Category: Permitted development

Wishful Thinking

“It’s time we should talk about it

There’s no secret kept in here

Forgive me for asking

Now wipe away your tears

And if I wish to stop it all

And if I wish to comfort the fall

It’s just wishful thinking”

(Wishful Thinking by China Crisis, 1983 – tune!)

MHCLG published two pieces of advice this week that might be construed as wishful (and therefore potentially misleading) thinking:

CIL

On 25 June the housing and planning minister wrote to all CIL charging authorities in England in relation to household developer exemptions:

“While the CIL Regulations provide clarity on the criteria that must be met and procedures that must be followed to secure relief or an exemption, the Government is aware of some historic cases where householders have failed to obtain an exemption due to procedural errors, which may have been inadvertent or unintentional. In some instances, despite meeting the qualifying criteria, householders may not have followed the procedures set out in the regulations, and may not have applied for or received a CIL exemption before commencing development. In others, an exemption may not have been obtained because retrospective planning permission was granted after further works had already begun on a development that had previously benefitted from an exemption or was otherwise not liable for CIL. The Government recognises that this has, in some cases, resulted in the imposition of significant CIL charges under the regulations.”

Too true! See for example my previous blog posts CIL The Merciless (19 January 2019), Trent Won, Cil Nil  (14 April 2021) and CIL: There Is No Equity About A Tax (10 July 2021).

So what is it proposing to do? First: “The Government is proposing to consult on a proposed package of targeted regulatory changes to make the operation of CIL clearer and more proportionate for householders and self-builders.“

So far so good (although if you asked me I would either entirely remove CIL liability for householder development or I would entirely remove the self-build exemption).

But, the second section of the letter is headed “historic cases” and has three strands:

  • “First, we strongly recommend all authorities to review their local CIL guidance and communication methods to ensure any household developers in their area are aware of the current exemptions and the necessary procedures to access them.” (What more or better communication does anyone suggest? Authorities do in my experience communicate the position both on their websites and via informatives on permissions – the problem is the complexity of the system itself for people without the sophisticated tax administration advice needed).
  • “Second, while charging authorities have a duty to collect CIL that is due, they continue to have a degree of discretion over the steps they take to do so and when. This includes considering what is reasonable and proportionate in any given case and the appropriate timescales for enforcement activity. It has been brought to the Government’s attention that escalated enforcement actions, including threats of forced sale or criminal proceedings, have led to serious consequences for some individuals and families. Such action, or similar, is not required by the regulations without regard to local authorities’ broader legal obligations – and the precise approach to CIL collection in any individual case will depend on the specific facts and circumstances. Exactly what enforcement steps to take, and when, to collect CIL in each case is a matter for the judgement of the authority concerned.”
  • “Third – where an authority feels this is justified – collecting authorities are able to make ex gratia payments of compensation from their general funds in exceptional CIL cases where payment has been made. Such payments would not constitute a waiver or refund of CIL, but rather a discretionary payment made from general funds, outside the CIL regime. These circumstances may arise where a charging authority considers that redress is appropriate because a householder developer would have been entitled to an exemption but, as a result of an administrative error, failed to claim it in accordance with the required procedure and now faces significant hardship as a consequence. There will be a range of considerations for local authorities in making such a decision, and in all cases, they should seek their own legal advice based on the facts and circumstances of individual cases.”

These last two suggestions in my view paint an over-optimistic picture to those who have incurred CIL liability through (often understandable) mistakes. Just look at the case law cited in the blog posts I mention, or indeed more recently R (Luck) v Bracknell Forest Borough Council (Lieven J, 14 November 2025) which reviews that previous case law:

“A number of points in respect of the CIL regime can be drawn from this caselaw:

a. CIL is akin to a tax, see Gardiner at [35];

b. The purpose of CIL is to provide funding for necessary development and to provide certainty to developers and the collecting authority as to when and how such liability arises, see s.205 PA and Heronslea at [120];

c. The statute and Regulations form a detailed statutory code which is self-contained and carefully constructed, see Gardiner at [48];

d. The imposition of CIL is not discretionary, see Shropshire at [44];

e. There is a strict procedure set out in Regulation 54B, which is obligatory, see Gardiner at [57];

f. Liability for CIL must be precisely and reliably calculated on an objective basis, see Gardiner at [63].”

“Given that the Court of Appeal have held that CIL is a form of taxation, it is relevant to consider the caselaw on the scope of HMRC’s powers to waive tax which would otherwise be liable. In R (Clamp) v HMRC [2022] 1 WLR 1067 Butcher J was considering a judicial review concerning HMRC’s powers to enter into assurances with taxpayers as to tax liability.”

Butcher J in Clamp: “HMRC cannot properly, however, make concessions that tax should not be payable, where this is done not to facilitate the overall task of tax collection, but because they consider that a tax which Parliament has clearly imposed should not as a matter of principle or policy, or by reasons of considerations of equity, be payable.”

Lieven J in Luck: “Quite apart from the detail of the Regulations, there are two overarching reasons why it would be surprising if there was a broad discretion to waive CIL. Firstly, as is set out by the High Court in Clamp, one would not normally expect a tax collecting authority to have an unfettered discretion to waive the tax that Parliament had set. That point is even stronger here than in Clamp, because the local authority under the CIL regime is not in the same position as HMRC with broad management powers and a fairly wide discretion to reach “arrangements” with the taxpayer. So, it is even less likely that the local authority would have such a broad discretion to waive liability.”

“Secondly, to construe Regulation 65(7) as a broad discretion to waive CIL seems inconsistent with the rest of the Regulations. It would be a wholly unfettered discretion, with no criteria set out, in marked contrast to Regulation 55. There is no parallel power in relation to demand notices, so if the liability notice can simply be withdrawn, the court would have to imply into the Regulations a power for the demand notice to be withdrawn or to cease to have effect. The Claimant argues that by withdrawing the liability notice the underlying liability itself ceases. However, for Regulation 65(7) to have this effect would be inconsistent with the Court of Appeal decision in Braithwaite, which held that the liability continues to exist even where the liability notice is withdrawn.”

Yes, the collecting authority does have some discretion as to the enforcement steps it will take. It also specifically has discretion as to whether to impose surcharges. But other than that it has to operate within the narrow tramlines of the legislation. For someone who has made a very expensive mistake which has caused them to lose the benefit of, say, the self-build exemption, the fact that the authority may (may, no guarantee at all) choose not to resort to prosecution or an injunction to enforce payment is of little consolation if the house is ever to be mortgaged or sold.

As for the suggestion of the authority making ex gratia payments where the householder has made the administrative error rather than the authority….really?? All that this is going to lead to is many detailed, often heart-wrenching, requests, often backed by increasingly assertive legal submissions, as to why in the particular circumstances an ex gratia payment should now be made. And it’s the hope that kills because surely the authority’s response, after spending time and resources as they “seek their own legal advice based on the facts and circumstances of individual cases” is going to be “no”?

Isn’t all this papering over the cracks rather than making proper repairs?

Air conditioning units

On the same day, 25 June 2026, MHCLG published a blog post, Air conditioning rules. It starts like this:

“There has been media coverage this week suggesting that air conditioning is banned in homes. This is incorrect.

Air conditioning can be installed in both existing and new homes.

In most cases, planning permission is not required to install it for a small home if it would not materially affect the appearance of the building from outside.

However, there is no blanket rule. People should speak with their local council to check the rules, and councils should take a common-sense approach.”

It ends like this:

“A government spokesperson said:

“Air conditioning units are not banned. They can be installed in both existing and new homes and we expect councils to take a common-sense approach to the rules around this, which are there to manage the interests of communities and the environment.”

So let’s assume I’m a member of the public and I’m thinking about installing an air conditioning unit. I assume that government spokesperson is not thinking of one of those internal units with a hose that waggles inefficiently out of the part-opened window? If it’s a split unit device with an external unit and internal unit, the external unit does not have the benefit of any permitted development rights unless it is in the form of an air source combined heating and cooling unit (for which there is a right subject to limitations and conditions in class G of Part 14). Otherwise the question is one for the local planning authority as to whether in its planning judgment a large white box on the exterior of the building materially affects its external appearance, which will always come down to various site-specific factors. Are you going to check with the authority first before you make your expensive purchase? In many locations, and in the absence of formal government advice (which that blog post is not),  I anticipate that officers would conclude that planning permission is required.

CIL and planning officers: I would welcome your respective thoughts on both of these announcements.

Simon Ricketts, 28 June 2026

Personal views, et cetera

What’s The Use?

One of my first blog posts ever, on 1 July 2016, was Time To Review The “C” Use Classes? It was definitely time then, ten years ago! Even more so now. In writing this stuff, I do sometimes wonder, what’s the use…?

“What’s the use?” is still such a particularly difficult question when it comes to overnight sleeping accommodation.

One aspect of the issue (the boundaries of use class C1) has of course arisen on several occasions over the last few years in relation to the accommodation of asylum seekers within hotels, but has repeatedly been ducked by the courts (see for instance my 15 November 2025 blog post There Was Some Controversial News In Planning This Week But Instead Let’s Focus On the Latest Ruling In The Epping Forest Asylum Seekers Litigation).

But the blurred boundaries I talked about in the blog post between, for instance use classes C3, sui generis and C4, still exist, with so much now falling into that “sui generis” (“of its own kind”/”in a class of its own”) catch-all.

(Incidentally, I think that the first recorded judicial use of this informal Latin tag for uses that don’t fall within any classes of the Use Classes Order is in a Divisional Court case from 1975, Tessier v Secretary of State, where, to quote from the Planning Encyclopaedia: “a building had been used as a sculptor’s workshop, the sculptor having operated industrial machinery and tools for cutting out huge stone masonry blocks and other sculpting activities. The Divisional Court held that this was not an industrial use, because the primary activity of the sculptor was the artistic work of sculpture and not the making or manufacturing of an article in the course of a trade or business.” Cases back then all seemed so much more, well, innocent…)

I just wanted in today’s brief post to draw attention to a recent High Court judgment which grapples with another of these “use categorisation” questions, in the context of planning enforcement: Empire Communications Limited v Secretary of State  (Deputy High Court Judge Tim Smith, 2 April 2026). This concerned former offices which were converted, purportedly in reliance on permitted development rights. Prior approval was granted for change of use to residential. Following conversion of the buildings, the local planning authority, the London Borough of Camden, issued an enforcement notice alleging that the conversions had in fact been to “serviced apartments for short term lets (Sui Generis)” rather than to residential C3 use.

An inspector dismissed appeals against the notice and in so doing found that the building should be treated as a single planning unit rather than the apartments within them being treated as a series of independent units of occupation. He agreed with the council that the use was sui generis, taking into account a number of factors which “ranged from how the individual apartments were laid out and appointed, the common areas in the Buildings, how the space was advertised, and the services that were offered to guests.”

I have looked back at the inspector’s decision letter and he records the following, by way of example:

“The layout of the buildings and apartments contain many of the features of a C3 residential flat, with full sized domestic-style kitchens and facilities. In this case, spacious apartments are also a feature of the offer in relation to the short term lets.

However, hotel-style key cards to operate the doors and lighting in all units in 254-256 and the ground floor of 258, plus door access on the upper floors of 258, are not common features of residential flats in C3 use, despite Ms Mojzis’ reference to another development where that is the case. There are no individual post boxes and no doorbells on the apartment doors or at the entrance to the buildings. And the third and fourth floors each contain two inter-connecting apartments, designed to facilitate independent or joint use, which is not a typical feature of C3 dwellinghouses and is more commonly found in hotels.

The large reception and sitting area is also consistent with short-term letting and the functional closure of the independent entrance to 254-258 and the linking of the buildings on each floor facilitate more effective management of the apartments as a single operation, even if similar arrangements may feature in some C3 apartment buildings.

The apartments have been fully furnished to a high standard with similar furnishings and effects and fully fitted kitchens (including full-sized fridge freezer, oven, hob, microwave, kettle, toaster, cooking utensils, crockery and cutlery). Each contains a TV and WiFi, hotel-style safe in a cupboard, a phone to contact reception and bed linen. I have not seen any evidence of significant quantities of personal possessions in any of the units at any time, or of any form of personalisation of the living spaces. The only exception being Ms Mojzis’ statement that in relation to five lets occupiers brought their own furniture.

The photographs show baggage trolleys in the reception area, there is a small lounge area adjacent to the reception, and a concierge desk near the entrance. Cycle stores are provided in each building, but in the photographs in evidence there were very few cycles in them, to the extent that they were largely empty at my site visit and in all the photographs provided in evidence.

The apartments have been advertised on Booking.com, Expedia, siyu.co.uk, Londonservicedapartments.co.uk, and the Sanctum website. With the evidence before me, the Sanctum website appears to have emphasised nightly stays over longer ones, with an option (previously) to stay longer. “Long stay special” offers for stays of 90, 180 or 365 nights, were described as “discounted rates on extended stays, whether you are relocating, studying or having medical treatment”. A small number of Assured Shorthold Tenancies (ASTs) were also arranged through residential lettings agents Silverdoor, Fox Gregory and Ultra Estates.

Users are referred to as guests, and the services offered include weekday maid refresh service, towels and bed linen changed twice a week (the photographs show a hotel style ‘please make up the room’ door handle sign), toiletries on arrival, tea towels, washing up liquid and sponge, 24hr reception and security, and all utility bills. Tea and coffee sachets are also seen in many of the apartments in the photographs in evidence, along with tissues in the bathrooms and hair dryers.

Ms Mojzis advised at the Inquiry that ironing facilities and towels were provided, but not always for longer stays, for which maid services were charged separately. Other chargeable services are also advertised on a daily, nightly or monthly basis including parking, weekend maid service, cots and highchairs and laundry/dry cleaning service. The Sanctum website terms and conditions specify check in and check out times, and offer early check-in and late check-out for an additional fee.

The Sanctum website associates serviced apartments with aparthotels, and describes them as being “similar to hotels but offer a more homely experience”. It states that, “serviced apartments have access to many facilities in a more spacious and comfortable setting than the average hotel room, including a fully equipped kitchen, living area, bathroom, and more”. And that hotel amenities go slightly further than those offered in serviced apartments, with additional services such as breakfast, mini-bar and room service.”

The inspector went onto consider in some detail evidence as to lengths of stay, before concluding:

“Overall, considering all the evidence, the appellant has not demonstrated that the use which has occurred is not a sui generis one. The overall character of the use is distinguishable from a Class C3 use, and the overall number of units in the entire building(s) operating together in a similar manner contribute to that character. Although there have been significant vacant periods, and the number of very short lets has been limited to no more than 90 nights per apartment per year, many more of the lettings have been for 90 nights, or only slightly longer. The housekeeping, services and facilities within the apartments, concierge/security and additional services, and the absence of evidence of personal effects also contribute to that, and bear a number of resemblances to a hotel use.

On the balance of probabilities, with the evidence before me, the use that has occurred is the sui generis use of the property for serviced apartments for short term lets.”

How to determine whether this was in fact correct?  The judge recognised the potential complexity of the issue:

“In forming a judgement about whether the Inspector’s conclusions were correct, a particular complication is that the character of uses involved in this case are, in principle, capable of a number of different classifications. A residential-type use (to employ a neutral term) could be at least use Class C3 (dwellinghouse), or C1 (hotel, boarding house or guest house), or C2 (residential institution), or C4 (house in multiple occupation), or one of at least two types of sui generis use (hostel, or serviced apartments).”


The judge distilled “from the case-law the following propositions: (a) whether a particular use departs from that of a use class C3 dwelling is a question of fact and degree (per Moore); (b) to answer that question one needs to look at the use of the property in the round (per Welwyn Hatfield); and (c) the character of the use, and (as an example) the duration of stay, is a factor in reaching a decision but is not determinative (per Gravesham and Mayflower respectively).”

The judge declined to interfere with the exercise of the inspector’s judgment in carrying out that task. As to the difficulties of complying with an enforcement notice preventing the use of the buildings as “short-term let serviced apartments”, the inspector had “clearly identified and articulated the elements of the operation here which led him to conclude that the use was as serviced apartments”. I should add that in determining whether the use was “short-term” in this case the inspector did not consider that the 90-day rule in sections 25 and 25A of the Greater London Council (General Powers) Act 1973 was relevant. The end result, given that the office to residential prior approval had been lawfully implemented, was that the only lawful use to which the buildings could return was that of an office.

The judgment does create some real questions as to where the boundary between residential C3 use and sui generis serviced apartment use lies, in a world where some “build to rent” operators do, I suspect, offer many of the services in evidence here?  I understand that the claimants have applied for permission to appeal to the Court of Appeal. Some additional clarity would be very helpful.

Even more helpful, of course, would be for the Government to review whether the categorisations within the “C”  Use Classes remain fit for purpose and, if not (they don’t, in my view), to embark on updating them!

Simon Ricketts, 17 May 2026

Personal views, et cetera

How About A Five Yearly Review Of The Use Classes Order & GPDO, Starting This Year?

Changes in the law relating to e.g. tripe shops, maggot breeding and bone grinding were my special subject as a late 80s young lawyer so please hear me out, because this is all central in my view to thinking with regard to the government’s (currently rather all shades of grey) “brownfield passports” concept (see my 28 September 2024 blog post Brownfield Passports…To What? When? How? ).

Two things I find interesting about the UK (now, for the purposes of this post, English and Welsh) town and country system:

  1. The stability of its underlying structure: Many of the provisions of the Town and Country Planning Act 1947  are there, as the kernel of the current, much amended, 1990 Acts. Compare for instance section 12 of the 1947 Act (defining “development”) with section 55 of the Town and Country Planning Act 1990 or section 13 of the 1947 Act with section 59 of the Town and Country Planning Act 1990 (“development orders”).
  1. The continual sets of amendments, large and small,  that have been made, within that framework, to reflect differing political priories and economic and social pressures. Drafting by committee? What we have now is the almost impenetrable result of many generations of that. It always helps to understand who added, amended or removed what, when and why.

The tension for law makers is always the same: how to retain what works but ensure, without unnecessary complexity, that the system remains fit for purpose.

Maybe nowhere is this more so than in relation to the concepts of use classes (changes of use within a use class not amounting to “development” requiring planning permission) and permitted development (classes of development which have the benefit of automatic, deemed, planning permission).

When I first studied planning law (at bar school in 1984-85: course run by Victor Moore, as of “A Practical Approach To Planning Law”), we were all operating under the Use Classes Order 1972 (which was largely in the same form as the first Use Classes Order in 1950) and under the General Development Order 1977 (again largely in the form of the first General Development Order in 1948). This truly makes me feel old. These were the 1972 Use Classes Order use classes, dominated by all of those special industrial groups, and with those references to tripe shops, cats-meat shops and the like.

The categories of permitted development rights in the 1977 Order will look very familiar:

The brevity of the “changes of use” category, less familiar:

Conservative governments have been responsible for two major revisions of the system.

The first was shortly after I qualified, with the introduction of the (now amended many times) Town and Country Planning (Use Classes) Order 1987 the main functions of which do not nowadays appear very controversial: (1) lumping together office, light industrial and research and development uses within a new use class B1 and (2) abolishing the use classes containing all those old special industrial groups. Alongside this was the Town and Country Planning General Development Order 1988.

That system then survived without major reform for around quarter of a century.

The second set of changes to the system has been the multiple waves of deregulatory changes made between 2013 and 2024, particularly the creation of class E for a wide range of commercial uses in 2020 (see my 24 July 2020 blog post E Is For Economy) and the various new permitted development rights enabling residential conversion and demolition/rebuild in relation to commercial (and in some instances agricultural) buildings. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) is a shape-shifting monster.

The system is in desperate need of reform:

  • what should be the core objectives behind removing the need for planning permission for certain categories of use and works, given the Government’s missions?
  • How can the system operate with simplicity but also appropriate flexibility and reflecting local circumstances where appropriate?
  • What areas of the current system need modernising to reflect current economic or social pressures, priories and ways of living and working?

Depressingly, my 1 July 2016 blog post Time To Review The C Use Classes remains more relevant than ever. It’s still time! The nettle has not been grasped.

As for permitted development rights, perhaps the big political question is whether the concept of automatic planning permission for the conversion of certain types of commercial buildings to residential use should be rejected outright, based on the experience since May 2013, or can be made to work acceptably.

In 2023-24 8,825 of England’s 198,610 new dwelling completions were by way of permitted development rights . Between 2015/16 and 2022/23, 102,830 new homes were delivered by way of permitted development rights, around 6% of new homes. This is a not insignificant contribution, by numbers at least.

To this we add the Government’s drive towards brownfield development in urban areas (that brownfield passports document I mentioned); the extent to which commercial space is surplus to market requirements, and the carbon benefits of finding new uses for existing buildings (although query how this squares with the “demolish commercial and rebuild as residential” permitted development right).

Of course a big problem is that much of the resulting accommodation has not been of a decent standard (see e.g. Research into the quality standard of homes delivered through change of use permitted development rights by Dr Ben Clifford, Dr Patricia Canelas, Dr Jessica Ferm and Dr Nicola Livingstone Bartlett School of Planning, UCL and Professor Alex Lord and Dr Richard Dunning, Department of Geography and Planning, University of Liverpool, July 2020, published by MHCLG in 2020, strangely alongside yet further deregulatory measures). The Town and Country Planning Association is lobbying for a “Healthy Homes Bill”, describing permitted development rights as creating “slums for the future”.

Is there a middle ground? Do permitted development rights have a role in delivering homes, in the quantity needed but also to the necessary quality – decent, healthy?

The previous government consulted on further changes to permitted development rights in February 2024 . The outcome of that process was never published. We await Labour’s next steps.

What went wrong with commercial to residential permitted development rights?

For a start the measure seemed to be seen by ministers as a short-term tactical intervention rather than based on any longer-term strategy or analysis. In May 2013 the right was first introduced (initially just for three years) to allow changes from office use to residential use, the twin objectives being to boost housing and to help regeneration by way of putting vacant or under-utilised office space to productive use. The “prior approval” requirements were minimal, with no minimum space standards, no minimum standards for daylight and no protection in relation to noise, for instance. As is still the case, local planning authorities could not impose requirements as to affordable housing or require contributions towards for instance education or health facilities. Authorities could make “article 4” directions limiting the areas within which the permitted development right would apply but at risk of these being cancelled or amended by the government (as has frequently happened).

The right was extended to shops and to financial and professional services uses in April 2014 and made permanent in Autumn 2015. Adequacy of daylight was introduced as a prior approval requirement in August 2020 and minimum space standards in April 2021. Initially buildings of any size could be converted to residential. A 1,500 sq m cap was introduced in September 2020 (at the same time that there was the separate but related de-regulation measure of gathering together most commercial uses within a single use class, the new class E) and then that cap was removed in March 2024. Similarly, a requirement was also introduced that the building should have been vacant for at least three months before the application was made, only for that also to be removed. Are you keeping up? (Incidentally, I am grateful to my colleague Gregor Donaldson for reminding me of some of these twists and turns).

One might conclude from this chopping and changing that from the outset the process has lacked a proper strategic foundation, core objectives and a commitment to ensure that resulting development is not of poorer quality, or having a free ride at the expense of development achieved by way of the traditional planning application route.  Care is needed with criticism of outcomes: to what extent did these result from the initial wave of conversions, before additional prior approval safeguards had been introduced? Also remember that these developments do have to comply with the Building Regulations and with housing legislation. Not every failing is down to the GPDO.

Before we give up on removing unnecessary matters from the planning application process and on this streamlined route for delivering new accommodation on urban brownfield land, surely there is an urgent need to examine whether the system can indeed ensure, by way of objective criteria, that:

–              (possibly by way of an article 4 direction process following better national guidance and the opportunity for public consultation) development locations are sustainable for their residents, with access to public transport, schools, health and community facilities;

–              schemes should pay their way in terms of affordable housing and other section 106 agreement requirements in the same way as schemes delivered by way of planning application.

But more widely, surely we need to embed a rhythm within government of reviewing the operation of the Use Classes Order and General Permitted Development Order regularly, in an orderly rather than ad hoc way, so as to ensure that we have both a reasonable level of stability but also a proper regular process for reflecting emerging economic, social and indeed technological trends?

Happy new year!

Simon Ricketts, 5 January 2025

Personal views, et cetera

Brownfield Passports…To What? When? How?

At 9.30 am last Sunday out popped an MHCLG policy paper Brownfield Passport: Making the Most of Urban Land  and an accompanying press statement New ‘brownfield passports’ to seize the growth opportunities of urban areas (22 September 2024).

The timing was interesting:

  • Obviously, synchronised with the Labour party conference in Liverpool last weekend – Sir Keir Starmer’s speech there promised: “‘we are introducing new planning passports that will turbo-charge housebuilding in our inner cities.” In more general terms Rachel Reeves there: “What you will see in your town, your city, is a sight that we have not seen often enough in our country – shovels in the ground, cranes in the sky, the sounds and the sights of the future arriving. We will make that a reality.”
  • Coincidentally, synchronised with a presentation starting, also starting at 9.30 am last Sunday, by the first of that day’s Oxford Joint Planning Law Conference speakers, Ant Breach of Centre for Cities: “BOLDER: A Zoning System for England”. In some ways, the idea of passporting particular types of development is nothing if not zoning.

“We have been clear that development must look to brownfield first, prioritising the development of previously used land wherever possible. To support this, we will make the targeted changes set out below, including making clear that the default answer to brownfield development should be “yes”, as the first step on the way to delivering brownfield passports.”

If the work had been done in time, it would obviously have made more sense for the proposals in the latest working paper to have been part of the July 2024 consultation, both so that those responding had a better understanding of the intended policy end-point and so that the changes could be introduced at the same time that the revised NPPF itself is published (still, we hope, before the end of this year – maybe keep 20 or 23 December free of meetings folks…).

We are where we are. What do we learn from this latest policy paper? I hesitate to be hyper-critical as we all know that a new government is moving at pace, that these issues are difficult and that the objective is to be applauded (in my view at least) but…

It is a bit of a “throw ideas at the wall and see what sticks” piece of work isn’t it? “Brownfield passport” is nice branding, up there with “grey belt”, but what rights would this “passport” actually bring?

Its purpose is to be “more specific about the development that should be regarded as acceptable, with the default answer to suitable proposals being a straightforward “yes”.”

This needs to be viewed against the changes to the NPPF that are already proposed that would reinforce the presumption in favour of granting planning permission for development proposals on brownfield land. Paragraph 122 of the draft revised NPPF states that planning policies and decisions should, amongst other things: “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be regarded as acceptable in principle, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land” (the underlined text is what is proposed to be inserted into what is already within the current NPPF at paragraph 123 (c)).

So how is the “brownfield passport” concept intended to move the dial still further in favour of brownfield development?

Well first of all, it’s not the equivalent of planning permission: “while we are not considering the granting of automatic planning permission on suitable brownfield sites or removing appropriate local oversight of the development control process, we do want to explore ways in which providing more explicit expectations for development could lower the risk, cost, and uncertainty associated with securing planning permissions on brownfield land.”

Instead:

“In order to maximise clarity and certainty about the opportunities to make best use of urban land, we think there is scope to make further policy changes, at both a national and local level, relating to the principle, scale, and form of development in different types of location.

We see these potential changes as a form of ‘brownfield passport’: setting clear parameters which, if met, serve as accepted markers of suitability, with approval becoming the default and a swifter outcome.”

Hmm.

MHLG floats a number of options:

  • First, tightening the NPPF further, by “being explicit that development on brownfield land within urban settlements is acceptable unless specified exclusions apply. Those exclusions could, for example, include that there is no adverse impact in relation to flood risk and access that cannot be mitigated.”
  • Secondly, by using the proposed National Development Management Policies system “to set minimum expectations for certain types of location where a particular scale of development may be appropriate.

Policy could, for example, say that development should be of at least four storeys fronting principal streets in settlements which have a high level of accessibility, and/or set acceptable density ranges that allow for suitable forms of intensification. A similar approach has been used successfully in some other countries where efforts have been made to densify urban areas through ‘upzoning’. While it would still require approval from the local planning authority, it would establish a very strong starting position which would carry significant weight in making decisions and create an expectation that compliant schemes are approved.

The policy parameters, such as height and what conferred a high degree of accessibility, would need to be set carefully, both to make the most of suitable opportunities and to avoid inappropriate development.”

It would surely be difficult to do this on a blanket, national, basis. MHCLG recognises this, so a less exciting variant is that “policy could be amended to encourage such parameters to be set through local development plans, which could also be articulated through design codes for appropriate locations – whether across whole urban areas or at a more local scale.”

  • Thirdly, “the potential to use design guides and codes that draw on the existing character of places, to identify these opportunities and provide clarity on the types of development that are regarded as acceptable in particular locations.”
  • Fourthly, for local planning authorities to make local development orders “in order to provide upfront consent to developments that meet the specified criteria…Combining them with criteria on the scale and/or form of development as suggested above would allow a local planning authority to effectively establish one or more zones in which particular types of development had planning permission without the need for individual applications.”
  • Fifthly, whether any of these proposals “could be supported by linking them to the national scheme of delegation, which [the government has] committed to provide for through the Planning and Infrastructure Bill.” Now there’s an idea!

The paper ends with this paragraph:

“As part of wider action to support the development of small sites, we will also consider whether any of these proposals could apply to non-brownfield land in urban areas, with suitable safeguards to retain land which should be kept open or has important environmental benefits.”

So, having established that we are not really talking about “passports” – rather, various ways in which the planning system might further assist in the promotion for development of particular categories of schemes,  and we aren’t really just talking about “brownfield” either.

There will in due course be a call for evidence.

“Brownfield land“ in planning-speak is “previously developed land”, or PDL. I’m beginning to wonder whether there should be another specific terms that we might all find helpful: Previously Developed Policy Interventions, or PDPI. Nicola Gooch wrote a great blog post last Sunday, Brownfield Passports: building on old foundations? reflecting some of the PDPIs which have sought in recent years to encourage brownfield development and the promote the ‘gentle densification’ of urban areas, e.g.:

  • Street votes
  • Permissions in principle
  • Zoning (as per the 2020 white paper)

To this I would add the various waves of changes to the General Permitted Development Order including Part 20 of Schedule 2  – construction of new dwellinghouses. Or indeed, what about this for déjà vu, the previous government’s 13 February 2024 consultation paper Strengthening planning policy for brownfield development (13 February 2024)?

Someone quipped to me this week that a brownfield passport is all well and good but that the big question will be how easy it will be to get the visa that allows us actually to get anywhere. Mind you that wording on the inside cover of your passport does always sound good:

“His Britannic Majesty’s Secretary of State Requests and requires in the Name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.”

Let’s not lose sight of that as the objective!

Simon Ricketts, 28 September 2024

Personal views, et cetera

Back To Big: Amended Class MA

My 13 February 2024 blog post The RUBR Hits The Road: Residential Urban Brownfield Regeneration covered the various announcements by the Secretary of State that day. But, of course, that afternoon also saw the loosening of significant restrictions on existing permitted development rights to convert commercial buildings into residential use.

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2024 comes into force on 5 March 2024.

It makes two major changes to the class MA right (class E commercial, business and service uses to class C3 residential use) that came into force on 21 April 2021. First, the 1,500 sq m floorspace upper limit for building changing use under the right is removed. Secondly, the removal of the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval.

This has been a topsy turvy ride.

First of all, of course, from 2013 class O allowed conversion of offices to residential with relatively limited matters in respect of which the local planning authority could require prior approval and with no limitation on the size of building that could be converted (initially a temporary mechanism that was made permanent in 2015). In 2017 new permitted development rights were introduced to enable conversion of light industrial buildings as well as those falling within the old use A1 and A2 use classes (500 sq m and 150 sq m respectively).

Once the new commercial use class E was introduced by way of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (in force from 1 September 2020), the Government consulted on various proposed new permitted development rights, including the right “for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

So at that point the Government was considering not imposing any floorspace limitation. However the Government listened to the outcome of that consultation process. From its consultation response (31 March 2021):

“Question 1: Do you agree that there should be no size limit on the buildings that could benefit from the new permitted development right to change use from Commercial, Business and Service (Class E) to residential (C3)?

10 There were 711 responses to the question, with strong opposition to the proposal. Less than a third were supportive of there being no size limit to the right.

11. Views were expressed as to the impact the measure might have on the viability of the high street. For instance, if it encouraged large numbers of residents to move into the area, this would place additional demands on local services, schools, traffic and parking. It was also suggested that this right could support a trend towards ‘out of town’ shopping while town centres became more residential. Views were expressed about the economic impact that the loss of larger commercial units could have on an area. It was also suggested that the lack of size limit could have far reaching and unintended consequences for local areas and could change the character of those areas. There were some suggestions that there should be a size limit, including that it applies only to ‘smaller shops’.

12. Other respondents felt that the right allowed for the more effective use of buildings, addressing the decline in retail, and changing ways of working, and that a size limit would inhibit such development. There was a view that the change of use of vacant buildings should be supported. Some stated that the policy would result in the loss of neighbourhood parades of shops and local facilities, with a threat to “20 Minute Neighbourhoods” – that is, places where residents have easy, convenient access to many of the places and services they use daily. Views were also expressed as to the potential loss of health services, nurseries and day centres and what impact this might have.”

“47. Reflecting responses to Question 1 that the right should only apply to smaller buildings, the right will provide for up to 1,500 sq m of floorspace to change use. To go further, reflecting comments on the potential impact on business, the building must have been vacant for at least three continuous months. This will help focus the right on smaller buildings that may more easily change use, and which are already vacant, thereby protecting existing businesses. Larger buildings may continue to be brought forward for redevelopment under a planning application, and in such cases may attract affordable housing.”

Accordingly, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 which came into force on 21 April 2021 imposed a cap of 1,500 sq m on the floorspace that could be converted within a building as well as the requirement that the floorspace should have been vacant for at least three months leading up to the date of the prior approval application.

There was then a further consultation last year on “additional flexibilities to support housing delivery, the agricultural sector, businesses, high streets and open prisons; and a call for evidence on nature-based solutions, farm efficiency projects and diversification” (24 July 2023):

“21. The permitted development right currently allows up to 1,500 square metres of Commercial, Business and Service use to change use to residential; this could allow, for example, the delivery of up to 20 two bed homes. To provide greater flexibility for owners and support housing delivery, it is proposed that the right is amended to allow more floorspace to change to residential use. Increasing the cumulative floorspace that may change use in an existing building could have significant benefits for housing delivery, particularly for larger sites. We are seeking views on whether the size cap should be doubled to 3,000 square metres or removed to provide no limitation on the amount of floorspace that can change use.”

“22. The existing permitted development right requires that the premises be vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval. This was introduced to safeguard against businesses being displaced. However, we believe the requirement may be ineffective and could result in property being left vacant for longer periods. In order to provide greater flexibility for owners, enable more premises to change use, and therefore to deliver additional homes, it is proposed that this vacancy requirement is removed.”

The latest changes are the outcome of that consultation although we don’t have any analysis yet of the consultation responses and what may have changed so decisively between the 2021 and 2023 consultation processes. Last week’s statutory instrument was accompanied by an explanatory memorandum  and there is no more detail as to the background to the latest changes than this:

“7.1 Permitted development rights have an important role to play in the planning system. They are an important tool to support growth by providing certainty and removing the time and money needed to submit a planning application. Permitted development rights can incentivise certain forms of development and provide flexibilities and planning freedoms to different users, including businesses, local authorities and local communities.

7.2 There are a number of permitted development rights that allow for the change of use from a variety of existing uses to dwellinghouses. These rights make an important contribution to housing delivery. In the eight years to March 2023, permitted development rights for the change of use have delivered 102,830 new homes to rent or to buy. In the last year 9,492 homes were delivered under these rights, representing 4% of overall housing supply.”

“10.2 There were just under 1,000 consultation responses received. The Government response to the consultation will be published in due course. A summary of responses to the relevant Class MA questions is provided below.

10.3 The consultation sought views on either removing or doubling the limit on the cumulative floor space of an existing building that can change use. Those that supported removing or doubling the floor space limit cited positive impacts on housing supply, with greater flexibility and planning certainty encouraging the delivery of dwellinghouses that might not otherwise have come forward under a planning application. Those that did not support amending the floorspace limit thought that larger schemes would benefit from local authority consideration under a planning application owing to the greater number of planning matters that can inform the decision making process. It was also noted that the permitted development right could impact on the quality of housing delivered.

10.4 The consultation sought views on removing the requirement that a building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval. Those that supported the removal of the vacancy requirement considered that it would streamline the permitted development right for the change of use of commercial, business and service uses to dwellinghouses, speeding up housing delivery, and avoiding unnecessary periods of vacancy. Those that did not support the proposal were concerned that removing the vacancy requirement would result in viable businesses closing or being displaced.”

So, in summary, as from 5 March 2024 any building which has been in lawful class E use for at least 2 years prior to the submission of the prior approval application, may be converted to residential use, as long as various protective designations do not apply, and as long as (if required by the local planning authority) prior approval has been obtained as to:

“(a) transport impacts of the development, particularly to ensure safe site access;

(b) contamination risks in relation to the building;

(c) flooding risks in relation to the building;

(d) impacts of noise from commercial premises on the intended occupiers of the development;

(e) where—

(i) the building is located in a conservation area, and

(ii) the development involves a change of use of the whole or part of the ground floor, the impact of that change of use on the character or sustainability of the conservation area;

(f) the provision of adequate natural light in all habitable rooms of the dwellinghouses;

(g) the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses; and

(h) where the development involves the loss of services provided by—

(i) a registered nursery, or

(ii) a health centre maintained under section 2 or 3 of the National Health Service Act 2006

the impact on the local provision of the type of services lost.”

The Government’s nationally described space standards must also be met.

By way of reminder, these class MA conversions are not of course subject to requirements as to affordable housing and contributions to schools, health provision and so on.

Desperate measures! No doubt some authorities will contemplate a protective rear-guard action by way of introducing further article 4 directions, although DLUHC has been vigilant in modifying those orders which it considers are wider than is appropriate.

Simon Ricketts, 17 February 2024

Personal views, et cetera

extract from photograph by Sergei Wing via Unsplash

The Message

Double-digit inflation. Can’t take the train to the job, there’s a strike at the station.

Don’t push me cause I’m close to the edge.

I’m trying not to lose my head.

It’s like a jungle sometimes.

The House of Commons rose on Thursday 20 July 2023, and only then did we have a spate of DLUHC announcements from the following Monday onwards.

This blog post simply aims to keep track of it all. For the actual analysis, you will need to tune into two Clubhouse sessions (Clubhouse! It’s a bit like when people talk about “old-school hip hop” – nod appreciatively, high five, lockdown vibes, those were the days were they not?):

– 5 pm, 2 August – Gove’s “long-term plan” – RSVP here

– 5 pm, 3 August – plans, GPDO, fees – RSVP here

I’ll be joined by my rock steady crew: Sam Stafford (HBF), the eponymous Catriona Riddell, Landmark’s summer signing Hashi Mohamed, Annie Gingell (Tetlow King), Claire Petricca-Riding and Nicola Gooch (Irwin Mitchell), my Town Legal partner Victoria McKeegan and also perhaps by you?

We’ll discuss:

Michael Gove’s “long-term plan for housing” speech and press statement (24 July 2023), preceded by the same day by Rishi Sunak’s “PM to build 1 million new homes over this Parliament” announcement

A consultation paper on (more) changes to permitted development rights (24 July 2023)

A consultation paper on the implementation of plan-making reforms proposed in the Levelling-up and Regeneration Bill (25 July 2023)

The Government’s response to its consultation on increasing planning fees and performance (25 July 2023), following on from the draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2023 (laid before Parliament on 20 July 2023)

(All the above are summarised in a Town Legal update, which also features an analysis of the Secretary of State’s recent M&S Oxford Street decision).

A consultation paper on operational reforms to the NSIP consenting process (26 July 2023)

Updates to the following sections of Planning Practice Guidance (both 26 July 2023):

It makes me wonder how I keep from going under.

Simon Ricketts, 28 July 2023

Personal views, et cetera

Short Term Thinking

DLUHC published a consultation paper on 13 April 2023 setting out its proposal to create a new use class,  “C5 Short Term Let“,  to cover short term lets, and on related proposals to introduce new permitted development rights. So there will be a distinction between use classes C3  and C5. The Government will at the same time introduce permitted development rights into the General Permitted Development Order to allow changes from C3 to C5 and vice versa without the need for planning permission, unless the relevant local planning authority disapplies one or both of the permitted development rights by way of an article 4 direction.

It is vital that all those engaged in relevant businesses understand what is proposed, for instance serviced apartment operators; Airbnb type businesses and individual hosts, and build to rent businesses where there is a short-term letting element. There are opportunities, but also risks.

The tl:dr appears to be that in principle any flat or house in England (outside London) would be able to be used for Airbnb style short-term accommodation up to 365 days a year without the need for planning permission unless the local planning authority makes, with the necessary justification, an article 4 direction.

But it is all a bit confusing! At least, a number of us at Town Legal have been scratching our heads. Thanks incidentally to my colleague Aline Hyde for much work on this today – and for some of the text which follows.

 I think some of the confusion is down to the way that the proposal is trying to be all things to all people. The press statement is headed:

“New holiday let rules to protect local people and support tourism

New proposals will introduce a requirement for planning permissions for short term lets in tourist hot spots”

It explains:

“The government has listened to calls from local people in tourist hotspots that they are priced out of homes to rent or to buy and need housing that is more affordable so they can continue to work and live in the place they call home. The proposed planning changes would support sustainable communities, supporting local people and businesses and local services.

The proposed planning changes would see a planning use class created for short term lets not used as a sole or main home, alongside new permitted development rights, which will mean planning permission is not needed in areas where local authorities choose not to use these planning controls.

Both of these measures are focussed on short term lets, and therefore the planning changes and the register will not impact on hotels, hostels or B&Bs.”

On the face of it then, the Government is both seeking to regulate use of residential properties as short-term, Airbnb type accommodation but also to liberalise the use of residential properties for that purpose. Hmm.

First word of warning: this is not just about “tourist hot spots”. Subject to the ability for local authorities to make article 4 directions (more below), the proposals cover the whole of England.

Second word of warning: can we first be clear as to what exactly is a “short term let”? The consultation paper states:

“The term “short term let” can encompass a range of activity associated with a dwelling. Some short term lets may be let out for a limited period while the owner themselves go on holiday. Others may be properties that provide for a series of lets for holidays etc or very short term overnight sleeping accommodation including renting an individual bedroom while the owners are in situ.“

So DLUHC envisages the term as covering situations:

  • where a property is let for a limited period whilst the owner is away
  • where the owner remains in situ and rents out an individual bedroom on a short-term basis (NB not longer term lodgers are excluded) or
  • where a property provides for a series of lets to holidaymakers.

However, its proposed wording for the new “short term let” C5 is as follows:

“Use of a dwellinghouse that is not a sole or main residence for temporary sleeping accommodation for the purpose of holiday, leisure, recreation, business or other travel.”

Nothing about short-term lets beyond the title itself. Nothing about the letting out of individual bedrooms on a short-term basis whilst the owner remains in residence , which appears to be unrestricted by the proposals. And why list those purposes except perhaps so that the list excludes reference to asylum…?

The anachronistic word “dwellinghouse” beloved of planning lawyers can confuse as well. It just means “dwelling” and so includes flats as well as houses.

How will it be determined whether a property falls within use class C5? The consultation document explains that at the time of commencement of the proposed secondary legislation, properties used for this purpose will automatically fall within use class C5 and that there will therefore be no need to apply for planning permission, though of course an application for a lawful development certificate may be advisable if there is any uncertainty. Thereafter, where there is no article 4 direction disapplying the permitted development right to switch between C3 and C5, the Government intends to require that the local planning authority is notified by the developer when a change of use occurs, but it does not propose that there be a requirement to seek prior approval. There will be no site size limits and no constraint-based exclusions.

DLUHC suggests that, where there is a local problem with the number of short term lets, one or both of these permitted development rights could be removed by way of an Article 4 direction. It is clearly anticipated that most areas will wish to retain the right allowing for change of use from short term let to dwellinghouse, even if they remove the opposing right. The consultation confirms that the policy tests for making an Article 4 direction, to be found within paragraph 53 of the NPPF, will not be amended and so an authority hoping to make one will need to be based on robust evidence and apply to the smallest geographical area possible.

Properties which fall within use class C5 will benefit from the permitted development rights which currently apply to the curtilage of a dwellinghouse such as rear and upward extensions, alterations to the roof, porches and outbuildings.  

Another proposal the subject of consultation is for a limit on the number of nights for which a property within use class C3 and is a sole or main dwellinghouse may be let without there being a material change of use. DLUHC tells us it is open to suggestions as to how many nights this should be, but it will apparently only consider numbers divisible by 30 – listing 30, 60 and 90 as potential options. Two legal mechanisms for achieving this are proposed: the first is to create a new permitted development right allowing for the use of the C3 dwellinghouse for temporary sleeping accommodation for a fixed number of nights per year, the benefit of this being that the right could be removed by Article 4 direction. The second and alternative means is by incorporating the limitation on the number of nights into the wording of use class C3 itself.

DLUHC appears to be trying to be helpful by proposing a specific number of nights for which a property may be let, within which it says a material change of use will not have occurred. There is an obvious attraction to giving homeowners certainty that they may do this without planning consequence. Trying to achieve it in this way, however, reveals what must be a basic misunderstanding as to the law relating to material change of use. Supposing that the Government eventually settles on a limit of 30 days: it is not necessarily the case that the use of a dwellinghouse for short term let for, say 31 or 35 (or any other number of) days, will result in a material change of use. A change of use is only development if it is material, and materiality is assessed with reference to a range of factors which are often site- or proposal-specific. To make the use of a dwellinghouse as a short term let for 31 or 35 days a material change of use, would need specific legislative provision, absent which subjective judgments will remain determinative.  

This has already been done in respect of properties in London, which can already be let for up to 90 days per year. Beyond 90 days, an application for permission to make a material change of use is required and the consultation confirms that this provision will be unaffected by the changes proposed within this consultation. One infers that DLUHC haven’t simply mirrored this approach across the country so that individual local planning authorities may elect to remove the permitted development right to let a main residence for the limited number of nights if they consider it necessary to do so.

Of course, the ability to use a dwellinghouse as a short term let is subject to the planning conditions and obligations which affect the site, and might be separately restricted, for example by way of covenants in a lease. Whether the changes proposed in the consultation affect the operation of existing planning conditions or obligations may depend on their specific wording.

So, stepping back for a moment, how is all this really going to work? So much is going to come down to the extent to which local planning authorities introduce article 4 directions removing the proposed permitted development right to go from C3 to C5 and indeed the Government intervenes (as it has in the past ) to restrict the scope of directions which it considers to be too wide or unjustified.

If there is no article 4 direction in an area, C3 properties will be able to be used for C5 short term let use without the need for planning permission – liberalising the current position where more than ancillary short-term accommodation use (more than 90 days of that use in London – a restriction which would remain) would amount to a material change of use. In such areas, use of properties in Airbnb type use could be maximised.

The onus is going to be on local planning authorities to do the work and justify appropriate article 4 directions.

There is a separate but related consultation currently underway on a registration scheme for short term lets, led by the Department for Culture, Media and Sport. Having conducted a recent call for evidence, it considers that a registration scheme is necessary to enable local authorities to effectively police the limit on the number of nights.

I wrote a blog post Time To Review The “C” Use Classes? back on 1 July 2016. It is obvious that a more comprehensive review is needed than what is currently proposed.

Simon Ricketts, 14 April 2023

Personal views, et cetera

Sinclair C5, courtesy wikipedia

The “We’ve Extended The Conservation Area” Gambit

Once a building is included within a conservation area, the permitted development right to demolish it, by virtue of Schedule 2, Part 11, Class B of the General Permitted Development Order, no longer applies.

What a coincidence it would be if, after redevelopment of a building was proposed (in the face of local opposition), a local authority were to extend an existing conservation area so as to include the building, so as to prevent its demolition without the need for planning permission….

Which brings us to the interesting case this week of Future High Street Living (Staines) Limited v Spelthorne Borough Council (Lane J, 28 March 2023).

The claimant owns the former Debenhams store in Staines. Its application for planning permission for demolition and redevelopment was submitted on 10 November 2021 and elicited 268 objection letters, including objections on the basis that this would represent the “loss of an iconic building” and that there would be “heritage impacts on nearby conservation areas and listed building”. The application was subsequently refused on 6 June 2022, the reasons for refusal including “harm to the significance of designated heritage assets (including the [adjoining Staines Conservation Area]) and non-designated heritage assets” and “overdevelopment causing harm to the character and appearance of the area”.

Prior to the refusal, presumably to narrow the points in contention in relation to the planning application, on 25 February 2022 the claimant made an application to determine whether prior approval was required for the demolition of the building under the GPDO. On 24 March 2022 the council confirmed that prior approval was required (not in itself a big issue in that the prior approval process cannot engage with the principle of demolition as opposed to how it is carried out). But it then extended the Staines Conservation Area to include the building, before refusing prior approval on the basis that the building was now in a conservation area and therefore the GPDO permitted development right to demolish was no longer available.

Before deciding to extend the conservation area, the council had carried out a consultation process and it was reported internally within the council that there were no material objections to the proposal. Somehow, the council had overlooked detailed representations submitted by a heritage specialist (Pegasus’ excellent Gail Stoten) on behalf of the claimant.

When the claimant issued a pre-action protocol letter threatening to judicially review the decision to extend the conservation area, the council then prepared a supplementary report that purported to consider the overlooked set of representations, before concluding that the points made did not change the council’s decision.

The claimant relied on four grounds in its subsequent claim for judicial review:

Ground 1 – The council acted unlawfully in making the decision to extend the conservation area in that its true purpose was to prevent its demolition and redevelopment – an improper purpose and therefore contrary to law.

Ground 2 – The council failed to take into account the claimant’s representations.

Ground 3 – The officers’ reports were seriously misleading in not referring to the fact that Historic England had declined to list the building “on the basis that the Building did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest”.

Ground 4 – The purported reconsideration of the decision by way of the supplementary report was unlawful.

The claimant was represented at the hearing by Paul Tucker KC leading Jonathan Easton (now KC but not earlier in the week when judgment was handed down!).

On the first ground the judge stated:

“Since the purpose of designating or extending conservation areas is to preserve or enhance areas of “special architectural or historic interest”, the designation or extension of a conservation area which is motivated principally by a desire to protect a specific building and prevent its demolition will be unlawful.”

The judge considered that on the basis of the case law the question was whether the desire to protect the building from demolition was one impetus for the designation (which would be lawful) or the only impetus (unlawful). This is obviously a high bar for a claimant to clear. On the facts he concluded that it was the former and so ground 1 failed.

However the claim succeeded on the other grounds.

In relation to grounds 2 and 4:

“(i) the defendant failed to take account of the claimant’s representations in response to the consultation at the proper time; (ii) it did not do so in a legally adequate manner in the SR (if that was what the defendant purported to do in the SR); and (iii) having regard to (ii), it cannot be said that it is inevitable or even highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.”

In relation to ground 3:

“…there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building. This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.” It was also obviously material that “in both 2004 and 2016, the Building had not been regarded as sufficiently important to merit even local listing.” Nor could members have been expected to know about these matters. “It has not been shown that their local knowledge extends to being aware of negative decisions on potential listing on the part of Historic England. Likewise, Members may not have been aware (or may have forgotten about), the previous local list review exercises.”

Given a local planning authority’s breadth of discretion in deciding whether to designate or extend conservation areas, this was quite a win for the claimant, basically down to the council’s administrative own goals (full credit to PT KC and JE KC of course…).

Let’s not forget the wider issues swirling around on the question of demolition of buildings, in the context of embodied carbon (we still await the Secretary of State’s M&S Oxford Street decision). See for example this campaigning piece Could a Grade III listing for buildings halt the UK’s tide of demolition? (22 November 2022) by Will Arnold, head of climate action at The Institution of Structural Engineers or this contrary view Why grade III listings should be avoided at all costs (Edward Clarke in The Times, 12 March 2023 (behind a paywall). But it surely brings the heritage system into disrepute when conservation designations are relied upon as a convenient means of controlling demolition for other purposes, whether those may be a reaction to the spectre of redevelopment or arising from laudable concerns about climate change.

Discuss…

Simon Ricketts, 1 April 2023

Personal views, et cetera

Debenhams, Staines

Credit: Ruth Sharville, Wikimedia Commons (Creative Commons Attribution-ShareAlike 2.0 Generic licence)

AA PA CAB

There was a customarily short and clear judgment from Holgate J this week as to how decision makers should approach applications for prior approval for the upward extension of buildings under the General Permitted Development Order: CAB Housing Limited v Secretary of State (3 February 2022)

So I’m saying nothing, you will be pleased to hear, about the 2 February 2022 Levelling Up white paper There are plenty of summaries available – and you do need a summary! Or listen to the Planning Law Unplanned clubhouse event we held, featuring Catriona Riddell (linkedin piece here), Iain Thomson (linkedin piece here) and Victoria Hutton (linkedin piece here).

Nor anything about mythical Bob, the Government’s 31 January 2022 Benefits of Brexit paper, which seemed to have little new to say in terms of the subject matter of this blog.

Nor anything about the energy price cap – although that does give additional topicality to our our next Planning Law Unplanned clubhouse event plugged at the end of this post.

Nor anything about the continuing NIMBY vs YIMBY noise that I got drawn into on twitter this week – although there is at least some link between Holgate J’s judgment & all that: someone came out with the usual trope that a planning system with a large discretionary element to decision making is “good for the lawyers”. I didn’t respond, but thought to myself that a less discretionary system, whether based on zoning or permitted development rights, is of course even better for the lawyers – because it all becomes about where the legal boundary lines are.

When Parliament amended the General Permitted Development Order to allow upwards extensions, subject to defined criteria and limitations together with the need to seek prior approval for certain aspects of the proposals, the description of the matters in relation to which prior approval is required was far too vague. What do matters such as “impact on amenity” and “external appearance” actually mean? Do you take as a given the right to extend up to two storeys upwards and in that context consider external appearance, akin to considering reserved matters with the equivalent of outline planning permission already having been granted for the two storeys, or can issues of principle as to the acceptability of that upwards extension be considered, as long as they relate to amenity or external appearance,? Obviously this is a particularly critical question where the local planning authority may be resistant in principle to upwards extensions – these new rights trumpeted by the Government become rather less meaningful.

The Cab Housing case related to three appeal decisions where the relevant inspector had dismissed appeals in relation to proposals under Class AA of Part 1 of the GPDO (upwards extensions to detatched houses).

Over to Holgate J to explain:

“These challenges raise important issues regarding the true interpretation of Class AA of Part 1. First, are the claimants correct in saying that a planning authority’s control of impact on amenity limited to effects on properties contiguous with, or abutting, the subject property and are those effects limited to overlooking, privacy and loss of light? Alternatively, does that control embrace impact upon all aspects of the amenity of neighbouring premises, as the Secretary of State contends? Second, is the authority’s control of the external appearance of the subject dwelling limited to the “design and architectural features” of its principal elevation and any side elevation fronting a highway, and is it further limited to the effects of those matters upon the subject dwelling itself? The claimants contend for that interpretation and they say that the authority is not allowed to consider the effects of external appearance upon any property outside the subject dwelling. Alternatively, is the correct interpretation, as the Secretary of State contends, that the control covers (1) all aspects of the external appearance of the proposed development, and not simply the two elevations specifically referred to in AA.2(3)(a)(ii)) and (2) impact upon other premises, and not simply the subject dwelling itself?

In the decisions challenged in these proceedings, the Inspectors took the broader approach in relation to external appearance and, in two cases, to amenity. It is common ground that if the claimants’ construction of the GPDO 2015 is correct, then each of the decisions must be quashed as ultra vires. The decisions would have been taken outside the ambit of the powers exercisable by the Inspector. But, if the defendant’s interpretation is correct, then it is also common ground that each of the three Inspectors reached decisions which fell within their powers, their decisions are not otherwise open to legal challenge and the applications for statutory review must be dismissed.

The claimants point out that other Inspectors have taken a different view upon the scope of the controls exercisable in the determination of an application for prior approval under Class AA of Part 1. It has been said that the decision-maker is not allowed to assess the impact of the external appearance of a proposed addition of 1 or 2 storeys on any area outside the subject building, for example, the streetscape. It has also been said that the principle of an upwards extension of up to 2 storeys is “established” by the permitted development right itself, so that the decision on the application for prior approval should not frustrate, or resile from, that principle. Such statements have even been made in relation to other permitted development rights where the GPDO 2015 requires “external appearance” to be controlled, without going on to refer to specific elevations (see e.g. the decision letter dated 6 July 2021 on Kings Gate, 111, The Drive, Hove). If the Secretary of State’s interpretation of the GPDO 2015 is correct, then all these decisions were potentially liable to be quashed on an application under s.288 brought within time. Plainly there are differences of interpretation which need to be resolved. There is also the question: to what extent is it correct to say that the principle of development is established where a permitted development right is subject to prior approval?

The issues in this case also affect the proper construction and ambit of permitted development rights granted by GPDO 2015 under Classes ZA, A, AA, AB, AC and AD of Part 20. These provide for up to two storeys of multiple units of residential units to be erected on top of an existing purpose-built block of flats, or on top of detached or terraced buildings in commercial or mixed use or residential use.

The claimants’ narrower approach to the legal scope of prior approval in these Classes also has implications for non-residential permitted development rights. For example, the right to erect or extend an agricultural building under Class A of Part 6 of Schedule 2 to the GDPO 2015 is potentially subject to control by prior approval in respect of the “external appearance” of the building proposed. If, as some decision-makers have said, that control is limited to assessing the effects of that appearance on the building itself, then it would follow, for example, that the effects of that external appearance on the setting of a listed building nearby could not be controlled. Can this really be right?”

His conclusion was that this was not right:

“(i) Where an application is made for prior approval under Class AA of Part 1 of Schedule 2 to the GPDO 2015, the scale of the development proposed can be controlled within the ambit of paragraph AA.2(3)(a);


(ii) In paragraph AA.2(3)(a)(i) of Part 1, “impact on amenity” is not limited to overlooking, privacy or loss of light. It means what it says;


(iii) The phrase “adjoining premises” in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property;


(iv) In paragraph AA.2(3)(a)(ii) of Part 1, the “external appearance” of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations;


(v) Instead, the prior approval controls for Class AA of Part 1 include the “external appearance” of the dwelling house;


(vi) The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality.”

The judge seeks to downplay the significance of these conclusions:

“The decision of each Inspector was entirely lawful. That is as far as the Court’s function permits this judgment to go. Individual decision-makers will make their own planning judgments applying the prior approval controls, correctly interpreted, to the materials before them. This judgment does not mean that individual decision-makers would be bound to determine the appeals on the three properties the subject of these proceedings in the way that in fact occurred. That is always a matter of judgment for the person or authority taking the decision. I would also add that there is no evidence before the Court to show that the correct interpretation of Class AA of Part 1, along with the related Classes in Part 20, will in practice make it impossible or difficult for developers to rely upon these permitted development rights.”

As it is, given their inherent restrictions and limitations, these new GPDO rights have not yet delivered substantially more homes. Holgate J is of course right that his interpretation will not make it impossible for developers to rely on them – but surely it will make it more difficult in many cases. Despite the analysis in the judgment as to what was said in consultation documents in relation to the new rights, I’m left wondering whether the Government appreciated what confusion these changes would cause and, ultimately, their potentially limited advantages over an application for full planning permission?

As trailed earlier, this week’s Planning Law Unplanned clubhouse event will be all about reducing energy use and increasing renewables, with a sparky collection of guests I assure you… 6 pm, Tuesday 8 February 2022, link to app and event here.

Simon Ricketts, 5 February 2022

Personal views, et cetera

Extract from Genesis, Abacab

Beauty & The Beach

“Let’s see what more announcements the coming week brings…” was my sign off to last week’s ‘Twas The Week Before Recess blog post.

After this week your holiday reading now includes:

A new NPPF and national model design code

The revised NPPF was published on 20 July 2021, along with the new national model design code and MHCLG’s NPPF & national model design code: response to consultation document, and the announcement of the creation of the Office for Place and its impressive Advisory Board , chaired by Nicholas Boys Smith. There was a Policy Exchange launch event at which the Secretary of State spoke and of course a press statement.

My Town colleague Victoria McKeegan has written a piece for Estates Gazette on the changes, Government parades beauty in revised NPPF (23 July 2021, subscription only).


Here is a comparison of the text as against the February 2019 version and here is a comparison as against the January 2021 proposed changes that I wrote about in my 30 January 2021 blog post Beautiful Day.

Various of us, including Victoria, will be discussing the documents in detail at our clubhouse Planning Law Unplanned session from 6pm on Tuesday 27 July 2021. Do join us, either to listen or to make your views known. A link is here.

The Judicial Review and Courts Bill

The Bill was introduced to Parliament on 21 July 2021. We covered the Government’s March 2021 consultation document on judicial review reform in a recent clubhouse Planning Law Unplanned event, with guest speakers including Celina Colquhoun (39 Essex Street, member of the Lord Faulks Committee which had previously carried out its Independent Review of Administrative Law) and Joshua Rozenberg. The Bill appears not to be as radical as the consultation document, the main proposal of interest being the potential for suspended, or non-retrospective, quashing orders. For more information see Richard Harwood QC’s 22 July 2021 blog post The rise of Incrementalism or Joshua Rozenberg’s 22 July 2021 blog post Fettering the courts’ discretion. The Ministry of Justice’s response to consultation document was published alongside the Bill.

The House of Commons HCLG Committee report on permitted development rights

The Committee’s report was published on 22 July 2021.

I recommend reading the report itself. But some extracts from the summary:

“Whilst we understand the intention behind the recent changes, we have concerns about their impact, including on local planning authorities (LPAs) and the critical role they play in place-making. The ability of LPAs to control permitted development is limited to certain prescribed matters, principally those set out in the prior approval process. We support the use of prior approval and other conditions to control the quality of permitted development, but we heard the regime had become so complicated it was now little different from the full planning system. Furthermore, the Government has not explained how its approach to PDR fits with its proposed reforms in the planning White Paper. In particular, the recent changes appear to contradict the increased focus in the White Paper on plan-led development and local democratic involvement.

For these reasons, we recommend the Government pause any further extensions of permitted development rights for change of use to residential, including the new class MA right, which is due to take effect on 1 August, and conduct a review of their role within the wider planning system. As part of that review, we recommend it set out its long-term vision for permitted development for change of use to residential and explain how it plans to retain the benefits of these PDRs whilst not also sacrificing the ability of LPAs to shape their communities.

We broadly welcome the new use class E, as we can see the advantages of greater flexibility, but we are concerned it allows out-of-town premises, such as office blocks, to convert to retail without having first gone through the sequential test.”

As mentioned above, the revised permitted development regime kicks in on 1 August, further minor permitted development changes have been introduced in the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (made 7 July 2021) and we still await judgment being handed down by the Court of Appeal in the Rights Community Action judicial review…

Happy summer reading and I hope you can join us on Tuesday evening.

Simon Ricketts, 23 July 2021

Personal views, et cetera