Uncle Eric’s wheelie bin crusade

Since it’s Friday, I couldn’t resist passing on to you a joke sent to me by Stephen Ibbitson.

The date is some time in 2015 (I suggest before May of that year). Uncle Eric is walking down a new street and sees a collection of wheelie bins standing there.

"I thought we'd made sure new houses had to store their wheelie bins out of sight?" he lamented to his Permanent Secretary.

"Oh, but we did, Minister. Those are the new houses!"

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There is in fact a possibility that Uncle Eric may have moved to pastures new before the next general election. The Westminster rumour mill already has him marked down as the next Tory Chief Whip in the expected cabinet reshuffle during the current summer recess. If this appointment does eventuate, no doubt we can look forward to predictions that he will sit firmly on any Tory MPs who step out of line in the run-up to the general election, and that he will personally squash any backbench rebellions.

© MARTIN H GOODALL

Barn conversions to be permitted development

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Lack of time prevented my writing on all the changes proposed by the recent consultation paper on “Greater flexibilities for change of use”, and so I dealt initially only with the proposed permitted development rights for change of use from retail (A1) or from professional and financial services (A2) to residential use (C3). However, a more dramatic, and potentially controversial, proposal is to allow a change of use of existing agricultural buildings to residential use (together with associated physical works) – the classic barn conversion.

There are already permitted development rights for the change of use of agricultural buildings to use for commercial purposes. So, having allowed conversion of agricultural buildings to other uses, the government sees no reason in principle to restrict this, although they acknowledge that what would be an acceptable change of use needs to be carefully defined. They say they want to avoid high-impact development occurring without the opportunity for local consideration.

The specific proposal is that up to 3 additional dwelling houses (which could include flats) could be converted on an agricultural unit which already existed on 20 March 2013, with an upper limit of 150 sq m for each dwelling, which would allow for a home of reasonable size without its being excessively large. This would apply to any agricultural unit irrespective of its size. (An agricultural unit comprises agricultural land which is occupied as a unit for the purposes of agriculture, including any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or any dwelling on that land occupied by a farm worker.)

Such a new permitted development right for change of use of agricultural buildings to residential use is likely to need some external alterations, and the government recognises that for this permitted development right to be effective it should also include provision for some limited physical development. This would even extend “where appropriate” to the demolition and rebuilding of the property on the same footprint. (Hallelujah! At last we shall see an end to the precious insistence on retention of the existing grotty fabric of life-expired barns and similar buildings that are being converted.)

The catch to these proposals is that prior approval for siting and design would be required to ensure that the physical development complies with local plan policies on design, materials and outlook, and that there would also be a requirement for prior approval in respect of transport and highways impact, noise impact, contamination and flooding risks to ensure that the change of use takes place only in ‘sustainable’ locations. No mention is made here, however, of the NPPF or of the local development plan in general.

Unless I have misread the consultation paper, this permitted development right would not be excluded on “Article 1(5) land” (i.e. in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Norfolk Broads and World Heritage Sites). No mention is made of listed buildings, but perhaps the need for Listed Building Consent for alterations affecting their character is thought to be sufficient protection without requiring any further restriction affecting the proposed permitted development rights set out here.

One of the consequences of the proposed change is that it may become easier in future to create new agricultural dwellings, without having to jump through the hoops currently required by paragraph 55 of the NPPF (and the tests formerly prescribed by Annex A to PPS7). Furthermore, such a dwelling would not be subject to an agricultural occupancy condition.

The government seems dimly to perceive that they may be creating a potential loophole here, and so they propose that in future an owner will be able to choose to exercise either the existing permitted right to construct a new agricultural building under Part 6 (for purely agricultural, not residential use) or the new right for conversion of an agricultural building to a dwelling house. Where the new right is exercised the owner will only be able to exercise the permitted development right for construction of a new agricultural building once a period of 10 years has elapsed. The stated intention is that only where the agricultural buildings are genuinely redundant will it be appropriate to grant a permitted development right to allow for the change of use of that building to residential use. In addition an owner will not be able to exercise the new right if they used the existing permitted development right to construct a new agricultural building on or after the publication of this consultation paper (on 7 August 2013). However, as the paper points out, this will not prevent an application for planning permission for development during this period.

As noted elsewhere in the consultation paper, local planning authorities will be able to issue Article 4 Directions to prevent or restrict such changes of use, although compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

UPDATE: The amendment order was made on 10 March 2014, laid before Parliament on 13 March and will come into force on 6 April. See now the post I published on 17 March 2014 (“Barn conversions – the new rules”)

© MARTIN H GOODALL

Change of use of shops to residential use

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

As predicted in my post on 18 July (“And now – A1 to C3?”), De-CLoG has now published a consultation paper suggesting this and other changes to the GPDO which (among other things) would allow change of use of some shops to residential use. This consultation paper is only a week late, having been promised for “the end of July”.

These changes were foreshadowed in the 2013 Budget Statement. De-CLoG is proposing to create a permitted development right for change of use (together with the associated physical works – in contrast with the recent provisions for change of use from office to residential) from a small shop (Class A1) or from professional/financial services (Class A2) to residential use (Class C3). It also proposes to allow a change of use from retail (A1) to use as a bank or a building society branch (within Class A2) (but not to other uses within this use class) and from agricultural use to residential use. I will deal with these latter proposals in a separate post.

The department’s stated intention is to find new uses for shops that no longer have a future. The consultation paper gives a perfunctory nod towards the “town centre first” policy set out in the NPPF, but does not propose to restrict the new permitted development right to a particular type of retail unit or site (e.g. secondary retail frontage). The proposed amendment will allow for necessary works for the residential conversion, including a new frontage, windows and doors.

The developer will be required to apply to the LPA for prior approval in respect of design, the potential impact of the loss of the retail unit on the economic health of the town centre, the need to maintain an adequate provision of essential local services such as post offices, and the potential impact of the change of use on the character of the local area. This will allow the local authority to have regard to their local plan policies for the area. So LPAs will still have quite a wide discretion over the determination of these change of use applications. In practice, it looks as though this alone could largely negative the liberalisation that the government claims to be seeking. This point is impliedly recognised in the consultation paper, which points out that the refusal of prior approval will be subject to appeal if local authorities are found to be using it unreasonably to prevent these changes of use.

The proposed permitted development right will be limited to A1 and A2 premises of not more than 150 square metres floor area, and will allow conversion to a single dwelling house or a maximum of four flats (but not a small HMO). Premises in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage sites (“Article 1(5) land”) will be excluded.

The consultation paper recognises that local planning authorities can issue Article 4 Directions to prevent or restrict such changes of use, although it does include a reminder that compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

© MARTIN H GOODALL

Extra GPDO changes for telecoms operators

NOTE: There have been further changes to the law since this blog post was published. The position is now governed by the GPDO 2015.

Those busy bees at De-CLoG are still hard at it. Their latest production is the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2013 (SI 2013/1868) which comes into force on 21 August 2013 (in England only). This is fairly specialist stuff, but taken together with other recent changes to the GPDO, it represents a further liberalisation of the control regime for telecoms code operators.

The amendment permits replacement or alteration of existing freestanding masts except on “Article 1(5) land” or in an SSSI. The altered or replacement mast can be up to 20 metres high and up to one third wider than the existing mast. Larger aerial dishes and extra aerial systems can now be attached to certain buildings and structures.

Several other amendments are made to the requirements for prior approval, and where the code operator and the LPA agree minor amendments to a previously approved proposal under the prior approval procedure, a fresh prior approval application will not now be required.

© MARTIN H GOODALL

A (partial) end to validation nonsense

As other commentators have observed, there have been a lot of changes going on recently, one of which is the revised process for the validation of planning applications, which was brought into force on 25 June (but only in England).

The amendments made by the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 are somewhat more modest than we might have hoped, and they fail to address a number of problems that have been thrown up by the current rules and practices surrounding the validation and registration of planning applications.

There is some limited relaxation of the requirement for Design & Access Statements. They are now required only for ‘major development’ (see below) or, if any part of the development is in a conservation area or a World Heritage Site, where the development consists of the provision of one or more dwellinghouses or the provision of a building or buildings where the floor space created by the development is 100 square metres or more.

‘Major development’, is defined by Article 2 of the 2010 Order, and includes mineral working or waste development, the creation of 10 or more homes, any other residential development on a site having an area of 0.5 hectares or more, the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more, and any development on a site having an area of 1 hectare or more.

However, the requirement for a DAS does not apply to an application under section 73 (permission to develop land without compliance with conditions previously attached to a permission), an application to extend the life of a planning permission (under the limited powers currently allowing some permissions to be extended), an application for an engineering or mining operation or waste development, and an application for change of use. I confess to being slightly confused here. A DAS is not required for minerals or waste development, but these are, by definition, ‘major development’, which does require a DAS. Can somebody explain to me in words of one syllable how this apparent ambiguity is resolved? What obvious clue have my little grey cells missed here?

Article 5 of the amendment order introduces a new procedure for resolving validation disputes relating to the information demanded by an LPA before they will register an application. This effectively reverses the Newcastle judgment - [2009] EWHC 3469 (Admin) [see “Validation dispute goes pear-shaped”, published in this blog on 5 May 2010] - and restores the right to appeal under section 78 against the non-determination of the application, but instead of the straightforward appeal that could be lodged before the Newcastle case, the applicant will now have to go through a dispute resolution procedure before the right to appeal can arise, involving yet more time and more cost. But at least there is now a means to resolve the impasse where an LPA is refusing point blank to register an application.

The amendments made by Article 5 do not apply to any planning application made before 25 June 2013, but where an applicant is already at loggerheads with an LPA over validation of an application submitted before that date, it would be a simple matter to withdraw that application (which the LPA has not in any event accepted is a valid application) and resubmit it, whereupon the validation dispute procedure will become available in respect of that new application. The original fee should be refunded automatically in view of the non-registration of the application in respect of which it was paid, and a fresh fee will then be payable on the submission of the new application.

In order to invoke the validation dispute procedure, the applicant may send a notice to the authority specifying which particulars or evidence the applicant considers is unnecessary, setting out the reasons the applicant relies upon in holding that view and requesting the authority to waive the requirement to include those particulars or evidence in the application. The LPA must then notify the applicant either that the authority no longer requires the applicant to provide the particulars or evidence (“a validation notice”), or that the authority continues to require the applicant to provide this information (“a non-validation notice”). In either event the LPA must respond within the statutory determination period ( 8 weeks in most cases, longer for major developments and developments involving an EIA), unless the applicant’s notice was received by the LPA within 7 working days of the end of that period, in which case the LPA has a further 7 working days after that to respond. The application must be a valid application in all other respects, including payment of the fee, etc.

It is upon the service of a non-validation notice or the failure of the LPA to respond within the time limit that the right to appeal against non-determination under section 78 will then arise.

There is one missing element here. A chartered surveyor with whom I have worked on a number of planning cases over the years has pointed out that there is one LPA he knows whose performance is so poor that they are not even managing to register applications within the 8-week period, even where no dispute has arisen over the information supplied in compliance with the local validation checklist. When and how does a right of appeal against non-determination arise in this case? It is possible that the authority in question may get put into ‘special measures’, which I suppose will solve the problem in one sense, as the applicant can then apply for planning permission direct to the Secretary of State, but there could be other examples around the country where this is not going to be an option. My instinct tells me that a section 78 appeal could be run in such circumstances, and that it would not be precluded by the Newcastle decision. However, this is a situation which the DMPO amendment itself does not cover.

Article 7 of the amendment order has now removed the requirement for an LPA, when granting planning permission, to include a summary of their reasons for the grant of permission and of the policies and proposals in the development plan which are relevant to the decision to grant permission. However, this amendment does not remove the ridiculous requirement imposed in 2012 that the LPA must include a statement “explaining how, in dealing with the application, the authority has worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with the planning application”.

© MARTIN H GOODALL

Welsh GPDO changes – a closer look

As regular readers of this blog will recall, Stephen Ibbitson (who takes a close interest in the GPDO and its interpretation and practical application) has contributed several guest items to this blog. Stephen has recently taken a brief look at the newly revised Welsh version of the GPDO (amending Part 1 of the Second Schedule – development in the curtilage of a dwellinghouse), and has kindly contributed this note.

Stephen Ibbitson writes:

Much of what they've drafted appears to focus on addressing some of the many wrinkles extant in The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 (SI 2008 No 2362), albeit by means of some very tortuous language!

There is some good news for residents of Wales in Part 1, Class A: extensions to a side elevation which 'front' a highway are no longer entirely out of bounds as they are in the 2008 Order. The new Order (subject to other limitations) now allows a side extension to within 5 metres of a highway, or closer still (right up to, it seems) if part of the existing side elevation is nearer the highway than 5 metres, as would be the case if the existing side elevation is 'stepped'.

This will be an important provision for, e.g., end terrace houses adjacent to a highway (on a corner) and where the side wall of a rear wing (still considered to be part of the "side elevation") is set back from the main side wall. (Under the 2008 Order, the 'recess' thus formed is a no go area for PD.) This would seem to be the case even if the house is on article 1(5) land, although in those instances there is a further limit of 3 metres of depth (outwards, towards the highway) to any such extension in the 'recess' area.

Not such good news for the Welsh is that rooflights under Part 1, Class C are no longer PD on article 1(5) land. This will be a serious blow to those affected because, since Class B enlargements were already precluded on article 1(5) land, rooflights installed under Class C were the only other option. Cue lots of planning applications for rooflight insertion in conservation areas?

There are also some worrying new limitations in Part 1, Class E in respect of garden buildings. In the 2008 Order (and previous Orders) the 'height' of a garden building is to be determined by measuring from the 'highest' point of the land adjacent to the building in cases where the ground slopes. This allowed for at least some part of the garden building to exceed the nominal height limits specified. Notwithstanding Article 1(3) of the 1995 GPDO, it seems this is no longer the case in Wales: under the new Order no "part" of a garden building can exceed the height limits specified when measured from the ground level "immediately adjacent" to that "part". The same goes for the 'eaves' height of any such building: if the ground slopes, the eaves, like the overall height, will have to slope with it!

Presumably, householders living on sloping ground (I seem to recall there's quite a lot of it in Wales) will have the option of excavating into the higher ground to create usable ceiling heights, but the new Order certainly turns Article 1(3) on its head because height measurements are now to be determined from the lowest adjacent ground level where that level is not uniform.

[They do not seem actually to have amended Article 1(3) This led me to think that there would be problems, but I note that Art. 1(3) starts with the words “Unless the context otherwise requires,.....” so, in Wales, the provisions in Part 1, Class E now supersede the general rule regarding the measurement of height. MG]

So what will householders in Wales now do? They'll either have a vastly more costly job to do (excavation and disposal of the spoils) to build a modest shed, or have to submit a planning application, the latter quite likely to cost more than the shed itself!

Finally, a quick look at the tortuous language/construction used in the new Welsh Order. Consider this from Class E Interpretation:

"E.4. For the purposes of paragraphs E.1(b) and E.1(c), a part of a building, enclosure, pool or container is to be determined to extend beyond a wall referred to in those paragraphs if it would be in front of—

(a) in the case of a wall referred to in paragraph E.1(b)—

(i) that wall in its original form; or

(ii) that wall as it would exist if its original form were to have been extended, continuing the line of the wall, from each of its side edges to the boundary of the present curtilage of the dwellinghouse"

What they are trying to describe in "(ii)" above surely could be reduced to "plane", as in "...the plane of...". And what's wrong with "corner" in lieu of "side edges"? OK, using the word "plane" arguably doesn't account for 'stepped' elevations (where various elements of the elevation are other than co-planer), but then their drafting doesn't clearly account for those anyway!

In conclusion, the new Welsh Order succeeds in ironing out some of the wrinkles in SI 2008 No 2362, upon which it is clearly based---too many of which, it has to be said, arose in the first place due to a combination of sloppy drafting and laboured re-interpretation following the coming-into-force of novel terms devised for the Order.

To me, the modern Orders (post SI 1995 No 418) are about looking at what people want to do ('natural to the geometry of the existing building', utility creating designs) and trying to stop it. By contrast, the older Orders sought to address what was popular---those utility creating designs---but was clogging up the planning system, and tried to enable it.

© STEPHEN IBBITSON

B1 to C3 dispute hots up

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

It seems that the number of applications already made for prior approval of change of use from office to residential use has significantly exceeded even the government’s expectations, and some local planning authorities have been seriously spooked by the potential ‘loss’ of office floorspace (although whether their concerns are objectively justified is perhaps open to question).

No doubt in response to this, several authorities have now made or are seriously thinking of making Article 4 Directions, but it remains to be seen whether De-CLoG ministers will use their powers to block these directions.

Meanwhile, Islington LBC, jointly with Richmond LBC, applied to the High Court on Thursday of last week for permission to bring a claim for Judicial Review of the GPDO amendments. Subordinate legislation can be challenged in this way, although the two authorities will need to persuade the Court that the amending order was significantly tainted with illegality. I have not seen the grounds, but I assume that they are based primarily on the adequacy of the consultation carried out by De-CLoG before going ahead with the amendment order, and the rejection of many authorities’ applications for exemption.

I did express misgivings at the time about the apparently peremptory dismissal of the vast majority of the applications for exemptions. There is no doubt scope for argument over whether ministers took into account all material considerations or, in light of the grounds on which LPAs were seeking exemption, as to whether the decision to dismiss these applications was Wednesbury unreasonable. The whole way the government went about this process (giving LPAs only a fortnight to seek exemption from subordinate legislation that had not even been drafted at that time) was unorthodox, to say the least, and I predicted that one or more applications for Judicial Review might well result from this.

The timing is interesting. The cause of action arose before 1 July, so the new six-week time limit does not apply to this JR application. On the other hand, by the time the JR application was issued in the High Court, 11 weeks had elapsed since the amending order was made on 9 May. So it seems to me that the two LPAs may be at some risk of being told that they have not applied promptly, as required by the Civil Procedure Rules (both before and after the recent rule changes relating to JR). It is certainly a point I would take if I were acting for De-CLoG.

It is impossible to say what the outcome of this litigation might be but, in the meantime, the amending order remains in full force and effect, and LPAs (including those who are challenging this legislation in the High Court) have no choice but to continue processing prior approval applications, in default of which the right to make the change of use from B1(a) to C3 will become automatic 56 days after the application is received by the LPA.
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UPDATE (19 August): Lambeth LBC are now joining in the party. Their bid to apply for judicial review would appear to have been made at least 14 weeks after the cause of action first arose (with the making of the GPDO amendment order on 9 May). I rather doubt whether it could be argued that time only started to run from the date when the order came into effect (30 May) (on the theoretical, but highly improbable, basis presumably that parliament might not have approved the order), but that would still be 11 weeks prior to Lambeth’s application being submitted to the High Court. The old 12-week long-stop date applies to these proceedings, but the issue of ‘promptness’ would still have to be taken into account. It will be interesting to see how the High Court deals with the time issue in these proceedings, bearing in mind the reliance that has been placed on the new legislation in the meantime by numerous applicants for prior approval of office to residential conversions.

© MARTIN H GOODALL