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 Wooden | Permitted Development changes – shops and barns

Boat Plans Wooden

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 Canada | B1 to C3 dispute hots up

Boat Plans Canada

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

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

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

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

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

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

It is impossible to say what the outcome of this litigation might be but, in the meantime, the amending order remains in full force and effect, and LPAs (including those who are challenging this legislation in the High Court) have no choice but to continue processing prior approval applications, in default of which the right to make the change of use from B1(a) to C3 will become automatic 56 days after the application is received by the LPA.
______________

UPDATE (19 August): Lambeth LBC are now joining in the party. Their bid to apply for judicial review would appear to have been made at least 14 weeks after the cause of action first arose (with the making of the GPDO amendment order on 9 May). I rather doubt whether it could be argued that time only started to run from the date when the order came into effect (30 May) (on the theoretical, but highly improbable, basis presumably that parliament might not have approved the order), but that would still be 11 weeks prior to Lambeth’s application being submitted to the High Court. The old 12-week long-stop date applies to these proceedings, but the issue of ‘promptness’ would still have to be taken into account. It will be interesting to see how the High Court deals with the time issue in these proceedings, bearing in mind the reliance that has been placed on the new legislation in the meantime by numerous applicants for prior approval of office to residential conversions.

© MARTIN H GOODALL


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Boat Plans Uk | Demolition exemption direction amended at last

Boat Plans Uk

I am very grateful to Richard Harwood QC of Thirty Nine Essex Street Chambers for drawing our attention to The Town and Country Planning (Demolition – Description of Buildings) Direction 2014. This replaces the 1995 Direction, omitting the categories of demolition that the Court of Appeal declared to be unlawful in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334. (See my piece in this blog under the title “EIA required for demolition”, dated Tuesday 29 March 2011). It has only taken De-CLoG three years to get around to this!

Except as mentioned below, the Direction provides that the demolition of any building with a cubic content not exceeding 50 cubic metres and the demolition of the whole or any part of any gate, fence, wall or other means of enclosure is not to be taken for the purposes of the 1990 Act [section 55(1A)] to involve development of land.

The exceptions to the Direction reflect one or two other minor changes that have taken place since 1995. Thus the exemption promulgated by the Direction does not extend to the demolition of the whole or any part of any gate, fence, wall or other means of enclosure in a conservation area. Nor does the Direction extend to the demolition of part of a building, other than part of any gate, fence, wall or other means of enclosure.

Partial demolition would in any event amount to a structural alteration of the building and so would be a building operation within the meaning of Section 55(1A) on that basis alone, as paragraph 3 of Circular 10/95 (now cancelled following the publication of the NPPG) confirmed. Partial demolition (except the partial demolition of any gate, fence, wall or other means of enclosure anywhere other than in a conservation area or within the curtilage of a listed building) is therefore development requiring planning permission, although it may be permitted development under other parts of Schedule 2 to the GPDO, for example, Parts 1, 6 and 8, among others.

As I noted when reporting on the judgment in the SAVE case, the Direction is now very limited in its effect, although of course most demolition which is not exempted by this Direction from the definition of development is in fact permitted development under Part 31 of the Second Schedule to the GPDO.

In this connection, it is worth noting that the exclusion from the definition of a “building” in Article 1(1) of the GPDO of any gate, fence, wall or other means of enclosure does not apply to Class B of Part 31. So (other than in a conservation area and within the curtilage of a listed building) the demolition, in whole or in part, of any gate, fence, wall or other means of enclosure was in any event permitted development under Part 31, Class B, and this was not subject to any exclusions or conditions, and no prior notification under Part 31 is required in this case, in contrast with the prior notification requirement that applies to the demolition of other structures.

So far as concerns the demolition in whole or in part of any gate, fence, wall or other means of enclosure in a conservation area, the new direction simply reflects the provisions of the(Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013), whereby, with effect from 1 October 2013, the demolition of the whole or part of a gate, fence, wall or other enclosure to buildings in a conservation area requires planning permission.

As a result of the judgment in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481, partial demolition of a listed building amounts to alteration of that building rather than demolition. It will nevertheless require Listed Building Consent under sections 7 and 8 of the Listed Buildings Act if this would affect its character as a building of special architectural or historic interest, as it almost certainly will.

Finally, by section 1(5) of the Listed Buildings Act, any object or structure within the curtilage of a listed building which, although not fixed to the building, forms part of the land and has done so since before July 1 1948, is to be treated as part of the building. It follows that the demolition of any such feature, including the demolition of any gate, fence, or wall within or forming the boundary of the curtilage of the listed building (if it has done so since before July 1 1948) will constitute an alteration of the listed building. Depending on its effect on the character of the listed building, such demolition may require Listed Building Consent.

Thus the rules relating to the control of demolition are still unnecessarily complex, and the new Direction has done nothing to reduce that complexity. It simply resolves an anomaly that arose in relation to the 1995 Direction, due to its illegality in light of the judgment in the SAVE case.

© MARTIN H GOODALL

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Boat Plans Catamaran | The recent GPDO amendments – a last look

Boat Plans Catamaran

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. The Second Schedule to the GPDO has been substantial ovehauled and re-numbered in the 2015 GPDO.

I promised in a previous post to deal with the new PD rights for other operational development granted by the amendment to the GPDO made in May.

The amendment order allows larger extensions of industrial premises than were previously permitted under Part 8 (industrial and warehouse development). The version of Part 8 that applied before 30 May 2013 was inserted in the GPDO in 2010. Class A comprises “the erection, extension or alteration of an industrial building or a warehouse.” Paragraph A.1 set out various dimensional limitations. These included [A.1(d)] any new building having a gross floor space of more than 100 square metres. Prior to April 2010, permitted development was limited to alteration and extension of existing buildings; there were no rights to provide new buildings under Class A. I have mentioned this because the editors of the Encyclopedia of Planning Law and Practice have not yet amended the text of their commentary to reflect this change, one of several instances where the text of the Encyclopedia relating to the GPDO is woefully out of date.

After April 6 2010, under paragraph A.1(e), the gross floorspace of the original building could be extended by up to 25% or 1,000 sq metres whichever was the less, provided the site was not within a National Park, an Area of Outstanding Natural Beauty, a Conservation Area, the Broads or a World Heritage Site (“Article 1(5) land”). If it was in such an area, the size limits were 10% of the floorspace of the original building or 500 sq metres whichever was the less.

The effect of the recent amendments is that, with effect from 30 May 2013, but only for a three-year period ending on 30 May 2016, the figures mentioned above are increased, so that the size limit for a new building is now 200 sq m, provided it is not on “Article 1(5) land” or (a new provision) within a Site of Special Scientific Interest. For extensions, the limits are also doubled to 50% or 1,000 sq metres, whichever is the less, provided the site is not on “Article 1(5) land” or an SSSI. In an SSSI (which is not also “Article 1(5) land”) the absolute limit is still 1,000 sq m, but the percentage limit is reduced to 25%; and, again, the lesser figure applies. In “Article 1(5) land” the limits are 10% or 500 sq m (whichever is the less).

In respect of those developments that are larger than the previous limits, there are certain extra conditions (which do not apply to new buildings or extensions that are within the previous limits). The development must be completed before 30 May 2016, and the developer must notify the local planning authority of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing and must include the name of the developer, the address or location of the development, a description of the development, including measurements and calculations (by reference to the new size limits) and the date of completion. Note that no prior notification is involved in this case and no prior approval is required.

Article 9 of the amending order amends Part 24 of Second Schedule the GPDO (developments by electronic communications code operators). The changes remove the need on “Article 1(5) land” for prior approval of the construction, installation or replacement of telegraph poles, cabinets or lines for fixed-line broadband services under Part 24 (paragraph A.3 ) for a 5 year period. Any developments covered by this concession must be completed before 30 May 2018.

It is easy to forget that Part 41 was added to the Second Schedule of the GPDO with effect from 6 April 2010, allowing certain extensions or alterations to office buildings. There is no reference here to “Article 1(5) land”, and the only restrictions relate to development within an SSSI. Except in an SSSI, the gross floor space of the original building can be increased by up to 50%; or 100 square metres, whichever is the less (up from 25% or 50 sq m under the 2010 rules). The same rules about notifying completion of one of these larger buildings or extensions apply here as apply to Part 8.

It is also easy to overlook Part 42 of the Second Schedule to the GPDO, another provision added in April 2010, which allows certain extensions or alterations to shops or catering, financial or professional services establishments. Again, the size limits have been increased from 25% to 50% or from 50 sq m to 100 sq m, subject to the same time limit for these larger extensions (completion before 30 May 2016) and the same requirements as to notifying the LPA of completion.

I have deliberately omitted the new permitted development rights for schools, as these are really only going to be of interest if you are directly involved in educational development. Suffice it to say that these changes represent the long-awaited delivery of the promise made way back in 2010 by our wonderful and ever so talented Education Secretary, Gussie Fink-Nottle (alias ‘Michael Gove’), to “tear up the planning laws” to allow his new ‘free’ schools to be built. It only took them 3 years to get there!

Meanwhile, our Welsh friends have also acquired a ‘round tuit’, and have finally amended the Welsh version of the GPDO to bring it more up-to-date. I have not had time yet to compare the new Schedule 2 in Wales with the version of the same schedule that now applies in England, but a very brief scan through it suggests that there are substantial similarities. The Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (SI 2013/1776) comes into effect in Wales on 30 September.

© MARTIN H GOODALL


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