Boat Plans African Queen | Judicial review further details of the proposed changes

Boat Plans African Queen

When I reported last week on the Criminal Justice and Courts Bill, I had not had a chance to look into the other details of the proposed changes to the judicial review process that were set out in the government’s response to their original consultation paper.

It is now clear that the idea of a separate planning review tribunal (as part of the Upper Tribunal) has been abandoned, apparently as a result of opposition by the senior judiciary. Nor does the Government now intend to make any changes to the scope of legal aid for planning challenges under sections 288 and 289 of the Town and Country Planning Act 1990, or to the ability of local authorities to challenge infrastructure projects. The government has also dropped its suggestion that legal standing (locus standi) to bring a legal challenge in planning matters should be restricted.

The government has spun its climb-down in terms that imply that we are still going to have a fast-track Planning Court, but all that is suggested in the first instance is that there should now be a separate listing of planning cases within the Administrative Court list which should be expedited (or ‘fast-tracked’ to use a favourite word in government circles these days), and that the judges assigned to hear cases in this list should be ‘planning’ judges, i.e. judges with specialist knowledge and experience of planning law and procedure. A move in this direction had already been made last year, so this simply confirms a welcome initiative that should lead to a more reliable outcome in planning cases that come before the court. It was a change I had called for in the earlier version of this blog as long ago as June 2006 (under the title “Judicial Lottery”, which can still be found on the internet at http://planningmatter.blogspot.com/ ). Incidentally, I see that I also canvassed in that article the idea of transferring legal challenges to planning decisions to something in the nature of the Employment Appeals Tribunal or, in present day terms, a Planning Chamber in the Upper Tribunal. Someone in the MoJ must have been reading the blog!

One source of difficulty where a permission hearing is required before a claim proceeds (either under CPR Part 54 or section 289, and now also under section 288) is the award of the costs of that hearing. The government has now decided that where an oral permission hearing is successful costs will not be awarded against a party at that stage but will fall to be determined at the end of the substantive hearing. The courts will still have a general discretion in this area, to ensure that justice is done. It is suggested that the Civil Procedure Rules should be amended to indicate that the costs of an oral permission hearing should usually be recoverable.

While we are on the subject of permission hearings, there is a long-standing anomaly that whereas the initial application for permission in Part 54 cases is usually on the papers, there has to be a hearing in section 289 cases (and presumably now also in cases under section 288). It would be sensible to change the rules so that an initial application for permission under section 289 (and now also section 288) should be on paper, renewable for oral hearing in the same way as Part 54 cases. In fact, the whole leave procedure should be brought into line, so that all of these cases are treated in the same way. Another anomaly, indeed a source of injustice, is the lack of any right of appeal against a refusal of leave in a section 289 case, whereas there is a right to renew an application under Part 54. These procedures need to be brought into line, especially now that section 288 cases are also going to need permission to proceed.

On the question of costs, I note that it is not proposed to restrict the availability of Protective Costs Orders for judicial review in environmental cases (which would include planning). These are cases that come within the scope of the Aarhus Convention and the Public Participation Directive, and the restriction on the availability of protective costs orders which is proposed in other judicial review cases would be a breach of this country’s obligations under the convention if it were to be applied to cases involving environmental issues. In these cases a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and at £35,000 for the defendant.

© MARTIN H GOODALL

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Small Boat Plans And Kits | More planning changes in the pipeline

Small Boat Plans And Kits

With only nine months to go to next year’s General Election, the government’s appetite for messing about with the planning system seems to be unabated. De-CLoG has recently published a miscellaneous rag-bag of quite far-reaching proposals for further changes to the planning system aimed (they say) at furthering their objective of streamlining planning.

The government is proposing to tinker with the procedures for neighbourhood plans. They propose to introduce a 10-week time limit for LPAs to respond to applications for a neighbourhood area to be designated (or for a community right-to-build proposal), as well as modifying pre-submission, consultation and publicity requirements for neighbourhood plans. The requirement for a six-week consultation period on a proposal for a neighbourhood plan would be removed, but affected landowners would have to be consulted. The changes will also address the need to comply with the Strategic Environmental Assessment Directive. The general aim is to speed up the Neighbourhood Plan-making process, and to reduce the ability of reluctant LPAs and opposing developers to disrupt or delay Neighbourhood Plans.

These proposals are most probably prompted by the limited take-up of neighbourhood plans so far, and the difficulties and delays that have been encountered by those who have embarked on the neighbourhood planning process. The government’s aim seems to be to beef up Neighbourhood Plans in an effort to demonstrate in their next election manifesto that they have put ‘localism’ into action, whereas these much-vaunted initiatives have proved up to now to be a rather damp squib, and are unlikely to counter the impression that the government effectively strangled localism at birth by imposing a requirement on LPAs to approve significantly more development in their areas, whether their councillors or voters like it or not.

This is the one area of change among those proposed in this consultation paper that would appear to require primary legislation. The government says that it intends to introduce new legislation to implement any changes at the earliest opportunity, subject to the parliamentary process. It may in practice prove difficult to introduce and pass such legislation in the time left in this parliament, in which case these ideas about neighbourhood plans could end up being no more than Tory manifesto commitments – a convenient fig-leaf to cover the nakedness of their originally much-trumpeted notions of Localism.

More changes to the General Permitted Development Order are proposed to enable further changes of use in addition to those previously introduced within the past two years. These will include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

In addition to these changes, the government is also considering making permanent those permitted development rights which currently expire in May 2016. This flies in the face of the growing opposition among some LPAs to office-to-residential conversions, so this proposal can be expected to cause quite an outcry.

First, the existing time limit for completing office-to-residential conversions that have obtained prior approval will be extended from 30 May 2016 to 30 May 2019. But a revised PD right for change of use from office to residential use is intended to be introduced from May 2016 (so it is entirely dependent on the rather doubtful prospect of the Tories securing a majority at the next General Election). It will replace the existing PD right, and the exemptions which apply to the current PD right will not be extended to apply to the new PD right. The amended Class J will still be subject to prior approval in relation to highways and transport, flooding and contamination risk, but in future (i.e. after May 2016) it will also be subject to a consideration of the potential impact of the significant loss of the most strategically important office accommodation (although this criterion will be tightly defined).

The right to build larger domestic extensions (under Part 1), currently expiring in May 2016, is also to be made permanent. A single storey rear extension or conservatory that extends beyond the rear wall by between four metres and eight metres for a detached house, and by between three metres and six metres for any other type of house, will be PD, subject to neighbour consultation for these larger householder extensions, which will continue to require prior approval by the LPA.

The right to make alterations to commercial premises has not so far been extended to shops, and so it is now proposed that the GPDO should be extended to allow retailers to alter their premises. PD rights are also proposed to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises.

There is also a proposal to limit the compensation payable where an Article 4 Direction is made to remove permitted development rights. (Any planning lawyer’s hackles will rises at that.)

It is also proposed to amend the Fees Regulations for prior approval applications. Where the permitted development is for change of use only, and a prior approval is required, a fee of £80 will apply. Where the permitted development is for change of use and allows for some physical development and prior approval is required a fee of £172 will apply, including change of use from sui generi to residential. Where a prior approval is required to carry out physical development it is intended to introduce a fee of £80, including for the erection of a structure in a retail car park or the installation of solar panels on a non-domestic building.

While mucking about with the GPDO, the government has decided that it is high time to consolidate this much-amended Order. But consolidation is no more than window-dressing; what the GPDO really needs is thorough re-drafting, to remove the numerous anomalies and ambiguities that have plagued us all for far too long.

Turning to the Use Classes Order, contrary to the general trend, but unsurprisingly, there is a proposal to restrict Class A2, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses. Planning permission will be required in future for a change of use to either of those uses.

Other changes include the possible merger of Use Classes A1 and A2 (perhaps with other ‘town centre’ uses), so as to create a much more flexible range of uses in our High Streets. [Somebody in De-CLoG seems to have been reading old posts in this blog again!] This will be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). The existing PD right to allow the change of use from A1 and A2 to a flexible use for a period of two years will remain, as will the right to allow for up to two flats above, and the change of use to residential (C3). On the other hand, the Government proposes to remove the existing PD rights applying to the A2 use class, so as to allow LPAs to control these developments.

With effect from 10 May 2006, any internal increase in floorspace of 200 square metres or more (including the introduction of mezzanine floors) in a building in non-food retail use has been included within the definition of development under section 55, and requires planning permission. As previously announced, the government intends to increase the limit to allow retailers to build a mezzanine floor (but they have not yet settled on a maximum floorspace limit).

This is only part of the current consultation paper. I shall have to leave for another time proposals for improving the use of planning conditions, proposed changes to the planning application process and the adjustment of EIA thresholds.

NOTE: Many of the changes to the law canvassed here have been implemented since this blog post was published. 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.

© MARTIN H GOODALL

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Boat Plans For A Chesapeake Deadrise | Barn conversions the new rules

Boat Plans For A Chesapeake Deadrise

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.


The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 was made on 10 March, laid before Parliament on 13 March and will come into force on 6 April. This is the long promised amendment to the GPDO that will allow the conversion of agricultural buildings to residential use (‘barn conversions’), and also some additional changes of use of A1 (shops) and A2 office premises. The Order applies to England only.

I will deal in a later post with changes of use of premises currently in use or including a use within Class A1 or A2, and go straight to the one you have all been waiting for – barn conversions.

Among other changes, the Order introduces a new Class MB into Part 3 of the Second Schedule to the GPDO. This new class authorises change of use of a building and any land within its curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). This new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

As predicted, however, this new PD right is hedged around with important exceptions, limitations and conditions. First, development is not permitted by Class MB where the site was not used solely for an agricultural use, as part of an established agricultural unit on 20th March 2013 or, if the site was not in use on that date, when it was last in use before that date. Other agricultural buildings may qualify for residential conversion in future if the site was brought into use after 20 March 2013, and is used for that purpose for ten years before the date the development begins.

The cumulative floor space of the existing building or buildings changing use under Class MB within an established agricultural unit must not exceed 450 square metres, and no more than three separate dwellinghouses can be developed within an established agricultural unit. The 450 sq m limit is absolute, so that once any residential conversions carried out under Class MB have reached the 450 sq m limit, there can be no further such developments within the same agricultural unit.

Furthermore, this change of use is not permitted if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained To avoid ‘winkling’ of agricultural tenants by rapacious farm owners, change of use is also precluded if less than one year before the date development begins an agricultural tenancy over the site has been terminated, and the termination was for the purpose of carrying out development under Class MB, unless both the landlord and the tenant have agreed in writing that the site is no longer required for agricultural use.

The amendment order also prevents this change of use where the erection or extension of agricultural buildings has been carried out under Part 6, Classes A(a) or B(a) of the Second Schedule to the GPDO on the established agricultural unit since 20th March 2013, or within 10 years before the date development under Class MB begins, whichever is the lesser. So you can’t put up new agricultural buildings or extend them and then convert them soon afterwards to residential use.

Although Class MB permits building operations reasonably necessary to convert the building to residential use, it does not allow development that would result in the external dimensions of the converted building extending beyond the external dimensions of the existing building at any given point; so it has to be wholly contained within the envelope of the original building. The type of building operations that are allowed under this heading are listed as the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse; and partial demolition to the extent reasonably necessary to carry out these building operations.

The inclusion of the two items I have put in italics in the preceding paragraph (roofs and exterior walls) seems to allow scope for some significant rebuilding or replacement of the existing fabric, although the reference to partial demolition would seem to indicate that wholesale demolition of the building and its entire replacement is not contemplated by this amendment to the GPDO. It would seem that there is potential here for disputes with LPAs as to the scope of ‘partial’ demolition that can be carried out within this class, and also the extent to which any such partial demotion and rebuilding is “reasonably necessary to carry out these building operations”. I would, however, suggest that it is very unlikely that the new PD right can be exploited in such a way as to build houses on the site of glasshouses or flimsily clad dutch barns and the like. But we shall see.

As confirmed in the Commons a couple of weeks ago, the development permitted by Class MB is specifically excluded on any site that is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class MB is also excluded if the building in question is a Listed Building.

As expected, the new PD right is subject to a prior notification procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use.

I have put the last of these in italics, because it seems to me that this gives the LPA a very wide discretion to resist such changes of use, without having to resort to an Article 4 Direction. The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. I discussed the practical effect of this requirement in relation to office conversions (B1(a) to C3) in a blog post on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). In relation to those conversions, there was some doubt as to whether this requirement had to be read in the context of the three criteria that were to be specifically applied to office conversions, but the inclusion in Class MB of the paragraph I have put in italics [(e) above] suggests to me that the NPPF can be applied on a much wider basis to these barn conversions. In fact, it would seem to turn the whole process into just another type of planning application – a sort of ‘planning permission-lite’.

As regards the building operations permitted by Class MB, this is subject to a separate an additional condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant to the extent that it addresses design issues (in paragraphs 56 to 68).

There is no requirement to have regard to the development plan, so section 38(6) of the 2004 Act does not apply as such, but I have previously discussed, in the blog post mentioned above, the extent to which the reference to the NPPF may to some degree bring the development plan into the equation (due to the references to the development plan contained in the NPPF itself).

Other conditions in the GPDO amendment provide that this class of development is subject to the condition that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or beginning with the date on which the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

There are some consequential amendments to various existing provisions in the GPDO, which I may discuss on another occasion (including information requirements in connection with prior approval applications), but one point of clarification which resolves an issue that has been the subject of discussion, both in this blog and elsewhere, relates to the ability of an LPA to impose conditions on a prior approval (not only under Class MB, but on the other prior approvals under Part 3 governed by paragraph N). A further sub-paragraph has been added:

“(11) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.”

This confirms that an LPA does have power to impose conditions on a prior approval under Part 3, but the scope of such conditions is limited. Any such conditions must be reasonably related to the subject matter of the prior approval, and cannot therefore be more wide-ranging. There would appear, however, to be some scope for dispute on this issue, and it may become necessary to pursue a section 73 application in some cases, and (if necessary) a section 78 appeal against the refusal of any such an application, coupled with an application for costs where appropriate.

FOOTNOTE (added on 7/8/14): The ‘barn’ (or other agricultural building) does not qualify for conversion under this provision if the site was not used solely for an agricultural use, as part of “an established agricultural unit” on 20th March 2013, or (if the site was not in use on that date) when it was last in use (or, if the site was brought into use after that date, for ten years before the date the development begins).

A correspondent has queried the fact that nowhere in my articles on this and related topics is the definition of an “agricultural unit” mentioned. I am happy to repair that omission.

By Paragraph 3(N)(7) of the Second Schedule to the GPDO (as substituted by Article 5(8)(c) of the 2014 Amendment Order) “established agricultural unit” means agricultural land occupied as a unit for the purposes of agriculture - (i) for the purposes of Class M, on or before 3rd July 2012 or for ten years before the date the development begins; or (ii) for the purposes of Class MA or MB, on or before 20th March 2013 or for ten years before the date the development begins.

By Paragraph 3(O) of the Second Schedule to the GPDO (inserted by the 2013 Amendment Order), “agricultural building” means a building used for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse, and “agricultural use” refers to such uses. Note particularly that, in order to qualify as an agricultural building, it must have been used for the purposes of a trade or business. Non-commercial use of the building is a disqualification.

However, “agriculture” itself is not defined by the GPDO, and so the definition in section 336(1) of the 1990 Act prevails in the absence of any indication to the contrary. [viz: “Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.”]

© MARTIN H GOODALL

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Wood Boat Plans And Kits | Changes to High Court challenges

Wood Boat Plans And Kits

As predicted in The Times yesterday, the Criminal Justice and Courts Bill has been published today. I have not yet had time to look at the Bill in any detail, but one change that I noticed immediately is contained in Clause 57, whereby it will be necessary in future to apply for the permission (‘leave’) of the Court before an application under section 288 can be brought before the court.

This will bring section 288 cases (relating to appeal decisions under section 78 in respect of the refusal of planning permission) into line with section 289, where permission has long since been required to appeal to the High Court against decisions in enforcement notice appeals under section 174, and with claims for judicial review brought under CPR Part 54. Thus all these procedures will now be brought into line so far as the need for leave is concerned. This change was foreshadowed in last year’s consultation paper on judicial review, although I am not at all convinced that this change was necessary.

The existing six-week time limit for launching a High Court application under section 288 will apply in future to the time for making the leave application.

It will take several months for the Bill to make its way through parliament, and it will be brought into force by a commencement order (or orders), so this and other changes that the Bill will introduce will not come into effect until nearer the end of the year, maybe even next year. In the meantime, section 288 claims can continue to be launched in the High Court as of right, without the need for leave.

Other clauses in the Bill make further changes to Judicial Review, as proposed in last year’s consultation paper. These include limitations on the extent to which protective costs orders (costs capping orders) can be made in future, provisions for the ‘leap-frogging’ of appeals from the High Court in certain cases to the Supreme Court (by-passing the Court of Appeal) and codifying the court’s discretion as to whether or not to grant relief in cases where no different outcome is likely to be achieved if the decision under challenge were to be quashed. This will no longer be a matter of discretion as such; instead, the court will be required to dismiss a challenge where the court considers the conduct complained about would be likely not to have resulted in a substantially different outcome for the applicant.

Unless I have missed something, this Bill does not contain the promised legislation to set up a fast-track specialist planning court (as part of the Upper Tribunal), but I am not aware of this proposal having been abandoned by the government, and so this may perhaps be dealt with by some other route. No doubt all will become clear shortly.

© MARTIN H GOODALL

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Boat Plans And Kits | Budget statement – more GPDO changes

Boat Plans And Kits

As I have noted before, George Osborne loves to include planning announcements in his budget statements. Today’s written budget statement (published to coincide with the Chancellor’s budget speech in the Commons) promises a review of the General Permitted Development Order. After so many amendments over almost 20 years since it was first published in 1995 it certainly needs it. Dare one hope that some of the more opaque drafting to be found in parts of the Order might at last be clarified?

A number of us have noted that recent additions to the GPDO do not grant an automatic right to carry out permitted development, but involve a prior approval procedure which I described the other day as “planning permission-lite”. It seems that the government has recognised this, and intends to make what amounts to a three-tier system of planning consents a permanent feature of the planning system.

As the budget statement puts it, there are already and will continue to be, first, simple permitted development rights for small-scale changes, then prior approval rights for development requiring consideration of specific issues, and then planning permission for larger scale development. I am not convinced that there is likely in practice to be any significant difference between the second and third kind of consent so far as the applicant is concerned. There will still be hoops to jump through and the possibility of applications being turned down, with the consequent time and expense of going to appeal. I drew attention the other day to the wide discretion that LPAs would appear to have in practice to refuse prior approval of barn conversions, even though they now come (at least in theory) under the category of ‘permitted development’.

In addition, further extensions of permitted development rights are proposed. The government is going to consult on further changes of use to residential use, for example from warehouses (B8) and light industrial structures (B1(c)). They are also considering extra PD rights for commercial premises to allow the expansion of facilities such as car parks and loading bays within existing boundaries (although only “where there is little impact on local communities”, which suggests that this will be one of the changes that will be subject to a prior approval procedure).

One other idea that emerged from the Budget Statement was the suggestion that for people who want to build their own home, the government will consult on creating a new ‘Right to Build’, giving custom builders a right to a plot from councils, and a £150 million repayable fund to help provide up to 10,000 serviced plots for custom build. It will be interesting to see how what appears in effect to be a ‘reverse-compulsory purchase’ concept will work.

© MARTIN H GOODALL

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Boat Plans Wooden | ‘White van man’ with the flags could be prosecuted

Boat Plans Wooden

Strood’s ‘white van man’, who achieved overnight fame as a result of a tweet by Labour’s (now ex-) Shadow Attorney General, Emily Thornberry, might possibly be liable to prosecution under section 224(3) of the Town and Country Planning Act 1990. This sub-section provides that if any person displays an advertisement in contravention of the Control of Advertisements Regulations, he shall be guilty of an offence and liable on summary conviction to a fine of such amount as shall be prescribed, not exceeding Level 4 on the standard scale and, in the case of a continuing offence (i.e. if the advertisement goes on being displayed), one-tenth of Level 4 on the standard scale for each day during which the offence continues after conviction.

No doubt some readers already have in mind two possible objections to this proposition. First, is the display of a flag an ‘advertisement’ for these purposes? Secondly, is the display of flags not either exempted or granted deemed consent by the Control of Advertisements Regulations? Let’s look at each of those points in turn.

Without going into chapter and verse, it is well-settled law that if a flag or other display is likely to draw attention to the premises where the flag is displayed (even domestic premises), this counts as an ‘advertisement’. The Control of Advertisements Regulations themselves recognise this by exempting certain flags from control, and by giving deemed consent for the display of various other flags. But here’s the snag; the regulations are quite prescriptive as to what is actually permitted, and if the display does not comply with the conditions prescribed by the regulations, then it is unlawful. Even after Uncle Eric’s much-trumpeted (but in fact very limited) ‘liberalisation’ of the rules in 2012, there are still some quite strict rules as to what, and how, flags may be displayed.

Class H of Schedule 1 (adverts that are exempt from control altogether) allows the display of any country’s national flag, civil ensign or civil air ensign, but neither the flag nor the flagstaff may display any subject matter additional to the design of the flag, other than a black mourning ribbon. Now I know that the permanent addition of a black mourning ribbon to England’s national football flag might well be justified, but if you look at the lowest of the three flags displayed on the house in Strood, it had the England FA’s shield on it. So it doesn’t qualify as the country’s national flag, and it does display subject matter additional to the design of the cross of St George. So this one would not appear to be exempt under Sch 1, Class H.

In any event, it would appear to be implicit in the Control of Advertisements Regulations that a flag is expected to be flown from a flagpole, not draped across the wall of a building like a banner. This is not explicitly stated in Schedule 1, but the deemed consent granted for certain other flags by Schedule 3 (see below) certainly does refer specifically to flags flown from variously located flagpoles. It would also appear to be implicit in Schedule 1 (again, by analogy with Schedule 3) that the exemption granted by Class H applies only to a single flag, not to two or more.

In addition, Standard Condition 3 in the Second Schedule provides that any advertisement displayed shall be maintained in a condition that does not impair the visual amenity of the site. This is, of course, a matter of judgment, and I make no comment on the effect that festooning the house with flags in this case may have had on the visual amenity of the site in this case.

Turning now to Class 7 in Schedule 3 (adverts which have deemed consent), this class (together with several sub-classes) permits an advertisement in the form of a flag, but in each case attached to a single flagstaff, mounted at various angles. Bearing in mind that national flags are covered by Sch 1, Class H, none of the types of flag authorised by Sch 3, Class 7 includes any national flags (although it does include a flag bearing the device of any sports club, so flying the English FA flag from a flagpole would be OK). In any event, this deemed consent certainly doesn’t extend to flags draped over the wall of a house. Furthermore, on sites comprising less than 10 houses, only one flag is permitted.

As readers will have gathered from previous posts in this blog on the subject of flags, I think the whole business of regulating the display of flags under the Control of Advertisements Regulations is a complete nonsense, but if an eager and ambitious enforcement officer in the local planning authority for the Strood area wants to make a name for themselves, then the opportunity to do so is presented by a possible prosecution under section 224(3) of the 1990 Act in this case. The evidence is there in the form of Ms Thornberry’s photograph, and it would merely be necessary to call her to prove the photo. (If she proved to be a reluctant witness, her attendance could be compelled by a witness summons.) This case would be bound to attract huge attention from the media, and so this would be a real feather in the cap for the enforcement officer, and a valuable addition to their CV.

Taking my tongue out of my cheek for a moment - if the display of flags (particularly the flag of St George) were to be thought to be provocative or racist in some areas (and I am not for one moment suggesting that this applies to the example in Strood), then prosecution under section 224(3) of the 1990 Act might be an effective way of nipping it in the bud.

One final thought, particularly bearing in mind the approaching festive season – what about Christmas lights? These, and particularly the more extravagant displays, could also be the target for prosecutions under section 224(3), if they were thought to be objectionable in terms of their effect on the amenity of the area. (November 5th is behind us now, but this is the point at which I should perhaps observe the warning on the fireworks to “Light blue touch paper, and retire to a safe distance”!)

© MARTIN H GOODALL

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Boat Plans Uk | Extra GPDO changes for telecoms operators

Boat Plans Uk

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


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Wooden Boat Plans Australia | Proposed changes to the processing of planning applications

Wooden Boat Plans Australia

In this third post on the government’s recent consultation paper (“Technical Consultation on Planning”), I propose to take a look at what they are suggesting by way of further changes to the planning application process.

I wrote in May (“Validation nonsense continues”) that many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined in that earlier post are made - nothing less will do. Well, I am sorry to say that this latest set of proposals does nothing to address the issues which have caused concern to so many planning practitioners in recent years.

Parts A and B are narrowly focused on the involvement of statutory consultees in the process, including a specific proposal to notify railway infrastructure managers of planning applications for development near railways. This is followed by a brief and superficial suggestion, in Part C, that there might be a consolidation of the Town and Country Planning (Development Management Procedure) Order 2010 and a vague reference to the means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination. This entirely misses the point. What matters is not the accurate measurement of the time taken in going through all the bureaucratic nonsense (which has greatly increased within the past 20 years) but urgent action to cut out all the unnecessary faffing about. Rather than being measured in greater detail, the process needs to be streamlined, which the government has signally failed to do, despite their claims to the contrary.

There are various different stages that can be identified in the application process. These include :

Pre-application consultation with the LPA
Community involvement
Submission of the application and supporting material
Validation (including requests for further information)
Registration
LPA’s consultation with neighbours and statutory consultees
Officer-level consideration of the application
Drafting of officers’ report to committee (or delegated report)
(including drafting conditions or reasons for refusal)
Determination of application by committee (or by designated officer under delegated powers)
Negotiation and execution of section 106 agreement (if required)
Issue of the planning permission
Submission of sample materials and/or further details required by conditions
Approval of materials and/or other details
Discharge of pre-commencement conditions
(Building Regulations consent - separate process)
Commencement of development

This is not intended to be definitive list, and readers can no doubt identify other steps in the process, but the essential message is that all these stages involve developers in significant time and costs, and there is considerable scope for cutting out a number of stages and streamlining this process.

Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases.

The requirement on the part of many LPAs that there should have been some community involvement in the formulation of the application involves an equally useless waste of time and effort. The response one gets to letters sent out in the neighbourhood (even where they contain plentiful information and illustrative details) and the response to exhibitions and meetings to explain the proposals is often minimal to non-existent, and the one or two responses that are forthcoming tend to raise points of minor detail or issues that are totally irrelevant to the application. The whole exercise is a useless waste of time not only for the developer but also for the local community. Neighbour consultations by the LPA after they have received an application are more than sufficient to ensure that local residents are aware of the application and that they have the opportunity to comment on it.

I have previously written about the information that must accompany a planning application. I won’t repeat myself, other than to state that the current rules are far too prescriptive. A very experienced planning consultant who, like me, has worked both in local government and in the private sector, agreed with me some time ago that the most effective improvement that could be made to the rules and requirements governing the submission of planning applications would be simply to repeal all the additional requirements that have been imposed in past 20+ years.

‘Major development’ should be identified as 50+ residential units or more than 2,500 sq m of gross retail floorspace. Industrial development should only be considered as ‘major’ if it falls into Class B2 and is within 400 metres of any residential property. All other development should be entirely exempt from the need for a Design & Access Statement. There should be a searching review (at ministerial level) of the justification for ecological reports, archaeological reports, Environmental Impact Assessments, noise impact assessments, flood risk assessments, heritage statements, land contamination assessments, lighting assessments, photographs or photomontages, sustainable construction statements or checklists, etc, etc, etc. In light of that review, strict (and restrictive) criteria should be laid down in the DMPO as to what information can legitimately be requested by an LPA in particular circumstances, so that only if such criteria do apply can the relevant type of information be required to accompany the planning application. This nationally uniform set of criteria in the DMPO would replace the local validation checklists individually adopted by LPAs, in contrast to the current position, where there are numerous demands for specific technical information and reports which are entirely inappropriate and unnecessary in many cases.

The whole concept of ‘validation’ should be entirely abandoned. It is of comparatively recent origin, and does not feature in the primary planning legislation. A planning application should be considered complete if an application form is submitted with payment of the application fee and is accompanied by such other documents as may be required by the nationally adopted criteria set out in the DMPO, referred to above.

The legal duty of the LPA (under section 69 of the 1990 Act) to enter the application on the planning register requires no separate ‘registration’ process. Time should run for all purposes from the day after the completed application documentation and fee are received by the LPA, and rules (again, written into the DMPO) should make it clear that the LPA is under an obligation to begin processing that application from that moment, irrespective of the date on which the purely administrative task of entering it on the planning register is completed. The essential point is that the application does not need to be registered in order to make it a valid application; registration is merely a matter of record keeping, which should not affect the processing of the application in any way.

There should be more clearly defined criteria that the LPA must follow in carrying out consultations. There should be a means (again, within the DMPO) of reliably identifying which neighbours and which statutory and internal consultees should be notified of the application, and which should not. There may perhaps be a case to made for prohibiting the consideration of representations made after the specified period (21 days) has expired, as well as a prohibition on entertaining representations made by other departments within the authority, if these are not departments having a legitimate interest relevant to planning in the subject-matter of the application. For all these purposes strict criteria should be written into the DMPO.

I have already explained my views on the use of conditions (which is dealt with elsewhere in the consultation paper). The problem for many years has been that, apart from the legal tests which have been established by the courts, the guidance has taken the form only of ministerial policy in circulars (most recently in 11/95 and now in the on-line Planning Practice Guidance). As a result, these requirements have been widely ignored by LPAs. The only reliable way to secure a uniform approach by LPAs to the use of conditions would be to write the well-established principles into the DMPO, so that they become mandatory rules which LPAs are bound by law to observe. The new rules might usefully restrict the circumstances in which approval of materials and other minor details can be required, and should also limit the circumstances in which pre-commencement conditions can be imposed.

Where conditions do require further approvals, the deemed discharge of the condition after a strict time limit following an application for such approval should apply, as the government has proposed, but it should be automatic and should not require the service of a further notice by the developer. The abolition of application fees for this type of approval would be a further incentive to LPAs not to impose such conditions unless they are really necessary.

Finally, it should be entirely unnecessary for conditions to be formally ‘discharged’. This is another comparatively recent innovation; I can certainly remember a time when conditions were simply complied with, and that was that. Some LPAs go to quite unnecessary trouble nowadays to formally determine applications for the discharge of conditions, even issuing a formal decision notice. Such bureaucratic nonsense was entirely unknown in my days in local government, and I can see no need for it.

The sad fact is that, despite their claims to be streamlining and improving the planning system, DeCLOG ministers have entirely failed to tackle these issues. The present consultation exercise probably represents their last opportunity before the General Election of achieving major reform of the planning system. They have botched it.

© 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
___________________

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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Wooden Boat Plans Australia | PERMITTED CHANGES OF USE – at last the book!

Wooden Boat Plans Australia

I am very pleased to be able to announce the forthcoming publication of “ A Practical Guide to Permitted Changes of Use”. This long-awaited book is due to be published by Bath Publishing in OCTOBER, both in book form and as an eBook, and can be pre-ordered by readers at a special pre-publication price of £35. When you think of all the time and trouble that permitted changes of use tend to cause, the book will more than repay its cost if it helps you to deal with just one case. You can order it now, by clicking through on the link on the side bar on this page.

I have written quite a few posts in this Blog over the last two or three years on the new rules relating to permitted development, and this book not only brings together all of that material but goes a great deal further, so as to provide a comprehensive and, above all, practical guide to the whole of this subject.

The book gives clear advice on the operation of the prior approval procedure, including the detailed requirements for prior approval applications, their processing and determination, and the way the 56-day time limit for the determination of these applications works in practice. The book also covers other changes of use permitted by the GPDO, including flexible and temporary uses.

After a general introduction to the subject in Chapter 1, the following eleven chapters explain in detail each of the Classes of permitted changes of use. Prior approval applications are then discussed in Chapters 13, 14 and 15, dealing with the content and submission of the application, its processing and determination, and the operation of the 56-day rule. The remaining chapters in the book then explain the rules on temporary and recreational uses of land, including caravan sites and camping. Other important factors to be considered are dealt with in the appendices, including the loss or removal of permitted development rights and the identification of the ‘planning unit’ and the ‘curtilage’ of a building.

This book will be a valuable resource for all property and planning professionals including Architects, Town Planners (in both the private and public sectors), Surveyors, Valuers, Auctioneers and Estate Agents, Barristers, Solicitors, Licensed Conveyancers and other legal and property advisers and also to Builders and developers and to property owners wishing to carry out residential conversions or to make other changes of use as permitted development.

We intend that this book will be completely up-to-date, and so we hope to include in the text the widely anticipated extension of the time limit for the residential conversion of offices, expected to be introduced in September and to come into effect in October, and the associated changes that the government is expected to make to the rules governing these office conversions. Notes of appeal decisions that illustrate points explained in the book will also continue to be added to the text up to the time we finally go to press.

And all this for just £35 if you order now!

© MARTIN H GOODALL


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Boat Plans Wood | Financial incentives to be offered for injunctions

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Enforcement action against breaches of planning control has always been the Cinderella of the planning service in most planning authorities, and the squeeze on council budgets has only served to further weaken local councils’ exercise of their enforcement powers. It can be a very expensive exercise, especially if the enforcement action is simply ignored by a recalcitrant developer, so that the council has to resort to applying for an injunction.

Now, however, albeit rather late in the day, De-CloG has announced a new fund to give LPAs some financial help in dealing with proceedings for injunctions in planning cases. Of course, if local authority funding had not been cut in the first place, this extra financial support might not have become necessary, but no doubt it will be welcomed by any hard-pressed authority having to go for an injunction against a persistent breach of planning control, or at least it may be until they read the small print.

The fund provided by De-CloG is £1 million, of which £200K will be available between now and 31 March this year, and the remaining £800K will be available until 31 March 2016. However, this funding is not as generous as it sounds. The maximum grant for any one case is limited to not more than half the council’s estimated costs, but is limited to a maximum payment of £10K.

So the maximum amount of grant that an LPA can apply for is £10,000 (or 50% of their estimated legal costs, whichever is the lesser) towards the cost of securing a Court Injunction in the High Court or County Court. The authority is required to provide a costs estimate setting out details of anticipated legal costs likely to be incurred in preparing and issuing legal proceedings and attending court, but this estimate is not to include non-legal specialist officer time. The LPA must take responsibility for any legal costs incurred in excess of £10K or in excess of any lesser sum that may be granted.

The fund is solely for use by LPAs in England, towards the cost of securing a Court injunction (High or County Court), under Section 187B of the Town and Country Planning Act 1990, against actual or apprehended breaches of planning control to be restrained. Funding is only available where other enforcement options have been, or would be, ineffective, or where there have been persistent breaches of planning control over a long period.

Funding will not be available for court proceedings which have already been started, or where an appellant lodges an appeal under section 174 against an enforcement notice that the LPA has issued. The criteria refer to an appeal made “within 28 days of receiving the notice”, but as the notice will usually come into effect within a fairly short time after the minimum 28-day period, it seems a little odd that an LPA could be deprived of funding for injunction proceedings where an enforcement notice is timed to come into effect (say) 35 days after service, and the developer appeals after 28 days but within the 35-day period.

LPAs will have to jump through hoops to get the funding they are seeking. Before a grant is made, they will have to demonstrate why the action is in the general interest, explain the degree and flagrancy of the breach of planning control, set out the enforcement history for the site (e.g. what other measures have failed over a long period of time), explain any urgency needed to remedy the breach, set out the planning history of the site, provide details of previous planning decisions in relation to the site, set out consideration of the Public Sector Equality Duty (section 149 of the Equality Act 2010) and Human Rights Act 1998, and demonstrate that an injunction is a proportionate remedy in the circumstances of the individual case, in addition to stating the amount of funding requested, including a breakdown of estimated legal spend on legal costs in 2014-15 and 2015-16. And all of this must be written in no more than 1,000 words, writing on one side of the paper only in the Head of Planning’s best joined-up handwriting. Deductions from funding will be made for untidy handwriting, poor grammar and spelling errors. (OK – I made the last bit up, apart from the thousand-word limit, but you get the general drift.)

And that’s not all. To qualify for consideration, the authority is required to confirm that it has adopted the enforcement best practice recommended in paragraph 207 of the National Planning Policy Framework and published its plan to manage enforcement of breaches proactively. The authority’s enforcement plan must have been published at least three months prior to applying for grant and the authority is required to confirm adherence to the recommendations of the National Planning Policy Framework with regard to the way in which the authority monitors the implementation of planning permissions, investigates alleged breaches of planning control; and takes enforcement action whenever it is expedient to do so.

Finally, to support the application for funding, the authority will be required to provide an active web link for their published local enforcement plan together with written confirmation that they are adhering to the objectives of the plan in a positive, pro-active and proportionate way and have been doing so for at least the previous three months.

Contractors engaged by De-CLoG (Ivy Legal) will assess applications for funding against the eligibility criteria in January, April, July and October, and applications for grant must be received no later than the last working day of the relevant application month.

You might think that someone in De-CLoG is trying to make it difficult, if not practically impossible, for local authorities actually to get their hands on this money! I wonder what level of take-up there is going to be when the amount of work involved in applying for funding, and the sum that is likely to be doled out, are taken into account. Getting funding might prove to be more difficult than getting the injunction itself, and many LPAs may conclude that it’s not worth the hassle.

© MARTIN H GOODALL


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Boat Plans Arch Davis | The planning system – the need for a real overhaul

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The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

“We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.”

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.

© MARTIN H GOODALL

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Boat Plans Building | The new GPDO Permitted Changes of Use under Part 3

Boat Plans Building

NOTE: 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.

I thought it might be helpful to share with you a table that I have prepared for my forthcoming book on Permitted Changes of Use. This lists each of the classes of development permitted by Part 3 in the order in which they now appear in Part 3 of the Second Schedule. The 2015 Order comes into effect on 15 April.

Several of the new permitted development rights reflect the changes made to the Use Classes Order, whereby Betting Offices and Pay Day Loan Shops have been removed from Use Class A2, so that each of them is now a sui generis use. Others represent a significant expansion of the permitted development that is now allowed by the GPDO, including changes of use from A1 to A2, A1 to A3 and A2 to A3, among several others.

In the first column, an asterisk in front of the class letter indicates that a prior approval application is required.

The second column shows the corresponding class of development that was permitted by the 1995 Order, from which it will be seen that Part 3 has grown considerably. The classes shown in brackets - (A), (C) and (CA) - indicate that those classes of permitted development in the 1995 Order did not exactly correspond with the provisions in the 2015 Order.

This table is necessarily a very abbreviated summary of Part 3, and does not reflect the numerous exclusions, restrictions and conditions attaching to the various classes of permitted development. For example, it does not indicate that certain classes of permitted development apply only where there is a ground floor display window. The individual classes of development are fully explained in the text of the book, but I am afraid you will have to save up your pennies to buy it when it is published this summer, as I don’t propose to publish all the contents for free in this blog!

In the meantime, I hope you may find this table helpful.

© MARTIN H GOODALL


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Boat Plans Wooden | Permitted Development changes – shops and barns

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As several readers have noted, Nick Boles’ written Commons statement last week announcing the launch of the National Planning Practice Guidance (NPPG) also referred to the proposed changes to permitted development rights that are expected to be made within the next few weeks, including the right to convert agricultural buildings to residential use (barn conversions) and the conversion of shops and High Street offices to dwellings.

As regards change of use from retail to residential use, Boles confirmed that the proposed changes to the GPDO will allow change of use from shops (A1) and financial and professional services (A2) to houses (C3). However, this change of use will not apply to land protected by Article 1(5) of the GPDO (National Parks, the Broads, areas of outstanding natural beauty, conservation areas or World Heritage Sites).

It is also clear from Boles’ statement that there will be a prior approval procedure that will enable councils to resist a change of use where they consider it important to retain adequate provision of services that are essential to the local community, such as post offices. It would appear that LPAs will be able to take account of the impact on local services when considering the potential loss of a particular shop. The onus will be on the LPA to establish that the proposal would have a detrimental impact on the sustainability of a key shopping area or on local services, should they wish to refuse the conversion, but this makes it clear that this new permitted development right will be far from automatic, and may well be strongly resisted by some authorities, either generally or in particular locations. When considering the effect on local services LPAs will be expected to take into account whether there is a reasonable prospect of the premises being occupied by another retailer, and they will need to have robust evidence to justify any decision not to permit a change of use using these prior approval tests. Nonetheless, aspiring developers may well have to take their prior approval applications to appeal where the LPA is resisting change.

In addition, the new permitted development rights will include change of use from shops (A1) to banks, building societies, credit unions and friendly societies, within Use Class A2 (but this would not allow a change of use to use as a betting shop or payday loan shop).

Turning to change of use from agricultural to residential use, up to 450 square metres of agricultural buildings on a farm will be capable of being changed to provide a maximum of three houses. However, Boles has confirmed the restriction foreshadowed in the adjournment debate on 24 February, whereby this change of use will not apply in Article 1(5) land, which (as noted above) will have the effect of excluding such development not only in National Parks and Areas of Outstanding Natural Beauty, but also in the Broads, conservation areas and World Heritage Sites.

As in other cases, these developments will be subject to a prior approval process, and among the issues to be considered in that context will be the risk of flooding.

These changes will also extend the existing permitted development rights for change of use to state-funded schools to additionally cover registered nurseries. Agricultural buildings up to 500 square metres will also be able to change to state-funded schools and registered nurseries.

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed here (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.

© MARTIN H GOODALL


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Boat Plans Uk | Further planning changes to go ahead

Boat Plans Uk

When does Autumn end, and Winter begin? I would have thought that it must be rather more than three weeks before the Winter Solstice, but the Treasury seems to think that Autumn continues at least until the 3rd December. That is the date (round about the same time as last year) on which the Chancellor will deliver his Autumn Statement.

I have pointed out in previous years that ‘Gorgeous George’ loves to upstage DeCLoG’s Uncle Eric, and it appears that this year will be no exception. De-CLoG Chief Planner, Steve Quartermain, told a conference yesterday that we can expect further planning changes to be announced in this Autumn Statement, just as they have been in almost every Budget and every Autumn Statement in recent years.

The likely content of the announcements is no mystery, as the government published a consultation paper on their further proposals for planning ‘reform’ (“Technical Consultation on Planning”) at the end of July. The consultation period ended several weeks ago, and no doubt the government (having duly ignored any responses that it received to this consultation exercise) is now preparing the necessary statutory instruments by which effect will be given to these proposals. Whether these can be laid before parliament before the Christmas recess depends on how efficient De-CLoG lawyers have been in getting on with the drafting. In any event, it would appear that they will not come into effect until some time in the New Year. It seems to have become the practice to bring new subordinate legislation into force on 6th April or 1st October, but with the General Election due on the 7th May, the government may wish to put the amendment orders to the Use Classes Order and to the General Permitted Development Order into effect rather sooner than early April.

George Osborne will no doubt announce these further planning changes with a flourish, like a conjurer producing a rabbit out of a top hat, in the hope (probably justified, so far as most journalists are concerned) that everyone will have forgotten that all these proposals had already been announced four months ago. As I have said before, politicians love announcing things twice, even three times in some cases, simply in order to grab a passing headline.

The changes to the GPDO will enable further changes of use in addition to those previously introduced within the past two years. These are expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

It is probable that the government will also go ahead with its intention to make permanent those permitted development rights which currently expire in May 2016. In the case of office-to-residential conversions, the existing time limit for completing those conversions will be extended from 30 May 2016 to 30 May 2019. But a revised PD right for change of use from office to residential use is intended to be introduced with effect from May 2016, although whether this will actually survive the General Election may be dependent on who is actually in power after next May. If the government does go ahead with this, it will replace the existing PD right, and the government has said that the exemptions which apply to the current PD right will not be extended to apply to the new PD right. So expect some very unhappy local planning authorities if the government does persist with this proposal.

However, as a sop to the critics, the amended Class J will be subject in future (i.e. after May 2016) to a consideration of the potential impact of the significant loss of the most strategically important office accommodation (although this criterion will be tightly defined), in addition to the impact on highways and transport, flooding and contamination risk.

The right to build larger domestic extensions (under Part 1), currently expiring in May 2016, is also likely to be made permanent. A single storey rear extension or conservatory that extends beyond the rear wall by between four metres and eight metres for a detached house, and by between three metres and six metres for any other type of house, will be PD, subject to neighbour consultation for these larger householder extensions, which will continue to require prior approval by the LPA.

The right to make alterations to commercial premises has not so far been extended to shops, and so the GPDO will be extended to allow retailers to alter their premises. PD rights are also expected to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises.

Whether the government has got enough time to go ahead with a complete consolidation of the GPDO remains to be seen, but we have certainly not been led to expect any more thorough re-drafting, so as to remove the numerous anomalies and ambiguities that it contains.

Turning to the Use Classes Order, contrary to the general trend, but unsurprisingly, it is expected that the scope of Class A2 will be restricted, so that betting offices and pay-day loan shops (both currently falling within this Use Class) will become sui generis uses.

In fact it is quite likely that Use Classes A1 and A2 will be merged in a single new ‘town centre’ use class, so as to create a much more flexible range of uses in our High Streets. This is expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). The existing PD right to allow the change of use from A1 and A2 to a flexible use for a period of two years will remain, as will the right to allow for up to two flats above, and the change of use to residential (C3). On the other hand, the Government is expected to remove the existing PD rights applying to the existing A2 use class, so as to allow LPAs to control these developments.

With effect from 10 May 2006, any internal increase in floorspace of 200 square metres or more (including the introduction of mezzanine floors) in a building in retail use has been included within the definition of development under section 55, and requires planning permission. This floorspace limit will be increased, so as to allow retailers to build a mezzanine floor (although I don’t recall that a maximum threshold figure for this has been mentioned yet).

Some changes are also expected to the Development Management Procedure Order, including a requirement for a written justification from the LPA as to why it is necessary for a particular matter to be dealt with by a pre-commencement condition. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions. I have already expressed my scepticism as to the effectiveness of such a requirement in dissuading LPAs from imposing unnecessary pre-commencement conditions, but time will tell. (As regards the government’s proposals with regard to the discharge of conditions, this is dependent on the passage of the Deregulation Bill – currently at committee stage in the House of Lords.)

Some further tinkering with the DMPO can be expected, including the involvement of statutory consultees in the planning process (e.g. a requirement to notify railway infrastructure managers of planning applications for development near railways).

It is possible that there might also be a consolidation of the DMPO, as well as devising some means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination.

Finally, we have been promised an adjustment of EIA thresholds, whereby the requirement for an EIA will affect fewer development schemes in future.

Not all of these proposals are guaranteed to come forward, but the Autumn Statement can be expected to cover most of the items listed above, to be followed with the necessary subordinate legislation, as outlined above.

NOTE: Many of the changes to the law canvassed here have been implemented since this blog post was published. 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.

© MARTIN H GOODALL

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Boat Plans Butler | The mountain has laboured and

Boat Plans Butler

Bearing in mind all the brouhaha on the part of ministers over their proposals to put under-performing LPAs into special measures, so that developers can bypass them and apply for planning permission direct to the Planning Inspectorate, the outcome of just one council (Blaby, Leicestershire) being caught in the net is somewhat underwhelming. In the circumstances, there doesn’t seem to be much point in poring over the detailed regulations that were brought into effect on 1 October for dealing with these applications under section 62A of the 1990 Act.

Some county authorities were also in the frame over their handling of minerals and waste applications, but De-CLoG has been forced to delay any action in these cases due to doubts over the statistics on which a decision to put these authorities into special measures would have been based. This is not to say that one or more authorities at county level may no longer be in line to have their minerals and waste applications handled under section 62A, but it may be some time before we know whether any and if so which of these authorities will be told to go and sit on the naughty seat.

© MARTIN H GOODALL

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Boat Plans Aluminium | Guide to Permitted Changes of Use published

Boat Plans Aluminium

My book, A Practical Guide to Permitted Changes of Use has now been published, and pre-ordered copies are now being distributed by post. The digital version of the book will also be available this week. We are holding the pre-publication price for direct orders for a further week, until 13 November. After that, the price will be £40.

Advance orders have exceeded all expectations, and about two-thirds of the original print run has already been sold. An early reprint is on the cards.

Readers who have not yet made up their mind to buy a copy of the book may find it helpful to have a note of the book’s contents, and so I am reproducing below the complete Table of Contents.

CHAPTER 1
GENERAL INTRODUCTION

1.1 Development orders – an overview
1.2 Loss or removal of permitted development rights
1.3 Changes of use under Part 3
1.3.1 The physical extent of changes of use permitted by Part 3
1.3.2 Commencement and completion of the permitted development
1.4 Temporary uses under Part 4
1.5 Caravan sites and recreational uses under Part 5
1.6 Saving provisions in respect of the 1995 Order
Table 1: Changes of use permitted by Part 3
Table 2: Changes of use permitted by Part 4
Table 3: Changes of use permitted by Part 5

CHAPTER 2
CHANGES OF USE TO / FROM SHOPS OR ‘RETAIL’ SERVICES

2.0 Preliminary note

2.1 Changes of use to and from use as a shop

2.1.1 Change of use from a catering use to use as a shop
2.1.2 Change of use from ‘retail services’ to use as a shop
2.1.3 Change of use of an agricultural building to use as a shop
2.1.4 Change of use from a shop to other uses

2.2 Changes of use to or from ‘retail services’

2.2.1 Change of use from catering use to ‘retail services’
2.2.2 Change of use of shop to ‘retail services’
2.2.3 Change of use of betting office / pay day loan shop to ‘retail services’
2.2.4 Change of use of agricultural building to ‘retail services’
2.2.5 Changes of use from ‘retail’ services to other uses

2.3 Flats above shops or ‘retail services’

2.3.1 Change of use to shop plus flat(s)
2.3.2 Reversion of part residential use to shop
2.3.3 Change of use of shop to ‘retail services’ plus flat(s)
2.3.4 Partial residential conversion from ‘retail services’
2.3.5 Change of use of shop and flat(s) to ‘retail services’
2.3.6 Reversion of part residential use to ‘retail services’
2.3.7 Conditions applying to changes of use under Class G
2.3.8 Development not permitted by Class H

CHAPTER 3
CHANGES OF USE TO AND FROM CATERING USES

3.1 Change of use of pub, bar or hot food take-away to café or restaurant

3.1.1 Change of use involving a pre-2005 A3 use
3.1.2 Change of use involving a post-2005 A3 use
3.1.3 Restrictions on changes of use from Use Class A4

3.2 Change of use from Use Class A1 or A2 (etc.) or Casino to Café or Restaurant

3.2.1 The development permitted
3.2.2 The qualifying use
3.2.3 Exclusions
3.2.4 Floorspace limit
3.2.5 Prior approval
3.2.6 Commencement

3.3 Other changes of use to café or restaurant

3.4 Changes of use from catering uses to other uses

CHAPTER 4
CHANGES OF USE TO AND FROM OTHER COMMERCIAL AND INSTITUTIONAL USES

4.1 Changes of use to and from a business, industrial or storage use
4.2 Changes of use to and from use as a hotel or guest-house, etc.
4.3 Changes of use to and from use as a residential institution
4.4 Changes of use to and from Use Class C2A
4.5 Change of use from Casino or Amusements to other uses
4.6 Temporary changes of use
4.7 Changes of use between flexible uses

CHAPTER 5
CHANGES OF USE TO AND FROM RESIDENTIAL USE

5.0 Preliminary note

5.1 Changes of use between single dwelling and house in multiple occupation

5.2 Residential conversion of a shop or from financial or professional services

5.2.1 The development permitted
5.2.2 The qualifying use
5.2.3 Exclusions
5.2.4 Floorspace limit
5.2.5 Limits on building operations
5.2.6 Prior approval
5.2.7 Commencement and completion
5.2.8 Exclusion of permitted development under Part 1
5.2.9 Other permitted development that may be possible

CHAPTER 6
RESIDENTIAL CONVERSION OF AMUSEMENT ARCADE OR CENTRE OR CASINO

6.1 The development permitted
6.2 The qualifying use
6.3 Exclusions
6.4 Floorspace limit
6.5 Limits on building operations
6.6 Prior approval
6.7 Commencement and completion
6.8 Exclusion of other permitted development

CHAPTER 7
RESIDENTIAL CONVERSION OF COMMERCIAL OFFICES

7.1 The development permitted
7.2 Qualifying office use
7.3 Exclusions
7.4 Prior approval
7.5 Commencement and completion
7.6 Permitted development within the curtilage under Part 1
7.7 Proposed changes to Class O

CHAPTER 8
RESIDENTIAL CONVERSION OF ‘STORAGE OR DISTRIBUTION CENTRE’

8.1 The development permitted
8.2 Restricted curtilage
8.3 Qualifying storage use
8.4 Exclusions
8.5 Floorspace limit
8.6 Prior approval
8.7 Commencement and completion
8.8 Exclusion of other permitted development

CHAPTER 9
RESIDENTIAL CONVERSION OF AN AGRICULTURAL BUILDING

9.1 The development permitted
9.2 Restricted curtilage
9.3 Qualifying agricultural use
9.4 The definition of “agriculture” and “agricultural use”
9.5 Exclusions
9.6 Limits on numbers and floorspace
9.7 Limits on building operations
9.8 Prior approval
9.9 Commencement and completion
9.10 Exclusion of other permitted development

CHAPTER 10
CHANGE OF USE TO USE AS A STATE-FUNDED SCHOOL OR REGISTERED NURSERY

10.1 Change of use of various commercial premises

10.1.1 The development permitted
10.1.2 Exclusions
10.1.3 Restrictions on further changes of use
10.1.4 Prior approval
10.1.5 Operational development
10.1.6 Commencement and completion
10.1.7 Change of use back to previous use

10.2 Change of use of an agricultural building

10.2.1 The development permitted
10.2.2 Restricted curtilage
10.2.3 Qualifying agricultural use
10.2.4 Exclusions
10.2.5 Floorspace limit
10.2.6 Prior approval
10.2.7 Commencement and completion
10.2.8 Restrictions on further changes of use
10.2.9 Operational development
10.2.10 Exclusion of permission for further agricultural buildings

CHAPTER 11
CHANGES OF USE TO AND FROM USE FOR ASSEMBLY AND LEISURE

11.1 The development permitted
11.2 The qualifying use
11.3 Exclusions
11.4 Floorspace limit
11.5 Prior approval
11.6 Commencement and completion
11.7 Operational development
11.8 Changes of use from use for assembly and leisure

CHAPTER 12
FLEXIBLE USES

12.1 Changes of use within the terms of a flexible planning permission

12.2 Change of use of an agricultural building to a flexible use

12.2.1 The development permitted
12.2.2 Restricted curtilage
12.2.3 Qualifying agricultural use
12.2.4 Exclusions
12.2.5 Limits on floorspace
12.2.6 Exclusion of building operations
12.2.7 Prior approval
12.2.8 Commencement and completion
12.2.9 Exclusion of other permitted development

CHAPTER 13
PRIOR APPROVAL APPLICATIONS

13.0 Introductory note
13.1 The nature of a prior approval application
13.2 Form of application
13.3 Application in respect of building or other operations
13.4 Written description of the development
13.5 Plans and other drawings
13.5.1 Drawings of proposed building works
13.6 Other information
13.7 Application fees

CHAPTER 14
PROCESSING AND DETERMINING THE PRIOR APPROVAL APPLICATION

14.1 Request for further information
14.2 Invalid applications
14.3 Consultations
14.4 Determining the prior approval application
14.4.1 Transport and highways
14.4.2 Contamination risks
14.4.3 Odour impacts
14.4.4 Impacts of waste storage and handling
14.4.5 Opening hours
14.4.6 Air quality
14.4.7 Noise
14.4.8 Light impacts
14.4.9 Flooding risks
14.4.10 Retail and similar impacts
14.4.11 Rural development policy
14.4.12 Design issues
14.4.13 Consideration of responses to consultations
14.4.14 The National Planning Policy Framework
14.4.15 The Development Plan
14.4.16 Other considerations
14.4.17 Human rights
14.5 Conditions
14.6 Planning obligations
14.7 Community Infrastructure Levy
14.8 Appeals
14.9 Lawful Development Certificate
14.10 Carrying out the development

CHAPTER 15
THE 56-DAY RULE

15.0 Preliminary note
15.1 General approach
15.2 Commencement of the 56-day period
15.3 Extending the 56-day period
15.4 Has the application actually been determined?
15.5 Notifying the applicant of the authority’s decision
15.6 Commencement of development in default of notification of a decision

CHAPTER 16
TEMPORARY USE OF OPEN LAND

16.1 The scope of the temporary use permitted
16.2 The temporary nature of the permitted change of use
16.3 Reversion to normal use of the land
16.4 Moveable structures

CHAPTER 17
TEMPORARY CHANGES OF USE OF VARIOUS BUILDINGS

17.1 Temporary use as a state-funded school

17.1.1 The development permitted
17.1.2 Exclusions and other conditions
17.1.3 Operational development

17.2 Temporary use of various business premises

17.2.1 The development permitted
17.2.2 Exclusions, restrictions and other conditions

CHAPTER 18
TEMPORARY USE OF BUILDINGS OR LAND FOR FILM-MAKING

18.1 The development permitted
18.2 Exclusions and restrictions
18.3 Prior approval

CHAPTER 19
TEMPORARY USE AS A CARAVAN SITE

19.1 The scope of the temporary use permitted
19.2 The definition of “caravan site” and “caravan”
19.3 Cessation of the temporary use
19.4 Caravans within the curtilage of a dwellinghouse
19.5 Temporary caravan camping on a small site
19.6 Temporary caravan camping on larger sites
19.7 Temporary caravan camping by exempted organisations
19.7.1 Certification of exempted organisations
19.8 Temporary accommodation for agricultural or forestry workers
19.9 Temporary accommodation for workers on building and engineering sites
19.10 Travelling showmen’s sites
19.11 Power to withdraw certain exemptions

CHAPTER 20
OTHER CAMPING AND RECREATIONAL USES

20.1 Use for camping and recreation by certain organisations
20.2 Other camping uses

APPENDIX A
LOSS OR REMOVAL OF PERMITTED DEVELOPMENT RIGHTS

A.1 The pre-existing use
A.2 Loss or abandonment of the pre-existing use
A.3 Continuation of the pre-existing use
A.4 Unlawful buildings and uses
A.5 Removal of permitted development rights by condition
A.6 Planning obligations under section 106
A.7 Restrictive covenants
A.8 Article 4 Directions
A.9 Revocation or amendment of a development order
A.10 Exclusion of permitted development by the GPDO itself
A.11 Development requiring an Environmental Impact Assessment
A.12 Change of use after only a brief period of existing use

APPENDIX B
THE PLANNING UNIT AND THE CONCEPT OF ‘CURTILAGE’

B.1 The Planning Unit

B.1.1 The planning unit created by a planning permission
B.1.2 The rule in Burdle
B.1.3 The ‘agricultural unit’

B.2 The ‘curtilage’ of a building and its significance in planning terms

B.2.1 The definition of ‘curtilage’
B.2.2 The curtilage of a listed building
B.2.3 Other buildings attached to a listed building
B.2.4 Extension of the curtilage
B.2.5 References to ‘curtilage’ in Parts 3, 4 and 5 of Schedule 2 to the GPDO

APPENDIX C
THE USE CLASSES ORDER

C.1 Specific exclusions from the Use Classes Order
C.2 Mixed uses
C.3 Physical and legal extent of uses within the UCO
C.4 The Use Classes


I fear this blog has become rather narrowly focused on permitted changes of use in recent weeks but, now that my book has been published, I hope to get back to other aspects of planning law in future posts. I will start by taking a look at the Housing and Planning Bill in the near future.

© MARTIN H GOODALL


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