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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Boat Plans Skiff | Town centre uses – new Permitted Development rights

Boat Plans Skiff

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.

As I indicated when writing a short time ago on the new permitted development rights for agricultural buildings, the same amendment order to the GPDO (coming into effect on 6 April) also provides additional PD rights for shops (A1) and High Street offices (A2).

The Order introduces a new Class CA into Part 3. This new class consists of a change of use of a building and any land within its curtilage currently in use within Use Class A1 (shops) to use as a bank, building society, credit union or friendly society. However, this PD right is excluded in the unlikely event of the premises being within a site of special scientific interest, a designated safety hazard area or military explosives storage area, or if the site is, or contains, a scheduled ancient monument. However, unlike some of the other recently introduced PD rights, change of use under Class CA is not excluded 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).

This change of use is subject to a condition that a site which has changed to one of these uses is not to be used for any other purpose (i.e. other than one or other of these purposes – referred to in the order as a ‘deposit taker’), except to the extent that the other purpose is ancillary to the primary use as a deposit-taker.

No prior approval is required in this case, but as soon as reasonably practicable after a change of use under Class CA the LPA must be notified of the change of use, and evidence must be provided that the site is being used for this purpose. A further change of use can only take place within this category (i.e. between a bank, building society, credit union or friendly society) and, again, the LPA must be notified of this further change of use as soon as reasonably practicable after the change together with evidence that the site is still being used for the purposes of a ‘deposit taker’.

Next, the Order introduces a new Class IA into Part 3. This authorises the residential conversion of a building falling within Class A1 (shops) or A2 (financial and professional services), or which is in combined use as a dwelling and a use falling within Class A1 or A2 (whether that use was previously granted permission under Class F of Part 3 or otherwise). In contrast to Class 3, Part J (introduced last May), this new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

There are several restrictions on the permitted development authorised by Class IA. It only applies where the building was used for a purpose within Use Classes A1 or A2 on 20th March 2013 or, if the building was not in use on that date, when it was last in use. A further change of use under this class cannot be made where permission to use the building within Class A1 or A2 arises only from a change of use already made under Part 3 of the GPDO. Furthermore, this change of use cannot be made if the cumulative floor space of the existing building changing use under Class IA exceeds 150 square metres, or if the development (together with any previous development under Class IA) would result in more than 150 square metres of floor space in the building having changed use under Class IA.

In relation to the building works permitted by Class IA, the external dimensions of the building as a result of such works must not exceed the external dimensions of the existing building at any given point. In addition, the works must not consist of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As with some of the other recently introduced PD rights, change of use under Class IA cannot be made if the building 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 IA is also excluded if the building in question is a Listed Building.

Where development is permitted under Class IA, there are various conditions attached to this PD right. To start with, it is subject to a prior approval 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 —

(i) transport and highways impacts of the development,
(ii) contamination risks in relation to the building,
(iii) flooding risks in relation to the building, and
(iv) whether it is undesirable for the building to change to residential use because of the impact of the change of use —
(aa) on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (but only where there is a reasonable prospect of the building being used to provide such services), or
(bb) where the building is located in a key shopping area, on the sustainability of that shopping area,

I have put the last of these in italics, because it seems to me that this gives the LPA considerable scope for resisting such changes of use, although this discretion is subject to the proviso that in order to justify a refusal of prior approval based on the need to ensure the adequate provision of services of the sort provided by that building, the LPA must be able to demonstrate that there is a reasonable prospect of the building still being used to provide such services, or (where it is located in a key shopping area) that the loss of this unit would have an adverse impact on the sustainability of the shopping area.

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. As I noted in relation to the residential conversion of agricultural buildings recently, this point was previously discussed in an earlier post on this blog on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). The inclusion in Class IA of the sub-paragraph I have put in italics [(iv) above] might tempt some LPAs to seek to apply the NPPF to these residential conversions in a wider context, not necessarily confined to the criteria listed above, although the scope for this may perhaps be limited by the proviso as to the likelihood of an alternative retail (or A2 office) use in this case, or the retail impact of the loss of the retail/A2 unit if the building is in a key shopping area.

As regards building operations permitted by Class IA, these are subject to a separate (or 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 insofar as it addresses design issues (in paragraphs 56 to 68).

Finally, there is a condition that a building which has changed use under Class IA is to be used as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as such a dwellinghouse.

Other conditions in the amendment order provide 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 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).

I referred in a previous post on this amendment order to various consequential amendments which it makes to the GPDO. I have already drawn attention to the power of the LPA to impose conditions on the grant of prior approval under Part 3. I ought also to mention the removal or restriction of PD rights for extensions and enlargements to the dwelling under Part 1 where the dwelling is created by a change of use under either Class IA (from agricultural use) or Class MB (from A1 or A2 use). I will try to find time to look at these consequential amendments in a future post, as they could prove to be a trap for the unwary.

A couple of further thoughts occur to me. First, as regards Class CA, this appears to be another instance of this government taking up and putting into practice the ideas canvassed by ‘James Hacker MP’ in his imaginary speech four years ago (see ”REAL reform of the Planning System”, published here on Tuesday, 20 April 2010. Sorry - we still don’t do internal links on this blog. To access this item, click in the side bar on the arrow next to ‘2010’, then click on the arrow against ‘April’, and click on the tile to open that post.)

As regards Class IA, this is a further example of ‘permitted’ development that may not in fact be permitted. It is rather like a double illusion. Rather than puling a rabbit out of the hat, the conjuror only appears to produce it, then with the other hand immediately whips it away again. There was in fact no rabbit, only the illusion of one.

The practical effect could be limited if LPAs are robust in using the power they will have when dealing with prior approval applications under Class IA to refuse approval if they consider that it is undesirable for the building to change to residential use, because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (where there is a reasonable prospect of the building being used to provide such services), or in those cases where the building is located in a key shopping area, on the sustainability of that shopping area. These are very much the sort of reasons that may well have been given for refusing planning permission before this new PD right was created, so arguably the new PD right may not change very much.

© MARTIN H GOODALL

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Boat Plans Wooden | Conditions preventing Permitted Development

Boat Plans Wooden

I have written on this topic before, and it is covered in my book (in Appendix A), but, as a result of discussions with my colleague Ben Garbett, it has become clear that a distinction needs to be drawn between a condition excluding the effect of section 55(2)(f) of the 1990 Act, and a condition which has the effect of precluding permitted development under the GPDO thus engaging Article 3(4) of that Order (which rules out permitted development contrary to any condition imposed by any planning permission).

We are dealing here with two separate statutory provisions, which differ not only in their wording but also in their purpose and effect. For this reason, it should not be assumed that a condition that appears on the face of it to preclude the use of a building or land for a purpose other than that which is expressly authorised by the terms of that planning permission necessarily has the effect of excluding the operation of both of these statutory provisions.

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither if these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. In contrast to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

There has been a tendency (not least on the part of planning inspectors in their appeal decisions), to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development that would otherwise be permitted by the GPDO. I confess that I may have been guilty of doing this in the past myself – it is all too easy to see the effect of a preclusive condition as applying equally to the operation of section 55(2)(f) and to permitted development under the GPDO. However, as I hope to show in this article, such an assumption is incorrect.

Let’s get a couple of preliminary points out of the way first. A planning permission which specifies the authorised use in the description of the development will thereby limit the initial use of the development (e.g. Wilson v. West Sussex CC [1963] 2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. Secretary of State for the Environment (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”). However, in the absence of an express condition attached to the permission, this will not prevent a different use being implemented subsequently, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998] P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685). Thus in a case such as those cited above, where the planning permission authorises a development that creates a single private dwellinghouse, the description of the development authorised by the planning permission cannot, by itself, prevent a subsequent change of use to unrestricted residential use, if the use of the dwelling continues to fall wholly within Use Class C3. Section 55(2)(f) will operate in such a case (subject to the rule in Kwik Save Discount Group Ltd v. SSW [1981] J.P.L. 198, where it was held that a change of use authorised as permitted development under Part 3 of the Second Schedule to the GPDO could not lawfully be made less than two months after the original use had been implemented; the original use had to be more than purely nominal.)

The second point is that a condition, if appropriately worded, can restrict the use or uses to which the development authorised by a planning permission can be put. It is beyond dispute that if a condition is expressly worded so as to preclude the effect of either or both of section 55(2)(f) [and Article 3(1) of the UCO] or the GPDO, then it will be effective to limit the use of the property in that way.

The model conditions recommended in Appendix B to Circular 11/95 (which remain extant, although the rest of the circular was cancelled in March 2014) read:

"[48] The premises shall be used for......…and for no other purpose (including any purpose in Class........… of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

and

“[50] Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 [2015] (or any order revoking and re-enacting that Order with or without modification) no..... .[specified development]........shall be [carried out].”

If so worded, there can be no doubt that such conditions do preclude the operation of these statutory provisions. However, difficulty arises (and has been the subject of litigation) where the allegedly preclusive condition does not refer explicitly either to section 55(2)(f) (and/or to Article 3(1) of the UCO) or to the GPDO.

What has not previously been noticed (and I am grateful to Ben Garbett for drawing attention to this point) is that the judicial authorities that are frequently cited in this connection are not universally applicable to the preclusion of both categories of statutory provision mentioned above. Certain judgments relate specifically to conditions that exclude the effect of section 55(2)(f); others relate solely to conditions that exclude (or purport to exclude) permitted development.

Bearing in mind that, as I pointed out above, negativing the effect of section 55(2)(f) does not have the effect of removing a planning permission that would otherwise enure for the benefit of the land, it is understandable that in this case, the condition in question need not necessarily refer expressly to section 55(2)(f) or to Article 3(1) of the UCO. This is confirmed by those judicial authorities that have dealt with this issue. For example, in City of London Corporation v. SSE (1971) 23 P&CR 169, the wording of the condition was that "the premises shall be used as an employment agency and for no other purpose." This was held to operate effectively to exclude the operation of the Use Classes Order.

Similarly, in Rugby Football Union v SSETR [2001] EWHC 927, a condition relating to stands at Twickenham Rugby Football Ground required that the stands "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected by the court on the ground that the words for no other use were clear. They had no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission, for example under the Use Classes Order (by virtue of section 55(2)(f)). The judge was satisfied that those words met the test of being sufficiently clear for the exclusion of the Use Classes Order.

R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin)) was similarly decided. This case related to planning permission for the construction of a non-food retail park comprising five units. This permission contained a condition which provided that:- "The retail consent shall be for non food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing." The stated reason for the condition was to ensure that the nature of the scheme would not detract from the vitality and viability of the nearby town centre.

The Court upheld an inspector’s decision that the use of the word only was effectively the same as the phrase and for no other purpose, especially when the condition was read in its entirety. When read alongside the reason for the imposition of the condition and in the context of the permission as a whole, the Inspector found that the condition prevented the exercise of rights under the Use Classes Order (to use the premises for other purposes falling within Use Class A1). The judge regarded the use of the word "only" as emphatic. It meant solely or exclusively. That was its plain and ordinary meaning. This would prevent any retail sales other than those stipulated of a non food nature.

The essential point in all the cases cited above is that they related solely to the exclusion of section 55(2)(f) [and Article 3(1) of the UCO]. None of these cases related to a condition that had the effect of precluding permitted development under the GPDO.

Although a condition worded like those in the City of London, RFU and Royal London Mutual Insurance cases may be sufficient to exclude the effect of section 55(2)(f), there is very clear judicial authority that a similarly worded condition does NOT exclude the effect of Article 3(1) of the GPDO, granting planning permission for the classes of development described as permitted development in Schedule 2 to the Order, unless the condition contains a specific reference to the GPDO (like Standard Condition 50).

There are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by express reference to the relevant statutory instrument in the wording of the condition. As Sir Douglas Franks QC put it in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806:

“As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.”

In light of the judgments in City of London, RFU and Royal London Mutual Insurance, Sir Douglas Franks’ inclusion of the UCO in the requirement for express words in the condition, mentioning the relevant Order, can no longer be taken as authoritative so far as the UCO itself is concerned, but in relation to the GPDO, the Court of Appeal subsequently concluded in Dunoon Developments Ltd -v- SSE [1992] JPL 936 that Article 3(4) of the GPDO was not engaged by a condition which contained no reference to the GPDO. Farquharson LJ held that:

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO 2015] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more.”

In our seminar in November, Ben Garbett made the point that no judgment since Dunoon Developments has suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The later cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) [and to Article 3(1) of the UCO], and cannot properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition. On the contrary, Carpet Decor and Dunoon Developments remain the leading (and indeed the only) authorities so far as the exclusion of the GPDO is concerned.

In our view, a number of planning appeals in prior approval cases have been wrongly decided as a result of Inspectors concluding that conditions that do not expressly mention the GPDO can nevertheless have the effect of precluding permitted development in accordance with Article 3(4). Thus in one case, the condition in question required that the premises were to be for office use only and not for any other purpose (including any other activity associated with an undertaker’s funeral business). The stated reason for the imposition of the condition was that any other use would be inappropriate and could place “unacceptable pressures” on the site and locality. It was argued on behalf of the appellant that in the absence of any mention in the condition of development under the GPDO it did not have the effect of removing the permitted development rights under Article 3(4), but the Inspector wrongly determined that the judgment in Royal London Mutual Insurance applied in this situation, and that the condition was therefore effective to remove permitted development rights in accordance with the Article 3(4).

Keystone Law’s planning law team are therefore in no doubt that any future appeal decisions which (in reliance on City of London, RFU or Royal London Mutual Insurance) conclude that a condition that does not explicitly refer to the GPDO nevertheless brings Article 3(4) of the GPDO into operation would be open to legal challenge in the High Court under section 288 and are likely to be quashed.

Happy New Year!

© MARTIN H GOODALL


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Boat Plans And Kits | Uncle Eric’s wheelie bin crusade

Boat Plans And Kits

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

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

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

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

--------------

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

© MARTIN H GOODALL


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Boat Plans Aluminum | Permitted development excluded in an AONB

Boat Plans Aluminum

There is so much material awaiting posting that it is difficult to know where to begin, but I thought I would start with a recent query I received about the extent to which Permitted Development is excluded in an Area of Outstanding Natural Beauty. The question arose because the AONB in question encompasses a great number of towns and villages, most of which contain undistinguished housing far removed from anything that could possibly be described as being of outstanding natural beauty.

My correspondent therefore asked me whether the LPA is correct in asserting that permitted development rights are excluded in respect of development within the curtilage of a dwellinghouse (under Part 1 of the Second Schedule to the General Permitted Development Order) because this is a settlement that is ‘washed over’ by the AONB designation, and is not excluded from it. The site in question is not in a conservation area.

[What follows applies in England only, not in Wales, which has different rules.]

In most AONBs, the designation covers a wide area, and towns and villages within the area are not excluded, although the boundary may be drawn around the outside of a large town if it is on the periphery of the area. The limited contribution (if any) that even the most undistinguished part of any settlement within an AONB makes to the natural beauty of the area does not affect the position in any way.

Permitted development rights are slightly reduced (but are not wholly removed) in relation to Part 1 of the Second Schedule to the General Permitted Development Order (development within the curtilage of a dwellinghouse) in certain areas (“Article 1(5) land”) which include any property anywhere within an AONB. I have confined this note to AONBs, as there is a very subtle distinction in respect of these areas, compared with other “Article 1(5) land (such as conservation areas).

Under Class A, the temporary right (until 30 May 2016) to build larger domestic extensions is excluded in an AONB. Other excluded development within Class A comprises the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles, any extension beyond a wall forming a side elevation of the original dwellinghouse and any extension of more than one storey beyond the rear wall of the original dwellinghouse. But, with these exceptions, other extensions and alterations within Part A can still be built within an AONB.

The enlargement of a dwellinghouse consisting of an addition or alteration to its roof (under Class B) is also excluded in an AONB, but minor alterations to the roof under Class C are not excluded. The erection or construction of a porch outside any external door of a dwellinghouse (under Class D) is not excluded either.

As regards Class E (the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure; or a container used for domestic heating purposes for the storage of oil or liquid petroleum gas), development is not permitted in an AONB by Class E if the total area of ground covered by buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwelling-house would exceed 10 square metres, but devlopment closer to the house is OK. In an AONB, development under Class E is also excluded if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.

Development under Class F (the provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such, or the replacement in whole or in part of such a surface) is not affected.

In the case of Class G (the installation, alteration or replacement of a chimney, flue or soil and vent pipe on a dwellinghouse) this development is not permitted within an AONB if the chimney, flue or soil and vent pipe would be installed on a wall or roof slope which fronts a highway, and forms either the principal elevation or a side elevation of the dwellinghouse.

Development under Class H (the installation, alteration or replacement of a microwave antenna on a dwellinghouse or within the curtilage of a dwellinghouse) is permitted in an AONB, but not if it would consist of the installation of an antenna on a chimney, wall or roof slope which faces onto, and is visible from, a highway, or on a building which exceeds 15 metres in height.

If you look at Part 1 of the GPDO, you will see that this still leaves quite a wide variety of permitted development that can be carried out within an AONB, subject to the usual limitations and conditions set out in the Order. It is certainly not the case that permitted development rights are wholly or substantially removed within an AONB. On the other hand, local planning authorities have the power to exclude permitted development rights by means of an Article 4 Direction, and also by means of a condition attached to a planning permission, and this is perhaps more likely within an AONB (and on other “Article 1(5) land”, such as a Conservation Area) than elsewhere.

So the LPA in question was correct up to a point in the case that was put to me, but the effect of the exclusion of certain permitted development rights should not be over-stated.

© MARTIN H GOODALL


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Yacht Boat Plans | The duty to co operate

Yacht Boat Plans

My former colleague, David Brock (who is only ‘former’ because he has now retired from active legal practice – lucky chap) posted an extremely interesting item on his blog last Friday, which I suggest that those interested in strategic planning and in the provision of strategic housing land would find it well worthwhile to read. A direct link to David’s blog will be found in the left-hand margin on this page.

I don’t propose to repeat or précis David’s piece, as you will no doubt read it yourself, but it does point up in very clear terms the complete failure of the ‘duty to co-operate’ (introduced by the Localism Act) to replace the gaping hole in strategic planning that has resulted from Uncle Eric’s ill-advised abolition of the Regional Strategies.

It reminds me of that well-known line in the Laurel and Hardy films – “Here’s another fine mess you’ve got me into, Ollie.” (No prizes for guessing which members of our wonderful coalition government could be cast in the respective parts of Laurel and of Hardy!)

© MARTIN H GOODALL


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Boat Plans For A Chesapeake Deadrise | Barn conversions to be permitted development

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.

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

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

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

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

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

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

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

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

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

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

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

© MARTIN H GOODALL


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Boat Plans Nz | Nuisance and Planning revisited

Boat Plans Nz

The Supreme Court has recently handed down an important decision on the tort of Nuisance (Coventry v. Lawrence [2014] UKSC 13) (26 February 2014). The case is of interest in the planning context, because the claim related to the use of a stadium built under a planning permission that had been granted in 1975. The permission authorised the construction of the stadium and permitted its use for “speedway racing and associated facilities” for a period of ten years (and this permission was renewed permanently in 1985, although subject to a condition making its use personal to the applicant).

The scope of the use of the stadium was in fact significantly extended, in breach of planning control, to include stock car and banger racing from 1984, but these additional uses became immune from enforcement under the 10-year rule, and a Certificate of Lawfulness of Existing Use or Development (a “CLEUD”) was issued by the LPA in 1995. A further CLEUD was issued in 1997 confirming that, for a period of ten years, there had been 20 stock car and banger racing events at the stadium each year, so that this use had become lawful. Furthermore, greyhound racing had been going on at the stadium since 1992.

In addition to this, at the rear of the stadium there is a motocross track, constructed and used under a personal planning permission for motocross events, granted in May 1992 for a year, and renewed from time to time thereafter, subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during those events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the track to a specified number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the track.

The stadium subsequently came into different ownership, and the trial judge had found that, between 1975 and 2009, the stadium had been used for speedway racing between 16 and 35 times per year, except for six years between 1990 and 2000 when it was not used at all for speedway racing. As for stock car racing, the judge found that it had occurred at the stadium between 16 and 27 times a year between 1985 and 2009 (although there was no stock car racing in 1991 or 1992). The judge also found that the track had been used for motocross to the full extent permitted by the relevant planning permission. In 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings.

The claimants (the appellants in this appeal) lived in a bungalow about 560 metres from the stadium, which they bought in 2006 from the previous owners, who had lived there since 1984. The claimants first complained to the local council about noise from the stadium and the track about three months after moving in, as well as complaining to the owner and operators of the stadium. Noise abatement notices in respect of this statutory nuisance were served by the council, and were eventually complied with by the completion of noise attenuation measures in 2009. A more general complaint of private nuisance was also pursued by the claimants, resulting in the present proceedings, which were commenced early in 2008, but seem to have taken rather a long time to come to trial.

The trial judge found that a nuisance had been committed, and granted an injunction to restrain and control the activities that were causing the nuisance. The Court of Appeal overturned this judgment, finding that what had occurred did not amount to a nuisance at common law, but the Supreme Court has now overturned the Court of Appeal’s decision and restored the decision of the judge at first instance, including the injunction that he had granted.

This was a unanimous decision of a strongly constituted 5-judge court. In five closely reasoned judgments, Lords Neuberger, Mance, Clarke, Sumption and Carnwath delivered what can only be described as a veritable tour de force in comprehensively reviewing the law of Nuisance. In doing so, they effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. This case will undoubtedly be seen as the locus classicus on the tort of Nuisance for many years to come.

It would be impossible to do justice to this decision in a single blog post, so I propose to concentrate solely on the relationship that planning law bears to the law of Nuisance, as confirmed by this decision. This was discussed in detail by both Lord Neuberger and Lord Carnwath, and I will try briefly to summarise the relevant observations of the latter on this topic. He identified this as the most difficult problem raised by the present appeal.

The issue has attracted particular attention over the last 20 years, since the judgment of the High Court in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343), and it has been considered by the Court of Appeal in two cases before the present action (Wheeler v J J Saunders Ltd [1996] Ch 19 and Watson v Croft Promosport [2009] 3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd [1997] AC 655). In the Gillingham Docks case, planning permission had been granted to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24-hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents.

The council subsequently had a change of heart, and brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. (Modifying the planning permission to achieve the same effect would have involved the payment of compensation.) The judge rejected the claim. Although he accepted that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance, an LPA can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of making various activities, which prior to the change would have been an actionable nuisance, immune from any such claim. The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, the judge thought, be realistic to attempt to limit the amount of trade at the port.

That judgment was considered by the Court of Appeal, some three years later, in Wheeler v J J Saunders Ltd [1996] Ch 19. In 1988 and 1989, a company had obtained planning permission to construct two buildings on an existing pig farm to house some 800 pigs. One of these buildings was only 11 metres from a holiday cottage owned by the claimants in that case. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling. The claimant succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. It was held by the Court of Appeal that the reasoning in Gillingham Docks had no application to the facts of the Wheeler case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it.

In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf [1997] AC 655. A claim for nuisance was brought by local residents based on interference with television signals due to the construction of a tower (One Canada Square, which has become a well-known feature of the London skyline) as part of the Canary Wharf development. This development had been carried out under planning permission granted by the London Docklands Development Corporation. The House of Lords was unanimous in rejecting the nuisance claim so far as it related to TV reception. The case turned largely on other authorities, but it was also accepted that the situation at Canary Wharf was very similar to that in the Gillingham Docks case, where the character of the neighbourhood had been substantially changed by the development that had been authorised in the area, including the construction of One Canada Square.

More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the level of activities, its use was relatively limited until 1994 (involving no more than 10 meetings a year between 1982 and 1994), and this appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the LPA in July 1995.

In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into a Section 106 agreement to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and it prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held.

Planning permission was granted by the inspector on this basis. He accepted that “the Development Plan policies weigh heavily against the project” and that the noise had at times “been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled”; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind “the very wide planning use rights which the site now enjoys”, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit.

Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. The judge at first instance, having noted the level of activity and the noise that it could generate, held that the character of the locality had been “essentially rural”, and that the circuit “could be, and was, run in a way that was consistent with its essentially rural nature”. He held that there was an actionable nuisance.

The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance, but whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could the planning permissions be regarded as “strategic” in their effect.

Having reviewed these cases, Lord Carnwath commented that they suggest that a planning permission may be relevant in two distinct ways – first, it may provide evidence of the relative importance of the permitted activity as part of the pattern of uses in the area and, secondly, where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.

Lord Carnwath respectfully disagreed with reservations that had been expressed by Lord Neuberger as to the potential utility of planning officers’ reports as evidence of the reasoning of the planning authority itself. Judged by his own experience in practice and on the bench over some 40 years, he had found that a planning officer’s report, at least in cases where the officer’s recommendation is followed, is likely to be a very good indication of the council’s consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the council’s thinking. That was illustrated by some of the planning reports in this case. In any event, in so far as the focus is on the evidence before the planning authority, rather than the decision itself, the planning officer’s report is likely to offer the most comprehensive summary of the relevant material.

On the issue of the relative importance of public and private interests in such cases, Lord Carnwath thought there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation (see Wheeler – cited above). The public interest comes into play in a limited sense, in evaluating the pattern of uses “necessary… for the benefit of the inhabitants of the town and of the public at large”, against which the acceptability of the defendant’s activity is to be judged. Otherwise its relevance generally in Lord Carnwath’s view should be in the context of remedies rather than liability.

He accepted ,however, that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged. He read Staughton LJ’s use of the word “strategic” as equivalent to Peter Gibson LJ’s reference to “a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted”.

For this reason, in Lord Carnwath’s view (differing respectfully from Lord Neuberger on this point), the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and in the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders nor in Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and, for the reasons he had noted in his judgment, neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests.

Apart from such strategic cases, Lord Carnwath suggested that a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authority’s view, with the benefit of its expert advisers, of the acceptable limits.

Lord Carnwath pointed out that Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. This did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control what had previously been the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of what was acceptable, and by the Court of Appeal in framing the limits of their injunction.

Where the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting-point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, Lord Carnwath would put the onus on him to show compliance (see by analogy Manchester Corporation v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.

The present case, Lord Carnwath observed, is illustrative of the opposite case, where the conditions attached to the planning permissions were of little help to the judge. It was perhaps unfortunate that the LPA did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The Lawful Development Certificate limited as to the hours that were lawful, but it was unclear how if at all these hours could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence the court was shown of compliance was in a planning report of December 2001.

In the circumstances, Lord Carnwath held that the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendant’s activity.

Earlier in this article, I wrote that in this case the Supreme Court effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. Other aspects of the law on this topic, which have not been discussed in this article (such as the acquisition of a prescriptive right to commit what would otherwise be a nuisance, the defence of ‘coming to a nuisance’, whether the defendant’s own activities should be taken into account in assessing the character of the area, and whether damages would be a sufficient remedy rather than an injunction) have indeed been substantially upset by this decision. However, so far as the effect of planning permission on an allegation of nuisance is concerned, this decision largely confirms the position that had been established by the cases that were discussed in Lord Carnwath’s judgment, but his further remarks on this topic represent a helpful commentary on the subject, and it is for that reason that I have reported them at some length.

It is to be hoped that, following this authoritative and definitive Supreme Court decision, it will not be necessary to revisit the principles governing the relationship between the grant of planning permission and the commission of the tort of nuisance for a good many years to come.

© MARTIN H GOODALL

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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 And Patterns | Planning Court will open for business on April 7

Boat Plans And Patterns

The Planning Court, which (like the Administrative Court) will be part of the Queen’s Bench Division of the High Court, is due to open for business on Monday 7 April. So far as the actual applications are concerned, this is just a paper change, although we are promised that specialist planning judges will be assigned to hear cases in this list. This is perhaps the most important and most welcome change brought about by this reform.

The Civil Procedure Rules 1998 have been amended to cater for the new arrangements, and the changes are set out in the Civil Procedure (Amendment No. 3) Rules 2014, which will come into effect on 6 April.

An application which will in future be known as “a Planning Court claim” is defined as a judicial review (under CPR Part 54) or statutory challenge (e.g. under sections 287, 288 or 289 of the 1990 Planning Act, among other statutory rights of challenge) which involves planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes; applications under the Transport and Works Act 1992; wayleaves; highways and other rights of way; compulsory purchase orders; village greens; European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control; national, regional or other planning policy documents, statutory or otherwise; or any other matter the Planning Liaison Judge [may determine]. (There is a misprint in the Rules, and the words in square brackets, or words to similar effect, are missing.)

These claims must be issued in future in the Planning Court, and there is power to transfer matters to that court under Part 30 of the CPR. The Planning Court claims will form a specialist list. A judge nominated by the President of the Queen’s Bench Division will be in charge of the Planning Court specialist list and will be known as the Planning Liaison Judge. There is a Practice Direction (54E) that deals with procedure in more detail, but I don’t propose to trouble readers with this.

The new rules will apply to all claims issued on or after 7 April 2014, but I understand that claims in the categories listed above which are issued before that date (in the Administrative Court) will also be transferred to the Planning Court after that date.

The only point which remains unclear is whether the Planning Court, like the Administrative Court, will sit in trial centres outside London. In view of the intention that judges sitting in the Planning Court should be planning specialists, it may not be practicable for the Planning Court to sit in other centres. I don’t see that as a problem. Specialist counsel from London chambers will be briefed in the vast majority of cases, and so it will no doubt be convenient for these cases to be heard in the RCJ in the Strand.

It only remains to wish success to the new Planning Court and to all who sail in her.

© 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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Dinghy Boat Plans | Can conditions preclude Permitted Development

Dinghy Boat Plans

The immediate answer to this question is that of course they can, and such conditions are quite common. They are usually along the lines that “Notwithstanding [the GPDO – variously referred to] no development shall take place under Part 1, Classes A or E [etc. etc.]” (or as the case may be). Some conditions even exclude all types of PD under the whole of Parts 1 and 2. There is no doubt that if the condition is worded with sufficient precision (and most are) the type of permitted development specified by the condition cannot be carried out, and a planning permission would have to be sought instead. There must, of course, be an objective justification for such a condition, and I have come across rather too many examples of these conditions which were imposed without any such justification. The remedy in such a case is an application under section 73 (and, if necessary, an appeal against a refusal to remove the condition). I have even won costs against the LPA in such appeals.

However, I have recently been asked by a correspondent about the effect of a rather differently worded condition in relation to the recently introduced right to convert an office (Use Class B1(a)) to residential use. In this case, a duly implemented planning permission which had authorised a change of use of premises to office use contained a condition that read: “The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof).” Does this preclude a change of use to Use Class C3 under the new GPDO provisions (subject to the qualifying criteria and compliance with the prior approval procedure)?

At first sight, it appeared to me that this condition does have that effect – if you simply take the words : “The premises shall be used as an office (Use Class B1a) and for no other purpose. But second thoughts suggested otherwise. It seems to me that this condition does not (and cannot) preclude an application for planning permission for a further change of use. It was designed solely to prevent the use being changed within Use Class B1 in reliance on the terms of section 55(2)(f) of the 1990 Act (whereby such a change of use within the same use class would not constitute development within the meaning of the Act). Any other change of use, to a use outside the scope of Class B1, would have been development in any event, and would have required planning permission. Thus, if planning permission were to be granted for such a further change of use, it would supersede the previous permission (and its conditions). What Part 3 of the Second Schedule to the GPDO does is exactly the same; it grants planning permission (subject to certain requirements being met) for a further change of use. The condition in question cannot therefore have the effect of precluding this.

There are several reasons for reaching this conclusion. First, the condition referred specifically to the Use Classes Order and contained no reference at all to the GPDO. I do not consider that the quoted wording could be stretched to include the GPDO or to be construed so as to do so. Furthermore, if permitted development was intended to be precluded by this condition, this should have been stated in clear terms. It is well settled law that conditions must be clear in their intention and effect; their purpose cannot be implied. Permitted Development cannot be precluded by implication. If an LPA wishes to preclude PD, it must word the condition in such a way as expressly to remove specific PD rights.

I mentioned above that if planning permission were to be granted for a further change of use, it would supersede the previous permission (and its conditions). As I have pointed out, what the GPDO does is to grant planning permission for a further change of use. This is the primary reason for my taking the view that this condition in the previous permission does not preclude the further change of use now authorised by Part 3. For the same reason, I do not consider that the condition would prevent the other change of use permitted by Part 3 (subject to a floorspace limitation) from B1 to B8.

I recall that there used to be some doubt as to whether development carried out as permitted development would be free of conditions under an existing planning permission. The conclusion (although I can’t recall offhand the relevant authority for this) was that the conditions continued to apply to the property as a whole. However, I don’t see that rule as being applicable in this context, where planning permission is given by the GPDO for an entirely different use of the property, at least so far as concerns conditions that were specifically addressed to the actual use of the property. Where the GPDO authorises a change of use under Part 3, it seems to me that any such conditions attached to the earlier permission would no longer apply. The position as regards other conditions (for example as regards car parking) may, however, be more doubtful.

No doubt there are those who would take a different view, and I cannot pretend that the answer I have given above to the question that was posed to me is the last word on this subject. But for what it’s worth, and subject to any contrary statutory or judicial authority that might be brought to my attention, I don’t believe that a condition like the one quoted above would preclude a change of use under the GPDO.

UPDATE: In case anyone didn’t see Steve Jupp’s helpful contribution to this discussion among the comments posted below this item, I thought it might be useful to follow him in drawing attention to paragraph 86 of Circular 11/95 (recently cancelled, I know, but in my view the statements it contained are still relevant and should continue to be applied). This paragraph stated in clear terms that “a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well.” Q.E.D.

NOTE: This topic is more fully 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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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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