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Rabu, 09 Maret 2016
Selasa, 08 Maret 2016
Boat Trailer Plans Australia
Harold Macmillan never used those precise words, but the best quotations are often misquotes. Anyway, it is events that have conspired to prevent my posting on this blog since 18 June, and as the BBC used to say in the days of steam-driven television - ‘We apologise for this break in transmission. Normal service will be resumed as soon as possible.”
MARTIN H GOODALL
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Selasa, 01 Maret 2016
Boat Plans Arch Davis
Regular readers of this blog will have noticed the lack of any recent posts. This is entirely due to the work involved in preparing my forthcoming book for publication. I am pleased to report that this is proceeding to schedule, and the only complicating factor at the moment is the question of whether or when the government will further amend the GPDO. It now seems fairly certain that it will do so, and it is our intention that the expected amendments will be incorporated in the book, even if this slightly delays its publication.
Since July, when the government pulled an expected announcement almost at the last minute, there has been feverish speculation as to when the government will announce its expected extension (or removal) of the deadline for the residential conversion of offices under Part 3 Class O, and the likely extent of this freeing up of the rules, including the new safeguards that may be introduced in the form of additional matters to be considered by a local planning authority when determining a prior approval application in respect of this type of development. All residential conversions of offices under this provision are currently due to be completed no later than 30 May 2016, but funding for such developments has all but dried up, because lenders fear that developments that are not already in train may not be completed by the deadline. It might, I suppose, be described as “the Cinderella dilemma”.
The Planning Minister, Brandon Lewis, appeared before the Communities & Local Government Select Committee yesterday afternoon, and in the course of the meeting he was asked when an announcement on these further changes to the GPDO can be expected. Lewis said he was sorry that it was “not possible to make an announcement today”, but he told the committee that ministers are hoping to make an announcement “relatively soon”. Ministers, he said, are currently looking at feedback from the consultation on this subject and will take account of views expressed by local authorities. He said that they “want to get it right”. He hoped that an announcement would be made “in the not-too-distant future”.
Rumour has it that what caused the delay in the planned announcement of the government’s intentions in July was an almighty ear-bashing that De-CLoG ministers received from Westminster City Council and the City of London. This was sufficiently unnerving to prompt them to take the proposals back and look at them again. However, this certainly has not resulted in the abandonment of the intention to extend or remove the May 2016 deadline for the residential conversion of offices; the puppet-master-in-chief at No.11 Downing Street would never tolerate that. What we may get, therefore, may be some slight watering down of the previously proposed amendment to Class O (compared with some of the off-the-record briefings coming out of De-CLoG in the past year).
I am still keeping my fingers crossed that the announcement which is expected “relatively soon” or “in the not-too-distant future” may in fact be made before the end of this month, and that a Written (or even Oral) Ministerial Statement in the Commons will coincide with the laying before parliament of The Town and Country Planning (General Permitted Development) (England) Order 2015 (Amendment) Order 2015” (or some similar title). It is possible that the May 2016 deadline may simply be extended for three years (as was originally proposed in the ‘Technical Consultation on Planning’ in July 2014), although ministers had more recently talked in terms of its entire removal. Ministers had intended to remove the exempted areas (“Article 2(5) land”), but they may have been persuaded to keep these, at least in London.
The other likely changes (as previously canvassed over a year ago) include the addition of an extra matter for prior approval, namely the potential impact of the significant loss of the most strategically important office accommodation, although this is likely to be tightly defined to avoid widespread rejection of office conversions by LPAs on this ground.
So we still have to play a waiting game, but maybe not for much longer.
© MARTIN H GOODALL
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Jumat, 19 Februari 2016
Boat Plans Bateau
Neil Pearce at Wychavon DC has raised with me a point arising from the conversion of agricultural buildings to residential use under Class MB in Part 3 of the Second Schedule to the GPDO. This relates to the appropriateness of a requirement that certain ecological surveys should be carried out. There are actually two points –
(1) Can the need to protect bats or other protected species be a material consideration in the determination of a prior approval application under Class MB?
(2) Can pre-commencement conditions relating to ecological surveys and protection measures be attached to a notice of prior approval under Class MB?
Paragraph MB.2 provides that the change of use under Class MB(a) is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority 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 a use falling within Class C3 (dwellinghouses),
and it goes on to say that the provisions of paragraph N of Part 3 shall apply in relation to any such application.
As I pointed out in earlier blog posts relating to the changes to the GPDO made in 2013 and 2014, paragraph N provides that the local planning authority must, when determining a prior approval application have regard to the National Planning Policy Framework as if the application were a planning application.
The consensus of opinion seems to be that, notwithstanding paragraph N, the LPA is in fact constrained in its consideration of the prior approval application to the criteria listed in the relevant class in Part 3 (in this case, paragraph MB2). I believe that several appeal decisions have now been issued that confirm this approach.
In the case of Class MB, however, the criteria that the LPA must take into account are rather more wide-ranging than they are under certain other classes. In particular, these criteria include consideration as to whether the location or siting of the building makes it impractical for any other reason (besides the others that are listed) or undesirable for the building to change from agricultural use to residential use. This seems to me potentially to introduce all sorts of other factors that might arguably militate against the residential conversion of the building. Among these, I suggest, could be ecological considerations, including the presence of protected species, such as bats.
I am told that Wychavon has a lot of bats (Stop sniggering at the back there!) and some enthusiastic ecologists. The argument is that, whilst not expressly referred to as one of the prior approval issues for an LPA to consider, ecology (and in particular the conservation of protected species) remains a key factor in the conversion of rural buildings. The ecologists very reasonably point out that the De-CLoG response to consultation on this issue stated that “All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations.”. Furthermore, Section 40 of the Natural Environment and Rural Communities Act 2006 requires all public bodies to have regard to biodiversity conservation when carrying out their functions. In the exercise of its functions, an LPA is also required to have regard to the requirements of The Conservation of Habitats and Species Regulations 2010. I am bound to say that this does seem to me to be an entirely reasonable approach, and I really can’t fault the ecologists’ view on this issue.
The ecologists also point out, again quite rightly, that Paragraph N of Part 3 provides that “the local planning authority may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include —
(a)assessments of impacts or risks;
(b)statements setting out how impacts or risks are to be mitigated; or
(c)details of proposed operational development;”.
The ecologists believe that the implications for protected species should be considered as “impacts or risks”. Again, I really can’t disagree with that. They also take the point which I referred to earlier that prior approval applications are required to be determined with regard to the requirements of the NPPF. This requires decisions to be taken with regard to protected species. The ecologists therefore feel that the council should require a prior approval application to be accompanied by an appropriate assessment of the potential impact upon protected species and a mitigation strategy, if there are protected species at risk of harm from the development.
This would certainly be done if the LPA was dealing with an application for planning permission, and I am inclined to the view that a similar approach would be appropriate in the case of prior approval applications under Class MB. One might argue that this makes a nonsense of the principle of “permitted development”, but I think this is inherent in the whole prior approval concept that the government has devised. I have previously described it as “planning permission-lite”. It would be a serious mistake for anyone to run away with the idea that the government ever intended a free-for-all for residential developments in the countryside . Some people may find this disappointing, but that’s the way it is.
I mentioned earlier the issue of pre-commencement conditions. The 2014 amendment to Part 3 made it clear that LPAs have the right to impose conditions on prior approvals in the same way, and subject to the same rules and considerations, as in the case of planning permissions. It follows that pre-commencement conditions may be appropriate in some cases, and such conditions might include protection measures for fauna and flora, among other things.
I don’t think Neil was expecting me to come down on the side of the ecologists, but as a lawyer I just have to interpret the law as it stands, irrespective of my personal views as to whether it is ‘right’ or not in a political sense.
NOTE: This is one of the many topics that are discussed in 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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