Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel?

Time now to look at some of the proposals to extend permitted development rights and to amend the Use Classes Order that are set out in the Planning Reform: Supporting the high street and increasing the delivery of new homes consultation paper published alongside the Autumn budget on 29 October 2018, and strongly criticised in Nick Raynsford’s final review of planning in England (November 2018):

The government’s announcement of its intention to extend even further this permissive ‘shadow’ planning process appears to reflect its model for the future direction of the system; and this has real implications for people and for the nature of both planning and planners. This reflects the tension recorded in evidence presented to the Review as to whether planning is a form of land licensing, which implies one set of skills and outcomes, or the much more complex and creative practice of shaping places with people to achieve sustainable development. The former task is like painting by numbers; the latter is like painting the Sistine Chapel. The difference in outcomes for people is equally stark.”

I’m not sure that sort of language (describing traditional planning applications as equivalent to painting the Sistine Chapel, a spectacularly inapt comparison, or indeed TCPA interim chief executive Hugh Ellis’ language in the accompanying press release: “‘Permitted development is toxic and leads to a type of inequality not seen in the Britain for over a century.“) is helpful to the debate.

It seems to me that the two key issues which need to be addressed in relation to permitted development rights that enable additional residential development (whether by way of conversion or construction) are the need for some control at a national or local level over room sizes and the need to provide a proportion of affordable housing whether on site or by way of financial contribution. Aside from those obvious issues (not addressed in the latest consultation paper), what is wrong with the Government looking to streamline development management processes where appropriate? Surely the question is where is the appropriate dividing line. Surely deemed planning permission should be for types of development where, given the public benefit in seeking to encourage them, the local planning authority should not need to question the principle of what is proposed up to a defined scale at a particular location (with more general powers to restrict rights available by way of Article 4 Direction) and where wider issues do not arise that cannot be resolved within a 56 day period for prior approval of specified aspects which are, as far as possible, not open to differing subjective views? Don’t we need to define some sort of principle along these lines before then considering different common types of development?

Allow greater change of use to support high streets to adapt and diversify

The Government proposes that uses in classes A1 (shops), A2 (financial and professional services), and A5 (hot food takeaways) (as well as uses as betting shops, pay day loan shops and laundrettes) should be allowed to change to “office use (B1)” (do they mean “office use” or do they mean B1 which also encompasses light industrial and R&D?). Hot food takeaways will be allowed to change to residential use (C1) as is already the case with the other uses referred to. There would be the requirement for prior approval, as with existing change of use permitted development rights.

Alongside this, the current “pop up” temporary permitted development rights to change the use from shops (A1) financial and professional services (A2), restaurants and cafes (A3), hot food takeaways (A5), offices (B1), non-residential institutions (D1), assembly and leisure uses (D2), betting shops and pay day loan shops to change to shops (A1) financial and professional services (A2), restaurants and cafes (A3) or offices (B1) will be extended from two years to three years. The temporary permitted development rights are proposed now to extend to changes to certain community uses, namely as a public library, exhibition hall, museum, clinic or health centre.

All of these proposals are put forward in the context of “supporting the high street” but no geographical limitation to the proposed changes is indicated that would prevent their application to any building in the relevant use, wherever it is located – shades of the original proposal in relation to the office to residential permitted development right, which was couched in terms of underused and empty office premises, when of course the right turned out not to have any such limitation. There is no indication of any floorspace cap. Might a department store, or supermarket, turn into an office? Nor indeed any cap on the proportion of any shopping area that might be converted to offices.

The document goes on to explore whether changes could also be made to the Use Classes Order, namely to:

“simplify the A1 shops use class to remove the current named uses and allow for a broader definition of uses for the sale, display or service to visiting members of the public.”

⁃ consider whether there is “scope for a new use class that provides for a mix of uses within the A1, A2 and A3 uses beyond that which is considered to be ancillary, which would support the diversification of high street businesses. This would replace the existing A1, A2 and A3 and result in a single use class to cover shops, financial and professional services, restaurants and cafes. This would mean that movement between these uses was no longer development and not a matter for the planning system to consider. It would bring greater flexibility but reduce the ability of communities and local planning authorities to distinguish between shops and restaurant uses“.

I agree that these parts of the Use Classes Order potentially need reform (within boundaries – is it really workable for there to be no distinction at all between A1 and A3?) but can’t this be as part of broader reform of the Order? The B, C and D classes all give rise to equivalent issues in that the old distinctions between uses have become increasingly difficult to apply.

A new permitted development right to support housing delivery by extending buildings upwards to create additional homes

This idea has been around since February 2016 without civil servants arriving at draft legislation, which is surely going to be the practical test.

Looking back, I covered this proposal most recently on 13 October 2018 in my blog post The Up Right, before that in my 17 March 2017 blog post Permitted Development: À La Recherche Du Temps Perdu and before that in my 15 June 2016 blog post Permitted Development: What Next? However, this latest version of the proposals is certainly the most far-reaching.

The permitted development right would allow additional storeys to be built above buildings in a wide range of uses, including residential, retail and offices. The Government indicates:

We want to explore whether there may also be other buildings whose use is compatible with the introduction of new homes. Given they are usually located in residential areas or high streets, would premises such as health centres and buildings used for community and leisure purposes be suitable for inclusion in the permitted development right? Out of town retail parks with a mix of shopping and leisure uses may also be suitable for upward extensions to provide additional homes.”

The consultation paper asks for “examples of how this permitted development right might be used in practice, and particularly of how the use of local design codes could help to encourage take up of the proposed right and improve the design quality and acceptability of upward extensions.”

It’s sounding complicated already. Then add the question of how far upwards the permitted development right could allow development to go. The consultation paper offers two alternatives, both of which could lead to significant factual disputes:

⁃ “A permitted development right could apply to the airspace above premises in a terrace of two or more joined properties where there is at least one higher building in the terrace. The roof of the premises extending upward would be no higher than the main roofline of the highest building in the existing terrace.”

⁃ “An alternative approach would be to permit upward extensions more widely to a height no higher than the prevailing roof height in the locality. While this may extend the proposed right to a greater number of properties, it would not be possible to define prevailing roofline in regulations. Therefore it would be a matter to be considered by the local authority as part of the prior approval. In doing so, the local authority would be able to define what it considered to be the prevailing roofline taking account of the local building types and heights and the extent of the area over which it should be determined.”

To add to the complications:

Where premises are not on level ground the impact of adding additional storeys can be significantly greater on the amenity of neighbouring premises, for example from overlooking and overshadowing and on the character of the area. We would welcome views on how best to take account of the topography of specific areas.”

The consultation paper proposes that there should be a maximum limit of five storeys from ground level for a building once extended (so the extension could be up to four storeys!). But there would be an even broader permitted development right for purpose built, free standing blocks of flats of over five storeys. “The government would also like a permitted development right to apply to such buildings, and is interested in views, including whether there should be a limit on the number of additional storeys that could be added, for example 5

The permitted development right would allow for the physical works required to construct or install additional storeys on a building. It could also, for instance, allow for “works within the curtilage where it is necessary for access to the additional new homes“.

The prior approval requirements would include appearance, ie “considering whether the proposed development is of good design, adds to the overall quality of the area over its lifetime, is visually attractive as a result of good architecture, responds to the local character and history of the area and maintains a strong sense of place, as set out in paragraph 127 of the National Planning Policy Framework. We expect prior approval on design to be granted where the design is in keeping with the existing design of the building.

Prior approval would also consider the impact of the development on the amenity of neighbouring premises, for example, from obscuring existing windows, reducing access to light or resulting in unacceptable impact on neighbours’ privacy from overlooking. It would also consider measures to mitigate these impacts, and enable the neighbours, including owners and occupiers of premises impacted, to comment on the proposal.

This is asking a lot of the 56 day prior approval process – sounds like a job for a traditional planning application to me.

Finally, yet another extension of the previous proposals: “We are seeking views on whether the proposed right to build upwards to create new homes should additionally allow householders to extend their own homes.”

This all sounds like it’s on a collision course with what the Government has set in train with the establishment of the ‘Building Better, Building Beautiful‘ Commission.

The permitted development right to install public call boxes and associated advertisement consent

I may come back in a later blog post to the Government’s proposal to remove permitted development rights for the installation of public call boxes. Since earlier blog posts on the subject, I’m now off-side from commenting in detail due to acting for an electronic communications code operator, but I would briefly note that the need for additional apparatus is about enabling electronic communications both present (3G, 4G and wifi) and future (5G) rather than just being about the old phone box concept and in that respect the terminology in Part 16 and the references in the Control of Advertisements Regulations probably do need updating without throwing the baby out with the bathwater.

Supporting housing delivery by allowing for the demolition of commercial buildings and redevelopment as residential

Well this proposal dates back to October 2015! As with the upwards extensions proposal, is it simply too difficult to draft in legislative form? The wording in the consultation paper is certainly tentative:

⁃ “It may be that a right focused on smaller sites may be more practical...

⁃ Despite the Government having set its face against affordable housing requirements in relation to the office to residential permitted development right, with this right it is said that the Government “would be interested in views on how developer contributions expected towards affordable housing and other infrastructure could be secured.

⁃ “We would welcome views as to the design of a right which could operate effectively to bring sites forward for redevelopment. The responses to these questions will inform further thinking and a more detailed consultation would follow.”

To be provocative, if additional storeys of residential development are to have deemed permission, and if new residential developments are to have deemed permission if they replace commercial buildings, what is the logic for not granting deemed permission for residential development on brownfield land more generally – what is inherently more complex or controversial arising from that than from the development that could come forward under these new rights? Why the prior complications with brownfield land, but not with these other rights, of land having to be placed by a local planning authority on a register before there is permission in principle?

The deadline for consultation responses is 14 January 2019.

Simon Ricketts, 8 December 2018

Personal views, et cetera

Is It A Listed Building? No Statuary Right Of Appeal

Or, before you sell your garden ornaments best to check that they aren’t listed buildings.

I missed the 50th anniversary, on 25 October 2018, of the enactment of the Town and Country Planning Act 1968. Part V of the Act introduced our modern system of listed buildings, and the prohibition on the demolition of any listed building, or its alteration/extension in any manner that would affect its character as a building of special architectural or historic interest, without listed building consent. The background to the provisions, which replaced a much weaker system of building preservation notices, is well described in an Institute of Historic Building Conservation blog post.

I was only reminded of the anniversary by an interesting ruling by the Court of Appeal, Dill v Secretary of State (Court of Appeal, 26 November 2018).

The facts are odd. Two early 18th century limestone piers, each surmounted by a lead urn, were moved to Idlicote House, a grade II listed building, in 1973 by the appellant’s father. The two sets of piers and urns were separately grade II listed in 1986. The appellant came into ownership of Idlicote House on 1993, didn’t appreciate that the items were listed and sold them abroad in 2009 for £55,000. He does not know where they are now. Stratford-On-Avon District Council found about this in 2014. Correspondence ensued. The appellant made an application for retrospective listed building consent to remove the items, which was refused in 2016. The council issued a listed building enforcement notice requiring their reinstatement and the appellant appealed against both the refusal and the notice.

An inspector dismissed the appeals and in so doing rejected submissions that it was open to him to conclude that they were not listed buildings. The decision was challenged and Singh J agreed with the inspector at first instance.

Singh J’s judgment (28 September 2017) contains some interesting additional factual context (as well as usefully quoting from most of the inspector’s report). These items had previously been at four other country houses before being placed at Idlicote House:

The items were originally at Wrest Park in Bedfordshire. In 1939 Mr J G Murray sold Wrest Park and took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire. In 1954-5, following the death of Mr Murray, the estate was left to a trust, with his grandson, Major R P G Dill, being a lifetime beneficiary. In 1955-6, under Major Dill, Coles Park was sold and the items went with him to the Dower House, Buntingford. Major Dill sold Dower House in 1962 and moved to Badgers Farm, Idlicote. Again the items went with him. He positioned them at Badgers Farm. The farmhouse at Badgers Farm was listed in 1966 but the list description makes no mention of the items.

In 1973 Major Dill sold Badgers Farm and bought Idlicote House. These items followed him. These two items were positioned on either side of a path in the gardens which had served as the front drive to the house since the 1820s. No alteration was made to the garden design to accommodate the items.”

Back to the Court of Appeal. The judgment of Lord Justice Hickinbottom goes through the statutory regime, noting that “building” isn’t defined in the Listed Buildings Act but rather in the Town and Country Planning Act 1990. It “includes any structure or erection, and any part of a building, as so defined, but does not include plant and machinery comprised within a building“.

Hickinbottom LJ agrees with the inspector and Singh J: the decision-maker cannot determine that something on the list is not in fact a building. The list is determinative. Whilst the question as to whether something is a building does involve questions as to the purpose and degree of annexation to the land or property, such issues eg as to the application of property law concepts (see London Borough of Tower Hamlets v London Borough of Bromley (Norris J, 8 July 2015) – the Henry Moore’s Old Flo statue case) or the approach taken to what was part of a building in other rating and planning cases (eg see Skerrits of Nottingham Limited v Secretary of State (Court of Appeal, 22 March 2000) – marquee in grounds of listed building) were not relevant here. He separates out the three ways in which something may qualify as a listed building:

⁃ by being listed in its own right, as here.

⁃ by being an object or structure fixed to a listed building.

⁃ by being an object or structure which lies within the curtilage of a listed building.

So, Mr Dill now has a problem. How to comply with a listed building enforcement notice, and potential criminal sanctions, when no one knows where in the world these objects now are.

The case is a reminder of a couple of things:

⁃ The absence of a time limit for service of listed building enforcement notices, which when taken with the criminal offence arising from doing works without listed building consent, leads to complications for those of us carrying out legal due diligence in relation to transactions concerning listed buildings.

⁃ The curiosity of the definition of “building” which enables a wide range of structures or erections to become “listed buildings“.

By coincidence DCMS on 19 November 2018 updated its principles for selection of listed buildings. More on that in due course perhaps (particularly on the implications for modern buildings) but in the meantime the advice in paragraph 5 is relevant to this blog post:

For the purposes of listing, a ‘building’ includes any structure or erection and a ‘listed building’ includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1st July 1948, unless the list entry expressly excludes such things. In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act.

The Dill case reminds us that in practice the stage to argue that something is not a “building” is obviously when listing is being considered, not when you are facing enforcement or making a listed building consent application. Surely listing of such itinerant objects, with no historical connection with Idlicote House, would not have been an obvious procedure to follow? Of course applications for de-listing can also be made when it is considered that the listing was in error in some way, but the Historic England guidance warns that applications for de-listing will not normally be considered when enforcement is in hand – so perhaps not an easy route for Mr Dill.

Simon Ricketts, 1 December 2018

Personal views, et cetera