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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Dinghy Boat Plans | Uses restricted by condition some further thoughts

Dinghy Boat Plans

In two previous blog posts (“Can conditions preclude Permitted Development?” on Friday, 18 October 2013, and “Conditions that fail to prevent Permitted Development” on Monday, 24 March 2014) I discussed the circumstances in which a condition attached to a planning permission may preclude the operation of section 55(2)(f) of the 1990 Act and Article 3(1) of the Use Classes Order and/or Article 3(1) and Part 3 of the Second Schedule to the General Permitted Development Order – in other words, the right to use the land or building in question for other purposes within the same Use Class and/or to make any of the changes of use that are (or would otherwise be) Permitted Development.

Since then, I have been considering some other judicial decisions on this issue that may shed further light on the topic, although I am bound to say that these judgments have left the position far from clear.

First of all, as I have previously pointed out, a condition that expressly refers to either the UCO or the GPDO can certainly prevent the operation of those Orders. It is perhaps worth noting in this connection that the model conditions that were previously recommended (in Circular 11/95) read:

"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

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

A problem only arises where those words, or very similar words have not been used.

In my first article, I argued that a condition which simply prohibited other uses without referring to either or both of these two pieces of subordinate legislation could not be taken to preclude their operation. My view (particularly with regard to the GPDO) was based on the proposition that a condition could not prevent an application for and grant of a fresh planning permission for a change of use to any of the uses that the original condition sought to prevent. If granted, the planning permission would supersede the previous permission (and its conditions) and this is exactly what Part 3 of the Second Schedule to the GPDO does; i.e. it grants planning permission (subject to certain requirements being met) for a further change of use. It was on this basis that I argued that a condition that does not expressly preclude the operation of the GPDO cannot therefore have the effect of preventing this permitted development.

Judicial support for this proposition, and for a similar approach to the operation of section 55(2)(f) and Article 3(1) of the Use Classes Order, can be found in the High Court judgment in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806 and in the subsequent decision of the Court of Appeal in Dunoon Developments Ltd -v- SSE [1992] JPL 936, as discussed in the second of my two previous articles.

However, I am aware of two or three other judgments that have gone the other way, and the purpose of this third article is to examine these, and to attempt to form a view as to their effect on this issue.

The first of these was City of London Corporation v. SSE (1971) 23 P&CR 169 (which predated both Carpet Decor and Dunoon Developments). In that case, 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.

In Rugby Football Union v SSETR [2001] EWHC 927, the court considered a condition relating to stands at Twickenham Rugby Football Ground, which was worded 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.

A more recent decision - R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin) - related to planning permission for the construction of a non-food retail park comprising 5 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 appellant sought a Lawful Development Certificate to confirm that they were entitled to use these retail units for any purpose within Use Class A1 of the UCO (i.e. not limited to the categories specified in the condition). On appeal against the council’s refusal of a certificate, the Inspector found that, on a fair interpretation, 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 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 (i.e. to use the premises for other purposes falling within Use Class A1).

When the matter came before the High Court, it was held that the reason for imposing a condition is important in understanding the objective of the condition. It is publicly available as part of the planning permission. To ignore it or to fail to have regard to the reason would operate as an unnatural and unnecessary constraint on an interpretation of the condition. This condition was intended to provide an on going mechanism to maintain the retail health of the town centre. In the Court’s judgment, that is what a reasonable reader of the condition would discern - namely, a non food retail consent only, with sales permitted of bulky goods within certain main sectors so as not to cause any material harm to the retail health of the town centre.

The Court specifically considered whether the wording of the condition might be insufficiently clear and unequivocal in its terms as to exclude the operation of the Use Classes Order. However, 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 Court did not agree that the absence of the words for no other use (in contrast with the Rugby Union case) made any difference in this regard. The condition before the court in the Royal London Insurance case could also be distinguished from Dunoon Developments, where there was nothing more than a restrictive description of the use in the relevant condition that might potentially (but did not in practice) exclude the Use Classes Order.

In Royal London Insurance there was a planning permission which, read as a whole, including Condition (3), set out what was permitted. Condition (3) restricted the ambit of Class A1 uses. It would be logically inconsistent to construe Condition (3) as carefully limiting A1 uses on the one hand, but then to argue that A1 use is unrestricted and permitted on the other. The condition only made sense if there was an implied exclusion of the Use Classes Order and Class A1 rights. In the Court’s judgment, this was achieved by the words used in the condition.

The first comment I would make in light of these judgments is that the decision of the Court of Appeal in Dunoon Developments should not be lightly set aside. I drew attention in my second article, on 24 March, to the clear words of both Farquharson LJ and the Vice-Chancellor, Sir David Nicholls. These words must be taken as an authoritative statement of the legal position in this regard. It follows that the other cases to which I have referred must, to a greater or lesser extent, have been dependent on their facts.

If any further refinement of the general proposition can be derived from these other cases it is perhaps that if, read as a whole and in context, the clear words of the condition (including the stated reasons for its imposition) leave no doubt that the planning permission that is being granted is only for a strictly limited use, then it may be effective to preclude the operation of either or both of the UCO and the GPDO, even though these are not expressly referred to. So, for example, in the Royal London Insurance case, the condition was explicitly intended to ensure that the development would not detract from the vitality and viability of the named town centre.

By contrast, I suggest that a vaguely worded reason (for example, “to enable the local planning authority to retain control over such uses in future” or some similar rubric) is unlikely to cut the mustard, especially bearing in mind that the procedural advice from ministers (as set out in the NPPG) continues to be firmly against conditions that purport to preclude the operation of section 55(2)(f) and Article 3(1) of the UCO or Article 3 and the Second Schedule to the GPDO. The very fact that there were until very recently model conditions (in Circular 11/95) that recommended explicit wording for such conditions is another persuasive factor which indicates that the general rule in Dunoon Developments should be applied in the absence of a very clear intention (backed up by a clearly stated and specific planning reason for the imposition of the condition) to preclude the operation of the statutory provisions.

[UPDATE: I noticed after writing this piece that "Annex A" to Circular 11/95 (model conditions) was not cancelled along with the rest of the circular. This was presumably meant to refer to APPENDIX A, where the model conditions quoted above (48 and 50 respectively) are to be found. This further strengthens the point that I sought to make.]

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 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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Yacht Boat Plans | Whitley revisited the result

Yacht Boat Plans

In a post on Tuesday, 17 December 2013, I drew attention to an application for judicial review in the High Court ( R (Ellaway) v. Cardiff CC ) which had the potential, if it had succeeded, to bring about a significant change in the accepted position regarding pre-commencement conditions, otherwise known as ‘conditions precedent’.

I had hoped to be alerted when judgment was handed down, but in the event this judgment escaped my attention when it was given on 27 March 2014 ( [2014] EWHC 836 (Admin) ). As I had rather expected, the claim was dismissed.

It was not disputed that by the time development commenced on site, the developer had applied for the discharge of all the pre-commencement conditions, although the Council had not yet determined those applications. There was some argument as to the procedural propriety of the means by which the Council dealt with the applications for discharge of the conditions, but the work undertaken on site was carried out in strict conformity with the details provided by the developer in support of the applications for discharge of the conditions. This was exactly in accordance with what has long been accepted as an ‘exception’ to the general rule in Whitley, and this exception is derived from the Whitley judgement itself. There was clearly no basis on which the Council’s action could be challenged on this ground.

The claimant had sought to argue that a matter of this kind ought not to be dealt with in that way, but should be the subject of an application for retrospective planning permission under section 73A. However, Wyn Williams J did not consider that there is any basis to conclude that the Whitley principle and the exceptions to that principle cannot co-exist with Section 73A of the 1990 Act. There is no authority which begins to suggest the contrary. Further, there can be no doubt now, if there ever was following the judgment in Whitley, that the Whitley principle itself is regarded as “a clear legal principle of general application” – see Greyfort Properties Limited v SSCLG [2011] EWCA Civ 908. It is equally clear that the acknowledged exceptions to the principle are also founded upon clear principles of general application.

The possible difference of approach required in this case, as argued by the claimant, arose from the fact that this was EIA development, and (so it was argued) the need to comply with European directives required a more rigorous procedure to be adopted. Nonetheless, it was accepted on behalf of the claimant that European law does not prohibit the grant of retrospective planning permission – i.e. the grant of planning permission after the proposed development has been initiated prior to the discharge of pre-commencement conditions. (See the decision of the Court of Appeal in R (Ardagh Glass Ltd) v Cheshire West Council [2010] EWCA Civ 172.) However, the claimant submitted that European law demands that such a grant should be made only exceptionally and, in effect, only in the context of an application made under Section 73A of the 1990 Act.

Both the Council and the developer strongly disputed that a grant of retrospective planning permission must be made only in the context of section 73A of the 1990 Act. Furthermore, they both submitted that neither the Council nor the developer had acted inconsistently with the relevant principles of European law.

To put it shortly, Wyn Williams J found that the Whitley principle is entirely consistent with the aims and objects of the Directive. The rationale of the exception is to avoid unnecessary formality and wasted time and expenditure. The terms of the exception are clear and self-contained. It is obvious when the exception will apply. The fact that this exception is the product of judicial decision-making, as opposed to Parliamentary enactment, does not mean that it is unpredictable, unclear, imprecise or uncertain. In truth both the Whitley principle itself and the exception relied upon by the Council are clear and their application in individual cases is entirely predictable. The fact that the Court of Appeal has acknowledged that the exceptions to the Whitley principle may not be closed does not mean that the acknowledged exceptions are unpredictable or uncertain.

In the circumstances, the court did not consider it necessary to deal with the issue of delay, which might very well have prevented the grant of relief in this case if the claimant had made out the legal grounds to support her claim.

So we can all breathe a sigh of relief, and continue to rely on the Whitley principle and its acknowledged exceptions. The added ‘European’ dimension made no difference in this case, and there would seem to be no basis for arguing that the discharge of conditions should be dealt with differently in such a case compared with normal procedure. The time for an EIA assessment (where this is required) is much earlier, at the planning application stage. It has been established that the approval of reserved matters after a grant of outline permission can also give rise to a requirement for a separate EIA at that stage, but it is difficult to envisage circumstances in which an application for the discharge of pre-commencement conditions (‘conditions precedent’) could give rise to such a requirement, even where the discharge of those conditions is retrospective following the commencement of development.

© MARTIN H GOODALL

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