem here is that paragraph Q.1(f) specifically rules out permitted development under Class Q of Part 3 if development has been carried out anywhere on the established agricultural unit since 20 March 2013 under Part 6, Classes A(a) or B(a) (or, where the development under Class Q begins after 20 March 2023, within 10 years before the date when development under Class Q begins). So the only partial demolition of the building that could be carried out without jeopardising the PD right under Class Q would be the demolition of internal partitions or other internal features which (provided that any such works affect only the interior of the building or do not materially affect the exterior appearance of the building) would be exempt from the definition of ‘development’ by virtue of section 55(2)(a) of the 1990 Act.

Partial demolition of an agricultural building will only be permitted development under Part 6 if it has been the subject of a prior approval application (and if it meets the agricultural need test). However, partial demolition of an agricultural building without planning permission (whether under Part III of the 1990 Act or under Article 3 and the Second Schedule of the GPDO) would be unlawful. Article 3(5) of the GPDO provides that the permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful. It might conceivably be argued that any unlawful partial demolition of the agricultural building could not have amounted to “building operations involved in the construction of that building”, but this would still appear to me to be problematic. It might, for instance, be argued against this that the building in its current (partially demolished) form results from building works to produce the building in that altered form, and that such building operations were therefore “involved in the construction” of the building to arrive at that altered form.

So the conclusion must be that partial demolition of an agricultural building in advance of its residential conversion without the risk of jeopardising the permitted development right under Class Q of Part 3 can only safely be undertaken under the terms of a planning permission granted under Part III of the 1990 Act. There should be no need in making such a planning application to demonstrate any agricultural or other need for such partial demolition, and there should in most cases be no planning objection to such partial demolition (assuming that the building is not a heritage asset, either designated or undesignated).

It is clear, despite the views expressed by some planning officers, that when a prior approval application under Class Q is submitted, the physical form and condition of the building must be considered as at that date. Where there has been any alteration to the building before the submission of the prior approval application, such as structural strengthening or partial demolition within the building, this will be immaterial if, by virtue of section 55(2)(a), it did not constitute development. Where that alteration (or those alterations) did amount to development under section 55, then it would fall to be considered in the manner outlined above. The point is that any such previous alterations cannot be taken into account by reference to paragraph Q.1(i) (because they do not form part of the development in relation to which the prior approval application is made); they will only be relevant to the question of possible disqualification under Article 3(5) or under paragraph Q.1(f).

Just to ensure that no-one is under any misapprehension, entire demoiltion of the subject building would result in the complete loss of permitted development rights, which can only subsist in respect of an extant building. If the building ceases to exist (for whatever reason), all existing use rights are lost, as is any permitted development right that might otherwsie have attached to that building.

© MARTIN H GOODALL

The scope of a prior approval application

One of the issues that has arisen in relation to prior approval applications is whether in determining either that their prior approval will not be required or that prior approval is granted, the LPA is impliedly determining that the proposed permitted development does qualify as such, so that the LPA cannot subsequently resile from their decision on the ground that the development does not in fact qualify as permitted development.

This problem became particularly acute following the judgment in Hibbitt regarding the permissible extent of building operations under Part 3, Class Q. Several LPAs, having granted prior approval for Class Q developments then sought to go behind the prior approval they had granted, because they then came to the conclusion in light of Hibbitt that the development in respect of which they had granted prior approval could not in fact be carried out as PD.. I discussed this issue in paragraph 16.2 of Chapter 16 in the Third Edition of my book on Permitted Changes of Use.

So far as permitted development under Part 6 is concerned (allowing certain agricultural building or engineering operations), the Court of Appeal in Keenan v Woking BC was clear that under the terms of Part 6, the LPA does not have the power to determine whether or not a proposed development under that part of Schedule 2 does or does not qualify as permitted development, and it was stressed that this is so, despite the fact that the guidance in paragraph E14 of Annex E to former PPG7 might have been read as encouraging it to do so.

Some LPAs have assumed that Keenan is authority for the general proposition that a grant of prior approval does not amount to a determination that the development in question does qualify as PD. However, as I pointed out in the book, the wording of paragraph W.(3) does appear to give an LPA that power in relation to proposed development under Part 3. Paragraph W.(3) provides that the LPA may refuse an application where, in the opinion of the authority, the proposed development does not comply with (or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with) any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It was on this basis that I expressed the view that there is at least an implication in paragraph W.(3) that the LPA may (and probably will) consider not only the specific matters requiring prior approval, but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question.

It is therefore arguable, I suggested, that in giving its prior approval in respect of the prescribed matters, the LPA impliedly accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W.(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. I suggested that It is arguable that, for this reason, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I suggested that further support for this proposition may perhaps be derived from the judgment of May J in R v Sevenoaks DC Ex p. Palley [1994] E.G. 148 (C.S.), and went on to summarise that judgment and the various judicial authorities that were reviewed in that case. In doing so, I nevertheless conceded that Ex p Palley can have no application in Part 6 cases, in light of the clear decision of the Court of Appeal in Keenan. I also added a caveat that Ex p Palley was decided some years before the House of Lords decision in Reprotech, which perhaps throws some doubt on the extent, if any, that reliance can still be placed on Ex p Palley in other prior approval cases. So my remarks in paragraph 16.2 ended on a somewhat tentative note, with the observation that there could be no guarantee that an argument based on the judgment in Ex p Palley would necessarily be accepted if it were to come before the High Court or the Court of Appeal.

My reason for raising this issue again now is that I have noticed that a case is due for hearing in the High Court on 11 May (R (Smolas) v Herefordshire Council) which raises this issue of whether LPAs have the power when considering a prior approval application of also determining whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. I do not know the subject matter of the dispute in Smolas, nor do I know under what Part or Class in the Second Schedule to the GPDO the proposed development is alleged to fall, but I am hoping that the forthcoming decision in the High Court may perhaps help to remove the remaining uncertainty that I had identified, one way or the other.

© 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

Use Classes Order - “All change, please.”

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757), which were made on 20 July and take effect on 1 September 2020, make important changes to the already much amended 1987 Use Classes Order. The changes are quite complex, because of the need to take account of various knock-on effects and the consequent requirement to include various transitional provisions to ensure a reasonably smooth move to the new and revised Use Classes.

Parts A and D of the original Schedule to the UCO are entirely revoked, which puts an end to Use Classes A1, A2, A3, A4 and A5, and Classes D1 and D2. These are replaced by new Use Classes in Schedule 2, except for those listed below that have now become sui generis uses. Class B1 is also abolished as a separate Use Class, and is also subsumed within a new Use Class in Schedule 2. Use Class B2 remains in what is now Schedule 1, in an amended form. Rather than discussing these changes piecemeal, I will summarise the new, revised and surviving Use Classes below.

Several of the uses previously within specified Use Classes have now been added to the list of sui generis uses set out in Article 3(6). These are uses:

(p) as a public house, wine bar, or drinking establishment [formerly A4],
(q) as a drinking establishment with expanded food provision [which fell awkwardly between A4 and A3],
(r) as a hot food takeaway for the sale of hot food where consumption of that food is mostly undertaken off the premises [formerly A5]
(s) as a venue for live music performance [formerly within D2, and possibly also an ancillary use in some cases within other Use Classes],
(t) a cinema [formerly D2(a)],
(u) a concert hall [formerly D2(b)],
(v) a bingo hall [formerly D2(c)],
(x) a dance hall [formerly D2(d)].

[This has a number of potential consequences. First, where several of these uses fell under one and the same Use Class in the previous version of the UCO (such as, for example, a cinema, a concert hall, a bingo hall or a dance hall - all of which fell within Use Class D2) a change of use between any of those uses would not have been development.

Now that each of these uses is a sui generis use, a change of use from one of these uses to another use, even though it was formerly within the same Use Class will now constitute development, and will require planning permission. However, these changes do not take effect until 1 September, and so (at the time of writing) there is a five-week period in which somebody wishing to make a change of use from, say, a cinema to a bingo hall can still do so without requiring planning permission. However, it might be advisable to preserve dated documentary and photographic evidence of the change of use, and even possibly to exhibit that material to a statutory declaration recording the change of use, in order to counter any allegation in future that the change of use required planning permission and was therefore a breach of planning control. After 31 August, however, it will no longer be possible to make such changes of use without planning permission (unless they are permitted by the GPDO).

The effect that this and the other changes described below may have on permitted development under the GPDO is covered (at least for the next year) by a saving provision which I will explain later in this note.]

The former Schedule to the UCO (now SCHEDULE 1) contains the following Use Classes:

PART B

Class B2. General industrial

Use for the carrying on of an industrial process other than one falling within the uses described in Schedule 2, Class E, sub-paragraph (g).

Class B8. Storage or distribution

Use for storage or as a distribution centre.

PART C

[This part is not affected by the amendment regulations, and so does not require further summary here. Use Classes C1, C2, C2A, C3 and C4 therefore continue unchanged.]

The new SCHEDULE 2 contains the following Use Classes:

PART A (Commercial, Business and Service)

Class E. Commercial, Business and Service

Use, or part use, for all or any of the following purposes—

(a) for the display or retail sale of goods, other than hot food, principally to visiting members of the public [formerly A1],

(b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises [formerly A3],

(c) for the provision of the following kinds of services principally to visiting members of the public [all formerly within A2] —
(i) financial services,
(ii) professional services (other than health or medical services), or
(iii) any other services which it is appropriate to provide in a commercial, business or service locality,

(d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public [formerly within D2(e)].

[Although this new Use Class makes no mention of a gymnasium, the phrase “indoor sport, recreation or fitness” would appear to be wide enough to embrace such a use, which has not been specifically added to the list of sui generis uses in Article 3(6). Similarly, although swimming baths and skating rinks are specifically included in Use Class F, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. As with several other queries of this nature, I have not yet understood the ramifications of this apparent confusion.]

(e) for the provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner [formerly D1(a)],

[I cannot see why there is a need to distinguish between E(c)(ii) (which does not include health or medical services) and E(e), which comprises those services, when both are now in one and the same Use Class (Class E).]

(f) for a crèche, day nursery or day centre, not including a residential use, principally to visiting members of the public [formerly D1(b)],

(g) for—
(i) an office to carry out any operational or administrative functions [formerly B1(a)],
(ii) the research and development of products or processes [formerly B1 (b)], or
(iii) any industrial process [formerly B1(c)],
- being a use [in all three cases, as in the former Class B1] which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.

[One potentially problematic change is that the list of other uses that were formerly included in Use Class A1 (shops) are omitted. Without that listing, quite a few of those uses would not have come within the A1 Use Class, because they did not comprise or include (except as a purely ancillary use in some cases) the retail sale of goods. They included (among other uses) use as a post office, a travel or ticket agency, hairdressing, a funeral business, or a hire shop.

The new Use Class E does include “any other services which it is appropriate to provide in a commercial, business or service locality”, and it may be that all the uses formerly listed in Use Class A1 would now come within this category. If so, the new Use Class could be even wider than the Use Classes that it replaces, and might well embrace other services that one might reasonably expect to find in a commercial, business or service locality. These could include, for example, a nail bar, a tattoo parlour, a body toning salon, a tanning studio, etc. etc. If this interpretation is correct, then there is scope for a very wide range of uses that would previously have been regarded as sui generis.

On the other hand, there have in the past been appeal decisions in which it was held that a ‘weight loss centre’, a ‘body toning salon’, a ‘tanning shop’ and a ‘tattoo studio’ did not come into the category of “other services which it is appropriate to provide in a shopping area”, and it would seem to be entirely possible that planning inspectors might similarly determine in future (as a matter of fact and degree) that such uses do not properly fall within this category and therefore remain sui generis. The resulting ambiguity in the drafting of the new regulations is unfortunate, and is likely to cause difficulty for developers, building owners and the proprietors of businesses and also for LPAs.]

PART B (Local Community and Learning)

Class F.1 Learning and non-residential institutions

Any use not including residential use—

(a) for the provision of education [formerly D1(c)],
(b) for the display of works of art (otherwise than for sale or hire) [formerly D1(d)],
(c) as a museum [formerly D1(e)],
(d) as a public library or public reading room [formerly D1(f)],
(e) as a public hall or exhibition hall [formerly D1(g)],
(f) for, or in connection with, public worship or religious instruction [formerly D1(h)],
(g) as a law court [formerly D1(i)].

Class F.2 Local community

Use as—

(a) a shop mostly selling essential goods, including food, to visiting members of the public in circumstances where—
(i) the shop’s premises cover an area not more than 280 metres square, and
(ii) there is no other such facility within 1000 metre radius of the shop’s location,

[These uses were formerly within A1, and it would appear that they are also capable of falling within new Use Class E, because there is no provision that excludes the uses in new Class F.2 from alternatively, falling within Class E. The ramifications of this apparent confusion will only become apparent as the interpretation of these new provisions is explored in practice.]

(b) a hall or meeting place for the principal use of the local community,

[This use (formerly within D1(g)) would also appear to be capable of falling within new Use Class F.1, because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class F.1. Here again, I have not yet understood the ramifications of this apparent confusion],

(c) an area or place for outdoor sport or recreation, not involving motorised vehicles or firearms [formerly within D2(e)],

(d) an indoor or outdoor swimming pool or skating rink [also formerly within D2(e)]

[So far as an indoor swimming pool or skating rink are concerned, here again, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. This is another case in which I have not yet understood the ramifications of this apparent confusion.]

You may wonder why, following the abolition of the Use Classes in Parts A and D of the former Schedule to the UCO, the new Use Classes have been designated as E, F.1 and F.2. Well, as Polonius observed, though this be madness, yet there is method in’t. As we shall see below, the former Use Classes that have been removed from the UCO will still have a ghostly after-life. So to avoid confusion with these wraith-like entities, the new Use Classes have been given entirely new designations.

The most significant effect of the recast Use Classes is to produce much larger classes of uses that are covered by each of Parts E and F (Classes E, F.1 and F.2). In accordance with Article 3(1) of the UCO, where a building or other land is used for a purpose of any class specified in Schedule 1 or Schedule 2, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land. This is slightly modified by paragraph (1A), so that (additionally) the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. Section 55(2)(f) of the 1990 Act also continues to apply in this context.

So to take a few random examples, a change of use between a retail shop and a restaurant, a bank or building society (or any other kind of office, whether it was formerly in Use Classes A2 or B1(a)), a doctor’s or dentist’s surgery, a light industrial use or a crèche, day nursery or day centre, which are all now with Use Class E, will not constitute development and will not therefore require planning permission. Where any changes of use between these uses was formerly PD under the GPDO those permitted development rights will no longer be required, and any restrictions, limitations or conditions applying to such PD will no longer apply.

In the case of Class F.1, all the uses listed in this Use Class were formerly within Class D1, and so there is no change in that regard, except that the scope for changes of use that do not constitute development is slightly reduced, because the provision of medical and health services and use as a crèche, day nursery or day centre are no longer in the same Use Class (as they now fall within Class E).

The purpose and effect of Use Class F.2 is somewhat puzzling. Quite apart from the overlap of certain ‘community’ uses with similar uses in other Use Classes which I have noted above, it appears to be the intention that a use such as a community hall could have its use changed (in whole or in part) to a community shop, without needing planning permission.

The observations I have set out above represent only my first impression of the new provisions, and there may be other ramifications and unforeseen consequences that I have not yet identified.

Now, excuse me while I wrap a wet towel around my head to prevent my brain from overheating, and I’ll try to explain the transitional, savings and consequential provisions.

First of all, between 1 September 2020 and 31 July 2021, any references in the GPDO to the uses or use classes specified in the Schedule to the Use Classes Order are to be read as if those references were to the uses or use classes which applied on 31st August 2020 (i.e. before the UCO was amended by the current regs). If between those two dates, a prior approval application is made under Part 3 of the Second Schedule to the GPDO, or if an Article 4 Direction is made, modified or cancelled, it is the pre-September 2020 uses, use classes and definitions that are to apply to that application or to that Direction. If an Article 4 Direction is made before 1 September 2020, references in the Direction to pre-September 2020 uses or use classes are to continue to be read as references to those uses or use classes.

In the same way, if a planning application (including an application for PiP or an application for the approval of reserved matters) is made before 1 September 2020, referring to a pre-September 2020 use or use class, that application must be determined by reference to that pre-September 2020 use or use class. (There are one or two other minor transitional provisions which I don’t propose to go into here.)

On the other hand, where a building or other land is being used for the purpose Class A1 (Shops), Class A2 (Financial and professional services), Class A3 (Restaurants and cafes), or Class B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for the corresponding purpose specified in Class E (Commercial, business and service) in Schedule 2.

Most readers are no doubt aware of the provision in Article 3(4) of the UCO which provided that where land on a single site or on adjacent sites used as part of a single undertaking is used for purposes consisting of or including purposes falling within use classes B1 and B2, those classes could be treated as a single class in considering the use of that land for the purposes of the UCO, provided that the area used for a purpose falling within Class B2 was not substantially increased as a result. This provision is now replaced by a similar provision which refers to the use described in Schedule 2, Class E, sub-paragraph (g) and the modified Class B2 in Schedule 1, so that those classes may be treated as a single class in considering the use of that land for the purposes of this Order, so long as the area used for a purpose falling within Class B2, or Class B2 as modified, is not substantially increased as a result.

Now, I must take a deep breath before plunging into the No.2 and No.3 amendment orders to the GPDO, with their interesting new permitted development rights. Such fun!

ADDENDUM: When writing the blog post above, I was focusing on the amendments to the Schedule to the Use Classes Order. I should also have drawn attention to Regulation 7 of the Use Classes amendment regulations. This provides that for the purposes of the Use Classes Order, if a building or other land is being used for a purpose that, on 31st August 2020, fell within any of Use Classes A1 (Shops), A2 (Financial and professional services), A3 (Restaurants and cafes), or B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for a purpose specified within the new Class E (Commercial, business and service).

Thus, those uses that were expressly specified as being within Use Class A1 (such as, among other things, use as a Post Office, as a Travel Agent, for hairdressing, or for the direction of funerals, etc. etc.) will definitely come within Use Class E. I am sorry that I failed to spell this out.

UPDATE (28.8.20): Two minor corrections have had to be made to the drafting of the UCO amendment regs, by the Town and Country Planning (Use Classes) (Amendment) (England) (No 2) Regulations 2020 (SI 2020 No.859) and ditto (No.3) Regs (SI 2020 No.895). The first correction relates to CIL, and preserves references to the Use Classes that applied when an LPA adopted a charging schedule. The second correction relates to a local community shop falling within Use Class F.2. The definition as originally drafted referred to the shop’s premises covering an area not more than “280 metres square”. The corrected version changes this to “280 square metres”.

© MARTIN H GOODALL

Upward extension of certain blocks of flats

The one change to the GPDO that got all the journos excited was the long-anticipated introduction of a permitted development right to extend certain blocks of flats by the addition of up to two extra floors. With effect from 1 August 2020, this will be enshrined in the new Part 20 of the Second Schedule to the GPDO. [Some indication of future intentions can be gleaned from the fact that the overall title of Part 20 is “Construction of New Dwellinghouses”, and that the addition of “new dwellinghouses on detached blocks of flats” comprises Class A in this Part of the Second Schedule. One may reasonably surmise that another Class, which may be added to Part 20 later this year, will comprise the demolition of existing buildings and the construction of new dwellings on the site, although the precise mechanism governing this has yet to be revealed, and may still be the subject of some debate within MHCLG.]

The development permitted by Class A of Part 20 consists of works for the construction of up to two additional storeys of “new dwellinghouses” (i.e. flats) immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats, together with any or all engineering operations reasonably necessary to construct the additional storeys and new flats, as well as works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new flats, works for the construction of appropriate and safe access and egress to the new and existing flats, including means of escape from fire, via additional external doors or external staircases, and works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new flats.

“Block of flats” means a building which is divided horizontally and consists of separate and self-contained premises constructed for use for the purposes of a dwelling, and any ancillary facilities constructed solely for use by occupiers of the building; and “purpose-built” means a building that was built as and remains as a block of flats. “Detached” means that the building does not share a party wall with a neighbouring building; and “flat” means separate and self-contained premises constructed for use for the purposes of a dwelling.

These definitions in paragraph C of Part 20 represent significant constraints on the types of building that can be extended under Class A. So, for example, if the existing flats were created by converting an existing house, this building cannot be extended under Class A (because the building was not purpose-built as a block of flats). Similarly, the building must be free-standing, so if it is attached in any way to any other building, it cannot be extended under Class A. The definition of a “flat” also excludes any dwelling that was created by a change of use from any other use; it must have been constructed for residential use in the first place.

In addition to the restricted scope of permitted development under Class A, as a result of the definitions set out in paragraph C, Paragraph A.1 of Class A prohibits development under this PD right in in a variety of specified ways. First, development is not permitted by Class A if the permission to use any building as a dwelling or dwellings was granted only by virtue of Class M, N, O, P, PA or Q of Part 3 (i.e. residential conversion of various buildings under Part 3). [It seems somewhat unlikely that a detached block of flats will have been created as PD under Classes M, N, P, PA or Q, but it is entirely possible that a detached block of flats may have been created under Class O, and further extension of such a building under Part 20 is therefore precluded. Strictly speaking, this prohibition in paragraph A.1 is unnecessary, because any building containing flats created by the conversion of an existing building falls outside the definition of a ‘purpose-built flat’ in paragraph C.]

Paragraph A.1 also prohibits development under Class A if the building is less than 3 storeys in height above ground level. [I think we may take it that this means actual ground level, not the storey comprising the ground floor of the building; so any building that is less than three storeys high (not four) is excluded.]. Development is also excluded if the building was constructed before 1st July 1948, or after 5th March 2018. Furthermore, development is not permitted by Class A if the additional storeys are constructed other than on the principal part of the building. (“Principal part” means the main part of the building excluding any front, side or rear extension of a lower height, whether this forms part of the original building or a subsequent addition.)

Development under Class A is also prohibited if the floor to ceiling height of any additional storey, measured internally, is more than the floor to ceiling height of any of the existing storeys, or more than 3 metres in height (whichever is the lesser). It is also prohibited if the new dwellings are not flats, i.e. if they extend over more than one storey.

There is also an overall height limit. The overall height of the roof of the extended building must not be greater than 7 metres higher than the highest part of the existing roof (not including existing plant); and the building as a whole, as extended (but not including plant), must not be greater than 30 metres in height. There are also limitations with regard to support structures. The engineering operations required to construct the additional storeys, and the new flats, must not include the provision of visible support structures on or attached to the exterior of the building upon completion of the development. Such engineering operations are in any event restricted to works within the existing curtilage of the building to strengthen existing walls, to strengthen existing foundations, or to install or replace water, drainage, electricity, gas or other services. Engineering operations falling outside these parameters are prohibited.

Works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new flats are not permitted if there is no existing plant on the building. In the case of new or replacement plant, the height of such new or additional plant as measured from the lowest surface of the new roof on the principal part of the new building must not exceed the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the existing building.

Any works for the construction of access to the new and existing flats, including fire escapes, via additional external doors or external staircases, must not extend beyond the curtilage of the existing building. [‘Curtilage’ for this purpose is not defined, and so the generally accepted definition of the word should be applied – see Sinclair Lockhart’s Trustees, Dyer v Dorset CC, Skerritts of Nottingham, etc.] Any works for the construction of storage, waste or other ancillary facilities for the new flats must not extend beyond the curtilage of the existing building, nor must any part of them be situated on land forward of a wall forming the principal elevation of the existing building, or be situated on land forward of a wall fronting a highway and forming a side elevation of the existing building.

Development under Class A is also prohibited if the land or site on which the building is located, is or forms part of, “Article 2(3) land” (i.e. a Conservation Area, an Area of Outstanding Natural Beauty, the Broads, a National Park or a World Heritage Site). [The exclusions in Article 2(3) also apply to any area specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 (as amended by sections 20 and 24 of, and Schedules 3 and 4 to, the Agriculture Act 1986, Schedule 3 to the Norfolk and Suffolk Broads Act 1988, Schedule 10 to the Environment Act 1995 and Schedules 11 and 12 to the Natural Environment and Rural Communities Act 2006), relating to enhancement and protection of the natural beauty and amenity of the countryside. However, I am not aware of any such areas ever having been so specified.]

The prohibition of development also extends to a Site of Special Scientific Interest, a listed building or land within its curtilage, a scheduled monument or land within its curtilage, a safety hazard area, a military explosives storage area; or land within 3 kilometres of the perimeter of an aerodrome. The definitions of “safety hazard area” and “military explosives storage area” are explained in the Third Edition of my book, A Practical Guide to Permitted Changes of Use.

I think readers will agree that the combined effect of the definitions in paragraph C and the prohibitions in paragraph A.1 significantly cut down on the number of buildings that can in practice be extended under Class A of Part 20.

In addition to the restrictions discussed above, this PD right is hedged around with various conditions, the most important of which is a requirement to make a prior approval application before beginning the development (and, of course, await its determination). The matters that may require the LPA’s prior approval are:

(a) transport and highways impacts of the development;
(b) air traffic and defence asset impacts of the development;
(c) contamination risks in relation to the building;
(d) flooding risks in relation to the building;
(e) the external appearance of the building;
(f) the provision of adequate natural light in all habitable rooms of the new flats
(g) impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and
(h) 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 15 March 2012 issued by the Secretary of State. [This is a reference to the following online document: https://www.london.gov.uk/what-we-do/planning/implementing-london-plan/planning-guidance-and-practice-notes/londonview-Management]

A “defence asset” is a site identified on a safeguarding map provided to the LPA for the purposes of a direction made by the Secretary of State in exercise of the powers conferred by article 31(1) of the Procedure Order or any previous powers to the like effect. [This refers to Joint Circular 01/2003 issued on 27th January 2003 by the Office of the Deputy Prime Minister.]

“Technical sites” has the same meaning as in Annexe 1 of the Town and Country Planning (Safeguarded Aerodromes, Technical Sites and Military Explosives Storage Areas) Direction 2002. [This too can be found in Circular 01/2003.]

The definition of “habitable rooms” is set out in paragraph C, and is the same as the definition that has been added to Part 3. (See my recent post, dealing with those changes, where I pointed out that a kitchen does not have to have adequate natural light, whereas a kitchen/diner does, with a resulting risk of disputes as to the correct identification of such a room, if it has no or limited natural light.)

Note that, in contrast to other PD rights relating to residential development under the GPDO, overlooking, privacy and the loss of light are all issues to be considered in the case of this Class of permitted development. The provision of adequate natural light in all habitable rooms of the new flats is an issue that must also be considered, but other aspects of residential amenity are not subject to prior approval. So, for example, the LPA is not entitled to consider the adequacy of the accommodation in spatial terms.

In order to ensure that the prior approval application is validly made, it is essential that the applicant complies strictly with all of the requirements set out in paragraph B of Part 20. The application must be accompanied by—

(a) a written description of the proposed development, which, in relation to development proposed under Class A, must include details of any flat and other works proposed under paragraphs A(a) to (d) (i.e. engineering operations for the construction of the additional storeys and new flats, works for the replacement of existing plant or installation of additional plant on the roof, works for access, fire escape, etc. and works for the construction of storage, waste or other ancillary facilities)
(b) a plan drawn to an identified scale and shows the direction of North indicating the site and showing the proposed development;
(c) floor plans drawn to an identified scale and show the direction of North indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the existing and proposed elevations of the building;
(d) a written statement specifying the number of new flats proposed by the development that is additional to the number of flats in the building immediately prior to development;
(e) a list of all addresses of the flats within the existing block of flats;
(f) the developer’s contact address;
(g) the developer’s email address if the developer is content to receive communications electronically; and
(h) where there is a requirement [see below] the Environment Agency to be consulted, a site-specific flood risk assessment,

together with any fee required to be paid [see below].

For the first time, there is a requirement for the submitted plans to be drawn to an identified scale and show the direction of North. (N.B. This requirement still does not apply to applications under Part 3.) Despite the requirement to provide plans indicating the dimensions and proposed use of each room, and the position and dimensions of windows, doors and walls, the only issue the LPA can consider is the adequacy of natural light in those rooms that are defined as habitable rooms; they cannot refuse the application in relation to any other aspect of residential amenity such as the adequacy of the accommodation in spatial terms.

As regards the payment of an application fee, Regulation 14 of the 2012 Fees Regs will be amended to provide that the application fee payable on a prior approval application for new flats created under Part 20 of the Second Schedule to the GPDO will be £334 for each flat, where less than 50 are to be created in accordance with the prior approval for which application is being made. Where the number of new flats proposed in this prior approval application is more than 50, the fee will be £16,525, plus £100 for each new flat in excess of 50, subject to a maximum fee of £300,000.

However, the new fees will not be in place when Part 20 comes into effect on 1 August. The change is intended to be made by the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2020. For the time being, these are draft regulations, which are subject to approval by a resolution in both the Commons and the Lords before they are made. They will come into force on the 28th day after they are made. It seems, therefore, that if canny developers can get their act together quickly, they may be able to bang in a prior approval application under Part 20 in the first half of August absolutely free, gratis and for nothing. This is confirmed by Regulation 3 of the draft fee regs amendment, so that no fee is payable in respect of a prior approval application under Regulation 14(1)(c) (i.e. an application under Part 20) if the application is made before the date on which the amended fee regulations come into force.

It is the much higher application fees that will apply to prior approval applications for developments under Part 20 that has prompted a proposed change to the Fees Regs to allow a ‘free go’ on a second prior approval application under Part 20. Regulation 2(3) will introduce for the first time a ‘free go’ for a second prior approval application for permitted development under Part 20, thus bringing the fees regs for this type of prior approval application into line with those that apply to planning applications. This ‘free go’ for a second prior approval application, however, will apply only to applications under Part 20. There continues to be no ‘free go’ for second applications under other Parts of the Second Schedule to the GPDO.

Before looking at other conditions attached to PD under Part 20, I’ll deal briefly with the procedural requirements for the consideration and determination of prior approval applications under Part 20. Unsurprisingly, these are substantially similar to the rules applying to applications under Part 3. Rather than repeating these in detail, I would simply refer readers to Chapter 14 of the Third Edition of A Practical Guide to Permitted Changes of Use. In addition to those rules, where the application relates to prior approval as to the impact on air traffic or defence assets, the LPA must consult in addition any relevant operators of aerodromes, technical sites or defence assets and where appropriate the Civil Aviation Authority and the Secretary of State for Defence. Where an aerodrome, technical site or defence asset is identified on a safeguarding map provided to the LPA, the authority must not grant prior approval contrary to the advice of the operator of the aerodrome, technical site or defence asset, the Civil Aviation Authority or the Secretary of State for Defence.

As in the case of Part 3, where the application relates to prior approval as to natural light, the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the flats. Where the application relates to prior approval as to the impact on protected views, the LPA must consult Historic England, the Mayor of London and any local planning authorities identified in the Directions Relating to Protected Vistas dated 15th March 2012 (referred to above).

In addition to posting a notice of the proposed development near the site, the LPA must also serve a notice on all owners and occupiers of the flats within the existing block of flats, and also on any adjoining owner or occupier. When determining the application, the LPA must take into account any representations made to them as a result of this consultation process (although the LPA can only take note of those representations that are addressed to the matters requiring prior approval, and must exclude from their consideration any representations that are addressed to other issues.)

When I originally published this post this afternoon, I wrote that there is no time limit for the determination of a prior approval application under Part 20. I had overlooked Article 7, which provides that where no period is specified as to the period within which a prior approval must be determined, it must be determined within a period of 8 weeks following the receipt of the application by the LPA. However, as I correctly stated, the “56-day rule” does NOT apply. The applicant is NOT entitled to proceed with their development in default of the determination of the prior approval application within the 8-week period. The development must not, therefore, begin before the receipt by the applicant from the LPA of a written notice giving their prior approval. The only remedy open to the developer in the event of non-determination within the 8-week period (or such longer period as may be agreed in writing by both parties) is an appeal under section 78 against such non-determination.

Any development under Class A is permitted subject to the condition that before beginning the development, the developer must provide the LPA with a report for the management of the construction of the development, setting out the proposed development hours of operation and how any adverse impact of noise, dust, vibration and traffic on occupiers of the building and adjoining owners or occupiers will be mitigated.

The development must be carried out in accordance with the details approved by the LPA and must be completed within a period of 3 years starting with the date on which prior approval is granted. Bearing in mind that the development permitted by Class 20 is built development (not a change of use), ‘completed’ means physically completed in this case; actual residential occupation is not required within the 3-year time limit. The test, I suggest, should be the same as the House of Lords proposed in Sage, even though that case itself was concerned with the interpretation of the term “substantially completed” in section 171B(1) for the purposes of the time limit for enforcement. 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 and must include—

(a) the name of the developer;
(b) the address or location of the development; and
(c) the date of completion.

Any new flat created under Class A must remain in use as a dwellinghouse within the meaning of Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

There is, of course, power for the LPA to impose conditions on their prior approval. However, this does not give the LPA carte blanche to impose any conditions they please; the conditions must be reasonably related to the subject matter of the prior approval. The approval does not relate to the entirety of the proposed development, but only to those matters which are specified for approval under Class A of Part 20. It does not allow the imposition of more wide-ranging conditions of the kind that are frequently imposed on planning permissions.

In particular, it is not within the power of an LPA to impose conditions on a prior approval under Class A of Part 20 which seek the provision of, or any contribution to, affordable housing or any other form of financial contribution. Equally, an LPA cannot impose any conditions as to the provision of public open space, play areas and the like. It is not open to an LPA to impose a condition as to the time within which development must be commenced or completed, because this is already governed by paragraph A.2(2).

There is one final point that should be borne in mind, both by developers and by the residents of existing flats in any block that is affected by proposed development under Part 20. This relates to the law of landlord and tenant (and so is not a planning issue as such, and will not therefore be of concern to the LPA when considering and determining a prior approval application under Part 20). It may nevertheless be an important issue as between flat owners or occupiers and their landlord. Flat owners should take expert legal advice from an experienced property lawyer as to their legal position in relation to any such proposal. It will entirely depend on the terms of their lease as to whether they have any right to prevent the development, and so it is not a matter on which I can usefully comment in this blog, other than to flag it up as a matter of legitimate concern that may need to be addressed.

As to whether there will be a significant number of developments under Class A of Part 20, it very much depends on the practical effect of all the prohibitions, restrictions and conditions that govern these developments. As I have suggested above, they may prove to be a stumbling block in quite a few cases, and may reduce (perhaps to a substantial extent) the number of such developments that will in practice be carried out.

© MARTIN H GOODALL

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

Matters arising - Extension of time for prior approval

Following my webinar on Permitted Development at the end of last month, I was hoping to answer some of the questions that had been submitted, but which there was not time to answer ‘on the air’. Unfortunately, there has been some delay, due in part to our encountering a difficulty in actually downloading the questions from Zoom. In this post I shall concentrate on those questions that related to the extension of time for the determination of a prior approval application.

The first questioner asked whether an LPA’s refusal, despite Gluck, to agree an extended deadline for determination of a prior approval, might be unreasonable behaviour, and therefore grounds for a costs claim. However, one has to remember that the LPA is bound in principle to determine the prior approval application within the relevant time limit, failing which the PD right will be exercisable by default. It is therefore up to the LPA either to determine the prior approval within that deadline or to seek the agreement of the applicant to an extension of time. There is no requirement for an LPA to do this; Gluck merely confirmed that Article 7 of the GPDO does enable time to be extended by the written agreement of both parties.

If the LPA refuses the application within the time limit, rather than seeking an agreed extension of time, I suppose that (in some circumstances) this might amount to unreasonable behaviour justifying an award of costs, if it is clear that an agreed extension of time would have enabled them to grant prior approval. But I stress that this would be very much dependent on the facts of the case. If their refusal of prior approval was justified in any event, then clearly the fact that they did not seek agreement to an extension of time for their determination of the application would not be grounds for an award of costs.

Another questioner had forwarded my blog post on the extension of time limits to the LPA, but they declined to extend time on a Class Q application to enable a Phase 2 bat survey to be completed. A refusal was issued on the ground that incomplete bat survey information had been provided and also that the applicant had failed to sign a section 106 undertaking requiring a payment to be made to the LPA.

Taking the latter point first, I cannot envisage any circumstances in which any payment to the LPA could be required in respect of the matters requiring prior approval under the GPDO. So this would certainly be a potential ground of appeal (and would possibly justify an application for costs against the LPA). The question of the bat survey is, however, slightly more problematic. I am aware of prior approval appeals being dismissed for lack of information on ecological issues (such as a bat survey where this might reasonably be required). On the other hand, I am aware of a condition being imposed on a prior approval granted on appeal requiring a bat survey before the commencement of the permitted development. The questioner might have been justified in expecting this approach to be taken; alternatively, an extension of time could perhaps have been agreed. If an appeal were to be lodged against the refusal of prior approval, there might possibly be time to complete a Phase 2 bat survey, and forward this to the Inspector, although I am not sure whether such ‘late’ information would be accepted by PINS. A better option might be to start again with a fresh prior approval application, having first completed the bat survey.

The next question was - "If an LPA does not determine a Class Q application within 56 days, should they issue a letter to the applicant confirming that they have deemed consent if the proposal is permitted development; or refuse to determine the application and advise the applicant to apply for a Lawful Development Certificate for a determination as to whether it is permitted development?"

I am not convinced that an LPA that misses the deadline for determination is specifically required to do anything. They have missed the boat and, provided the development does actually qualify as PD, the developer is free to proceed with the development. I have always advised developers that they need to be quite sure that the development does qualify as PD and that it does meet all the limitations, restrictions and conditions that apply to that particular development. If there is any doubt about this, or if it is clear that the LPA does not accept that the development does in fact qualify as PD, then it may be advisable to apply for a Certificate as to the Lawfulness of Proposed Use or Development under section 192 before starting work. A gung-ho approach on the part of the developer could be risky unless they have been advised by professional consultants that the development undoubtedly qualifies as PD. The onus is entirely on the developer to satisfy themselves as to the legal position; it really doesn’t matter whether the LPA sends a belated communication or not.

There was then a question as to whether conditions 'bite' when the LPA issues a prior approval after the expiry of the determination period. The answer to this is that, once the deadline has passed, any notice issued by the LPA will be of no legal effect, even a purported notice of approval. It follows that any conditions attached to a purported prior approval issued out of time will be of no effect.

A different aspect of this issue was raised with regard to Part 6, Class A - Although the Order specifies a timeframe for the Council to notify the applicant if prior approval is required, there is no timeframe for the submission of the prior approval details (when they are required), or for the Council to then give or refuse approval of those details. Do the time limits in Article 7 therefore apply to the 'second stage' of the application? The wording would suggest the 8 weeks would run from the date of the application, i.e. the first stage, not the second stage, however the prior approval details may not be submitted within that timeframe. Is there anywhere else in the legislation that would put a time limit on the second stage decision?

This would appear to be a lacuna in the legislation. The LPA must decide within 28 days whether their prior approval will be required as to the siting, design and external appearance of the building, etc. The initial prior approval application will have been accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site, but if the LPA does decide (within the 28-day period) that their prior approval of siting, design, etc, will be required, there may well be a need for more information (such as building elevations, etc.) to be provided. There is no indication as to when the developer should provide this information, nor is there any binding obligation on the LPA to approve the siting, design, etc. within any particular period. The usual 8-week period allowed for the determination of planning applications would appear to apply in principle, but the only remedy for the developer if that further 8-week period expires without a decision would be an appeal against non-determination (deemed refusal). Most applicants would no doubt prefer to wait and see whether an approval is in fact forthcoming.

Finally, a questioner asks whether an extension of time can be agreed with the applicant via email or whether it must be in the form of a letter. This question arose in Gluck. The judge held that an email qualifies as being “in writing”, and no greater formality of communication is required.

I will deal with some questions on Class Q and other particular classes of PD in a future post.

© MARTIN H GOODALL