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

Planning radicalised – or a ‘damp squib’?

Last year, the government published a controversial and much criticised White Paper on some wide-ranging planning ‘reforms’, which canvassed radical proposals for shaking up the English planning system. There was another fanfare (with the accompanying ballyhoo in the press) when, on the day before the Queen’s Speech last month, the Prime Minister announced with his usual hyperbole that the government was definitely going ahead with these revolutionary changes. The Queen’s Speech duly contained the announcement of a Planning Bill to put these proposals into legislative form.

After that, however, it quickly became clear that the government is in fact nowhere near ready to go ahead with the promised Bill. It emerged in the weeks that followed that as a result of strenuous opposition within Tory ranks, the government is far less determined to press ahead with their planning proposals than the PM made out. Considerable alarm was caused among party loyalists early in May by the loss of control of several councils in the south of the country, as a result of growing public opposition to the perceived threat of development in traditionally Tory-held areas.

For many years, there has been unresolved tension inside the Tory party between the gung-ho free marketeers on the one hand and a more conservationist faction (NIMBYs, if you like) on the other hand. The latter clearly had the upper hand when the Conservatives got back into government in 2010, having campaigned on a policy of ‘localism’, and promising electors that in future they would have local control over development in their area. Eric Pickles, as Secretary of State for Communities and Local Government, immediately set about putting this localism agenda into action, with the abolition of government-imposed Regional Spatial Strategies and the introduction of locally formulated Neighbourhood Plans.

Those of us who had been professionally involved in planning and development for many years did not believe that this new approach could be maintained and, as we expected, ‘localism’ was gradually watered down until, with the publication of last year’s White Paper, it seemed that the last vestiges of ‘localism’ were to be swept away, to be replaced by a radically overhauled planning system which would put an end to local residents’ ability to query and oppose unwanted development in their area. Unsurprisingly, this led to considerable push-back at a local level from Tory councillors and local party members, which in turn led to increasing pressure on backbench MPs to resist these proposals.

The government’s initial reaction was a robust reaffirmation of their determination to push ahead with their proposals, as evidenced by the PM’s statement on the eve of this years’ Queen’s Speech. Then Robert Jenrick (the current Secretary of State) was sent out to ‘reassure’ Tory backbenchers that it wasn’t going to be as bad as all that. This, however, has clearly failed to quell the disquiet in Tory ranks, which has only intensified in light of last month’s worrying local election results. As a result, there have been increasing hints that the government itself is now rowing back from its earlier gung-ho approach to their proposed planning ‘reforms’.

It would not be altogether surprising if the promised Planning Bill does not in fact come forward in the current parliamentary session, despite its announcement in the Queen’s Speech, or if it does that it may be delayed until later in the session. Any expectation, raised by the PM’s pre-Queen’s Speech announcement, that the promised Planning Bill would be introduced almost immediately was clearly misleading. At present, it is not even possible to predict which proposals from last year’s White paper will in fact survive to be included in the Bill. There is now a widespread expectation, even among government supporters, that what may emerge is likely to be a considerably watered-down version compared with the government’s original proposals, which will be much less radical in its effect than the government had hoped.

Even if we set aside speculation about the timing and contents of the Planning Bill, long experience has taught me that it is unwise to get too excited about parliamentary bills when they are first introduced. They usually look very different by the time they get to Royal Assent, mainly due to the government having second and third thoughts as the Bill goes through parliament. Opposition amendments are usually voted down (especially when the government has an 80-seat majority), although in this case, threatened backbench revolts on the government side over the Bill’s contents may persuade the government to back down on some clauses in the Bill if these still prove to be unacceptable to a significant number of their own backbenchers.

So I am prepared to predict that the resulting Planning Act, when it eventually reaches the statute book, is unlikely to work in the way the Prime Minister suggested ahead of the Queen’s Speech. It may become easier to gain planning permission for housing development; but this isn’t guaranteed, and many of the delays and expensive procedural hurdles for developers may continue to hamper the actual delivery of new housing. So my overall conclusion is that those of us in the planning and development sector will just have to “Wait and see”.

UPDATE (21.6.21) : Following the shock result of the Chesham and Amersham byelection last week, it comes as no surprise that backbench Tory MPs are getting even more jumpy about the government's proposed planning 'reforms'. There will clearly be intensified pressure on the government to row back from its more radical proposals, if not to drop them altogether. It seems that ministers are still trying to bluff and bluster their way through this 'noise', but at the very least I would expect some substantial further delay in the introduction of the promised Planning Bill while ministers decide how far they might be able to go in implementing their original proposals. A complete U-turn on the part of the government cannot be ruled out, so don't be surprised if we don't even see the Planning Bill introduced this year.

© MARTIN H GOODALL

Partial demolition in advance of permitted development

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

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

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

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

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

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

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

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

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

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

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

© MARTIN H GOODALL

Class MA - Some further points

In my post yesterday, I briefly summarised the provisions of the new Class MA in Part 3. However, it is worth bearing in mind some other points to which I did not have time to draw attention yesterday, including one or two deliberate omissions from Class MA.

Residential conversion of several types of premises that are sui generis uses is not permitted by Class MA. Thus, in contrast to Class M, this PD right does not extend to hot food take-aways, betting offices, pay day loan shops or launderettes. I do not know whether this omission was deliberate or inadvertent, or whether the government may add these to Class MA in the future.

Second, also in contrast to Class M, the PD right under Class MA does not include any building operations. This is in line with Classes O and PA, which Class MA also replaces. So, planning permission will be required in the vast majority of cases for external alterations to the building, including new doors and windows, and other external details. LPAs should bear in mind, however, that planning permission for the change of use itself is already granted by Article 3 of the GPDO (as well as all internal alterations to convert it to residential use – covered by section 55(2(a)). It follows that the only issues for the LPA to consider in determining a planning application for such building operations are those that relate strictly to those building operations themselves, including aesthetic and other material considerations (if any).

In Class M, the requirement for a prior approval application included the following matter:

- whether it is undesirable for the building to change to a residential use because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Use Class A1 (shops), Use Class A2 (financial and professional services) ……… , but only where there is a reasonable prospect of the building being used to provide such services, or (where the building is located in a key shopping area) on the sustainability of that shopping area.

This requirement is not repeated in Class MA, so the retail impact that may result from the residential conversion of retail premises, even in a key shopping area, is no longer a matter with which an LPA can concern itself. The only ‘protected’ uses whose loss must be considered are NHS health centres and registered nurseries. Clearly, therefore, (despite ministerial protestations to the contrary) the government is content to preside over the decline and death of England’s town centres.

Furthermore, Class MA (unlike former Class PA) does not include as a matter requiring prior approval:

- where the authority considers the building to which the development relates is located in an area that is important for providing industrial services………, whether the introduction of, or an increase in, a residential use of premises in the area would have an adverse impact on the sustainability of the provision of those services

Instead, the relevant matter that may require the LPA’s prior approval under Class MA is the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses [which is not the same thing at all]. Here again, the LPA is precluded from considering the impact of the loss of industrial premises. So planning officers can forget any idea of protecting employment land where residential conversion is proposed under Class MA.

A couple of final points are worth bearing in mind. First, although prior approval is required in respect of the provision of adequate natural light in all habitable rooms of the dwellinghouses, and there is no reference here to the adequacy of the residential accommodation, Article 3(9A) makes it clear that Schedule 2 does not grant permission for, or authorise any development of, any new dwellinghouse where the gross internal floor area is less than 37 square metres in size, or that does not comply with the nationally described space standard issued by the former DCLG on 27 March 2015. On the other hand, adequacy of amenity space, provision for refuse storage, etc. is not a matter with which the LPA can concern itself in relation to Class MA.

The second point is that paragraph W of Part 3 applies to the processing of all prior approval applications under Part 3, and so the 56-day Rule will apply to Class MA in the same way. Planning officers must therefore be alert to the need to issue a determination within the 56-day period, which commences on the day following receipt of a completed application. So LPA officers should not waste time in deciding whether of not to ‘validate’ the application. If it does not comply with the rules, it can be rejected under paragraph W(3).

I dare say there are other ramifications to Class MA that will become clear in the light of experience, but that will do for now. Happy town planning!

© MARTIN H GOODALL

Government goes ahead with new PD rights

Readers are no doubt getting used by now to the meaning of the word “Consultation”. The government announces a proposed legislative change (in this case making important changes to the GPDO). They invite comments, prompting numerous vociferous objections. Then they totally ignore these responses and go ahead with the changes anyway. That’s “Consultation”.

The opposition in this case came not merely from ‘the usual suspects’, but also from important elements in the property industry, who might perhaps have been expected to support the greater freedom to redevelop commercial property. So concerned are the professional bodies with the potential impact of these changes that even after these amendments to the GPDO were made last week, the RTPI, the RIBA, the RICS and also the CIOB [Chartered Institute of Building] wrote to the Prime Minister to express their concern that these latest PD changes could present a real risk to the country’s town centres and to small businesses in particular. However, I doubt whether the government will take any notice.

The latest changes to the GPDO came in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 [SI 2021 No. 428], which was made on 30 March and comes into force on 21 April, although (as explained below) the new PD rights do not in fact take effect until 1 August. It applies both to England and to Wales. [But is this right? What about the devolution of planning powers to Welsh Ministers? See comment below for an explanation.]

I am not going to attempt to set out the new provisions in any detail. What follows is simply a summary of some of the main points. In Part 3, Class M (the residential conversion of buildings formerly within Use Classes A1 and A2) and Class O (the residential conversion of offices formerly within Use Class B1(a)) will cease to apply after 31 July, and will be replaced by the new Class MA, which (subject to the restrictions and limitations mentioned below) will extend to all buildings falling within the current Use Class E.

This new PD right will also have the effect of replacing (and in effect reviving in a new form) the lapsed PD right that was formerly granted by Class PA. Only Class N (the residential conversion of an amusement arcade or centre, or a casino, each of which is a sui generis use) remains in its original form. Whether it was an unintentional oversight or a deliberate change, the effect of the abolition of Class M is to put an end to the PD right for the residential conversion of betting offices and pay day loan shops (with or without flats above them). This aspect of Class M has not been subsumed within the new Class MA.

There are the usual restrictions, which exclude certain buildings from this PD right. The most important of these is the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval [although this would hardly seem long enough to prevent the practice on the part of unscrupulous landlords of ‘winkling out’ existing tenants].

Another essential qualification is that the use of the building must have fallen within one or more of the old ‘town centre’ and similar use classes (i.e. A1, A2, A3, B1, D1(a), D1(b), or D2(e) (other than use as an indoor swimming pool or skating rink) and/or the new Class E, for a continuous period of at least 2 years prior to the date of the application for prior approval. The cumulative floor space of the existing building changing use under Class MA may be up to a fairly generous limit of 1,500 square metres. Some of the usual exclusions apply to buildings or their curtilage will apply to Class MA (SSSI, Listed Building, Scheduled Monument, Safety Hazard Area, Military Explosives Storage Area, AONB, the Broads, National Park or World Heritage Site and also if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained).

PD under Class MA will be subject to a prior approval application being made in respect of transport impacts of the development (particularly to ensure safe site access), 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, the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, or for waste management, storage and distribution, or a mix of such uses. Where the development involves the loss of services provided by a registered nursery, or a health centre maintained under section 2 or 3 of the National Health Service Act 2006, the impact on the local provision of the type of services lost, this will also be a matter requiring prior approval.

Although the location of the building within a conservation area is not a disqualification in the case of Class MA, the impact of that change of use on the character or sustainability of the conservation area will be a matter requiring prior approval, but only where the development involves a change of use of the whole or part of the ground floor.

An application for prior approval for development under Class MA may not be made before 1 August 2021. Development must be completed within a period of 3 years starting with the prior approval date, and any building permitted to be used as a dwellinghouse by virtue of Class MA is to remain in use as a dwellinghouse Use Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the use as a dwellinghouse.

Various changes have also been made to Parts 7, 8, 11 and 20 in Part 2 of the Second Schedule to the GPDO, which I haven’t got time to discuss here. One important transitional provision is to preserve the effect of existing Article 4 Directions in respect of PD under Class O for a further year. Until the end of 31 July 2022, a direction issued under article 4(1) of the GPDO that is in effect immediately before 1st August 2021,and which withdraws permission for all or any development, or for any particular development, granted for Class O of Part 3 of Schedule 2 to the GPDO, and which has not been cancelled in accordance with the provisions of Schedule 3 to the GPDO, will remain in effect as if a reference to any development permitted under Class O included a reference to the equivalent development under Class MA of Part 3 so far as that development would, but for the direction, be permitted under Class MA.

Finally, there is one minor amendment to the Use Classes Order. This change has the effect of excluding use as a swimming pool or skating rink from Class E, so that these two uses will now fall solely within Class F.2(d). I commented on the apparent anomaly of a swimming pool or skating rink falling alternatively within either Class E or Class F.2 on page 360 of the Revised Edition of The Essential Guide to the Use of Land and Buildings under the Planning Acts (pages 16/17 in the November 2020 Supplement). I also pointed out one or two other anomalies of a similar nature in the UCO as revised last year, and it will be interesting to see whether the government takes the opportunity to deal with those too in future amendments to the UCO.

© 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

Lawful use – the need for continuity clarified

In my book The Essential Guide to the Use of Land and Buildings under the Planning Acts I pointed out that when an application for a Lawful Development Certificate is made in respect of an existing use, that use (in addition to having been continuous and uninterrupted throughout the 4-year or 10-year period, whichever is applicable) must also be in existence when the application is made. What I wrote (in paragraph 19.5.1 of Chapter 19) was:

“There is, however, a requirement that the use must actually subsist on the date when an application for a Lawful Development Certificate is made, although (having regard to Panton and Farmer) this does not imply that the use must have been continuous since the date on which it became lawful, following 10 years’ continuous use in breach of planning control.”

This statement is correct, but it occurs to me that I should perhaps have explained this proposition in a little more detail. The authority that I had in mind was a passage in the judgment of Robin Purchas QC in Nicholson v SSE [1998] J.P.L. 553, at page 561, where he pointed out that the need for continuity of the breach of a planning condition seemed to him to be consistent with the linked provisions in section 191 for LDCs in respect of uses and operations :

“By section 191(1)(a) the purpose of the application in respect of uses is to ascertain whether “any use of buildings or other land is lawful”. It is plain accordingly that in respect of uses the use must exist at the time of the application. The question is itself also directed to that time. Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past in that generally they will already have taken place. However, the question is asked, as with “existing uses” and matters of non-compliance, in the present as at the time of the application. In the context of the section as a whole, I find no difficulty in reading that as a requirement that the operation should continue to be in existence in some physical sense, be it as a building or other structure or as may be. That seems to me to fit with the definition of lawfulness in section 191(2). As with section 191(3), lawfulness for uses and operations requires under (b) consideration whether they “do not constitute a contravention” of an enforcement notice then in force. As I have said, that seems to me to presuppose that there is something in existence at the time of the application which would be capable of contravention if there was in fact a relevant enforcement notice then in force. Equally, under (a), the requirement that “no enforcement action may then be taken” implies that there is something in existence against which enforcement action might be taken if it were not for the absence of requirement for permission or the grant of permission or the expiry of time for enforcement action. To my mind, the natural reading of section 191 in respect of uses and operations is that the section requires that the uses and operations should exist at the time of the application in the sense that I have indicated. That would be consistent with the approach that I have taken to non-compliance. Any other interpretation would seem to me somewhat to strain the language used and should only be adopted if the natural construction plainly conflicts with the object of the Act or otherwise leads to an absurd or illogical result.”

This passage was obiter but Nicholson was nevertheless cited with approval in the Court of Appeal in Swale BC v FSS [2005] EWCA Civ 1568, at para. 6 (Keene LJ), and was further discussed in Ellis v SSCLG [2009] EWHC 634 (Admin).

In paragraph 19.5.1 of The Use of Land….. I also pointed out that, having regard to Panton and Farmer v SSETR [1999] J.P.L. 461, the need for the actual existence of the use at the time of the LDC application does not imply that the use must have been continuous since the date on which it became lawful, following 4 years’ or 10 years’ continuous use in breach of planning control (whichever is applicable). The relevant passage in Panton is to be found on page 468:

“Mr Albutt's skeleton argument appeared to suggest that an "existing" use for the purposes of section 191(1) described one which was active at the time of the application. During the hearing I suggested the term "dormant use", as representing a use which had arisen by way of a material change of use, but was now inactive, possibly for a long period of time. Such decline, even cessation, of physical activity could, of course, occur in countless different circumstances. The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above.

It is clear that a dormant use, in this sense, can be an "existing" use for the purposes of section 191(1), and this position was in terms accepted by the first respondent. This becomes clear when one appreciates that the LDC provisions have to be construed in the context of the enforcement provisions as a whole. Section 191 (1) enables the grant of a certificate where a use is lawful, one example of lawfulness being immunity from enforcement through the passage of time. By section 171B(3) the relevant period of time (in relation to a use other than as a single dwelling-house) is the passage of10 years from the date of the breach. The subsection is silent on any requirement for continuation of the use. Indeed; this approach is consistent with the fundamental principles of statutory development control in relation to material changes of use. The provisions are concerned with the carrying out of development, that is to say not use, but material change of use.

Further, this approach to the term "existing", shared by the first respondent in this case, is consistent with the approach taken by the Secretary of State in relation to the former provisions. Under the previous provisions relating to established use certificates, the use had to have "continued since the end of 1963", and be "subsisting at the time of the application". In a number of appeal decisions, the Secretary of State accepted that these provisions could apply to an inactive, or dormant, use, provided that it had not been abandoned.

Finally, there is nothing inconsistent, in my view, between this approach and the judgment of Mr Robin Purchas Q.C. (sitting as a deputy High Court judge) in Nicholson v. SSE (1998) 76 P. & C.R. 191. That decision concerned the time limits for enforcement in relation to breaches of condition. Mr Purchas held that an LDC could only be granted where the non-compliance with the planning condition was current at the date of the application. As Mr Purchas pointed out, if there were a period, following non-compliance, of compliance with the condition, the breach would be at an end, and a later breach would constitute a fresh breach, in relation to which time would begin to run again under section 171B(3). As he pointed out: "In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use". The learned deputy judge continued in the following terms at page 199:

"That construction seems to me consistent with the linked provisions in section 191 for lawful development certificates in respect of uses and operations ... It is plain, accordingly, ……. [the passage I have quoted above] ………. would be consistent with the approach that I have taken to non-compliance."

There is nothing inconsistent, in my view, between those remarks and the approach that I take in the present case, an approach accepted by the first respondent. The burden of Mr Purchas' s reasoning is that there must be, at the date of the application, a use or operation at the land upon which an enforcement notice could "bite". An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense.”

The only other point that needs to be borne in mind when considering the judgment in Panton is that the Court of Appeal made it clear both in SSETR v Thurrock BC [2002] EWCA Civ 226 and in Swale BC v FSS [2005] EWCA Civ 1568 that the remarks in Panton regarding a use being dormant do not apply to the period before immunity from enforcement is achieved, i.e. during the 4-year or 10-year period, throughout the whole of which the use must be both active and continuous. The rule in Panton nevertheless applies once immunity has been achieved under the 4-year or 10-year rule.

Thus there is no contradiction between what I wrote in my book on The Use of Land….. and what Richard Harwood wrote in the Third Edition of Planning Enforcement, viz: “If the active use ceased after it became lawful, a CLEUD application should only be refused if the use was then abandoned or otherwise terminated”. In paragraph 19.5.1 of my book I did not intend to imply that the use has to be active at the time when an application for an LDC is made; merely that it still has to exist (in the sense of not having permanently ceased or been abandoned). I fully accept that a use, once it has become lawful may then become dormant but still remain extant. The judgment in Panton and Farmer is clear authority for this and, in these circumstances, an application for an LDC in respect of an existing use must be granted accordingly.

© MARTIN H GOODALL