Avoiding changes of use from B1 a to C3

08.01 in –, a, an, avoiding, b1, Boat Plans, c3, changes, early, example, from, of, to, use

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

It has been reported that Brighton & Hove wish to prevent changes of use from Class B1(a) to C3 within their area by means of an Article 4 Direction. They were one of the authorities that applied unsuccessfully to be exempted from the provisions of the amended GPDO before these changes were made.

A news report states that the council “are to consider applying for an Article 4 direction from the Department for Communities and Local Government so that some areas of the city are exempt from the policy.” Strictly speaking, an LPA does not in fact need to apply to De-CLoG for an Article 4 Direction; they have the power to make the Direction themselves. Even if there are objections to the Direction, there is no longer a requirement for the Direction to be confirmed by the Secretary of State, although the LPA must properly consider any objections before confirming the Direction.

What the writer of the news story may have had in mind is that under the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654) LPAs are obliged to give notice of Article 4 directions to De-CLoG, and cannot confirm them for 28 days or such longer period as the Secretary of State may specify following notice of the draft Article 4 direction having been received by De-CLoG from the LPA.

The Secretary of State has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA, although Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description).

It may be the requirement to give notice of the Article 4 Direction to De-CLoG, coupled with the power that Uncle Eric has to make a direction cancelling or modifying an Article 4 Direction, that has led Brighton & Hove to decide that they need to go cap-in-hand to De-CLoG to beg them not to cancel an Article 4 Direction if they make one.

So, as I pointed out in a post some months ago (long before the amendments to the GPDO were finally made), Uncle Eric does have the whip hand in such matters, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he has so recently created. When these changes were first mooted last year I predicted a sort of ministerial ping-pong match, with Uncle Eric lobbing the ball back over the net every time an LPA makes an Article 4 direction in an attempt to remove the extended PD rights. But do De-CLoG ministers really want a series of stand-up fights with LPAs over this? I suspect that saner counsels may in fact prevail, and there may be some sort of negotiated settlement which would allow Brighton & Hove and other LPAs to make Article 4 Directions that exclude the permitted development right to change from a use within Class B1(a) to C3 in some parts of their area, or which modify this PD right in some other way that would exclude certain types of building or particular types of conversion.

Brighton & Hove are due to take a decision on 11 July on how to take this proposal forward, and it will be interesting to see how this develops. Other LPAs will no doubt be following this matter with considerable interest.

© MARTIN H GOODALL
___________________

UPDATE (12 July) : Brighton and Hove are going ahead with their Article 4 Direction, and it seems that a number of other councils are now proposing to make these directions. It will be interesting to see whether Uncle Eric or the boy Boles use their ministerial powers to block these directions. Meanwhile Islington LBC is contemplating a legal challenge to the GPDO amendment order by way of judicial review, based on the way the consultation process was carried out prior to the governments decision as to whether particular authorities should be exempted from the order. Other councils could join in if these proceedings get off the ground.

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Guide to Permitted Changes of Use published

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My book, A Practical Guide to Permitted Changes of Use has now been published, and pre-ordered copies are now being distributed by post. The digital version of the book will also be available this week. We are holding the pre-publication price for direct orders for a further week, until 13 November. After that, the price will be £40.

Advance orders have exceeded all expectations, and about two-thirds of the original print run has already been sold. An early reprint is on the cards.

Readers who have not yet made up their mind to buy a copy of the book may find it helpful to have a note of the book’s contents, and so I am reproducing below the complete Table of Contents.

CHAPTER 1
GENERAL INTRODUCTION

1.1 Development orders – an overview
1.2 Loss or removal of permitted development rights
1.3 Changes of use under Part 3
1.3.1 The physical extent of changes of use permitted by Part 3
1.3.2 Commencement and completion of the permitted development
1.4 Temporary uses under Part 4
1.5 Caravan sites and recreational uses under Part 5
1.6 Saving provisions in respect of the 1995 Order
Table 1: Changes of use permitted by Part 3
Table 2: Changes of use permitted by Part 4
Table 3: Changes of use permitted by Part 5

CHAPTER 2
CHANGES OF USE TO / FROM SHOPS OR ‘RETAIL’ SERVICES

2.0 Preliminary note

2.1 Changes of use to and from use as a shop

2.1.1 Change of use from a catering use to use as a shop
2.1.2 Change of use from ‘retail services’ to use as a shop
2.1.3 Change of use of an agricultural building to use as a shop
2.1.4 Change of use from a shop to other uses

2.2 Changes of use to or from ‘retail services’

2.2.1 Change of use from catering use to ‘retail services’
2.2.2 Change of use of shop to ‘retail services’
2.2.3 Change of use of betting office / pay day loan shop to ‘retail services’
2.2.4 Change of use of agricultural building to ‘retail services’
2.2.5 Changes of use from ‘retail’ services to other uses

2.3 Flats above shops or ‘retail services’

2.3.1 Change of use to shop plus flat(s)
2.3.2 Reversion of part residential use to shop
2.3.3 Change of use of shop to ‘retail services’ plus flat(s)
2.3.4 Partial residential conversion from ‘retail services’
2.3.5 Change of use of shop and flat(s) to ‘retail services’
2.3.6 Reversion of part residential use to ‘retail services’
2.3.7 Conditions applying to changes of use under Class G
2.3.8 Development not permitted by Class H

CHAPTER 3
CHANGES OF USE TO AND FROM CATERING USES

3.1 Change of use of pub, bar or hot food take-away to café or restaurant

3.1.1 Change of use involving a pre-2005 A3 use
3.1.2 Change of use involving a post-2005 A3 use
3.1.3 Restrictions on changes of use from Use Class A4

3.2 Change of use from Use Class A1 or A2 (etc.) or Casino to Café or Restaurant

3.2.1 The development permitted
3.2.2 The qualifying use
3.2.3 Exclusions
3.2.4 Floorspace limit
3.2.5 Prior approval
3.2.6 Commencement

3.3 Other changes of use to café or restaurant

3.4 Changes of use from catering uses to other uses

CHAPTER 4
CHANGES OF USE TO AND FROM OTHER COMMERCIAL AND INSTITUTIONAL USES

4.1 Changes of use to and from a business, industrial or storage use
4.2 Changes of use to and from use as a hotel or guest-house, etc.
4.3 Changes of use to and from use as a residential institution
4.4 Changes of use to and from Use Class C2A
4.5 Change of use from Casino or Amusements to other uses
4.6 Temporary changes of use
4.7 Changes of use between flexible uses

CHAPTER 5
CHANGES OF USE TO AND FROM RESIDENTIAL USE

5.0 Preliminary note

5.1 Changes of use between single dwelling and house in multiple occupation

5.2 Residential conversion of a shop or from financial or professional services

5.2.1 The development permitted
5.2.2 The qualifying use
5.2.3 Exclusions
5.2.4 Floorspace limit
5.2.5 Limits on building operations
5.2.6 Prior approval
5.2.7 Commencement and completion
5.2.8 Exclusion of permitted development under Part 1
5.2.9 Other permitted development that may be possible

CHAPTER 6
RESIDENTIAL CONVERSION OF AMUSEMENT ARCADE OR CENTRE OR CASINO

6.1 The development permitted
6.2 The qualifying use
6.3 Exclusions
6.4 Floorspace limit
6.5 Limits on building operations
6.6 Prior approval
6.7 Commencement and completion
6.8 Exclusion of other permitted development

CHAPTER 7
RESIDENTIAL CONVERSION OF COMMERCIAL OFFICES

7.1 The development permitted
7.2 Qualifying office use
7.3 Exclusions
7.4 Prior approval
7.5 Commencement and completion
7.6 Permitted development within the curtilage under Part 1
7.7 Proposed changes to Class O

CHAPTER 8
RESIDENTIAL CONVERSION OF ‘STORAGE OR DISTRIBUTION CENTRE’

8.1 The development permitted
8.2 Restricted curtilage
8.3 Qualifying storage use
8.4 Exclusions
8.5 Floorspace limit
8.6 Prior approval
8.7 Commencement and completion
8.8 Exclusion of other permitted development

CHAPTER 9
RESIDENTIAL CONVERSION OF AN AGRICULTURAL BUILDING

9.1 The development permitted
9.2 Restricted curtilage
9.3 Qualifying agricultural use
9.4 The definition of “agriculture” and “agricultural use”
9.5 Exclusions
9.6 Limits on numbers and floorspace
9.7 Limits on building operations
9.8 Prior approval
9.9 Commencement and completion
9.10 Exclusion of other permitted development

CHAPTER 10
CHANGE OF USE TO USE AS A STATE-FUNDED SCHOOL OR REGISTERED NURSERY

10.1 Change of use of various commercial premises

10.1.1 The development permitted
10.1.2 Exclusions
10.1.3 Restrictions on further changes of use
10.1.4 Prior approval
10.1.5 Operational development
10.1.6 Commencement and completion
10.1.7 Change of use back to previous use

10.2 Change of use of an agricultural building

10.2.1 The development permitted
10.2.2 Restricted curtilage
10.2.3 Qualifying agricultural use
10.2.4 Exclusions
10.2.5 Floorspace limit
10.2.6 Prior approval
10.2.7 Commencement and completion
10.2.8 Restrictions on further changes of use
10.2.9 Operational development
10.2.10 Exclusion of permission for further agricultural buildings

CHAPTER 11
CHANGES OF USE TO AND FROM USE FOR ASSEMBLY AND LEISURE

11.1 The development permitted
11.2 The qualifying use
11.3 Exclusions
11.4 Floorspace limit
11.5 Prior approval
11.6 Commencement and completion
11.7 Operational development
11.8 Changes of use from use for assembly and leisure

CHAPTER 12
FLEXIBLE USES

12.1 Changes of use within the terms of a flexible planning permission

12.2 Change of use of an agricultural building to a flexible use

12.2.1 The development permitted
12.2.2 Restricted curtilage
12.2.3 Qualifying agricultural use
12.2.4 Exclusions
12.2.5 Limits on floorspace
12.2.6 Exclusion of building operations
12.2.7 Prior approval
12.2.8 Commencement and completion
12.2.9 Exclusion of other permitted development

CHAPTER 13
PRIOR APPROVAL APPLICATIONS

13.0 Introductory note
13.1 The nature of a prior approval application
13.2 Form of application
13.3 Application in respect of building or other operations
13.4 Written description of the development
13.5 Plans and other drawings
13.5.1 Drawings of proposed building works
13.6 Other information
13.7 Application fees

CHAPTER 14
PROCESSING AND DETERMINING THE PRIOR APPROVAL APPLICATION

14.1 Request for further information
14.2 Invalid applications
14.3 Consultations
14.4 Determining the prior approval application
14.4.1 Transport and highways
14.4.2 Contamination risks
14.4.3 Odour impacts
14.4.4 Impacts of waste storage and handling
14.4.5 Opening hours
14.4.6 Air quality
14.4.7 Noise
14.4.8 Light impacts
14.4.9 Flooding risks
14.4.10 Retail and similar impacts
14.4.11 Rural development policy
14.4.12 Design issues
14.4.13 Consideration of responses to consultations
14.4.14 The National Planning Policy Framework
14.4.15 The Development Plan
14.4.16 Other considerations
14.4.17 Human rights
14.5 Conditions
14.6 Planning obligations
14.7 Community Infrastructure Levy
14.8 Appeals
14.9 Lawful Development Certificate
14.10 Carrying out the development

CHAPTER 15
THE 56-DAY RULE

15.0 Preliminary note
15.1 General approach
15.2 Commencement of the 56-day period
15.3 Extending the 56-day period
15.4 Has the application actually been determined?
15.5 Notifying the applicant of the authority’s decision
15.6 Commencement of development in default of notification of a decision

CHAPTER 16
TEMPORARY USE OF OPEN LAND

16.1 The scope of the temporary use permitted
16.2 The temporary nature of the permitted change of use
16.3 Reversion to normal use of the land
16.4 Moveable structures

CHAPTER 17
TEMPORARY CHANGES OF USE OF VARIOUS BUILDINGS

17.1 Temporary use as a state-funded school

17.1.1 The development permitted
17.1.2 Exclusions and other conditions
17.1.3 Operational development

17.2 Temporary use of various business premises

17.2.1 The development permitted
17.2.2 Exclusions, restrictions and other conditions

CHAPTER 18
TEMPORARY USE OF BUILDINGS OR LAND FOR FILM-MAKING

18.1 The development permitted
18.2 Exclusions and restrictions
18.3 Prior approval

CHAPTER 19
TEMPORARY USE AS A CARAVAN SITE

19.1 The scope of the temporary use permitted
19.2 The definition of “caravan site” and “caravan”
19.3 Cessation of the temporary use
19.4 Caravans within the curtilage of a dwellinghouse
19.5 Temporary caravan camping on a small site
19.6 Temporary caravan camping on larger sites
19.7 Temporary caravan camping by exempted organisations
19.7.1 Certification of exempted organisations
19.8 Temporary accommodation for agricultural or forestry workers
19.9 Temporary accommodation for workers on building and engineering sites
19.10 Travelling showmen’s sites
19.11 Power to withdraw certain exemptions

CHAPTER 20
OTHER CAMPING AND RECREATIONAL USES

20.1 Use for camping and recreation by certain organisations
20.2 Other camping uses

APPENDIX A
LOSS OR REMOVAL OF PERMITTED DEVELOPMENT RIGHTS

A.1 The pre-existing use
A.2 Loss or abandonment of the pre-existing use
A.3 Continuation of the pre-existing use
A.4 Unlawful buildings and uses
A.5 Removal of permitted development rights by condition
A.6 Planning obligations under section 106
A.7 Restrictive covenants
A.8 Article 4 Directions
A.9 Revocation or amendment of a development order
A.10 Exclusion of permitted development by the GPDO itself
A.11 Development requiring an Environmental Impact Assessment
A.12 Change of use after only a brief period of existing use

APPENDIX B
THE PLANNING UNIT AND THE CONCEPT OF ‘CURTILAGE’

B.1 The Planning Unit

B.1.1 The planning unit created by a planning permission
B.1.2 The rule in Burdle
B.1.3 The ‘agricultural unit’

B.2 The ‘curtilage’ of a building and its significance in planning terms

B.2.1 The definition of ‘curtilage’
B.2.2 The curtilage of a listed building
B.2.3 Other buildings attached to a listed building
B.2.4 Extension of the curtilage
B.2.5 References to ‘curtilage’ in Parts 3, 4 and 5 of Schedule 2 to the GPDO

APPENDIX C
THE USE CLASSES ORDER

C.1 Specific exclusions from the Use Classes Order
C.2 Mixed uses
C.3 Physical and legal extent of uses within the UCO
C.4 The Use Classes


I fear this blog has become rather narrowly focused on permitted changes of use in recent weeks but, now that my book has been published, I hope to get back to other aspects of planning law in future posts. I will start by taking a look at the Housing and Planning Bill in the near future.

© MARTIN H GOODALL

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Curtilage in relation to lawful use

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I have received a comment from a planning officer which raises a question about a particular LDC application that they have received. I don’t think I should publish the officer’s comment in the form in which it was submitted, as it discusses the application in more detail than is perhaps appropriate in this forum. Nevertheless, the comment raises specific points of interest which I thought it worth discussing here.

A CLOPUD is being sought for development which is claimed to be permitted development. This depends on the land in question being domestic curtilage so as to bring it within the terms of Part 1 of the Second Schedule to the GPDO.

Planning permission was granted for the erection of a dwelling on a smallholding. The officer says this was an outline permission. But before the dwelling was built there must have been a reserved matters approval. In any event it is the outline permission that constitutes a planning permission, and section 75 of the 1990 Act provides that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and if it doesn’t then the permission is to be treated as authorising its use for the purpose for which it was designed. (I am assuming that the house has actually been completed - failing which no PD rights under Part 1 could arise yet.)

If the approved drawings are examined, it should be easy enough to determine the extent of the planning unit to which that permission related, but this may no longer be of any great relevance because, in the case in question, evidence apparently indicates that the relevant area (now claimed to be ‘curtilage’) has been used as garden land well in excess of 10 years, and this would seem to indicate that its use has become lawful, so that it lawfully forms part of the same planning unit as the house.

Notwithstanding this, my correspondent refers to an appeal decision on another site in 2001 in an appeal against the refusal of a CLEUD for “use of surrounding area of land to house to use as residential”, which was dismissed because the Inspector concluded that “whilst it is unusual for a home not to have residential curtilage – no area is defined on the permission”. With respect to that inspector, this is a rather inaccurate and woolly statement. I suspect that what the inspector meant was that the permission did not identify any planning unit other than the footprint of the house itself (which is unusual but not unknown). However, in the present case, this is no longer relevant, because an area of garden land has been added to the planning unit, and the evidence indicates that this change of use has become lawful under the 10-year rule.

The next question is how far the domestic curtilage extends. I have discussed this issue in this blog ad nauseam, so just take a look through the various discussions on this issue. But ‘use’ as domestic curtilage is not a use for planning purposes – it is just a matter of fact, and it can change at any time very easily.

Two points should be borne in mind. First, by virtue of Art. 3(5)(b) of the GPDO, PD rights cannot be exercised over land whose use is unlawful. It follows that permitted development within a domestic curtilage cannot be carried out on land that is not lawfully in domestic use. So whilst there is no qualifying period for land to become domestic curtilage, it cannot be treated as domestic curtilage for the purposes of the GPDO if its residential use is unlawful or has not yet become lawful. On the other hand, if the relevant area is lawfully used as part of a planning unit falling within Use Class C3 (i.e. a single private dwellinghouse and the land occupied with it and lawfully used for domestic purposes) the domestic curtilage can be extended at any time to include an enlarged part or even the whole of that planning unit (see Sumption v. Greenwich LBC). Whether this has in fact happened is simply a question of fact, applying the test in Sinclair Lockhart’s Trustees and the other cases discussed in previous posts.

If the garden land is lawfully used as such (as seems to be the case here), then it is capable in principle of having become part of the domestic curtilage. In fact, if it forms part of the formal garden around the house, or a vegetable garden, and is not separated from the house by, say, a paddock or area of rough grass, then it is very likely that it is indeed part of the domestic curtilage. An LDC cannot be issued in respect of the ‘use’ of land as ‘domestic curtilage’ (for the reason previously mentioned) but a certificate can be issued in respect of permitted development that is dependent on the land in question being within the domestic curtilage (i.e. PD within Part 1), which in effect provides the desired confirmation of the status of the land as domestic curtilage, albeit by a slightly different route.

So in the case mentioned by my correspondent, it seems that the land in question is lawfully part of the residential planning unit, and it is simply a question of deciding whether as a matter of simple fact it does actually form part of the domestic curtilage as such. If it does, then (subject to the rules in Part 1 as to the precise siting and dimensions of extensions and outbuildings), it would appear that a CLOPUD ought to be issued in respect of the proposed domestic extensions.

I have gone through this case simply to show how questions of this sort should be approached. The outcome of the pending application to which I have referred will ultimately turn on a factual judgment as to the actual extent of the domestic curtilage, and this will depend on the evidence put forward by or on behalf of the applicant. In assessing this, planning officers should always bear in mind paragraph 8.15 in Annex 8 to Circular 10/97 and the judgment in FW Gabbitas v. SSE referred to in that paragraph.

© MARTIN H GOODALL

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A partial end to validation nonsense

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As other commentators have observed, there have been a lot of changes going on recently, one of which is the revised process for the validation of planning applications, which was brought into force on 25 June (but only in England).

The amendments made by the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 are somewhat more modest than we might have hoped, and they fail to address a number of problems that have been thrown up by the current rules and practices surrounding the validation and registration of planning applications.

There is some limited relaxation of the requirement for Design & Access Statements. They are now required only for ‘major development’ (see below) or, if any part of the development is in a conservation area or a World Heritage Site, where the development consists of the provision of one or more dwellinghouses or the provision of a building or buildings where the floor space created by the development is 100 square metres or more.

‘Major development’, is defined by Article 2 of the 2010 Order, and includes mineral working or waste development, the creation of 10 or more homes, any other residential development on a site having an area of 0.5 hectares or more, the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more, and any development on a site having an area of 1 hectare or more.

However, the requirement for a DAS does not apply to an application under section 73 (permission to develop land without compliance with conditions previously attached to a permission), an application to extend the life of a planning permission (under the limited powers currently allowing some permissions to be extended), an application for an engineering or mining operation or waste development, and an application for change of use. I confess to being slightly confused here. A DAS is not required for minerals or waste development, but these are, by definition, ‘major development’, which does require a DAS. Can somebody explain to me in words of one syllable how this apparent ambiguity is resolved? What obvious clue have my little grey cells missed here?

Article 5 of the amendment order introduces a new procedure for resolving validation disputes relating to the information demanded by an LPA before they will register an application. This effectively reverses the Newcastle judgment - [2009] EWHC 3469 (Admin) [see “Validation dispute goes pear-shaped”, published in this blog on 5 May 2010] - and restores the right to appeal under section 78 against the non-determination of the application, but instead of the straightforward appeal that could be lodged before the Newcastle case, the applicant will now have to go through a dispute resolution procedure before the right to appeal can arise, involving yet more time and more cost. But at least there is now a means to resolve the impasse where an LPA is refusing point blank to register an application.

The amendments made by Article 5 do not apply to any planning application made before 25 June 2013, but where an applicant is already at loggerheads with an LPA over validation of an application submitted before that date, it would be a simple matter to withdraw that application (which the LPA has not in any event accepted is a valid application) and resubmit it, whereupon the validation dispute procedure will become available in respect of that new application. The original fee should be refunded automatically in view of the non-registration of the application in respect of which it was paid, and a fresh fee will then be payable on the submission of the new application.

In order to invoke the validation dispute procedure, the applicant may send a notice to the authority specifying which particulars or evidence the applicant considers is unnecessary, setting out the reasons the applicant relies upon in holding that view and requesting the authority to waive the requirement to include those particulars or evidence in the application. The LPA must then notify the applicant either that the authority no longer requires the applicant to provide the particulars or evidence (“a validation notice”), or that the authority continues to require the applicant to provide this information (“a non-validation notice”). In either event the LPA must respond within the statutory determination period ( 8 weeks in most cases, longer for major developments and developments involving an EIA), unless the applicant’s notice was received by the LPA within 7 working days of the end of that period, in which case the LPA has a further 7 working days after that to respond. The application must be a valid application in all other respects, including payment of the fee, etc.

It is upon the service of a non-validation notice or the failure of the LPA to respond within the time limit that the right to appeal against non-determination under section 78 will then arise.

There is one missing element here. A chartered surveyor with whom I have worked on a number of planning cases over the years has pointed out that there is one LPA he knows whose performance is so poor that they are not even managing to register applications within the 8-week period, even where no dispute has arisen over the information supplied in compliance with the local validation checklist. When and how does a right of appeal against non-determination arise in this case? It is possible that the authority in question may get put into ‘special measures’, which I suppose will solve the problem in one sense, as the applicant can then apply for planning permission direct to the Secretary of State, but there could be other examples around the country where this is not going to be an option. My instinct tells me that a section 78 appeal could be run in such circumstances, and that it would not be precluded by the Newcastle decision. However, this is a situation which the DMPO amendment itself does not cover.

Article 7 of the amendment order has now removed the requirement for an LPA, when granting planning permission, to include a summary of their reasons for the grant of permission and of the policies and proposals in the development plan which are relevant to the decision to grant permission. However, this amendment does not remove the ridiculous requirement imposed in 2012 that the LPA must include a statement “explaining how, in dealing with the application, the authority has worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with the planning application”.

© MARTIN H GOODALL

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More planning changes in the Queen’s Speech

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I had not expected that we would get much more in the way of new planning legislation before the next General Election but, once again, planning reform featured in today’s Queen’s Speech, at the commencement of the final session of this parliament.

Announcing an Infrastructure Bill, Her Majesty said, “My government will introduce a Bill to bolster investment in infrastructure and reform planning law to improve economic competitiveness. The Bill will enhance the United Kingdom’s energy independence and security by opening up access to shale and geothermal sites and maximising North Sea resources. Legislation will allow for the creation of an allowable solutions scheme to enable all new homes to be built to a zero carbon standard and will guarantee long-term investment in the road network.”.

On increasing the housing supply, she said “My government will increase housing supply and home ownership by reforming the planning system, enabling new locally-led garden cities and supporting small house building firms.” and added “My ministers will continue to promote the Help to Buy and Right to Buy schemes to support home ownership.”

Government press offices have jointly published a lengthy briefing note on today’s Queen’s Speech to flesh out the bare bones of the legislative programme announced from the throne. The proposed Infrastructure Bill in particular seems to be a pot pourri of various measures that go well beyond the provision of infrastructure.

I propose to concentrate solely on those elements in the Bill that are directly relevant to planning as such. Among these elements, the Bill will simplify the process for making changes to Development Consent Orders (DCOs) for nationally significant infrastructure projects by speeding up non-material changes to a DCO, and allowing simplified processes for material changes. It will allow the Examining Authority to be appointed immediately after an application has been accepted and for the panel to comprise two inspectors, in the hope of speeding up the process and saving money.

The Bill will also allow certain types of planning conditions to be discharged upon application if a local planning authority has not notified the developer of their decision within a prescribed time period, reducing unnecessary delay and costs.

“Subject to consultation” [Pause for hollow laughter], the Bill is intended to make it possible for oil and gas companies to conduct underground exploration and extraction (by ‘fracking’) of oil and gas from shale deposits below land not owned either by them or by the owner of the land on whose land the shaft is sunk.

The Government is at pains to point out that this legislation is entirely dependent on the outcome of their current consultation exercise, but you would have to be extremely naïve to believe that the government will be persuaded to desist from pressing ahead with this legislation, irrespective of what consultees may say about it. The press release itself stresses the government’s enthusiasm for pressing on with “full and rapid implementation” of this project to deliver “at least 3-4 billion barrels of oil equivalent more than will otherwise be recovered over the next 20 years, bringing over £200 billion additional value to the UK economy. The Government accepted Wood’s recommendations in full in February 2014, and is introducing measures in this Bill to put the principle of Maximising Economic Recovery of petroleum in the UK into statute.” Not much sign there of a willingness to take on board the strong opposition that is likely to be revealed by the current consultation exercise.

There are also proposals regarding the energy efficiency of new homes. This will take the form of some slight relaxation of the commitment to implementing a zero carbon standard for new homes from 2016. A minimum energy performance standard will be set through the Building Regulations. The remainder of the zero carbon target, the government says, can be met through cost effective off-site carbon abatement measures – known as ‘allowable solutions’ - as an alternative to increased on-site energy efficiency measures or renewable energy (such as solar panels). Small sites, which are most commonly developed by small-scale house builders, will be exempt. What constitutes a “small site” for this purpose will be the subject of consultation, and will then be defined in the regulations.

The Zero Carbon Home standard will be set at Level 5 of the Code for Sustainable Homes, but the legislation will allow developers to build to Level 4 as long as they offset through the allowable solutions scheme to achieve Code 5. Energy efficiency requirements for homes are set out in the Building Regulations ( made under powers in the Building Act 1984), but there are insufficient powers in that Act to introduce off-site allowable solutions, so the Infrastructure Bill is expected to contain the necessary enabling powers for this.

Finally, there is a proposed provision that is unlikely to excite much interest among the general public, but which causes considerable concern to conveyancers and to planning lawyers. The Bill will transfer statutory responsibility for local land charges registers (currently maintained by local authorities) to the Land Registry, who will in future be responsible for dealing with local land charges searches submitted by conveyancers on behalf of homebuyers.

Local authorities have built up considerable local knowledge and expertise in the maintenance of their LLC registers and related databases, and are uniquely well placed to be able to give accurate (though not invariably infallible) answers to LLC searches, related enquiries and other queries. This local knowledge and expertise will be entirely lost if or when the LLC registers are transferred to the Land Registry. It is likely to cause considerable difficulty for purchasers and their solicitors, to homeowners and not least to local authorities themselves, especially when contemplating enforcement action, where accurate local records are essential.

This proposal seems to be part of a wider aim to commercialise and even, possibly, to privatise the Land Registry itself, which can only lead to even greater difficulties for all users of the system.

So far as increasing the housing supply is concerned, the Government is proposing In the next session to provide development finance to support smaller builders to develop new homes (through the Builders’ Finance Fund), and to deliver further homes on small sites over the course of its programme. The Government says it will also scale back the imposition of Section 106 levies on small-scale development.

The government also intends to introduce a loan fund to support “up to 10,000” new service plots for custom-build homes, as well as consulting on how to implement their previously announced “Right to Build” to give custom-builders the right to land in their local area. [If the government thinks they will achieve anything like 10,000 self-build or ‘custom-build’ housing starts by this means, they really are living in Cloud-cuckoo-land.]

The government proposes to introduce secondary legislation (a Development Order?) to allow for a locally supported garden city to be built in Ebbsfleet, backed by an Urban Development Corporation, as well as other ‘locally led’ or ‘locally supported Garden Cities. [Quite frankly, I am afraid this is simply ‘pie-in-the-sky’.] The Government says it is also rolling out two further programmes to provide infrastructure support for large-scale, ‘locally supported’ schemes.

More interestingly, from the point of view of those of us involved in day-to-day development management, the government says it will help speed up the time taken for sites granted planning permission to be built out, including reforming “unwieldy procedures and conditions” attached to existing planning permissions, whilst at the same time (they say) protecting environmental safeguards.

They also propose to make further changes to Part 3 of the Second Schedule to the GPDO to make it easier for “empty and redundant buildings” [sic] to be converted into productive use, supporting brownfield regeneration and increase the supply of new homes. The changes introduced this year and last year were certainly not confined to empty and redundant buildings, and I don’t suppose the further changes of use that the government is now proposing to allow will be either.

Meanwhile, the government will be pressing on with its “Help to Buy” scheme. They are convinced that it is not causing a housing bubble in London and the South-east, despite anecdotal evidence to the contrary. In the same way, they are determined to press on with the “Right to Buy” scheme which has caused such a devastating loss of social housing stock, and has significantly worsened the plight of homeless families by depriving them of the opportunity of being re-housed in decent housing in the public sector.

Will this be the last gasp of this government? Frankly, the outcome of the General Election on Thursday 7 May next year is completely unpredictable in light of recent electoral upsets, and I am not sure what direction, if any, will be discernible from the result of tomorrow’s Newark by-election. I still believe that if they are sufficiently ‘spooked’ by continuing unpopularity, the government might yet throw the planning system into Reverse, just as Maggie Thatcher did in 1987. Only time will tell.

© MARTIN H GOODALL

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The mountain has laboured and

00.06 in and, Boat Plans, changes, has, judicial, laboured, mountain, of, office, residential, review, the, to

Bearing in mind all the brouhaha on the part of ministers over their proposals to put under-performing LPAs into special measures, so that developers can bypass them and apply for planning permission direct to the Planning Inspectorate, the outcome of just one council (Blaby, Leicestershire) being caught in the net is somewhat underwhelming. In the circumstances, there doesn’t seem to be much point in poring over the detailed regulations that were brought into effect on 1 October for dealing with these applications under section 62A of the 1990 Act.

Some county authorities were also in the frame over their handling of minerals and waste applications, but De-CLoG has been forced to delay any action in these cases due to doubts over the statistics on which a decision to put these authorities into special measures would have been based. This is not to say that one or more authorities at county level may no longer be in line to have their minerals and waste applications handled under section 62A, but it may be some time before we know whether any and if so which of these authorities will be told to go and sit on the naughty seat.

© MARTIN H GOODALL

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The planning system – the need for a real overhaul

14.07 in –, a, applications, Boat Plans, changes, for, need, of, overhaul, planning, processing, proposed, real, system, the, to

The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

“We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.”

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.

© MARTIN H GOODALL

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More planning changes in the pipeline

16.39 in Boat Plans, changes, greater, in, lets, london, more, pipeline, planning, proposed, relaxation, short, term, the

With only nine months to go to next year’s General Election, the government’s appetite for messing about with the planning system seems to be unabated. De-CLoG has recently published a miscellaneous rag-bag of quite far-reaching proposals for further changes to the planning system aimed (they say) at furthering their objective of streamlining planning.

The government is proposing to tinker with the procedures for neighbourhood plans. They propose to introduce a 10-week time limit for LPAs to respond to applications for a neighbourhood area to be designated (or for a community right-to-build proposal), as well as modifying pre-submission, consultation and publicity requirements for neighbourhood plans. The requirement for a six-week consultation period on a proposal for a neighbourhood plan would be removed, but affected landowners would have to be consulted. The changes will also address the need to comply with the Strategic Environmental Assessment Directive. The general aim is to speed up the Neighbourhood Plan-making process, and to reduce the ability of reluctant LPAs and opposing developers to disrupt or delay Neighbourhood Plans.

These proposals are most probably prompted by the limited take-up of neighbourhood plans so far, and the difficulties and delays that have been encountered by those who have embarked on the neighbourhood planning process. The government’s aim seems to be to beef up Neighbourhood Plans in an effort to demonstrate in their next election manifesto that they have put ‘localism’ into action, whereas these much-vaunted initiatives have proved up to now to be a rather damp squib, and are unlikely to counter the impression that the government effectively strangled localism at birth by imposing a requirement on LPAs to approve significantly more development in their areas, whether their councillors or voters like it or not.

This is the one area of change among those proposed in this consultation paper that would appear to require primary legislation. The government says that it intends to introduce new legislation to implement any changes at the earliest opportunity, subject to the parliamentary process. It may in practice prove difficult to introduce and pass such legislation in the time left in this parliament, in which case these ideas about neighbourhood plans could end up being no more than Tory manifesto commitments – a convenient fig-leaf to cover the nakedness of their originally much-trumpeted notions of Localism.

More changes to the General Permitted Development Order are proposed to enable further changes of use in addition to those previously introduced within the past two years. These will include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

In addition to these changes, the government is also considering making permanent those permitted development rights which currently expire in May 2016. This flies in the face of the growing opposition among some LPAs to office-to-residential conversions, so this proposal can be expected to cause quite an outcry.

First, the existing time limit for completing office-to-residential conversions that have obtained prior approval will be extended from 30 May 2016 to 30 May 2019. But a revised PD right for change of use from office to residential use is intended to be introduced from May 2016 (so it is entirely dependent on the rather doubtful prospect of the Tories securing a majority at the next General Election). It will replace the existing PD right, and the exemptions which apply to the current PD right will not be extended to apply to the new PD right. The amended Class J will still be subject to prior approval in relation to highways and transport, flooding and contamination risk, but in future (i.e. after May 2016) it will also be subject to a consideration of the potential impact of the significant loss of the most strategically important office accommodation (although this criterion will be tightly defined).

The right to build larger domestic extensions (under Part 1), currently expiring in May 2016, is also to be made permanent. A single storey rear extension or conservatory that extends beyond the rear wall by between four metres and eight metres for a detached house, and by between three metres and six metres for any other type of house, will be PD, subject to neighbour consultation for these larger householder extensions, which will continue to require prior approval by the LPA.

The right to make alterations to commercial premises has not so far been extended to shops, and so it is now proposed that the GPDO should be extended to allow retailers to alter their premises. PD rights are also proposed to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises.

There is also a proposal to limit the compensation payable where an Article 4 Direction is made to remove permitted development rights. (Any planning lawyer’s hackles will rises at that.)

It is also proposed to amend the Fees Regulations for prior approval applications. Where the permitted development is for change of use only, and a prior approval is required, a fee of £80 will apply. Where the permitted development is for change of use and allows for some physical development and prior approval is required a fee of £172 will apply, including change of use from sui generi to residential. Where a prior approval is required to carry out physical development it is intended to introduce a fee of £80, including for the erection of a structure in a retail car park or the installation of solar panels on a non-domestic building.

While mucking about with the GPDO, the government has decided that it is high time to consolidate this much-amended Order. But consolidation is no more than window-dressing; what the GPDO really needs is thorough re-drafting, to remove the numerous anomalies and ambiguities that have plagued us all for far too long.

Turning to the Use Classes Order, contrary to the general trend, but unsurprisingly, there is a proposal to restrict Class A2, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses. Planning permission will be required in future for a change of use to either of those uses.

Other changes include the possible merger of Use Classes A1 and A2 (perhaps with other ‘town centre’ uses), so as to create a much more flexible range of uses in our High Streets. [Somebody in De-CLoG seems to have been reading old posts in this blog again!] This will be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). The existing PD right to allow the change of use from A1 and A2 to a flexible use for a period of two years will remain, as will the right to allow for up to two flats above, and the change of use to residential (C3). On the other hand, the Government proposes to remove the existing PD rights applying to the A2 use class, so as to allow LPAs to control these developments.

With effect from 10 May 2006, any internal increase in floorspace of 200 square metres or more (including the introduction of mezzanine floors) in a building in non-food retail use has been included within the definition of development under section 55, and requires planning permission. As previously announced, the government intends to increase the limit to allow retailers to build a mezzanine floor (but they have not yet settled on a maximum floorspace limit).

This is only part of the current consultation paper. I shall have to leave for another time proposals for improving the use of planning conditions, proposed changes to the planning application process and the adjustment of EIA thresholds.

NOTE: Many of the changes to the law canvassed here have been implemented since this blog post was published. 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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Columbia Gorge Fishing Report 1 11 16

15.08 in 1, 11, 16, 2016, Boat Plans, changes, columbia, event, fishing, fly, for, g, gorge, loomis, nrx, report, rods, sales

Sam Sickles - Clackamas River

Fishing Report

For winter steelhead addicts, local rivers are back to low and clear conditions for the moment.  

Rain is in the forecast, but how much is questionable.  At least it is warmer outside than it has been for most of the past month.  Warming conditions should cause fish to be a little more active than they have been.  My advice is to invest in an intermediate Skagithead as long as the water is low.  Yes, even in low and clear conditions, especially in low and clear conditions, an intermediate head is an advantage.  It moves slower through the water than a floating head, allowing your fly to be presented in front of fish for a longer period of time, as well as assuring that you are probing the depths of the run.  In low, clear and cold water, fish will hug the bottom of runs in the middle of the river, whereas they will hang in softer water closer to the banks in higher water conditions and do not require ultra-deep presentations. 

Choose intermediate heads about 30-60 grains lighter than your floating Skagit head, as they are harder to get moving quickly.  My intermediate Skagit head is the same grain weight as my Scandi head. 

All of the rivers that are accessible within a day of Hood Riverare low and clear, but they all have fish in them, so pick one and hit it while you have the chance.  Ryan, Jon and I floated the Clackamas on Friday and did not touch a fish, and apart from seeing one bait plunker pull one in, we didn’t hear of much action from other anglers.  A beautiful day on the river with good friends and great scenery, I wouldn’t have traded it for anything. 

Clackamas River

Rainbow trout fishing on the Deschutesshould be great as the air and water temperatures are increasing.  Increasing air and water temperatures can trigger hatches of midges and Blue Wing Olives.  Barr’s BWO emergers, zebra midges, #18-20 flashback pheasant tails and hare’s ear are all good choices, while doubling up with a bigger nymph like a March Brown Mayfly nymph (Anato May or Posse Bugger) is also not a bad bet.  If you are going to go bigger, I would also look at a Skwala pattern like a #8 peacock rubber leg.  Skwalas should be on the move now.  They hatch in January through February and into March, and the March Browns usually start during warmer days in February and go through early April, but nymphs can start moving as early as late January.  Skwalas hatch at night in fairly low numbers and is not considered a productive hatch for dry fly action, although it is possible to hit it right.  Most anglers and trout focus on the nymphs. 

The Crooked Riveris also a good winter trout fishery when the air temps warm near or above freezing.  It is a tailwater, so water temperatures are fairly constant as long as it is warm enough for fisherman to be comfortable.  For best results, fish small flies under an indicator on the Crooked.  I’d start with a #20 zebra midge and a #20 pheasant tail and change flies often until you find a good combo.

As always, we are happy to talk fishing any time.  Give us a call if you have any specific questions on local rivers, gear, and tactics, or if you just want some encouragement to get out of the office.  

Andrew Perrault
Gorge Fly Shop | Product Specialist
541.386.6977

"Fly Fish the World with Us"

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Extra GPDO changes for telecoms operators

11.27 in a, Boat Plans, changes, end, extra, for, gpdo, nonsense, operators, partial, telecoms, to, validation

NOTE: There have been further changes to the law since this blog post was published. The position is now governed by the GPDO 2015.

Those busy bees at De-CLoG are still hard at it. Their latest production is the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2013 (SI 2013/1868) which comes into force on 21 August 2013 (in England only). This is fairly specialist stuff, but taken together with other recent changes to the GPDO, it represents a further liberalisation of the control regime for telecoms code operators.

The amendment permits replacement or alteration of existing freestanding masts except on “Article 1(5) land” or in an SSSI. The altered or replacement mast can be up to 20 metres high and up to one third wider than the existing mast. Larger aerial dishes and extra aerial systems can now be attached to certain buildings and structures.

Several other amendments are made to the requirements for prior approval, and where the code operator and the LPA agree minor amendments to a previously approved proposal under the prior approval procedure, a fresh prior approval application will not now be required.

© MARTIN H GOODALL

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Changes to High Court challenges

17.44 in –, 5, Boat Plans, breaches, challenges, changes, continuity, control, court, for, high, need, of, planning, the, to

As predicted in The Times yesterday, the Criminal Justice and Courts Bill has been published today. I have not yet had time to look at the Bill in any detail, but one change that I noticed immediately is contained in Clause 57, whereby it will be necessary in future to apply for the permission (‘leave’) of the Court before an application under section 288 can be brought before the court.

This will bring section 288 cases (relating to appeal decisions under section 78 in respect of the refusal of planning permission) into line with section 289, where permission has long since been required to appeal to the High Court against decisions in enforcement notice appeals under section 174, and with claims for judicial review brought under CPR Part 54. Thus all these procedures will now be brought into line so far as the need for leave is concerned. This change was foreshadowed in last year’s consultation paper on judicial review, although I am not at all convinced that this change was necessary.

The existing six-week time limit for launching a High Court application under section 288 will apply in future to the time for making the leave application.

It will take several months for the Bill to make its way through parliament, and it will be brought into force by a commencement order (or orders), so this and other changes that the Bill will introduce will not come into effect until nearer the end of the year, maybe even next year. In the meantime, section 288 claims can continue to be launched in the High Court as of right, without the need for leave.

Other clauses in the Bill make further changes to Judicial Review, as proposed in last year’s consultation paper. These include limitations on the extent to which protective costs orders (costs capping orders) can be made in future, provisions for the ‘leap-frogging’ of appeals from the High Court in certain cases to the Supreme Court (by-passing the Court of Appeal) and codifying the court’s discretion as to whether or not to grant relief in cases where no different outcome is likely to be achieved if the decision under challenge were to be quashed. This will no longer be a matter of discretion as such; instead, the court will be required to dismiss a challenge where the court considers the conduct complained about would be likely not to have resulted in a substantially different outcome for the applicant.

Unless I have missed something, this Bill does not contain the promised legislation to set up a fast-track specialist planning court (as part of the Upper Tribunal), but I am not aware of this proposal having been abandoned by the government, and so this may perhaps be dealt with by some other route. No doubt all will become clear shortly.

© MARTIN H GOODALL

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Judicial review further details of the proposed changes

16.54 in –, begins, blame, Boat Plans, changes, crisis, details, flooding, further, game, judicial, of, proposed, review, the

When I reported last week on the Criminal Justice and Courts Bill, I had not had a chance to look into the other details of the proposed changes to the judicial review process that were set out in the government’s response to their original consultation paper.

It is now clear that the idea of a separate planning review tribunal (as part of the Upper Tribunal) has been abandoned, apparently as a result of opposition by the senior judiciary. Nor does the Government now intend to make any changes to the scope of legal aid for planning challenges under sections 288 and 289 of the Town and Country Planning Act 1990, or to the ability of local authorities to challenge infrastructure projects. The government has also dropped its suggestion that legal standing (locus standi) to bring a legal challenge in planning matters should be restricted.

The government has spun its climb-down in terms that imply that we are still going to have a fast-track Planning Court, but all that is suggested in the first instance is that there should now be a separate listing of planning cases within the Administrative Court list which should be expedited (or ‘fast-tracked’ to use a favourite word in government circles these days), and that the judges assigned to hear cases in this list should be ‘planning’ judges, i.e. judges with specialist knowledge and experience of planning law and procedure. A move in this direction had already been made last year, so this simply confirms a welcome initiative that should lead to a more reliable outcome in planning cases that come before the court. It was a change I had called for in the earlier version of this blog as long ago as June 2006 (under the title “Judicial Lottery”, which can still be found on the internet at http://planningmatter.blogspot.com/ ). Incidentally, I see that I also canvassed in that article the idea of transferring legal challenges to planning decisions to something in the nature of the Employment Appeals Tribunal or, in present day terms, a Planning Chamber in the Upper Tribunal. Someone in the MoJ must have been reading the blog!

One source of difficulty where a permission hearing is required before a claim proceeds (either under CPR Part 54 or section 289, and now also under section 288) is the award of the costs of that hearing. The government has now decided that where an oral permission hearing is successful costs will not be awarded against a party at that stage but will fall to be determined at the end of the substantive hearing. The courts will still have a general discretion in this area, to ensure that justice is done. It is suggested that the Civil Procedure Rules should be amended to indicate that the costs of an oral permission hearing should usually be recoverable.

While we are on the subject of permission hearings, there is a long-standing anomaly that whereas the initial application for permission in Part 54 cases is usually on the papers, there has to be a hearing in section 289 cases (and presumably now also in cases under section 288). It would be sensible to change the rules so that an initial application for permission under section 289 (and now also section 288) should be on paper, renewable for oral hearing in the same way as Part 54 cases. In fact, the whole leave procedure should be brought into line, so that all of these cases are treated in the same way. Another anomaly, indeed a source of injustice, is the lack of any right of appeal against a refusal of leave in a section 289 case, whereas there is a right to renew an application under Part 54. These procedures need to be brought into line, especially now that section 288 cases are also going to need permission to proceed.

On the question of costs, I note that it is not proposed to restrict the availability of Protective Costs Orders for judicial review in environmental cases (which would include planning). These are cases that come within the scope of the Aarhus Convention and the Public Participation Directive, and the restriction on the availability of protective costs orders which is proposed in other judicial review cases would be a breach of this country’s obligations under the convention if it were to be applied to cases involving environmental issues. In these cases a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and at £35,000 for the defendant.

© MARTIN H GOODALL

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PERMITTED CHANGES OF USE – at last the book!

09.02 in –, at, Boat Plans, book, changes, last, of, permitted, the, use

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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Proposed changes to the processing of planning applications

05.19 in applications, Boat Plans, changes, conditions, in, of, planning, processing, proposed, the, to, use

In this third post on the government’s recent consultation paper (“Technical Consultation on Planning”), I propose to take a look at what they are suggesting by way of further changes to the planning application process.

I wrote in May (“Validation nonsense continues”) that many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined in that earlier post are made - nothing less will do. Well, I am sorry to say that this latest set of proposals does nothing to address the issues which have caused concern to so many planning practitioners in recent years.

Parts A and B are narrowly focused on the involvement of statutory consultees in the process, including a specific proposal to notify railway infrastructure managers of planning applications for development near railways. This is followed by a brief and superficial suggestion, in Part C, that there might be a consolidation of the Town and Country Planning (Development Management Procedure) Order 2010 and a vague reference to the means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination. This entirely misses the point. What matters is not the accurate measurement of the time taken in going through all the bureaucratic nonsense (which has greatly increased within the past 20 years) but urgent action to cut out all the unnecessary faffing about. Rather than being measured in greater detail, the process needs to be streamlined, which the government has signally failed to do, despite their claims to the contrary.

There are various different stages that can be identified in the application process. These include :

Pre-application consultation with the LPA
Community involvement
Submission of the application and supporting material
Validation (including requests for further information)
Registration
LPA’s consultation with neighbours and statutory consultees
Officer-level consideration of the application
Drafting of officers’ report to committee (or delegated report)
(including drafting conditions or reasons for refusal)
Determination of application by committee (or by designated officer under delegated powers)
Negotiation and execution of section 106 agreement (if required)
Issue of the planning permission
Submission of sample materials and/or further details required by conditions
Approval of materials and/or other details
Discharge of pre-commencement conditions
(Building Regulations consent - separate process)
Commencement of development

This is not intended to be definitive list, and readers can no doubt identify other steps in the process, but the essential message is that all these stages involve developers in significant time and costs, and there is considerable scope for cutting out a number of stages and streamlining this process.

Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases.

The requirement on the part of many LPAs that there should have been some community involvement in the formulation of the application involves an equally useless waste of time and effort. The response one gets to letters sent out in the neighbourhood (even where they contain plentiful information and illustrative details) and the response to exhibitions and meetings to explain the proposals is often minimal to non-existent, and the one or two responses that are forthcoming tend to raise points of minor detail or issues that are totally irrelevant to the application. The whole exercise is a useless waste of time not only for the developer but also for the local community. Neighbour consultations by the LPA after they have received an application are more than sufficient to ensure that local residents are aware of the application and that they have the opportunity to comment on it.

I have previously written about the information that must accompany a planning application. I won’t repeat myself, other than to state that the current rules are far too prescriptive. A very experienced planning consultant who, like me, has worked both in local government and in the private sector, agreed with me some time ago that the most effective improvement that could be made to the rules and requirements governing the submission of planning applications would be simply to repeal all the additional requirements that have been imposed in past 20+ years.

‘Major development’ should be identified as 50+ residential units or more than 2,500 sq m of gross retail floorspace. Industrial development should only be considered as ‘major’ if it falls into Class B2 and is within 400 metres of any residential property. All other development should be entirely exempt from the need for a Design & Access Statement. There should be a searching review (at ministerial level) of the justification for ecological reports, archaeological reports, Environmental Impact Assessments, noise impact assessments, flood risk assessments, heritage statements, land contamination assessments, lighting assessments, photographs or photomontages, sustainable construction statements or checklists, etc, etc, etc. In light of that review, strict (and restrictive) criteria should be laid down in the DMPO as to what information can legitimately be requested by an LPA in particular circumstances, so that only if such criteria do apply can the relevant type of information be required to accompany the planning application. This nationally uniform set of criteria in the DMPO would replace the local validation checklists individually adopted by LPAs, in contrast to the current position, where there are numerous demands for specific technical information and reports which are entirely inappropriate and unnecessary in many cases.

The whole concept of ‘validation’ should be entirely abandoned. It is of comparatively recent origin, and does not feature in the primary planning legislation. A planning application should be considered complete if an application form is submitted with payment of the application fee and is accompanied by such other documents as may be required by the nationally adopted criteria set out in the DMPO, referred to above.

The legal duty of the LPA (under section 69 of the 1990 Act) to enter the application on the planning register requires no separate ‘registration’ process. Time should run for all purposes from the day after the completed application documentation and fee are received by the LPA, and rules (again, written into the DMPO) should make it clear that the LPA is under an obligation to begin processing that application from that moment, irrespective of the date on which the purely administrative task of entering it on the planning register is completed. The essential point is that the application does not need to be registered in order to make it a valid application; registration is merely a matter of record keeping, which should not affect the processing of the application in any way.

There should be more clearly defined criteria that the LPA must follow in carrying out consultations. There should be a means (again, within the DMPO) of reliably identifying which neighbours and which statutory and internal consultees should be notified of the application, and which should not. There may perhaps be a case to made for prohibiting the consideration of representations made after the specified period (21 days) has expired, as well as a prohibition on entertaining representations made by other departments within the authority, if these are not departments having a legitimate interest relevant to planning in the subject-matter of the application. For all these purposes strict criteria should be written into the DMPO.

I have already explained my views on the use of conditions (which is dealt with elsewhere in the consultation paper). The problem for many years has been that, apart from the legal tests which have been established by the courts, the guidance has taken the form only of ministerial policy in circulars (most recently in 11/95 and now in the on-line Planning Practice Guidance). As a result, these requirements have been widely ignored by LPAs. The only reliable way to secure a uniform approach by LPAs to the use of conditions would be to write the well-established principles into the DMPO, so that they become mandatory rules which LPAs are bound by law to observe. The new rules might usefully restrict the circumstances in which approval of materials and other minor details can be required, and should also limit the circumstances in which pre-commencement conditions can be imposed.

Where conditions do require further approvals, the deemed discharge of the condition after a strict time limit following an application for such approval should apply, as the government has proposed, but it should be automatic and should not require the service of a further notice by the developer. The abolition of application fees for this type of approval would be a further incentive to LPAs not to impose such conditions unless they are really necessary.

Finally, it should be entirely unnecessary for conditions to be formally ‘discharged’. This is another comparatively recent innovation; I can certainly remember a time when conditions were simply complied with, and that was that. Some LPAs go to quite unnecessary trouble nowadays to formally determine applications for the discharge of conditions, even issuing a formal decision notice. Such bureaucratic nonsense was entirely unknown in my days in local government, and I can see no need for it.

The sad fact is that, despite their claims to be streamlining and improving the planning system, DeCLOG ministers have entirely failed to tackle these issues. The present consultation exercise probably represents their last opportunity before the General Election of achieving major reform of the planning system. They have botched it.

© MARTIN H GOODALL

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Proposed changes in the use of planning conditions

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The government’s recent consultation paper (“Technical Consultation on Planning”) contains a number of ideas for modifying planning procedures. They include, among other things, proposals relating to the use of planning conditions.

It is widely recognised that there has long been a tendency on the part of LPAs to impose too many conditions on permissions, and to be far too prescriptive in their approach. The oft-repeated six tests of legality are often overlooked and ministerial advice, formerly set out in Circular 11/95 and now to be found in the government’s on-line planning practice guidance is widely ignored. Many planning officers have never even read 11/95 and are entirely unaware of what it said.

The consultation paper expresses particular concern about the number of conditions imposed on full planning permissions that require the submission of various additional details for approval, so that developers are required to jump through yet more hoops to get the development fully approved. Another cause for concern is the increasing use of pre-commencement conditions (‘conditions precedent’) forbidding the commencement of development until the condition has been formally discharged by the LPA. Many of these details, if they really do require to be ‘signed off’ by the LPA, do not really need to be approved before a start is made on site.

In practice, the courts have long since recognised that the commencement of development before pre-commencement conditions are discharged is entirely lawful, provided the condition is not one that “goes to the heart of the permission”. There are nonetheless far too many instances of LPAs claiming that the commencement of development is unlawful in these circumstances, with resulting uncertainty and anxiety for the developers.

Another issue is the time it takes to get such conditions discharged, once the further details have been submitted to the LPA. The government makes the point that this can lead to substantial and unacceptable delays and costs at a stage in the development process where applicants are often close to starting on site or where the development is underway. Such delays can have severe practical implications for applicants – potentially impacting on the availability of finance, the sequencing of development, or resulting in unnecessary and costly down time where work on site could otherwise be proceeding.

This is the background to the proposals (previously announced), which will be inserted in the Deregulation Bill, for the deemed discharge of such conditions where the LPA does not make a decision within 6 weeks. A deemed discharge will mean that where an developer has sought the authority’s consent, agreement or approval to a matter required by the condition, and the LPA has not notified the developer of the decision within 6 weeks, the applicant may regard that matter as having the approval or consent of the LPA.

The only reservation I have about this is the need to ensure that the new provision operates in a straightforward manner, and does not require the developer to jump through further hoops (such as some form of appeal process, even a streamlined one). I do not even see the need for the developer to give a further 2 weeks’ notice to the LPA to discharge the condition following the expiry of the decision period, as is currently proposed. The new rule will not apply to all such conditions, but the categories of excluded or exempted conditions, where deemed approval will not apply, must be kept to a bare minimum.

In tandem with this proposal, the Fees Regulations (which currently provide for a fee refund for confirmation of compliance with conditions after 12 weeks) will be amended to require a refund upon no decision being made within 8 weeks.

Having identified in the consultation paper the well-known problems with planning conditions referred to earlier, De-CLoG’s proposals for tightening up on the use of conditions generally are disappointingly tentative. There is a rather wishy-washy suggestion that LPAs should discuss draft conditions with applicants for major developments before a decision is made. However, whilst De-CLoG recognise that this could also be beneficial in the case of minor developments, they propose to make it mandatory only for major developments. It is suggested that this should happen not less than 10 working days (or even 5) before the determination of the application, but it really needs to be done earlier than this if the applicant is to be given any meaningful input into the formulation of the conditions.

This does not tackle the fundamental problem of inappropriate or unnecessary conditions being imposed on a permission by the LPA. The rules and guidance on the use of conditions need to be given real statutory teeth. Appealing a condition under section 78 is never a satisfactory solution (as it theoretically puts the entire planning permission in jeopardy). An application under section 73, followed by an appeal against the LPA’s refusal to remove or relax the offending condition is the only practical way forward, which adds extra expense and delay for the developer, although it is usually effective because the Planning Inspectorate takes a robust approach to unnecessary of unwarranted conditions. What is really needed, however, is an automatic disqualification of conditions which fail to meet clearly defined statutory criteria, so that they would be deemed void without need of any application or appeal, and would be automatically severed from the permission so as not to jeopardise the permission as a whole. This would involve some very careful legislative drafting, but it is not beyond the abilities of skilled planning lawyers to achieve.

De-CLoG does propose to tackle unwarranted pre-commencement conditions, to ensure that they are used only where there is a genuine and justifiable reason to prevent any development until the matter covered by the condition has been addressed. Many of the matters covered by pre-commencement conditions could be dealt with at a later stage in the development process, rather than before construction starts. The proposal is to add an extra requirement in the Development Management Procedure Order, requiring a written justification from the LPA as to why it is necessary for that particular matter to be dealt with before development starts. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions.

I very much doubt that this will prevent the inappropriate imposition of ‘conditions precedent’ in future. It would be all too easy for LPAs to adopt a standard form of words in such cases, referring to “the need to ensure good planning and to secure an acceptable form of development” or some such meaningless rubric. What is needed is a legislative provision that gives effect to the judgments in Whitley & Sons, Hart Aggregates and similar cases, so that a condition requiring compliance prior to the commencement of development does not in fact prevent the implementation of the permission before compliance, unless the condition “goes to the heart of the permission”. That is already the law; it is simply a question of codifying it, so as to eliminate any uncertainty in particular cases.

I will discuss the proposals for changes to the planning application process in a future post.

© MARTIN H GOODALL

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Infrastructure Bill

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Hardly had the ink dried on the Queen’s Speech than the Infrastructure Bill was introduced in the House of Lords on the very next day (5 June) and had its First Reading - a pure formality, without debate. The Second Reading debate in the Lords is currently scheduled for Wednesday 18 June.

Conspicuous by their absence from the Bill are the promised provisions to make it easier to promote exploration for oil and gas and its extraction by ‘fracking’, including horizontal drilling under land not owned by the developers. Clearly it would have made a nonsense of the current consultation exercise if these provisions had been shoved into the Bill right from the word ‘Go’. I have no doubt, however, that the government will introduce these provisions as amendments to the Bill just as soon as they decently can, after perfunctory consideration of responses to the current consultation exercise. This will have the (possibly unintended) bonus for the government of cutting down on the opportunities for parliamentary debate on this subject if, for example, these amendments only emerge at committee stage or even report stage, as the Bill progresses through parliament.

I won’t waste space on the procedural amendments in respect of nationally significant infrastructure projects (Clauses 17 to 19). Pending the introduction of the ‘fracking’ clauses at a later date, the most interesting provision in the Bill in its present form is Clause 20, on the deemed discharge of planning conditions.

This will introduce a new Section 74A in the Town and Country Planning Act 1990, which will give the Secretary of State power to make a development order (which in practice will presumably take the form of an amendment of the Development Management Procedure Order) providing for the deemed discharge of a condition or limitation in a planning permission which requires the consent, agreement or approval of a local planning authority to any matter.

The new provision will come into play if the applicant has applied to the LPA for the consent, agreement or approval required by the condition, the period for the authority to give notice of their decision on the application has elapsed without that notice having been given, and the applicant has then taken the further steps (if any) which will be prescribed in the amended DMPO.

The amendment to the DMPO may provide that the deemed discharge procedure will not apply in relation to certain types of condition, in relation to certain types of planning permission, or in relation to certain types of development, as well as in any other prescribed circumstances.

There will be an ‘opt out’, where the applicant and the LPA both agree, before or after planning permission is granted, that this provision should not apply in a particular case.

The position relating to appeals is not entirely clear. The DMPO amendment may make provision for section 78(2) not to apply, or to apply with modifications, in cases where certain further steps (not yet identified) have been taken by the applicant.

The amended provisions of the DMPO will apply only where the original planning application is made after the DMPO amendment order comes into force. So it’s not the date of the planning permission which imposes the condition that counts - the planning application itself must post-date the effective date of the DMPO amendment.

I don’t propose to follow this Bill through parliament in all its stages, but I will keep an eye on the Bill for any significant amendments, especially the ‘fracking’ clauses, when they are introduced.

© MARTIN H GOODALL

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Welsh GPDO changes – a closer look

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As regular readers of this blog will recall, Stephen Ibbitson (who takes a close interest in the GPDO and its interpretation and practical application) has contributed several guest items to this blog. Stephen has recently taken a brief look at the newly revised Welsh version of the GPDO (amending Part 1 of the Second Schedule – development in the curtilage of a dwellinghouse), and has kindly contributed this note.

Stephen Ibbitson writes:

Much of what theyve drafted appears to focus on addressing some of the many wrinkles extant in The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 (SI 2008 No 2362), albeit by means of some very tortuous language!

There is some good news for residents of Wales in Part 1, Class A: extensions to a side elevation which front a highway are no longer entirely out of bounds as they are in the 2008 Order. The new Order (subject to other limitations) now allows a side extension to within 5 metres of a highway, or closer still (right up to, it seems) if part of the existing side elevation is nearer the highway than 5 metres, as would be the case if the existing side elevation is stepped.

This will be an important provision for, e.g., end terrace houses adjacent to a highway (on a corner) and where the side wall of a rear wing (still considered to be part of the "side elevation") is set back from the main side wall. (Under the 2008 Order, the recess thus formed is a no go area for PD.) This would seem to be the case even if the house is on article 1(5) land, although in those instances there is a further limit of 3 metres of depth (outwards, towards the highway) to any such extension in the recess area.

Not such good news for the Welsh is that rooflights under Part 1, Class C are no longer PD on article 1(5) land. This will be a serious blow to those affected because, since Class B enlargements were already precluded on article 1(5) land, rooflights installed under Class C were the only other option. Cue lots of planning applications for rooflight insertion in conservation areas?

There are also some worrying new limitations in Part 1, Class E in respect of garden buildings. In the 2008 Order (and previous Orders) the height of a garden building is to be determined by measuring from the highest point of the land adjacent to the building in cases where the ground slopes. This allowed for at least some part of the garden building to exceed the nominal height limits specified. Notwithstanding Article 1(3) of the 1995 GPDO, it seems this is no longer the case in Wales: under the new Order no "part" of a garden building can exceed the height limits specified when measured from the ground level "immediately adjacent" to that "part". The same goes for the eaves height of any such building: if the ground slopes, the eaves, like the overall height, will have to slope with it!

Presumably, householders living on sloping ground (I seem to recall theres quite a lot of it in Wales) will have the option of excavating into the higher ground to create usable ceiling heights, but the new Order certainly turns Article 1(3) on its head because height measurements are now to be determined from the lowest adjacent ground level where that level is not uniform.

[They do not seem actually to have amended Article 1(3) This led me to think that there would be problems, but I note that Art. 1(3) starts with the words “Unless the context otherwise requires,.....” so, in Wales, the provisions in Part 1, Class E now supersede the general rule regarding the measurement of height. MG]

So what will householders in Wales now do? Theyll either have a vastly more costly job to do (excavation and disposal of the spoils) to build a modest shed, or have to submit a planning application, the latter quite likely to cost more than the shed itself!

Finally, a quick look at the tortuous language/construction used in the new Welsh Order. Consider this from Class E Interpretation:

"E.4. For the purposes of paragraphs E.1(b) and E.1(c), a part of a building, enclosure, pool or container is to be determined to extend beyond a wall referred to in those paragraphs if it would be in front of—

(a) in the case of a wall referred to in paragraph E.1(b)—

(i) that wall in its original form; or

(ii) that wall as it would exist if its original form were to have been extended, continuing the line of the wall, from each of its side edges to the boundary of the present curtilage of the dwellinghouse"

What they are trying to describe in "(ii)" above surely could be reduced to "plane", as in "...the plane of...". And whats wrong with "corner" in lieu of "side edges"? OK, using the word "plane" arguably doesnt account for stepped elevations (where various elements of the elevation are other than co-planer), but then their drafting doesnt clearly account for those anyway!

In conclusion, the new Welsh Order succeeds in ironing out some of the wrinkles in SI 2008 No 2362, upon which it is clearly based---too many of which, it has to be said, arose in the first place due to a combination of sloppy drafting and laboured re-interpretation following the coming-into-force of novel terms devised for the Order.

To me, the modern Orders (post SI 1995 No 418) are about looking at what people want to do (natural to the geometry of the existing building, utility creating designs) and trying to stop it. By contrast, the older Orders sought to address what was popular---those utility creating designs---but was clogging up the planning system, and tried to enable it.

© STEPHEN IBBITSON

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