Residential conversion of agricultural buildings ecological considerations

21.30 in agricultural, authorities, Boat Plans, buildings, considerations, conversion, ecological, for, more, of, pain, planning, residential, struggling

Neil Pearce at Wychavon DC has raised with me a point arising from the conversion of agricultural buildings to residential use under Class MB in Part 3 of the Second Schedule to the GPDO. This relates to the appropriateness of a requirement that certain ecological surveys should be carried out. There are actually two points –

(1) Can the need to protect bats or other protected species be a material consideration in the determination of a prior approval application under Class MB?

(2) Can pre-commencement conditions relating to ecological surveys and protection measures be attached to a notice of prior approval under Class MB?

Paragraph MB.2 provides that the change of use under Class MB(a) is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses),

and it goes on to say that the provisions of paragraph N of Part 3 shall apply in relation to any such application.

As I pointed out in earlier blog posts relating to the changes to the GPDO made in 2013 and 2014, paragraph N provides that the local planning authority must, when determining a prior approval application have regard to the National Planning Policy Framework as if the application were a planning application.

The consensus of opinion seems to be that, notwithstanding paragraph N, the LPA is in fact constrained in its consideration of the prior approval application to the criteria listed in the relevant class in Part 3 (in this case, paragraph MB2). I believe that several appeal decisions have now been issued that confirm this approach.

In the case of Class MB, however, the criteria that the LPA must take into account are rather more wide-ranging than they are under certain other classes. In particular, these criteria include consideration as to whether the location or siting of the building makes it impractical for any other reason (besides the others that are listed) or undesirable for the building to change from agricultural use to residential use. This seems to me potentially to introduce all sorts of other factors that might arguably militate against the residential conversion of the building. Among these, I suggest, could be ecological considerations, including the presence of protected species, such as bats.

I am told that Wychavon has a lot of bats (Stop sniggering at the back there!) and some enthusiastic ecologists. The argument is that, whilst not expressly referred to as one of the prior approval issues for an LPA to consider, ecology (and in particular the conservation of protected species) remains a key factor in the conversion of rural buildings. The ecologists very reasonably point out that the De-CLoG response to consultation on this issue stated that “All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations.”. Furthermore, Section 40 of the Natural Environment and Rural Communities Act 2006 requires all public bodies to have regard to biodiversity conservation when carrying out their functions. In the exercise of its functions, an LPA is also required to have regard to the requirements of The Conservation of Habitats and Species Regulations 2010. I am bound to say that this does seem to me to be an entirely reasonable approach, and I really can’t fault the ecologists’ view on this issue.

The ecologists also point out, again quite rightly, that Paragraph N of Part 3 provides that “the local planning authority may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include —

(a)assessments of impacts or risks;
(b)statements setting out how impacts or risks are to be mitigated; or
(c)details of proposed operational development;”.

The ecologists believe that the implications for protected species should be considered as “impacts or risks”. Again, I really can’t disagree with that. They also take the point which I referred to earlier that prior approval applications are required to be determined with regard to the requirements of the NPPF. This requires decisions to be taken with regard to protected species. The ecologists therefore feel that the council should require a prior approval application to be accompanied by an appropriate assessment of the potential impact upon protected species and a mitigation strategy, if there are protected species at risk of harm from the development.

This would certainly be done if the LPA was dealing with an application for planning permission, and I am inclined to the view that a similar approach would be appropriate in the case of prior approval applications under Class MB. One might argue that this makes a nonsense of the principle of “permitted development”, but I think this is inherent in the whole prior approval concept that the government has devised. I have previously described it as “planning permission-lite”. It would be a serious mistake for anyone to run away with the idea that the government ever intended a free-for-all for residential developments in the countryside . Some people may find this disappointing, but that’s the way it is.

I mentioned earlier the issue of pre-commencement conditions. The 2014 amendment to Part 3 made it clear that LPAs have the right to impose conditions on prior approvals in the same way, and subject to the same rules and considerations, as in the case of planning permissions. It follows that pre-commencement conditions may be appropriate in some cases, and such conditions might include protection measures for fauna and flora, among other things.

I don’t think Neil was expecting me to come down on the side of the ecologists, but as a lawyer I just have to interpret the law as it stands, irrespective of my personal views as to whether it is ‘right’ or not in a political sense.

NOTE: This is one of the many topics that are discussed in the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

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“Events dear boy Events ”

20.05 in ”, “events, agricultural, Boat Plans, boy, buildings, considerations, conversion, dear, ecological, events, of, residential

Harold Macmillan never used those precise words, but the best quotations are often misquotes. Anyway, it is events that have conspired to prevent my posting on this blog since 18 June, and as the BBC used to say in the days of steam-driven television - ‘We apologise for this break in transmission. Normal service will be resumed as soon as possible.”

MARTIN H GOODALL

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More banner adverts on shrouded buildings

09.05 in adverts, apologise, banner, Boat Plans, buildings, for, interruption, more, on, shrouded, the, we

(Fourth in an occasional series)

As I have pointed out on several previous occasions in this blog, there seems to be an unreasoning prejudice in this country against outdoor advertising. Whatever one may think of the overall control of advertisements regime, one aspect that particularly irritates me is the extreme reluctance of some local planning authorities (in fact, I suspect, a majority) to countenance large banner adverts on shrouded buildings while they are in course of demolition, reconstruction or repair.

I have in the past acted for one or two of the companies engaged in this type of advertising, but I am not currently retained by these clients and so I have no professional or commercial axe to grind. I simply think that this type of advertising can be beneficial, both as a means of hiding an eyesore while the building work is in progress and in helping to finance the restoration of the fabric, not to mention brightening up the townscape for a time.

Other countries do not seem to have the same hang-up with this type of advertisement display that we have in the UK. I have previously illustrated examples from both Paris and Venice, where large banner adverts have been erected around outstandingly important buildings in the most sensitive of settings – the point being that if such temporary advert displays are accepted by the authorities in those locations, then there can be no justification for resisting such displays on Grade I listed buildings located in a World Heritage Site in this country or in the most outstanding of conservation areas, and of course on many less important buildings in less sensitive environments.

I previously drew attention to a shroud advert in the Place Vendôme in Paris, and I found several further examples on my latest visit to Paris this year. The first of these is in the Place des Vosges (originally the Place Royale) in le Marais (the 4ème Arrondissement), one of the earliest town squares in Europe (if not the earliest) – completed in 1612. Cardinal Richelieu lived here from 1615 to 1627, and Victor Hugo’s house in the south-east corner of the square is open to the public.

The banner advert here is at the north end of the eastern side of the square, next to the junction with the rue du Pas de la Mule. As the rubric on this and the other advertisements illustrated here clearly states: “Cet affichage contribue au financement de la restauration de l’immeuble.” Précisément!


At night this advert is externally illuminated, as seen in the next shot.

An even larger banner advert is to be seen on the south front of the range of public buildings that house le Palais de Justice, le Conciergerie and Sainte-Chapelle on l’Île de la Cité (in the 1er Arrondissement). This advert fronts onto Quai des Orfèvres and le Pont Saint-Michel.

A third example can be seen at the junction of rue Auber and rue Scribe (in the 9ème Arrondissement) immediately opposite the monumental Opéra Garnier. There is a good view of it from the roof terrace of les Galeries Lafayette (as shown in a second photo below).

In these various shroud displays, the advertising material does not cover the whole of the shroud, so there is also a representation of at least part of the building façade in these displays, which gives an indication of the structure of the building lying behind the shroud.

The three examples illustrated here are representative of the type of banner adverts on shrouded buildings that are clearly acceptable in such cases, even where heritage assets of the highest value are involved, in very sensitive locations. The essential point is that these displays are by their nature temporary and, as the displays illustrated here explicitly state, they contribute to the funding of the restoration of the building (as was clearly also the case in the examples from Venice to which I drew attention in earlier posts).

It seems that LPAs (and even the Planning Inspectorate) remain very reluctant to grant advertisement control consent for such displays, and so the only sensible course of action would be to amend the Control of Advertisements Regulations so as to grant deemed consent to these displays. Planning ministers have shown great enthusiasm for cutting through red tape in the planning system, particularly through the medium of extended permitted development rights, and so an amendment of the Control of Advertisements Regulations ought perhaps to commend itself to Eric Pickles and Nick Boles.

© MARTIN H GOODALL

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Uses restricted by condition some further thoughts

13.40 in adverts, banner, Boat Plans, buildings, by, condition, further, more, on, restricted, shrouded, some, thoughts, uses

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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Shroud adverts on large buildings

03.48 in adverts, Boat Plans, buildings, large, on, shroud

I was pleased to see a report of a planning appeal decision earlier this month in London , in which an Inspector had allowed an appeal against the refusal of advertisement control consent for the display of a large shroud advert on the scaffolding around a building awaiting or undergoing refurbishment.

The Inspector very sensibly decided that an advertisement display of this type would be preferable to ‘drab’ sheeting round the building, and that the shroud advert would ‘enliven the street scene’. This seems to have overridden arguments by the LPA that the advert would be a prominent feature close to a conservation area (although not actually in it).

The essential point is that this display will be purely temporary, while the works on the building are being carried out, a fact which many LPAs seem entirely to overlook. Clearly, the inspector was satisfied that any alleged detriment to amenity would be outweighed by the advantage of the ugly plastic sheeting that normally covers such developments being hidden by a lively and attractive advert.

I very much hope that other inspectors will follow this lead, although it would be unnecessary for these matters to be disputed in this way if the Control of Advertisements Regulations were amended to allow temporary shroud advertising of this type where a building is covered in scaffolding and plastic sheeting during building works.

© MARTIN H GOODALL

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