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

Can actual qualification as PD be determined in the context of a prior approval application?

On 29 March, in a blog post on the scope of a prior approval application, I drew attention to a case that was then pending in the High Court which raised this issue of whether LPAs have the power when considering a prior approval application to determine whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. At the time, I did not know the subject matter of the dispute in that case, nor did I know under what Part or Class in the Second Schedule to the GPDO the proposed development was alleged to fall, but I was hoping that the High Court judgment in this case might perhaps help to remove the remaining uncertainty that I had identified with regard to prior approval applications under Part 3, one way or the other.

Unfortunately, my hopes were not to be realised, as it turns out that this case R (Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) was yet another case on agricultural PD under Part 6, so it doesn’t shed any further light on the treatment of prior approval applications under Part 3 (in respect of which the legislative rules differ slightly from those applying to Part 6). It is nevertheless an important judgment for two reasons.

On one reading of the Court of Appeal’s judgment in Keenan v Woking BC, it is possible to conclude 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 the Court of Appeal had 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. Clearly, however, Keenan is capable of being distinguished, as it has been in Smolas.

The argument in Keenan had been that, as a result of the LPA’s having ignored a Part 6 prior approval application, the applicant had been entitled to proceed with his development in default (under the ’28-day’ rule). This argument was rejected both at first instance and in the Court of Appeal. Keenan ruled conclusively that if a development simply does not qualify as PD in any event, what (if anything) the LPA does in response to a prior approval application in respect of that application cannot make the development lawful. The failure or refusal of the LPA in such circumstances to respond to the prior approval application cannot give rise to a right to proceed with the development in default. The ’28-day rule’ does not come into operation in these circumstances.

What is clear from the judgment in Smolas is that if the LPA concludes that the proposed development does not qualify as PD, it is perfectly entitled to give that as a reason for refusing prior approval. The LPA was not exceeding their powers in dealing with the matter in that way. To that extent the decision in Keenan has been distinguished. In this case, the Council had issued a decision notice that simply stated that Planning Permission would be required for this development because they were not satisfied that the development was reasonably necessary for agriculture on that planning unit. This, the court held, was perfectly lawful. I am bound to say that this appears to me to be an eminently sensible conclusion.

The judgment in Smolas also resolves another issue that has been the subject of debate for some time. Is it lawful for an LPA to determine that their prior approval under Part 6 will be required and to grant or refuse such prior approval at one and the same time? The argument that has sometimes been put forward is that the LPA, having determined that their prior approval will be required should then give the applicant the opportunity to put forward further information in support of their proposed development (in the case of Part 6, as to the siting and design of the development). The counter-argument to this is that if the LPA considers that the application before them already gives them sufficient information to determine the siting/design issue, then they are not obliged to go through any additional procedure, but can decide whether or not to grant prior approval on the basis of the material already before them. The judgment in Smolas confirms that the latter approach is perfectly proper.

In normal circumstances, the appropriate remedy for a developer refused prior approval in this way would be to appeal against that refusal under section 78 of the 1990 Act. In the case of Smolas, however, the court accepted that the argument as to whether or not this was within the LPA’s powers made it necessary for the matter to be pursued by way of an application in the High Court for judicial review under CPR Part 54. However, in the vast majority of cases, an appeal under section 78 would be the only appropriate remedy.

© 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

LPA bitten by 56-day rule

In my book, A Practical Guide to Permitted Changes of Use, I stressed the absolute necessity of an LPA’s notifying their determination in respect of a prior approval application within the time limit laid down (56 days in the case of Part 3), and I carefully explained the detailed rules for establishing both the start date and end date of the 56-day period. Yet some LPAs still seem to get it wrong, especially if a public holiday occurs just after the application is received.

Just to remind you, there are no dies non for the purpose of calculating the 56-day period. The 56-day period (and similar time limits for determining other prior approval applications under the GPDO) continue uninterrupted throughout weekends and public holidays, and it is essential that LPAs should take this into account when working out how long they’ve got in which to make a determination and to communicate it to the applicant.

I was recently sent an appeal decision in Wellingborough [3248384] in a case where the prior approval application under Part 3, Class R had been delivered to the LPA by hand at 10.07 a.m. on Christmas Eve. It was deposited in a letter box for incoming mail at the council’s office. However, the letter box had been emptied earlier that morning, and was not then opened again until 2 January. At the time of delivery, the council’s office was, nevertheless, open for business. It closed for Christmas at 4.00 p.m. that day. The Council sought to argue that the application should be deemed to have been received on 2 January, not 24 December, and that the 56-day period should be calculated accordingly.

Their contention was that this office is only accessible to the public by appointment, and that if customers wish to drop off planning application forms, documents or samples, they are requested to call the planning department on the relevant phone number. Furthermore, they said, the Council’s Christmas opening hours were displayed on the letter box and also advertised on the Council’s website throughout December, making it clear that the council’s offices were closed from 4pm on Christmas Eve to 1 January 2020, and would not re-open until 2 January.

Rules relating to the delivery of documents outside a council’s business hours relate only to delivery by electronic means. [For those rules, see Article 2(9) of the GPDO and section 336(4A) of the 1990 Act, summarised in paragraph 13.8.1 of Chapter 13 in the Third Edition of my book.] There are no rules in the GPDO governing the physical delivery of documents at times when the council’s offices are closed, but this does seem to be a ‘grey’ area (unless someone can remind me of a general rule as to the service of documents that would cover this). Subject to that parenthetical proviso, it seems to me that the legal position might not have been entirely clear if (in this case) the physical delivery of the prior approval application had been made by depositing it in the council’s letter box at, say, 4.15 p.m. on Christmas Eve, after the office had closed. However, that point did not arise in this case, because delivery in the council’s letter box took place almost six hours before the office closed for the holiday.

The Inspector was entirely clear in his finding that there was nothing to prevent or prohibit the applicant from hand posting the application in the letter box at the council’s office on Christmas Eve. Responsibility rested with the council to ensure that applications it receives, including those received immediately prior to a holiday period, are processed within the statutory time limit. Weekends and bank holidays or other public holidays did not ‘stop the clock’, nor could it be suspended during the extended closure of the council’s office in this case. Day 1 of the 56-day period in this case was therefore 25 December, and the council had accordingly failed to notify the applicant as to whether prior approval was required or was given or refused within 56 days of its having received the application on 24 December.

The Inspector nevertheless pointed out that the proposed development could only lawfully proceed if it was in fact permitted development having regard to the relevant conditions and limitations imposed on the planning permission granted by the GPDO. There appears, however, to have been no contention on the LPA’s part that the development would not be compliant with the restrictions, limitations or conditions applying to Class R. Furthermore, (due to the council’s being out of time to determine the prior approval application) it was no longer necessary to consider whether prior approval as to the transport and highways, and noise impacts of the development would or should be required.

The appellant applied for, and was granted, a full award of costs. The appellant had sought on at least two occasions to persuade the council that it was out of time, but the council persisted in denying this. In the circumstances, it was unlikely that the council would have granted an LDC if the appellant had made a section 192 application. So it was clear that the applicant had no viable option but to appeal under section 78, despite having taken all reasonable steps to avoid such a situation. As a result, the applicant had been put to the cost of an appeal that should have been avoided by the LPA’s acceptance that the 56-day period had elapsed. This amounted to unreasonable behaviour resulting in unnecessary or wasted expense, and an award of costs was therefore justified.

This should be an object lesson to all LPAs. In order to avoid running out of time for determining a prior approval application, they should make a working assumption that physical delivery of an application (discovered in their letter box on returning to the office after a weekend or public holiday) was effected before the closure of the office for the weekend or before that holiday period, and ensure that the timescale within which the application must be determined is calculated on that basis, so that the application is in practice determined within that shortened period.

© 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

Extending the 56-day period by agreement

As I briefly reported in my post of 3 Feb, the High Court (Holgate J), in a judgment handed down on 31 January in Gluck v SSHCLG [2020] EWHC 161 (Admin), has reversed the effect of last year’s judgment in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), which had determined that Article 7 of the GPDO did not (as had been universally assumed) enable the 56-day period for the determination of a prior approval application relating to permitted development under any Class in Schedule 2 to the GPDO to be extended by agreement between the applicant and the LPA. Holgate J ruled that the decision in Warren Farm should not be followed.

The subject matter of the Gluck case was the proposed residential conversion by the Claimant of two office buildings under Class O of Part 3. There was correspondence between the claimant and the LPA before the 56-period for determination had expired, indicating the claimant’s willingness to agree an extension of time for the determination of the prior approval application beyond the end of the 56-day period. (The claimant later denied that a specific extension of time had in fact been agreed in writing by the LPA, a contention that was rejected both in his appeal against the LPA’s refusal of prior approval, and by Holgate J in the instant case. We will come back to this point briefly later.)

The Warren Farm case had not been decided in the High Court by the time that the appeal decision that Mr Gluck sought to challenge was decided, but it was a major plank in his case in the High Court. He sought to rely on the decision of Mr Mark Ockelton (sitting as a Deputy High Court judge) in Warren Farm that a time period specified in Schedule 2 of the GPDO 2015 for a determination by the authority as to whether its prior approval is required in a particular case was incapable of being extended, so that once it had expired without a decision being made the applicant could proceed with the development described in their application (in so far as it complied with the terms of the Order).

However, the Secretary of State submitted that that decision was incorrect and should not be followed; so that the provision in the Article 7 of GPDO for agreeing an extension of time periods applies to all prior approval procedures. It is a well-known principle that the High Court is bound to follow its own previous decisions, but the Court is not in fact bound to take that course if the judge in a later case is satisfied that there is a powerful justification for not doing so (see Willers v Joyce (No.2) [2018] AC 843 at [9]). For the reasons set out in detail in his judgment, Holgate J therefore declined to follow the judgment in Warren Farm. In that earlier case, the deputy judge stated that he had not been referred to any prior approval procedure in the GPDO 2015 to which the provision for extending time could be applied if his construction of the legislation was correct. By contrast, in the present case there was extensive discussion of this issue.

As in Warren Farm, the Claimant referred to the three alternative time limits under Article 7 for a prior approval to be determined by an LPA, namely -

(a) within any period specified in Schedule 2,
(b) where no period is so specified, within 8 weeks beginning with the day immediately following the receipt of the application by the LPA; or
(c) within such longer period as may be agreed by the applicant and the LPA in writing,

and argued that (c) is an alternative to (b), but not to (a). Therefore, he argued, a period specified in Schedule 2 is incapable of being extended (whether by agreement or otherwise). It is only where a period is not specified in Schedule 2, and the default position in (b) is engaged, that the ability to extend time by agreement under (c) applies.

The way the Secretary of State put it was that the Claimant’s construction conflicted with the purpose of including option (c) in Article 7. That provision recognises that prior approval applications of all kinds will sometimes involve technical issues requiring detailed assessment and consultation with other authorities. That may apply, for example, to the amenities of the future occupants of the residential development to be carried out under Class O. The same time period specified in Schedule 2 provisions such as paragraph W(11)(c) applies both to the LPA’s decision as to whether prior approval is required and, if so, whether it should be granted. These provisions involve a single time period for decision-making. Insufficient information may have been submitted with the application to enable the LPA to decide whether prior approval should be granted (if required) within that period. In that respect the position is similar to that which may arise for permitted development rights which are subject to the grant of prior approval in all cases. A developer faced with the prospect of his application being refused, for example because of the inadequacy of the information he has supplied with the application, might well prefer to have the period for determination extended so as to avoid a refusal and the prospect of having to appeal to the Secretary of State. The flexibility which option (c) was designed to provide logically applies to cases falling within both paragraphs (a) and (b).

Holgate J observe that Bennion on Statutory Interpretation states at section 16.6:–

“Where a single sentence is broken up into several paragraphs with the word ‘or’ or ‘and’ at the end of the penultimate paragraph, there is an implication that each of the preceding paragraphs is to be treated as if separated by the same conjunction.”

Phillips v Price [1959] Ch. 181 is an example of this principle being applied. It represents the natural way of reading the statute and layout of Article 7. By contrast, the Claimant’s argument would depend on reading paragraphs (a) and (b) as if they were separated by the word “and” instead of “or”.

The absence of a provision answering to paragraph (a) in Article 7 could mean that all “prior approval” cases in Schedule 2 fall within paragraph (b). It would then follow ineluctably that paragraph (c) would apply in all such cases, and an extension of the time period could be agreed. Furthermore, paragraph (a) would be otiose. The Claimant’s legal argument on the main issue would collapse. The procedural code for dealing with prior approval applications should not be construed so literally that it would produce unreasonable or unworkable results. The legislation does not require that approach to be taken.

Nor did Holgate J consider that the Claimant’s interpretation of the legislation could be supported by a purposive approach to the language used. Plainly the avoidance of delay in decision-making by LPAs is an important objective. But sound decision-making on matters of public interest is no less important. That needs to be based upon adequate information from an applicant and necessary consultation. Some of the issues involved may be of a highly technical nature. These considerations apply with just as much force to permitted development rights where the time period for decision-making falls within paragraph (a) of Article 7 as to those within paragraph (b). It may well be in the interests of an applicant to agree to extend the time period for determination to enable him to remedy a deficiency in the information he has supplied and/or to hold discussions with the LPA and consultees, so as to avoid a decision by the LPA that prior approval is both required and refused, and the consequential need to pursue an appeal, or to submit a fresh application, together with additional costs and delay. It would be undesirable to deny that option to developers seeking to rely upon permitted development rights falling within paragraph (a) of Article 7 unless the language of the GPDO 2015 compels that conclusion, particularly as the ability to extend time under paragraph (c), and the length of any extension, would be subject to the developer’s agreement.

Furthermore, the practical effect of treating time periods falling within paragraph (a) as incapable of extension would probably lead to more decisions by LPAs refusing applications (e.g. because the information provided in the time available for decision-making is inadequate) and more appeals to the Secretary of State. That would not be conducive to efficient decision-making or to encouraging acceptable forms of development to proceed without undue delay.

In his lordship’s judgment, the language of the GPDO 2015 does not require the Court to conclude that paragraph (c) is an alternative only to paragraph (b). The specification of a time period in Schedule 2 (such as 56 days) for a decision on whether prior approval is required, linked to a restriction on commencement of development, is not incompatible with the possibility of extending time under paragraph (c). Paragraph (b) lays down a finite period of 8 weeks for decision-making, but that is to be read together with, and subject to, any extension under paragraph (c). The language of paragraph (a) does not preclude an extension of time under paragraph (c) simply because the time period is specified in Schedule 2 rather than in Article 7. Nor is any such extension precluded because the time period is used to control when development may lawfully commence. A provision such as paragraph W in Part 3 of Schedule 2 is capable of being read together with Article 7. Permitted development rights granted under schedule 2 are expressly subject to other provisions of GPDO 2015 including Article 7 (Article 3(1)).

On a separate point, Holgate J also accepted the Secretary of State’s submission that if the legislature’s intention had been to treat time limits specified in Schedule 2 as operating independently, and to be incapable of extension by agreement, which would be the effect of the Claimant’s argument, then there would have been no need to include paragraph (a) or to refer to those time limits in Article 7 when the GPDO 2015 was enacted.

Holgate J therefore concluded that Article 7 must be read as if paragraph (c) is an alternative to both paragraphs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing. The decision in Warren Farm should not be followed.

An additional argument deployed by the Claimant was that an extension of time had not in fact been agreed by the LPA, and/or that such agreement had not been sufficiently evidence in writing. On the first point, Holgate J saw no error in the factual conclusion reached by the Inspector on this point in his appeal decision. As to whether the agreement was sufficiently evidenced in writing, he accepted that an email does qualify as being “in writing”, and no greater formality of communication is required. The Claimant’s argument therefore failed also on this point. I would simply observe that my own view has always been that an email does qualify as being “in writing”, but subject to the proviso that the email has actually been received by the addressee (i.e. that it has arrived in their In box, even if it was not opened or read). A request for an automatic delivery receipt added to the outgoing email is always advisable in such cases.

Holgate J’s judgment in Gluck is very welcome in restoring the understanding that most of us had as to the interpretation of Article 7, and confirming that a written agreement (if only by an exchange of emails) between the applicant and the LPA to extend time for the determination of a prior approval application is effective for that purpose in all cases. However, I did stress in paragraph 15.3 in both the First and Second Editions of A Practical Guide to Permitted Changes of Use that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. There would need to be some written evidence that both parties had agreed to extend time. A nil response from the applicant to the LPA’s request for more time would not prevent the expiry after 56 days of the time within which the LPA is required to determine the prior approval application and notify the applicant of that determination. Unfortunately, this passage does not appear in the Third Edition, having been removed shortly before publication in light of the Warren Farm judgment.

© MARTIN H GOODALL

Prior approval applications – extending time for determination

THE JUDGMENT SUMMARISED BELOW HAS EFFECTIVELY BEEN OVER-RULED. See my blog post of 5 February 2020 - "Extending the 56-day period by agreement"

There was no provision in the 1995 version of the GPDO for any extension of time in respect of the determination of a prior approval application. However, Article 7 of the 2015 Order appeared to allow the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing.

What Article 7 actually says is that where a prior approval application has been made (under any Class in Schedule 2) the decision in relation to the application must be made by the authority –

“(a) within the period specified in the relevant provision of Schedule 2,

(b) where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or

(c) within such longer period as may be agreed by the applicant and the authority in writing.”

Like most other people, I regarded the last of these options as an alternative to either of the other two. However, in R (Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007 (Admin), the applicant claimed that sub-paragraph (c) is an alternative only to sub-paragraph (b), rather than being an alternative to both paragraphs (a) and (b). Their argument, therefore, was that the option of agreeing a longer determination period only applies if no period is specified in the relevant provision of Schedule 2. In the case of Part 3, a period of 56 days is specified by paragraph W(11). This takes the form of a provision that the development must not begin before the receipt by the applicant from the LPA of a written notice of their determination that prior approval is not required, or of a written notice giving their prior approval. Failing this, paragraph W(11)(c) allows the commencement of development after the expiry of 56 days following the date on which the prior approval application was received by the LPA without the authority notifying the applicant as to whether prior approval is given or refused. It follows from this, the applicant argued, that an extension of time is not permissible in respect of prior approval applications under Part 3.

This case concerned a prior approval application relating to the residential conversion of an agricultural building under Class Q. The chronology was as follows: The prior approval application was sent to the LPA on 12 November 2018, and was received by them on 15 November. The 56-day period in this case was therefore due to expire on 10 January 2019. On 8 January the LPA asked the applicant for an extension of time. The applicant queried whether there was power to agree an extension of time, but the LPA drew attention to Article 7, and the applicant reluctantly agreed an extension to 31 January. On 30 January the LPA then refused the application. However, the applicant then claimed that there had been no power to extend time, so that the LPA’s decision was out of time, and they were therefore entitled to proceed with the development.

Clearer drafting of Article 7 might have avoided any dispute of this sort arising although, in fairness to the draftsman, the applicant’s argument in this case is one that has never previously been taken since Article 7 was introduced as part of the revised GPDO in 2015.

In the event, the court was persuaded by the applicant’s argument and therefore quashed the LPA’s decision on the basis that it was made without jurisdiction. The deemed grant of planning permission under Article 3(1) and Part 3, Class Q of the Second Schedule had taken place nearly three weeks earlier, on 10 January 2019.

I confess that I really don’t understand the basis of the judge’s decision in this case, especially bearing in mind the advice in Bennion on Statutory Interpretation, which states as a general rule at section 258 that: “Where a provision consists of several numbered paragraphs with the word “or” before the last paragraph only, that word is taken to be implied before the previous paragraphs after the first.” [so that in this case, Article 7 should be read as referring to “(a) or (b) or (c)”]. The judge nevertheless convinced himself that this was not determinative of the point at issue, preferring instead to interpret the judgment in Phillips v Price [1957] 1 Ch 181 as supporting the proposition that the precise statutory provision must be interpreted in its specific context.

I really don’t understand the reasoning which led the judge to conclude that the approach described in Bennion did not apply in this case, so that the applicant’s case succeeded. I am not in a position to assert that the judge was ‘wrong’, but it seems to me that if this case were to come before the Court of Appeal it could conceivably lead to a different result. I don’t know whether or not permission to appeal to the Court of Appeal has been sought or granted, but I would not be at all surprised if this case were to be taken further by the LPA.

One point which the judge made at the end of his judgment is nevertheless worth emphasising. This judgment did not confirm that the applicant could proceed with his development, and the court specifically declined to make a declaration, because the planning permission granted by Article 3(1) and Class Q in Part 3 extends only to development that actually falls within the provisions of that Class. The LPA’s purported refusal was made on the ground that the developer had provided insufficient information to enable the authority to establish whether the proposed development complied with the conditions, limitations and restrictions specified as being applicable to the development in question. So, even though the LPA’s decision has been quashed, it remains an open question as to whether the proposed development can lawfully be carried out.

© MARTIN H GOODALL

Holiday lets revisited

I don’t usually report on planning appeal decisions, but I did prick up my ears at a decision in Cambridge [3196460] which was issued on 4 March. This related to conjoined appeals against a series of enforcement notices which had alleged a change of use of 13 flats from Class C3 dwellinghouse to ‘short-term visitor accommodation’. Each flat was a separate planning unit, and so each of the enforcement notices related to an individual flat. There was no dispute that the lawful use of these flats had originally been as separate private dwellinghouses. The issue before the Inspector was whether the manner in which each of these flats was being used still fell within Use Class C3 or whether the manner in which they were now being used (i.e. to provide short-stay serviced accommodation) amounted to a material change of use in each case.

The flats had been typically let from 3-4 nights per week (as a minimum) up to approximately 10 nights. In some other cases, the flats were let for longer periods. However, the evidence showed that 77% of the lets were for one- and two-night stays. This evidence also indicated that there were over a thousand different bookings for the 13 flats over an 11-month period from March 2017 to January 2018, and that the 13 flats were occupied 80% of the time. Some of these flats had been used as short-stay serviced accommodation since November 2011, whilst others had been similarly let since July 2015. The staff or agents managing the lettings provided a basic ‘welcome pack’ with linen and towels changed on a weekly basis [which was the sole extent of the ‘servicing’ provided] and neither of the two apartment blocks in which these flats were situated had any communal facilities.

It was stressed on behalf of the appellants that the service provided in the flats was very limited and that it was not at the same service level provided for hotel guests or some other serviced apartments in Cambridge. The business was now ‘geared around corporate lets’ and it was the appellants’ intention to have less of a turnover of residents by progressively providing longer lengths of stay. The appellants referred to the differences between the apartments that were the subject of this appeal and other serviced apartments in Cambridge. In particular, they stressed that the serviced apartments (flats) that were the subject of this appeal were indistinguishable from the other ‘conventional’ flats, including other apartments in the same blocks that were the subject of Assured Shorthold Tenancy Agreements. It was therefore contended that all these flats were clearly in Use Class C3. This was on the basis that a spectrum of uses, from Class C1, through a sui generis residential (hybrid) use, to one which is clearly in Class C3 use, all share indistinguishable characteristics as residential dwellings. So the appellants’ contention was that all of the flats the subject of these appeals had remained in Use Class C3 residential use, despite the short-term lettings.

The LPA, on the other hand, contended that, in each case, there had been a material change of use of the flat. The Council acknowledged that the apartments contained all of the facilities to enable a Class C3 use to occur. However, due to the typical rental periods, the frequencies of turn-over of the accommodation and the character of use, the Council contended that the use of the apartments did not fall within Class C3 use, as defined in the Use Classes Order. The Council relied on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202, on which I reported in this blog on 27 October 2012 (“ Holiday lets may be a change of use”). The Council referred to the court’s finding that ‘It was not correct to say either that using a dwelling for commercial holiday lettings would never amount to a material change of use or that it would always amount to a material change of use. Rather in each case, it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodation’.. The Council considered that, as a matter of fact and degree, a material change of use of each of the apartments the subject of these appeals had taken place. They accepted that Class C3 dwelling houses can involve occasional changes in occupation, but they argued that there is a fundamental difference between, for example, a tenancy change and the high frequency of change in occupation that occurs with the ‘Airbnb’-type uses which had been carried out in the appeal premises.

The Council asserted that usage for short-term periods was likely to be by single individuals or couples and that the impacts of usage were both individual to each apartment block and cumulative, due to their location adjacent to each other. In considering the character of usage, the Council felt that this generated an increased likelihood of early and late arrivals; the uncertainties relating to location, uncertainties regarding access and parking; the need for specific instructions; the fact that the flats were not their homes; the fact that they are guests of the appellant company; the fact that the flats were servicing the tourism sector of the market as opposed to serving the residential market of Cambridge and that guests would not typically be invested in the local community.

Overall, the Council had concluded that the short-term letting use was somewhere between a C3 dwellinghouse and a C1 hotel use. As such, they argued, it was a sui generis use. The Council was also concerned about the transitory nature of the letting use and consequently that some visitors could demonstrate less respect and consideration for neighbours than might be the case for permanent residents. In support of this view the Council referred to reviews by some visitors which were evident from the booking website. Some of these included references to surrounding apartments being ‘incredibly noisy’; ‘noisy guests next door all night long’ and noise levels from other guests being ‘unbearable’. (On the other hand, none of the permanent residents in any of the neighbouring flats in either of the two apartment buildings had complained about any impact on their amenities.)

In assessing these appeals, the Inspector observed that the ‘Moore’ case had established the correct approach to be taken when considering whether or not a material change in use from a dwelling house (Use Class C3) to a holiday or commercial residential use (sui generis) has occurred. It was accepted by both parties that these appeals turned on whether or not, as a matter of fact and degree and based on the particular characteristics of the use of the apartments, a material change of use had occurred.

The Inspector in the ‘Moore’ case considered that there were a number of distinct differences between short term holiday accommodation and a Class C3 use. These included the pattern of arrivals and departures; any associated traffic movements; the likely frequency of party-type activities; the potential lack of consideration for neighbours and other factors which differed from a private family use of the property. Although the uses in the instant appeals could not be compared exactly with the situation in the ’Moore’ case, the Inspector considered that the potential for similar impacts on amenity were the same. The Inspector recited his various concerns in this regard.

In summary, therefore, it was the Inspector’s view that, as a matter of fact and degree, the variable nature of the transient uses of the properties had resulted in a distinctly different character of usage from that of a Class C3 use. He acknowledged that the services provided are not anywhere near a full hotel service. Nevertheless, the flats were let as separate suites of accommodation; they were let and advertised as a hotel might be and, most importantly had been let for many 1- or 2-night stays. On the basis of all of the submissions and his site visit, the Inspector concluded that the character of usage relating to all 13 appeal flats had become significantly materially different to the more permanent residential character of neighbouring flats which were subject to the Assured Shorthold Tenancy Agreements. These differences had amounted to a material change in use of each of the flats in question. It followed that in each case there had been a contravention of planning control and all the appeals were, therefore, dismissed on ground (c).

In commenting on this appeal decision, I should stress first that the Inspector was entitled to reach his own conclusions on issues of fact, and he clearly stated that his findings were made ‘as a matter of fact and degree’. The second point is that, as an appeal decision, this is not in any way legally binding, but it is nevertheless an interesting example of the way in which the relevant legal principles may be applied in practice in appeals of this nature.

This appeal raises a number of interesting points, which are not necessarily confined to holiday lets, but may apply to other alleged changes of use. The first point to be borne in mind is that, if a use remains fairly and squarely within one and the same Use Class, no amount of intensification of that use will amount to a material change of use (see, for example, Kensington & Chelsea RLBC v SSE [1981] J.P.L. 50). A problem may arise, however, if the character of the use changes in such a way as to take it outside the scope of the Use Class within which it originally fell. Decided cases include examples of changes in the use which did not alter the character of the use to such an extent as to amount to a material change of use (e.g. R (Manning) v South Lakeland DC [2005] EWHC 242 (Admin), and Herts CC v SSCLG[2012] EWCA Civ 1473) The classic case in which a change of use certainly had taken place was Wallington v SSW [1991] 1 P.L.R. 87, where the keeping of pets (which is usually a legitimate ancillary or incidental use of a single private dwellinghouse) had grown to such a degree, in that case keeping 39 dogs on the premises, as to change the character of the use in way that took it outside the scope of Use Class C3, and made it a mixed (sui generis) use as a dwelling and for the keeping of dogs. The Moore case, cited in this appeal decision, is an example of a holiday let being or becoming so different in character compared with an ordinary residential use within Use Class C3 as to amount to a change of use.

One further point, which was only touched on lightly by the LPA in presenting their case, and which does not seem to have been a factor in the Inspector’s decision here, is the possibility that a use (such as a holiday let) may, in principle, fall within the same Use Class as the pre-existing use, and yet have such an impact in planning terms as to give rise to a material change of use, even in the absence of any environmental impact as such. This possibility was first suggested by Lord Denning in Wakelin v SSE [1978] J.P.L.769, but was most clearly demonstrated in the cases of Richmond-upon-Thames LBC v SSETR [2001] J.P.L 84 and R (Kensington and Chelsea RLBC) v SSCLG [2016] EWHC 1785 (Admin). Both of those cases were concerned with the loss of housing units (through the amalgamation of dwellings) in areas where there was high demand for housing, particularly in the form of smaller units. It strikes me that the use of flats and similar residential accommodation as holiday lets, if this were to amount to more than a purely temporary interruption in their normal residential use, might well give rise to precisely the same considerations. There is, of course, legislation on this in Greater London, but LPAs elsewhere, faced with a situation similar to this enforcement case in Cambridge, might well consider the applicability of the principle established in the Richmond and Kensington & Chelsea cases, if the use of flats for holiday letting has the effect of reducing the availability of housing units to meet high demand for housing in their area.

This suggests that the government should perhaps revisit the Use Classes Order, and possibly introduce a separate and carefully defined use class for holiday lettings, so that these could no longer be embraced within Use Class C3. In the meantime, however, further cases such as Moore and this latest enforcement case in Cambridge are likely from time to time to trouble the Planning Inspectorate, and possibly the courts.

© MARTIN H GOODALL

Class Q - “Last” used for agriculture?

One problem that seems to recur regularly in relation to prior approval applications for the residential conversion of an agricultural building under Class 3, Part Q in the Second Schedule to the GPDO is whether a former agricultural use was the last use of the building, or whether it has been used for other purposes since then.

It is clear from the wording of paragraph Q.1(a) that a non-agricultural use of the building after its agricultural use ceased would disqualify the building from residential conversion under Class Q. However, it should not be assumed that any other use, no matter how minor, would automatically have this effect.

By virtue of section 55(2)(e), the agricultural use of land and of any building occupied together with land so used is not to be taken for the purposes of the 1990 Act to involve development of the land. It follows that if the building is then used in some way that represents a material change of use, then the agricultural use will be at an end, and will have been supplanted by the new use that replaced it. The crucial question, however, is whether such subsequent non-agricultural use did in fact represent a material change in the use of the building, or whether it was of no real significance in planning terms, so as to have been de minimis.

It cannot automatically be assumed that any use of an agricultural or former agricultural building for some non-agricultural purpose would represent a material change of use. This is bound to be a matter of fact and degree in each case, but, a casual, low key or occasional use for other purposes would not normally amount to a material change of use, if this did not result in any significant change in the character of the building’s use, nor a change in its impact in planning terms. Bearing this in mind, it seems clear that the disqualification in paragraph Q.1 would not apply unless the subsequent non-agricultural use of the building did amount to a material change of use. The disqualification in paragraph Q.1 would not therefore be engaged where any such non-agricultural use was, as a matter of fact and degree, de minimis.

A discussion of the materiality of a change of use will be found in my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts (Bath Publishing, ISBN978-0-9935836-5-0) in paragraph 3.8 of Chapter 3 in that book.

I do not usually report inspectors’ planning appeal decisions in this blog, but a practical example of this approach to the issue was provided by an appeal decision at Great Totham, Essex (Maldon DC) in July 2018 [3198348]. The appeal building was part of a long standing and larger farm complex which was subdivided in 1988. The LPA suggested that there had been no agricultural activity since 1988 and that the building had instead been used for both commercial and domestic activities. The appellant himself had never operated an agricultural trade or business from the appeal building and it was no longer part of an established agricultural unit. However, this did not mean it had moved away from its historic and lawful agricultural use, and the Inspector noted that planning permission to use the building for purposes unrelated to agriculture had never been granted. On the balance of probability, he therefore found that the building was probably last in an active agricultural use as part of an agricultural unit in 1988.

At points between 1988 and 2004 the appellant operated a number of heavy goods vehicles (HGVs) from the yard as part of an agricultural haulage business. There was nothing to suggest the material being transported derived from an agricultural unit operated by the appellant. However, the HGV licence only permitted the parking of HGV vehicles in the yard. The HGV vehicles were too large to be parked within the appeal building. There was nothing before the Inspector to suggest the barn formed part of this enterprise. The Inspector therefore concluded that the lawful agricultural use, which had not been active since 1988, would have endured even if the building had been used occasionally to support the unlawful HGV business (which seemed unlikely).

The appeal building itself had been intermittently used to store a tractor and other paraphernalia left over from the historic agricultural use, such as apple crates. The barn had also, at points, been used to kennel dogs, to park vehicles and as a workshop. The barn was described as being used for the storage of the owner’s vehicles and farm equipment, but it was unclear what farm the equipment related to. The storage and workshop use appeared to be domestic in nature given the items on show.

It was unclear whether the non-agricultural uses were for unbroken periods of time, more than intermittent and consistently more than low key. As such, the recorded use of the appeal building as a store and workshop was unlikely to be sufficient evidence to demonstrate that a material change of use of the barn from agriculture to some other use had occurred [my added emphasis]. Thus the historic and long standing use as an agricultural building had endured. This suggested that the barn had had a lawful dormant agricultural use since 1988. The LPA had never previously asserted that a material change of use from agriculture to some other use had occurred.

The Inspector observed that the evidence before him was incomplete and finely balanced but, on the balance of probability [my emphasis again], he found that the appeal building, whilst not in use on the 20 March 2013, was last lawfully used in 1988 and this was solely for agriculture in connection with an established agricultural unit. In this respect, the permitted development rights in Class Q of the GPDO applied to the appeal building. The Inspector therefore found that the proposal was permitted development, and concluded that the appeal should be allowed and approval granted.

An alternative argument on the part of LPAs that has occasionally been encountered is the assertion that casual or occasional storage of domestic items, or of logs as firewood renders the use of the building in question ‘ancillary’ to the residential use of a nearby farmhouse (or former farmhouse). However, it should be borne in mind that the farmhouse is a separate planning unit, and so the use of any of the agricultural buildings cannot be ancillary to the use of that other planning unit. (See Westminster City Council v British Waterways Board [1985] A.C. 676.)

In some cases, the mistaken view as to the agricultural building’s ancillary status is based on the assumption that the building is within the curtilage of the farmhouse. But a nearby barn or other agricultural building is very unlikely to be within the domestic curtilage of the farmhouse, because in most cases the agricultural building does not meet the essential functional test in Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C.R. 195. Furthermore, in most cases it would not meet the requirement laid down in Dyer v Dorset CC [1989] 1 Q.B. 346 of forming one enclosure with the farmhouse. (See also Burford v SSCLG [2017] EWHC 1493 (Admin).) Any doubt on this score was entirely dispelled by the High Court judgment in R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin), which established that nearby farm buildings are very unlikely to be within the curtilage of the farmhouse. [This point has previously been discussed in this blog, on Friday, 15 March 2013 - "Barns near listed farmhouses" - when I analysed the Egerton judgment in some detail.]

© MARTIN H GOODALL

Going behind a prior approval

If an LPA in determining a prior approval application under a relevant part of the Second Schedule to the GPDO decides either that their prior approval will not be required or grants such prior approval, can the authority later resile from that decision on the basis that the development does not in practice qualify as PD, or (alternatively) can a third party successfully challenge the LPA’s decision on the same ground?

I have been meaning to return to this topic ever since the judgment of the High Court in R (Marshall) v E Dorset DC [2018] EWHC 226 (Admin), in which judgment was given on 13 February.

In a blog post on Monday, 16 January 2017 (Can an LPA override a prior approval?), I drew attention to the little-known judgment in R. v. Sevenoaks DC, Ex p Palley [1994] E.G. 148 (C.S.), which appeared to suggest that when an LPA gives its prior approval (or decides that its prior approval is not required), it is inherent in that determination that the authority necessarily accepts that the proposed development does qualify as PD, so that the council cannot thereafter resile from that position.

Until my attention had been drawn to Ex p Palley, it had been my view that if the proposed development does not in fact comply with the criteria for permitted development under the relevant Class in (for example) Part 3 or Part 6 of the Second Schedule to the GPDO, either because a requisite pre-existing use did not qualify under that Class of PD, or because the proposed development is not within the limitations, restrictions or conditions that apply to the relevant Class of PD, then an application for prior approval, even if the approval is given (or if the application is simply not determined within the 56-day or 28-day period – whichever is applicable) cannot make the proposed development lawful, and so it cannot be carried out as PD.

The basis for my earlier opinion was that the actual planning permission for the development is granted by Article 3(1) of the GPDO and it is this permission that is dependent on the qualifications in the GPDO being met. The LPA is not itself granting planning permission, nor in giving its prior approval is it approving the development as such; it is merely approving the specified matters that require prior approval. It follows (I had originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD.

During the course of discussion in comments that were posted in response to the revised view that I expressed in light of Ex p Palley, a correspondent raised with me the effect of the Court of Appeal’s decision in Keenan v Woking BC and SSCLG [2017] EWCA Civ 438. At the time, I felt that Keenan did not affect the position, because it simply seemed to me to confirm that if the development does not qualify as PD, the 56-day rule [or the 28-day rule in that case] will not operate so as to allow the proposed development to go ahead in the absence of the prior approval application having been determined within the statutory time limit. There had previously been several appeal decisions to the same effect, and I stressed this point in my book, A Practical Guide to Permitted Changes of Use (see page 201 in the Second Edition, and for good measure, I repeated it at the bottom of page 210).

However, it seems that the effect of the decision in Keenan is of slightly wider effect than that (at least so far as PD under Part 6 is concerned), and Mrs Justice Lang’s judgment in Marshall has prompted me to look more carefully at Keenan.

In Marshall, Lang J drew attention to the disqualification in paragraph A.1 of Part 6, whereby development is not permitted by Class A if it would consist of, or include, the erection or construction of, or the carrying out of any works to, a building, structure or an excavation used or to be used for the accommodation of livestock or for the storage of slurry or sewage sludge where the building, structure or excavation is, or would be, within 400 metres of the curtilage of a protected building, but in this case the proposed building was within 400 metres of several dwellings (including the Claimant’s home) which were “protected buildings” as defined. Furthermore, paragraph A.2 makes it a condition of permitted development under Part 6 that where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development are not used for the accommodation of livestock (except in certain defined circumstances).

Notwithstanding this, the LPA issued a decision notice in response to the developer’s prior approval application under Part 6, which stated that “The development, therefore, constitutes permitted development in accordance with the provisions of Part 6 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and is subject to the standard conditions.” In dealing with this point, Lang J followed the judgment of the Court of Appeal in Keenan, and in particular the words of Lindblom LJ that, in order to be lawful, the development proposed had to fall squarely within the description of “permitted development” in the relevant Class.

In particular, Lindblom LJ observed in Keenan that the GPDO did not impose on the LPA a duty to decide whether or not the development in question was, in fact, permitted development under Class A of Part 6, albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the LPA to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not, of course, with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.

As Lang J put it in Marshall (referring to Keenan), the ‘prior approval’ conditions do not even come into play unless the proposed development falls “squarely within the description of Permitted development” in the relevant Class, and she emphasised that Keenan also decided that the LPA, when deciding a prior approval application under the terms of the GPDO [at least under Part 6, but see below], is not empowered, either expressly or implicitly, to decide whether or not the proposed development comes within the description of the relevant Class in the GPDO.

This confirms the view which I had originally expressed myself as to the effect of the legislation. Clearly, therefore, in the context of Part 6, Ex parte Palley can have no application.

Whilst I accept the logic of both the Keenan and Marshall judgments, I still have a niggling doubt at the back of my mind, which those two judgments do not entirely resolve. Both of these cases involved agricultural development under Part 6, and I fully accept Lindblom LJ’s views, quoted by Lang J in her judgment in Marshall, so far as Part 6 applications are concerned. However, the actual legislative wording of Part 3 does seem to imply that in the case of prior approval applications under that Part of the Second Schedule to the GPDO, the LPA when deciding a prior approval application under the terms of Part 3 is empowered, either expressly or impliedly, to decide whether or not the proposed development comes within the description of the relevant Class in Part 3.

In relation to Part 3, paragraph W. –(1) provides that the following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required. Under paragraph W. -(3), the LPA may refuse a prior approval 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 this Part as being applicable to the development in question.

I think I would have to concede that paragraph W. –(3) empowers the LPA only to refuse the prior approval application if the development does not qualify as PD but, arguably, this might reasonably be taken to imply that if the LPA either grants its prior approval or determines that its prior approval of the specified matters is not required, then the authority may be taken to have accepted that the development does qualify as PD, and in those circumstances Ex p Palley (as discussed in the earlier blog post to which I have drawn attention above) would come into play.

Ex p Palley was, of course, decided some years before the House of Lords’ decision in R v East Sussex CC ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, in which it was held that the clear terms of the modern legislation (sections 191 and 192 of the 1990 Act in their currently amended form) provide the only means of confirming the lawfulness of an existing or proposed use or development. Such a determination cannot be construed from the outcome of other procedures, nor can a finding of lawfulness be made or implied informally. However, that is a rather different point from the one raised here. We are dealing here with a planning permission granted by Art. 3(1) of the GPDO, subject only to prior approval of certain matters by the LPA (or their determination that their prior approval is not required), rather than with an informal opinion or implied certificate as to the lawfulness of the proposed development in connection with which prior approval has been granted.

In principle, the qualification of a proposed development as PD would appear to be an issue that is entirely separate from the grant of prior approval (and this was the view I initially expressed). However, it appears on closer examination (particularly bearing in mind the wording of paragraph W -(3)) that the prior approval could reasonably be taken, for the reason advanced above, to involve a determination by the LPA that the restrictions, limitations and conditions applicable to that Class of PD in Part 3 are met, and that the proposed development accordingly qualifies as PD.

It is in light of this factor that the judgment in Ex p. Palley may become relevant where prior approval has been given under Part 3, because the determination by the LPA is arguably a judgment by them (in accordance with paragraph W. –(3)) of a matter of fact and degree that can only be challenged on Wednesbury grounds by way of an application for judicial review. The point of the judgment in Ex p. Palley is that, because (having regard to the wording of paragraph W -(3)) the LPA may be taken to have considered and determined whether the development does in fact qualify as PD, this issue is not merely “a matter of precedent fact".

I cannot guarantee that this argument would necessarily be accepted if it were to come before the High Court or the Court of Appeal, but in view of the fact that this argument rests on a legislative provision in Part 3 (which is absent from Part 6), rather than relying on a reference to ministerial practice guidance, as was the case in Keenan, it would appear that a Part 3 case might well be distinguishable from the judgments in Keenan and in Marshall (concerned as they were with the differently worded provisions of Part 6). I suspect we shall just have to sit back and wait for someone to take a punt on this point.

© MARTIN H GOODALL

Implied conditions and the definition of ‘sport’

In recent weeks, my attention has necessarily been focused on final preparation of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) for publication, and I have not had time to blog on various developments in planning law that have occurred recently.

There are a couple of judgments which came too late for the book but, fortunately, both of them only serve to confirm the law as stated in the text (much to my relief!).

The first of these was the judgment of the High Court in Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin), on 3 October. This related to a condition that, it was claimed, should be implied in a planning permission. The case concerned a permission granted under section 73 (which, although it relates to the removal or modification of conditions in a previous planning permission, takes effect as an entirely new planning permission). The previous permission had been restricted by condition to non-food sales, but the conditions in the section 73 permission did not refer to any such restriction. The LPA refused an LDC for unrestricted A1 use, but this decision was overturned on appeal by an inspector, who granted the LDC sought by the developer. It was this appeal decision that the LPA sought to challenge.

The judgment reviewed the previous decisions mentioned below, but the court rejected the LPA’s contention that a condition preventing the sale of food could be implied in this case. To put it as shortly as possible, the decision of the Supreme Court in Trump International Golf Club Scotland Ltd. v Scottish Ministers [2015] UKSC 74 indicates that a term can be implied in a condition that has actually been attached to the permission, so as to give proper effect to the intention of that condition, but this does not over-ride the well-established principle that a condition that is entirely absent from a permission cannot be implied in that permission. Thus in I’m Your Man Limited v SSE 77 P & CR 251, a ‘temporary’ permission (so described in the description of the development authorised by the permission) could not be interpreted so as to imply a condition in that permission that the use should cease at the end of the period mentioned in the description of the development. In the Lambeth case Mrs Justice Lang drew attention to the subsequent approval of that judgment by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin) and by the Planning Court in Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin). Both of these cases concerned substantive limitations on the permission granted, not merely temporal ones.

The second recent case was the judgment of the European Court of Justice in English Bridge Union Limited v HMRC (Case C 90/16), which was handed down on 26 October. This finally determined a question that has been the subject of repeated litigation over the past few years, namely whether Bridge can be classified as a ‘sport’ for tax purposes. This judgment confirms that, in order to be a ‘sport’, the activity in question must have some element of physical exertion. I mention this judgment because it is analogous to the question of whether various card and board games can be regarded for planning purposes as coming within Use Class D2(e) (“use ……… for other indoor ……….. sports or recreations”). The decision of the ECJ (contrary to the Opinion of the Advocate-General published in June) is in line with the related English cases - English Bridge Union) v Sport England [2015] EWHC 1347 (Admin) and R (English Bridge Union) v Sport England [2015] EWHC 2875 (Admin).

Whilst the English Bridge Union litigation was concerned with the eligibility of Bridge for grants from Sport England, and its treatment for the purposes of tax and VAT, all these judgments (including now the final judgment of the ECJ) are entirely consistent with the conclusion reached in earlier cases relating to Use Class D2, such as Millington v SSETR (1999) 78 P. & C.R. 373; (1999) J.P.L. 644 (subsequently approved by the Court of Appeal – [2000] J.P.L. 297) and Rugby Football Union v SSETR [2001] EWHC 927 (Admin) (subsequently upheld in the Court of Appeal – [2002] EWCA Civ 1169). A leisure activity will only fall within Use Class D2(e) if it involves some physical effort or exertion. Absent this essential physical element, other ‘recreations’ (even if they are competitive in nature) do not fall within Class D2(e).

© MARTIN H GOODALL