Wooden Boat Plans Australia | B1 a to C3 – an early example

Wooden Boat Plans Australia

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, 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.

I happened to spot the following item among pending planning applications in Bristol the other day:

Prior approval for the change of use from detached three storey building currently as 3 separate self contained office units on lower, ground and first floors from office space within Use Class B1(a) to two-bedroom apartment on lower ground floor, and 2-bed apartment on ground floor of residential accommodation falling within Class C3 (dwellinghouses)

The application was put in the post on 10 June, was received by the LPA on 13 June and registered by them on the 14th, so congratulations to both the applicant and the LPA for being so quick off the mark on this one. No application form was available, so the applicant simply wrote a letter setting out the required information and enclosing the necessary plans. This is all that is required, so the LPA quite rightly treated it as a valid application and immediately registered it.

The application does not fit neatly into the new scheme – it is not a one-for-one change of use, so it will be interesting to see how the LPA deals with it; but (knowing the site myself) I would be a bit surprised if anyone objects.

Multiple conversions to form a group of apartments, or a block of flats, might be more problematic, so other cases may be less straightforward than this one seems to be. There could in fact be quite a rush of these applications over the next three months, especially where multiple conversions are involved, in view of the introduction of the £80 application fee on 1st October.
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UPDATE (4.7.13): News is reaching me of various applications for change of use from offices to residential use that have been made over the past month to a number of different LPAs around the country. One eager and very efficient developer even managed to get their application in on 31st May! So we should begin to learn within the next few weeks how a range of different councils are handling these applications. The 56-day period will expire on the very earliest application on 26 July, and the others in the pipeline will fall due during August. It looks as though there will then be an increasing number of others following these in the months to come. There will be no prize for the first LPA that lets one of these applications through by default by failing to determine it within the time limit.

© MARTIN H GOODALL


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Boat Plans Arch Davis | Avoiding changes of use from B1 a to C3

Boat Plans Arch Davis

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, 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 has been reported that Brighton & Hove wish to prevent changes of use from Class B1(a) to C3 within their area by means of an Article 4 Direction. They were one of the authorities that applied unsuccessfully to be exempted from the provisions of the amended GPDO before these changes were made.

A news report states that the council “are to consider applying for an Article 4 direction from the Department for Communities and Local Government so that some areas of the city are exempt from the policy.” Strictly speaking, an LPA does not in fact need to apply to De-CLoG for an Article 4 Direction; they have the power to make the Direction themselves. Even if there are objections to the Direction, there is no longer a requirement for the Direction to be confirmed by the Secretary of State, although the LPA must properly consider any objections before confirming the Direction.

What the writer of the news story may have had in mind is that under the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654) LPAs are obliged to give notice of Article 4 directions to De-CLoG, and cannot confirm them for 28 days or such longer period as the Secretary of State may specify following notice of the draft Article 4 direction having been received by De-CLoG from the LPA.

The Secretary of State has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA, although Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description).

It may be the requirement to give notice of the Article 4 Direction to De-CLoG, coupled with the power that Uncle Eric has to make a direction cancelling or modifying an Article 4 Direction, that has led Brighton & Hove to decide that they need to go cap-in-hand to De-CLoG to beg them not to cancel an Article 4 Direction if they make one.

So, as I pointed out in a post some months ago (long before the amendments to the GPDO were finally made), Uncle Eric does have the whip hand in such matters, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he has so recently created. When these changes were first mooted last year I predicted a sort of ministerial ping-pong match, with Uncle Eric lobbing the ball back over the net every time an LPA makes an Article 4 direction in an attempt to remove the extended PD rights. But do De-CLoG ministers really want a series of stand-up fights with LPAs over this? I suspect that saner counsels may in fact prevail, and there may be some sort of negotiated settlement which would allow Brighton & Hove and other LPAs to make Article 4 Directions that exclude the permitted development right to change from a use within Class B1(a) to C3 in some parts of their area, or which modify this PD right in some other way that would exclude certain types of building or particular types of conversion.

Brighton & Hove are due to take a decision on 11 July on how to take this proposal forward, and it will be interesting to see how this develops. Other LPAs will no doubt be following this matter with considerable interest.

© MARTIN H GOODALL
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UPDATE (12 July) : Brighton and Hove are going ahead with their Article 4 Direction, and it seems that a number of other councils are now proposing to make these directions. It will be interesting to see whether Uncle Eric or the boy Boles use their ministerial powers to block these directions. Meanwhile Islington LBC is contemplating a legal challenge to the GPDO amendment order by way of judicial review, based on the way the consultation process was carried out prior to the governments decision as to whether particular authorities should be exempted from the order. Other councils could join in if these proceedings get off the ground.



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Boat Plans Canada | B1 to C3 dispute hots up

Boat Plans Canada

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


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Boat Plans Nz | Welsh GPDO changes – a closer look

Boat Plans Nz

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 theyve 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 theres 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? Theyll 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 whats wrong with "corner" in lieu of "side edges"? OK, using the word "plane" arguably doesnt account for stepped elevations (where various elements of the elevation are other than co-planer), but then their drafting doesnt 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


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Boat Plans African Queen | Curtilage in relation to lawful use

Boat Plans African Queen

I have received a comment from a planning officer which raises a question about a particular LDC application that they have received. I don’t think I should publish the officer’s comment in the form in which it was submitted, as it discusses the application in more detail than is perhaps appropriate in this forum. Nevertheless, the comment raises specific points of interest which I thought it worth discussing here.

A CLOPUD is being sought for development which is claimed to be permitted development. This depends on the land in question being domestic curtilage so as to bring it within the terms of Part 1 of the Second Schedule to the GPDO.

Planning permission was granted for the erection of a dwelling on a smallholding. The officer says this was an outline permission. But before the dwelling was built there must have been a reserved matters approval. In any event it is the outline permission that constitutes a planning permission, and section 75 of the 1990 Act provides that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and if it doesn’t then the permission is to be treated as authorising its use for the purpose for which it was designed. (I am assuming that the house has actually been completed - failing which no PD rights under Part 1 could arise yet.)

If the approved drawings are examined, it should be easy enough to determine the extent of the planning unit to which that permission related, but this may no longer be of any great relevance because, in the case in question, evidence apparently indicates that the relevant area (now claimed to be ‘curtilage’) has been used as garden land well in excess of 10 years, and this would seem to indicate that its use has become lawful, so that it lawfully forms part of the same planning unit as the house.

Notwithstanding this, my correspondent refers to an appeal decision on another site in 2001 in an appeal against the refusal of a CLEUD for “use of surrounding area of land to house to use as residential”, which was dismissed because the Inspector concluded that “whilst it is unusual for a home not to have residential curtilage – no area is defined on the permission”. With respect to that inspector, this is a rather inaccurate and woolly statement. I suspect that what the inspector meant was that the permission did not identify any planning unit other than the footprint of the house itself (which is unusual but not unknown). However, in the present case, this is no longer relevant, because an area of garden land has been added to the planning unit, and the evidence indicates that this change of use has become lawful under the 10-year rule.

The next question is how far the domestic curtilage extends. I have discussed this issue in this blog ad nauseam, so just take a look through the various discussions on this issue. But ‘use’ as domestic curtilage is not a use for planning purposes – it is just a matter of fact, and it can change at any time very easily.

Two points should be borne in mind. First, by virtue of Art. 3(5)(b) of the GPDO, PD rights cannot be exercised over land whose use is unlawful. It follows that permitted development within a domestic curtilage cannot be carried out on land that is not lawfully in domestic use. So whilst there is no qualifying period for land to become domestic curtilage, it cannot be treated as domestic curtilage for the purposes of the GPDO if its residential use is unlawful or has not yet become lawful. On the other hand, if the relevant area is lawfully used as part of a planning unit falling within Use Class C3 (i.e. a single private dwellinghouse and the land occupied with it and lawfully used for domestic purposes) the domestic curtilage can be extended at any time to include an enlarged part or even the whole of that planning unit (see Sumption v. Greenwich LBC). Whether this has in fact happened is simply a question of fact, applying the test in Sinclair Lockhart’s Trustees and the other cases discussed in previous posts.

If the garden land is lawfully used as such (as seems to be the case here), then it is capable in principle of having become part of the domestic curtilage. In fact, if it forms part of the formal garden around the house, or a vegetable garden, and is not separated from the house by, say, a paddock or area of rough grass, then it is very likely that it is indeed part of the domestic curtilage. An LDC cannot be issued in respect of the ‘use’ of land as ‘domestic curtilage’ (for the reason previously mentioned) but a certificate can be issued in respect of permitted development that is dependent on the land in question being within the domestic curtilage (i.e. PD within Part 1), which in effect provides the desired confirmation of the status of the land as domestic curtilage, albeit by a slightly different route.

So in the case mentioned by my correspondent, it seems that the land in question is lawfully part of the residential planning unit, and it is simply a question of deciding whether as a matter of simple fact it does actually form part of the domestic curtilage as such. If it does, then (subject to the rules in Part 1 as to the precise siting and dimensions of extensions and outbuildings), it would appear that a CLOPUD ought to be issued in respect of the proposed domestic extensions.

I have gone through this case simply to show how questions of this sort should be approached. The outcome of the pending application to which I have referred will ultimately turn on a factual judgment as to the actual extent of the domestic curtilage, and this will depend on the evidence put forward by or on behalf of the applicant. In assessing this, planning officers should always bear in mind paragraph 8.15 in Annex 8 to Circular 10/97 and the judgment in FW Gabbitas v. SSE referred to in that paragraph.

© MARTIN H GOODALL


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