Forthcoming Commercial To Resi Rules Tightened After Consultation

I have taken care over the heading of this piece about the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, laid before Parliament on 31 March 2021, which introduces a new class MA into the GPDO, granting deemed planning permission for change of use from commercial and business use (class E) to residential (class C3) from 1 August 2021.

I have taken care because so much of the noise this week was about how the Government hasn’t listened to the responses it received to its 3 December 2020 consultation paper, whereas for me the news is that it has listened to much of the criticism it received. The final form of the regime is significantly constrained compared to the consultation version. Give credit where credit’s due!

I summarised the initial proposal in my 4 December 2020 blog post, E = C3, expressing a number of concerns. Responses to the consultation from all quarters expressed equivalent concerns – some of course going further, in questioning more fundamentally the role of the permitted development rights process.

Aside from the Order itself which saw the light of day later on that day, we have the 31 March 2021 press statement (at the now traditional one minute past midnight) and the Government’s response to the consultation process.

The RTPI and others were tweeting their reactions before the Order had even been published on line (although to be fair the headlines were in the press statement). A joint letter was sent yesterday, 1 April 2021, to the prime minister by the RTPI, RIBA, RICS and CIOB. I acknowledge that many have “in principle” concerns about the availability of fast-track permitted development rights procedures but isn’t the letter somewhat of an over-reaction? What do members of those organisations think? Call me a defeatist pragmatist, but the proposals could have been so much worse!

These were the Government’s objectives, as they were stated in the December consultation document:

“In his ‘Build, Build, Build’ statement of 30 June 2020 the Prime Minister said that we would provide for a wider range of commercial buildings to be allowed to change to residential use without the need for a planning application. To meet this aim, support housing delivery and bring more residential use into our high streets and town centres, boosting footfall and creating additional demand, we propose to introduce a new national permitted development right for the change of use from the new Commercial, Business and Service use class to residential use. The new right would help support economic recovery, housing delivery and the regeneration of our high streets and town centres.”

The proposals were always intended to be introduced much more quickly than the proposals in last year’s planning white paper – after all existing permitted development rights expire on 31 July 2021 in relation to changes of use from the classes that went to form the new class E:

“While Planning for the future sets out our longer-term ambitions, we want at the same time to continue to explore more immediate changes to the planning system to provide greater planning certainty and flexibility to ensure that it can effectively contribute to some of the immediate challenges facing the country.”

It is also worth remembering that the rights which expire on 31 July already include rights to convert offices (no floorspace limit), light industrial (500 sq m floorspace limit) and retail (150 sq m floorspace limit). The rules to be introduced from 1 August allow greater flexibility in a number of respects but are also significantly tighter than the existing rights in various ways.

My colleague Tom Brooks has prepared a detailed client summary in relation to all of the PD changes within the Order (this blog post is only dealing with class MA rather than the other excitements within). If you message or email me I will send it to you next week, but for the purposes of this blog post I set out below the Government’s summary of the proposed changes:

“We will introduce a new national permitted development right to create new homes through the change of use from Commercial Business and Service uses. The right will:

• have effect from 1 August 2021

• be subject to a size limit of 1,500 sq m of floorspace changing use

• apply to buildings that have been in Commercial, Business and Service uses for two years, including time in former uses now within that class

• apply to buildings that have been vacant for at least three continuous months

• apply in conservation areas, but not in other article 2 (3) land such as National Parks and Areas of Outstanding Natural Beauty

• be subject to prior approval by the local planning authority on specific planning matters

• attract a fee of £100 per dwellinghouse.”

The consultation proposals had:

• no size limit (and this size limit cuts back on what can already be achieved via the existing office to resi PD right)

• no requirement that the relevant building should have been in commercial , business and service uses (i.e. any of the uses that now make up class E) for the two years leading up to the date of the application for prior approval (for offices to residential, the cut off point in the existing rules is 29 May 2013).

• no requirement that the building must have been vacant for the three months leading up to the date of the application for prior approval (a requirement which has not existed in relation to existing PD rights).

There is also now an express carry-forward to 1 August 2022 of existing article 4 directions that restrict office to residential permitted development rights – addressing what would have been a significant loophole (see e.g. my 7 February 2021 blog post Art 4 Life).

Prior approval requirements will still include transport, contamination, flooding, noise, and adequate natural light. As trailed in the consultation proposals, prior approval will be required, where relevant, as to the impact on the character or sustainability of a conservation area caused by the change of ground floor use of a building within a conservation area. Where relevant, prior approval will also be required as to the impact on the intended residential occupiers if the area is considered important for “general or heavy industry, waste management, storage and distribution, or a mix of such uses” and as to the impact on local provision if there is a loss of services provided by a registered nursery or health centre.

Prior approval applications will need to include a floor plan indicating “the total floor space in square metres of each dwellinghouse” (and remember that the Government’s nationally described minimum space standard applies to any schemes which are the subject of a prior approval application from 6 April 2021 in any event).

For the first time, notices will need to be served on on any adjoining owner or occupier and, where the proposed development relates to part of a building, on any owner or occupier of the other part or parts of the building.

Remember that there is no exemption from CIL for permitted development, the usual rules apply – although most commonly the in-use buildings exemption will apply if at least part of the building has occupied for a use which is lawful for at least six months continuously in the last three years.

Mitigation cannot be secured as to matters that are not the subject of the prior approval process, so PD residential development is still free from affordable housing and other social infrastructure commitments (e.g. contributions to the cost of education facilities), but remember that the scale of development now permitted, with the 1,500 square metres cap, is far lower than the scale of conversions of office buildings that we have previously seen. The horse has bolted on that one.

The new rights do not limit in any way the need for planning permission for external works to the building that materially affect its external appearance, so finger-pointing as against the Government’s “beauty” aspirations is misdirected in my view.

What concerns are we left with? Yes, the new rules will allow residential development in potentially unsustainable locations. Yes, the new rules will allow commercial frontages in high streets to be converted to residential use in a way which may harm the traditional function of town centres (although subject to the need for a separate planning permission for the external treatment of the building). Yes, the new rules do limit in practice the role of the local planning authority in determining what are appropriate uses for a particular area. Yes, there will still be room for uncertainty and “gaming” of the system, particularly around the vacancy requirement. Set against these concerns, are the Government’s objectives in terms of enabling more homes to be delivered quickly and in finding new uses for redundant commercial floorspace and is the need for us all to acknowledge the various protections that are now (at last) in place, seeking to ensure that accommodation is to be delivered to at least a minimum standard (e.g. size of homes, light) and seeking to reduce the potential for the new rights to lead to unintended outcomes (e.g the floorspace cap, vacancy requirement).

Where does the balance lie? Are there now sufficient checks and balances? Are we going to see a final rush to make prior approval applications under the existing rules? Join a number of us on Clubhouse for a discussion on this very subject – from 6pm on Tuesday 6 April.

Simon Ricketts, 2 April 2021

Personal views, et cetera

Art 4 Life

Article 4 directions are a small but essential cog in the complicated machine that is the English planning system. With the more widespread reliance by Government on permitted development rights, it falls to local planning authorities to make article 4 directions to disapply, where appropriate, those rights in relation to specific types of developments and/or in specific areas.

From 1 August 2021, we are potentially approaching a breakdown in this machine in the face of the proposed class E to class C3 permitted development right which I wrote about in my 4 December 2020 blog post E = C3.

But first a few basic points to note about the way these cogs work:

1. Article 4 directions do not have to be approved by the Secretary of State but he can intervene where he considers that a direction is inappropriate.

2. Unless an article 4 direction takes effect at least a year after it was first publicised, in certain circumstances the authority can be liable to claims for compensation where someone can show they incurred abortive expenditure or otherwise suffered loss or damage as a result of the direction.

3. For permitted development rights where prior approval of certain matters is required before the right can be relied upon, the prior approval needs to be secured before the direction takes effect and needs to be completed within three years of prior approval.

The role of article 4 directions has increased with the gradual spread of “resi conversion” permitted development rights since 2013.

The office to residential permitted development right was first introduced in May 2013. At that time the legislation included a specific list of “excepted areas” within which the right did not apply, for instance London’s central activities zone. The Government was not adverse to threatening intervention where authorities sought to introduce blanket article 4 directions in relation to other areas, for instance its well publicised spat at the time with the London Borough of Islington.

In 2016 the right was made permanent. The list of excepted areas was scrapped but only as from 30 May 2019 so as to give affected authorities time to put article 4 directions in place as appropriate (see Lichfields’ 14 March 2016 blog post Office to Residential Permitted Development Right Made Permanent.

There is now indeed a patchwork of article 4 directions across the country, disapplying “resi conversion” permitted development rights in relation to many areas of the country. Focusing on central London, here is how the “offices to resi” rights is disapplied in RBKC and in Westminster for instance.

When Class E was introduced from 1 September 2020 (see my 24 July 2020 blog post E Is For Economy for more detail) existing permitted development rights were kept in place until 31 July 2021 (applying to what the uses would have been categorised as prior to the creation of Class E) so as to give the Government time to introduce new permitted development rights that apply to Class E.

The consultation period on the proposed new development rights closed on 28 January 2021 and the Government has come under fire from many quarters for the intended breadth of the new rights (for instance, here is the British Property Federation’s response). The statutory instrument to introduce the new rights (and in part replace the old rights, which will expire) has not seen the light of day and we are now around six months away from what might be termed PD-Day, 1 August 2021.

Some big questions arise and discussions within Town with Duncan Field and other partners and colleagues have been really useful. I’m not going to give away for free our entire Town “house view” but I’m just going to state the obvious:

⁃ the existing permitted development rights that attached to uses now within Class E will fall away after 31 July 2021, the end of the “material period” in the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020, unless secondary legislation extends the material period for those purposes, as a stop gap.

⁃ it is questionable whether existing article 4 directions would restrict the operation of any new permitted development rights that are introduced, even where the change is still, say, offices to residential (and some changes that, according to the Government’s consultation proposals, will now be possible are entirely new, e.g. restaurant, indoor sports hall or creche to residential).

⁃ As a matter of principle an article 4 direction cannot be made in relation to a future permitted development right, so authorities’ hands are tied until the statutory instrument containing the new rights is actually made.

⁃ plainly there is no time for authorities to give a year’s advance notice in relation to any new article 4 direction that is to take effect from 1 August 2021, so any more immediate restrictions would expose authorities to the risk of compensation claims (unless there is some specific transitional arrangement in the new rights, for instance if the new rights would permit development that before 1 August 2021 have been restricted by an article 4 direction, but that will not be straight-forward at all).

It is interesting that when the “excepted areas” system was abolished in 2016 authorities were given sufficient time to put article 4 directions in place. In the rush this time round, either this issue has been overlooked or the Government is seeking to sidestep the article 4 direction process and create some kind of gold rush for prior approvals before directions can be introduced and take effect. After all its antipathy towards article 4 directions in the “resi conversions” area, save where exceptionally justified, is plain from its recent consultation on proposed changes to the NPPF:

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

“The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

The flexibility introduced by permitted development rights is necessary and welcome but let’s not focus on that lever without making sure that there isn’t going to be an almighty crunch when it is pulled. What am I missing here folks?

Simon Ricketts, 27 February 2021

Personal views, et cetera

PS If you’re on Clubhouse, I’ll be joined by some other friendly planning solicitors, barristers and planners to talk about this and other topical planning law issues at 6pm on Tuesday 2 March, details here. Do join us!

Beautiful Day

I threw those curtains wide, drinking in the morning emails and there it was: MHCLG press release 30 January 2021, All new developments must meet local standards of beauty, quality and design under new rules.

Consultation is now running until 27 March 2021 on:

National Planning Policy Framework and National Model Design Code: consultation proposals

National Planning Policy Framework Draft text for consultation

Draft national design code

Guidance notes on design codes

The proposals seek to give effect to the Building Better Building Beautiful Commission’s recommendations that I summarised in my 1 February 2020 blog post Beauty Duty.

“The National Model Design Code is intended to form part of the government’s planning practice guidance. It is not a statement of national policy. However, once finalised, the government recommends that the advice on how to prepare design codes and guides is followed.”

I will leave others to comment on the draft national design code and the proposed “beauty” related changes to the NPPF (the consultation proposals identify the changes and the draft revised text is helpfully marked-up to show all the textual changes).

However, you should note that the draft NPPF changes go wider:

“We have also taken this opportunity to make a number of environment-related changes, including amendments on flood risk and climate change. The amendments also include a small number of very minor changes arising from legal cases, primarily to clarify the policy. A few minor factual changes have also been made to remove out-of-date text (for example, the early thresholds for the Housing Delivery Test), to reflect a recent change made by Written Ministerial Statement about retaining and explaining statues, and an update on the use of Article 4 directions.

As summarised in the consultation proposal, the draft revised text:

Implements policy changes in response to the Building Better Building Beautiful Commission recommendations

• Makes a number of changes to strengthen environmental policies – including those arising from our review of flood risk with Defra

• Includes minor changes to clarify policy in order to address legal issues

• Includes changes to remove or amend out of date material

• Includes an update to reflect a recent change made in a Written Ministerial Statement about retaining and explaining statues.

• Clarification on the use of Article 4 directions

Some points that immediately leapt out (this is not a comprehensive list):

Overarching objectives of the planning system

Paragraph 8 of the NPPF has been amended to refer to refer to “beautiful, well-designed and safe places” (previously “a well-designed and safe built environment”).

The presumption in favour of sustainable development

Paragraph 11 (a) has been amended to read:

“all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects”.

(The previous wording was “plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change”).

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

This is really interesting, particularly in the context of the proposed class E to C3 permitted development right. The proposed wording is pretty tight:

The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

Larger scale residential proposals

There is an amendment to paragraph 73 to require that these should include “a genuine choice of transport modes”.

Isolated homes in the countryside

The design should now be “outstanding”. The “or innovative” is gone.

Affordable home ownership

“Paragraph 64 has been amended to clarify that, where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the total number of homes to be available for affordable home ownership. This is to address confusion as to whether the 10% requirement applies to all units or the affordable housing contribution.”

Neighbourhood plan allocations

Paragraph 69 has been amended to remove any suggestion that neighbourhood plans can only allocate small or medium sites. This was not the policy intention, so the wording has therefore been amended to clarify that neighbourhood planning groups should also give particular consideration to the opportunities for allocating small and medium-sized sites (of a size consistent with paragraph 68a) suitable for housing in their area.

Trees

A new paragraph 130:

“Trees make an important contribution to the character and quality of urban environments, and can also help mitigate and adapt to climate change. Planning policies and decisions should ensure that new streets are tree-lined [Unless, in specific cases, there are clear, justifiable and compelling reasons why this would be inappropriate], that opportunities are taken to incorporate trees elsewhere in developments (such as community orchards), that appropriate measures are in place to secure the long- term maintenance of newly-planted trees, and that existing trees are retained wherever possible. Applicants and local planning authorities should work with local highways officers and tree officers to ensure that the right trees are planted in the right places, and solutions are found that are compatible with highways standards and the needs of different users.”

The “well-designed” test

Paragraph 133:

“133. Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes. Conversely, significant weight should be given to:

a) development which reflects local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes; and/or

b) outstanding or innovative designs which promote high levels of sustainability,, or help raise the standard of design more generally in an area, so long as they fit in with the overall form and layout of their surroundings.”

Development affecting the setting of national parks and AONBs

“New paragraph 174 has been amended in response to the Glover Review of protected landscapes, to clarify that the scale and extent of development within the settings of National Parks and Areas of Outstanding Natural Beauty should be sensitively located and designed so as to avoid adverse impacts on the designated landscapes.”

Historic statues, plaques and memorials

(which was going to be the subject of this week’s blog post until the curtains/drinking in the emails moment)

“New paragraph 196 has been added to clarify that authorities should have regard to the need to retain historic statues, plaques or memorials, with a focus on explaining their historic and social context rather than removal, where appropriate.”

This of course supplements Robert Jenrick’s statement to the House of Commons (18 January 2021) and MHCLG’s 17 January 2021 press statement, New legal protection for England’s heritage.

As a draft for consultation in my view the consultation material so far has only limited weight for decision makers and, as is usually and appropriately the case, the final documents may be subject to change. However, there is much for us all to get to grips with – and comments on the national design code are for another day.

Simon Ricketts, 30 January 2021

Personal views, et cetera

E = C3

Or, The Theory Of Residential-Rather-Than-Retail-Activity.

MHCLG’s consultation paper Supporting housing delivery and public service infrastructure (3 December 2020, consultation deadline 28 January 2021) sets out various proposed new permitted development rights, but, in what has been a disastrous week for traditional retail chains, guess which proposal has attracted the most attention?

The new class E was introduced into the Use Classes Order in July 2020 (see my 24 July 2020 blog post E Is For Economy) and took effect from 1 September 2020, forming a new, amalgamated commercial, business and service use class that includes the old A1 (with small exceptions), A2, A3, B1, some D1 and some D2).

It was always anticipated that new permitted development rights would be subsequently introduced that allowed changes from the new class E without the need for planning permission. At the moment, until 31 July 2021 the existing permitted development rights apply to whatever the relevant use would have been categorised as before class E was introduced.

But in updating the existing development rights so that they apply to the new class E from 1 August 2021, the Government now intends to allow significantly greater freedoms.

“It is proposed that the right would allow 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.”

So, there will for the first time be the right to convert restaurants, indoor sports centres, creches and so on to residential use.

But the radical part of the proposal is that there should be no size limit on the scale of the conversions allowed:

“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.”

Whilst there is currently no size limit for conversion of offices, for retail and light industrial the limits are currently small (150 sq m and 500 sq m respectively). The new right would enable change of use of the very largest shops and light industrial buildings to residential, subject to similar prior approval requirements as presently apply. Whilst permitted development rights do not apply to development that would require environmental impact assessment, it will surely be very rare that the conversion of a building, however large, would require environmental impact assessment.

How better, it might be thought, both to find new uses for surplus floorspace and to add to housing stock? But of course such a right is going to have a huge effect on the real estate market and could itself help to accelerate the loss of retail where greater value can be extracted by residential conversion.

Unlike with most permitted development rights, this right would also apply in conservation areas. “However, in recognition of the conservation value that retail frontage can bring to conservation areas the right would allow for prior approval of the impact of the loss of the ground floor use to residential.”

These are proposed to be the necessary prior approvals:

“Similar to other permitted development rights for the change of use to residential:

• flooding, to ensure residential development does not take place in areas of high flood risk

• transport, particularly to ensure safe site access

• contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings, which will endanger the health of future residents

• To ensure appropriate living conditions for residents:

• the impacts of noise from existing commercial premises on the intended occupiers of the development

• the provision of adequate natural light in all habitable rooms

• fire safety, to ensure consideration and plans to mitigate risk to residents from fire

• To ensure new homes are in suitable locations:

• the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management”

The usual concerns about the permitted development process remain, but now writ large, for instance:

⁃ How can the Government continue to justify not imposing on these permitted development schemes the requirements that would be applied by way of the section 106 planning obligations process to schemes that come forward by way of traditional planning application? Why no affordable housing requirements, or contributions to schools and other social infrastructure, and how is this fair for those developers struggling to deliver traditional projects in the face of policy requirements that permitted development schemes neatly sidestep?

⁃ How will associated applications for planning permission for external works to these buildings be dealt with? Coping with the fenestration, M&E and external aesthetic requirements arising from conversion of an office building is one thing, but imagine the challenges faced by the developer of a department store, supermarket or light industrial unit. And what of its curtilage? What principles should an authority adopt in determining such an application, so that adequate controls are maintained without making the right meaningless by giving the authority a de facto veto?

⁃ Aside from increasing their use of article 4 directions, how can authorities prevent the conversion of buildings in plainly unsustainable locations?

⁃ How can an authority influence its area by way of its development plan policies, when the authority is left with so little control?

⁃ To what extent will the use of the new right be stymied by conditions on existing permissions, disapplying the benefit of the General Permitted Development Order, or indeed Use Classes Order?

As it happens we are co-hosting a webinar with Landmark Chambers to answer questions such as these – and plenty of others that delegates have been sending in. Landmark’s Zack Simons will join Meeta Kaur, Victoria McKeegan and myself at 5.30 pm on 15 December, free registration here: https://us02web.zoom.us/webinar/register/WN_4SVkbXSeRsm6QJ9aDRBBDA .

Simon Ricketts, 4 December 2020

Personal views, et cetera

Covid-19 As A Material Consideration

The idea for this blog post started by way of a search we did this week for inspectors’ appeal decision letters that take into account the economic and other effects arising from the current pandemic.

There does not seem to have been any proper analysis on that at present (and this post doesn’t fill the gap!). Instead most people’s focus has been on the specific legislative measures that have been introduced by the Government and its narrow policy exhortations (for instance in relation to limited aspects of the CIL regime).

Before I turn to that appeals search, can I say two more things on the legislative changes.

First, a further round of amendments to the GPDO were laid before Parliament on 11 November (the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020). Aside from extending some temporary permitted development rights (outdoor markets; takeaway food operations from restaurants, cafes and drinking establishments, and some emergency development rights), there are two permanent amendments:

⁃ introduction from 6 April 2021 of a requirement that dwellings created by way of the operation of permitted development rights must meet the nationally described space standard

⁃ Prohibition on the demolition of any building is used, or was last used, for the purpose of a concert hall, venue for live music performance or theatre. (“This permanent change is to protect these venues, preventing their unnecessary loss as a result of having to close due to the coronavirus pandemic.” As a trustee of the Theatres Trust I am particularly pleased to see this now in legislation, following the initial ministerial statement on 14 July 2020).

Secondly, I covered the Rights: Community: Action judicial review of the previous recent GPDO and Use Classes Order changes in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR. That claim was rejected by Lewis LJ and Holgate J last week in R (Rights: Community: Action) v Secretary of State (Divisional Court, 17 November 2020). There are plenty of other summaries of that judgment and there is nothing particularly novel about it but I was interested in the references to the evidence submitted by MHCLG as to the Covid-19 factors that led to the legislation being introduced in the form and way that it was, and the weight that was given to these matters in the judgment:

“Mr Simon Gallagher is the Director of Planning for MHCLG. In paragraph 10 of his witness statement he states that during the period January to March 2020 the first patients in the UK tested positive for Covid-19 and the first transmissions in the UK were confirmed. He says that the pandemic “has generated an economic emergency and upheaval of a scale and intensity not previously known in peacetime.” He continues by stating that, as a consequence, the Government has had to intervene urgently in the economy as a whole in unprecedented ways in order to avert or minimise potentially very severe and long term impacts on the lives of citizens and the prospects for future economic growth. Forecasts for economic growth were reduced substantially. Indeed, one key forecast made in summer 2020 predicted a reduction in the economy for 2020 of 9.9% (paragraph 13). Through regular discussion with representatives of the housing and construction sectors, the MHCLG became aware of particular difficulties faced by the construction sector as a result of the pandemic. There was a record monthly decline of 40.2% of construction output in April 2020. Whilst the output of that sector had increased in May, June and July, it was still 11.6% lower in July 2020 compared with February 2020 (paragraph 14).

On 20 July 2020 a submission was put to the Minister for Housing asking him to approve the three statutory instruments. The submission records that it had been decided that in order to support economic renewal and regeneration and to respond to the economic crisis caused by the pandemic, additional PD rights for the redevelopment of vacant buildings for residential purposes and a broad Use Class of business, commercial and service uses would be introduced without consultation (paragraphs 2 to 3). The Minister’s attention was drawn to criticisms that the recently enacted PD right for allowing the addition of 2 storeys to blocks of flats lacked any requirement for the provision of affordable housing (paragraph 7). The submission referred to the same point when discussing the application of the PSED to the proposed statutory instruments (paragraph 10). The PSED assessments and impact assessments for each statutory instrument were provided to the Minister.

The Explanatory Memoranda for SI 2020 No. 755 and SI 2020 No. 756 stated that the new PD rights were being introduced to speed up the delivery of housing, reduce the need to develop on greenfield land and to support economic recovery from the pandemic by encouraging development. The Explanatory Memorandum for SI 2020 No. 757 stated that the UCO 1987 was being amended to better reflect the diversity of uses found on high streets and in town centres, to provide flexibility for businesses to adapt and diversify to meet changing demands and to help town centres recover from the economic impact of the pandemic.”

The judges had in part to consider whether the lack of a further consultation stage, which had been previously intended in relation to some of the measures, was justified:

“The explanatory memorandum for the draft SI 2020 No 755 and SI 2020 No. 757 again summarised briefly the degree of support for, and opposition to, the proposal, and the concerns that had been raised. The explanatory memorandum for the draft SI 2020 No 756 referred to the consultation responses and noted that there was to have been a further consultation but it had been decided to introduce the PD right without further consultation in order to support economic regeneration. It noted that the Government had considered the range of matters to be left to planning authorities for prior approval while maintaining a simplified planning system. In those circumstances it is not arguable that the defendant failed conscientiously to consider the consultation responses. The decision on whether to proceed, and if so what provisions to include in the SIs, in the light of the consultation responses and other relevant matters were questions for the defendant to determine.”

The judges, did not consider that the Government had acted unlawfully in not carrying out further consultation:

“First, the defendant has established that there were good reasons for departing from the promise in the present case and not having a second consultation on the proposals for PD rights for demolition of commercial or residential buildings and rebuilding for residential use. The coronavirus pandemic had led to severe economic difficulties including a reduction in the rate of construction and planning applications. The government decided to grant the PD rights in order to stimulate regeneration at a time of great economic difficulty arising out of the pandemic. That appears from the terms of the explanatory memorandum to SI 2020 No. 576.The matter is fully explained in the witness statement of Mr Gallagher who refers to the large-scale public health emergency created by the coronavirus pandemic which in turn generated an economic emergency and upheaval on a scale not previously known in peacetime. The Government had sought to intervene in the economy in unprecedented ways to minimise the very severe effects of the pandemic. In the light of that, the decision was taken in favour of urgent action rather than further consultation.

Secondly, the reasons are proportionate in the circumstances. On the one hand, the decision to depart from the promise deprived the public of the opportunity of making further representations on the proposed PD rights and deprived the Government of further, potentially helpful, input into the policy decision. On the other hand, the economic situation was grave. The grant of PD rights was intended to encourage developers to start the process of taking steps to carry out developments. That in turn would contribute to addressing the economic effects arising out of the pandemic. That was a proportionate course of action in the circumstances. It is correct that developments could not be begun until prior approval of certain matters had been obtained. But the aim was to stimulate the process of development in circumstances of economic urgency. It is correct that the PD rights would continue after the end of the current pandemic (unless amending legislation is enacted) but that does not render departure from the promise of further consultation disproportionate. It is correct that there was a proposal to create PD rights which involved further consultation. But circumstances had changed because of the pandemic. The reasons given for departing from the promise of further consultation were good and were proportionate.”

The economic situation is indeed “grave”!

So how are inspectors responding to it in their appeal decisions, and in the absence of any general guidance from Government which might for instance have advised decision makers to give additional weight to the interests of economic development and the provision of housing? JLL’s Asher Ross drew attention on LinkedIn last week to the Government’s publication on 18 November 2018 of the latest Planning Inspectorate Statistics. I haven’t delved into them yet but reproduce below a table that Asher posted, showing the reduced percentage of appeals that have been allowed over a period when I would have hoped to see exactly the opposite.

One trend that is apparent from the appeal decisions is in the context of enforcement appeals, where a longer period is frequently being given for compliance because of difficulties residents may have finding alternative accommodation due to the pandemic, although not always – in a recent decision in Ealing the inspector held that the nature of the “cramped and sub-standard living conditions“ was such as to outweigh that consideration (10 Torrington Gardens, 17 November 2020).

An appeal in relation to a proposed single dwelling in the countryside in Horsham District was dismissed in part because the inspector accepted the concerns of a nearby dog kennel business that the construction noise could affect the health of their dogs and indirectly affect the business economically if it had to close during this period, especially when considered in conjunction with the downturn in business they had generally suffered due to the coronavirus pandemic (The Mount, Ifield, Crawley, 27 July 2020).

An appeal in relation to five proposed flats in Cambridge was dismissed with the inspector noting that, although the appellant claimed that there was a need to promote economic growth as a result of the Covid -19 pandemic, this did not justify allowing harmful development (Mere Way, Cambridge, 1 October 2020).

An appeal to allow changes to proposed dwelling layouts in Eastbourne was allowed. Whilst the nationally described space standard was breached for a three bedroom home, the inspector placed weight on the need for a ”home office”, noting Covid-19 – a separate room was recognised as useful also for homework and hobbies, noting the “open plan” living room layout at present (land south of Langney shopping centre, 10 September 2020).

An appeal in relation to three proposed self build dwellings in Breckland was dismissed, with the inspector noting that there was little substantive evidence to demonstrate the longer term effects of Covid 19 on housing delivery rates or that that these developments would not be deliverable over the five year period , rather than just delayed (land to the north east of Fakenham Road, Beetley, 9 September 2020).

An appeal in relation to the proposed redevelopment as 27 residential apartments of the Flapper and Firkin music venue in Birmingham was dismissed. Whilst the venue had closed in January 2020 and therefore the minister’s July 2020 statement on preventing the loss of such venues was not directly relevant, the inspector concluded that the community harm arising from the loss of the venue outweighed the social and economic effects of the new homes (Flapper and Firkin, Kingston Row, Birmingham, 2 September 2020).

An appeal in relation to 216 proposed new homes in Wokingham district was rejected, with the inspector not accepting the appellant’s case that the assumed housing supply should be reduced by almost 500 dwellings due to the effects of the pandemic. He considered that the pandemic’s impact would be short-term and that five-year supply would recover (land east of Finchampstead Road, Wokingham, 25 August 2020).

An appeal in relation to a proposed staff car park in connection with a hotel in North Somerset was dismissed, the inspector considering that approval would not significantly contribute towards the economic recovery of the hotel business (Doubletree by Hilton Bristol South Cadbury House, 17 August 2020).

There are earlier appeal examples as well, but with equivalent themes and none that I could see were allowed with any weight given to Covid-19 considerations.

A proper analysis of the patterns emerging would be useful. For instance, how should the effects of the pandemic be taken into account in assessing whether there is five years’ supply of housing land? Is any Government advice required as to particular issues, such as live-work accommodation? Is any temporary advice required on enforcement issues, and on deadlines for compliance? Should Government for instance encourage a liberalised approach in relation to particular types of proposals, with shorter implementation deadlines for permissions approved in that way?

Simon Ricketts, 21 November 2020

Personal views, et cetera

Thank you to my Town colleague Lida Nguyen for the appeal searches, carried out via Compass Online.

Learn An Instrument They Said. So I Picked Up The GPDO

At last – the Secretary of State announced on 30 September 2020 that dwellings created by way of permitted development rights will need to comply with the nationally described space standard.

There is no timescale given for when the change will be effected, which will need to be by way of a further statutory instrument amending the 2015 General Permitted Development Order. We have already had four such SIs already this year and further changes are in the queue, such as giving effect to the 14 July 2020 announcement that planning permission will be required for the demolition of theatres, concert halls and live music venues and giving effect to the proposed relaxation of permitted development rights for 5G infrastructure (of which more below). Good luck keeping up! (It’s odd how the Government can keep updating the Planning Practice Guidance but Parliament still does not make available up to date consolidated versions of secondary legislation, whether in our planning law field or for instance in relation to coronavirus measures.)

I dealt with the nationally described space standard in my 23 March 2019 blog post We Have Standards. Since being introduced in 2015, it has been up to each local planning authority to decide whether to adopt the standard as policy in its local plan. Once it is made a legal requirement for permitted development schemes we will have the curious position that in some areas, where authorities have not adopted it as local policy, it will be required for permitted development schemes but not for projects which are pursued by way of a traditional planning application.

It is disappointing that the additional requirement was not introduced in the June and July 2020 statutory instruments, which for instance introduced the additional prior approval requirement of “adequate natural light” (NB “adequate” undefined – wait for the arguments).

Public pressure and a continuing trail of adverse media stories in relation to office to residential schemes presumably have played their part (most recently Rowan Moore’s 27 September Observer piece ‘It’s like an open prison’: the catastrophe of converting office blocks to homes). As for the 30 September timing of the announcement? That’s obvious – later that day a Commons debate took place, as scheduled, in relation to Labour’s motion that the three statutory instruments amending the General Permitted Development Order be revoked. The announcement neutralised one of the most obvious lines of attack. Predictably the motion was defeated, entirely along party lines, 327 votes to 206 votes.

This month will of course see the hearing into the GPDO changes judicial review that I covered in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR.

And now there is yet another judicial review underway, into the Government’s 22 July 2020 announcement that it proposes to extend “permitted development rights to support the deployment of 5G and extend mobile coverage”. There is a piece about the challenge here: Government faces legal challenge over 5G phone masts ‘safety fears’ (Evening Standard, 1 October 2020). As with the Rights: Community: Action judicial review it is crowd funded. The Rights: Community: Action challenge appears to have raised £12,245 “of £25,000 stretch target from 271 pledges”. The 5G challenge appears to have raised £66,615 pledged “of £150,000 stretch target from 2,004 pledges”.

As with most crowdfunded litigation there is no analysis for potential donors on the crowdjustice website of its prospects of success, or what the judicial review process entails, but there is a link to the prospective claimants’ pre-action letter dated 21 August 2020 which alleges that the consultation process leading to the 22 July 2020 announcement was unlawful and was in breach of the public sector equality duty – and Aarhus Convention costs protection is sought. Without prejudging at all whether there is any basis for the complaints, this all is of course familiar territory in relation to these sorts of claims.

Finally, some plugs:

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

5.30 pm 14 October 2020

PC in 2020 – Has the Planning Court proved a success? What should be its future, and that of judicial review and statutory challenges in the planning system, in the light of the Faulks review?

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ

And lastly, watch out for a new series by Cratus and Town, Steve Quartermain in Discussion. The first episode is an hour long conversation with Secretary of State Robert Jenrick. More news will appear on the Cratus website.

Simon Ricketts, 3 October 2020

Personal views, et cetera

Linda Manzer’s pikasso guitar

GPDO & UCO Amendments: Guidance, Scrutiny

On 18 September 2020 MHCLG amended its guidance to take into account the amendments to the General Permitted Development Order and Use Classes Order that I have covered in recent posts.

So now we have:

⁃ Updated Planning Practice Guidance on when planning permission is needed

⁃ Updated Planning Practice Guidance on town centres and retail

⁃ Updated Planning Practice Guidance on planning application fees to reflect the new permitted development rights to build upwards

⁃ “Key fact sheets” on recent permitted development rights and changes to the Use Classes Order

The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.

In the meantime, there remains some Parliamentary focus on the nature of the changes.

The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:

“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”

My 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR referred to the motions which Labour has tabled in response to the GPDO changes. A Commons debate is now scheduled for 30 September 2020.

Simon Ricketts, 19 September 2020

Personal views, et cetera

Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR

Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.

This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.

The amendments to the General Permitted Development Order and Use Classes Order

We’re talking about the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755, The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756 and The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757 all laid before Parliament on 21 July, ahead of the Commons going into recess the following day, and came into effect on 31 August and 1 September. Parliament returned on 1 September.

The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.

There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).

Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:

“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadow Minister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.

During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.

The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”

Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).

The group has put its Statement of Facts and Grounds on line. These are the grounds:

“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).

(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).

(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:

Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019

Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).

Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.

Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”

Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.

The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.

On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.

No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.

The Planning For The Future white paper

The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:

1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?

2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?

I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.

Simon Ricketts, 5 September 2020

Personal views, et cetera

E Is For Economy

It’s the economy, stupid.”

More E words: the English planning and property community was immediately, depending who you spoke to, exercised/excited by the changes to the Use Classes Order and General Permitted Development Order this week. Surprisingly so perhaps, given how heavily the changes had previously been trailed (although, it must be said, in terms of the Use Classes Order changes, not consulted upon). Inevitably and by contrast, the wider public appears to be oblivious as to what lies ahead, despite the potentially far-reaching implications of the creation of the new “commercial, business and serviceclass E within the Use Classes Order in particular.

There are many good summaries already of the changes. My Town colleagues Nikita Sellers, George Morton Jack and Meeta Kaur have prepared a detailed summary.

I am not going to consider the rights and wrongs of the changes in any detail. I have referred previously to my disappointment that the Government has not required for example its nationally described minimum space standards to be applied in relation to the creation of new dwellings by way of permitted development rights (despite having published, with curious timing, a report Research into the quality standard of homes delivered through change of use permitted development rights, on the same day as publishing legislation which does not take into account the recommendations of that work, with no explanation for the discrepancy). The Use Classes Order changes do provide some overdue flexibility given the structural changes underway in our town centres in the light of changed shopping patterns (not just Covid-related but of course now accentuated), but they are extremely wide ranging and I query whether the various permutations of potential consequences have been adequately considered. But that is all for another day.

Instead, I wanted to pull us back to some planning law fundamentals – in what circumstances may owners find that they cannot rely on the expanded use rights after all?

First, in order to move within a use class, the initial use first has to have been instituted, so if for instance you have an as yet unimplemented planning permission for a shop, or if the development has been built but not yet been occupied, the development will first need to have been used as a shop before there can be a change to another use within the new class E (e.g. offices).

Secondly, there must not be a condition on the planning permission authorising the current use that has the effect of preventing use changes that would otherwise have been enabled by way of the Use Classes Order and/or General Permitted Development Order. This is familiar but not straightforward territory. There is much case law as to whether particular phrases in conditions actually achieved what the local planning authority intended and indeed whether the benefit of the condition was lost through the grant of subsequent permissions which did not expressly impose it.

The general answer is that it depends on a careful analysis of the existing planning permission (and of course any provisions within any section 106 agreement).

The Supreme Court considered a situation like this in London Borough of Lambeth v Secretary of State (Supreme Court, 3 July 2019), which I summarised in my 4 July 2019 blog post What Really Is The Meaning Of Lambeth?

The original permission read:

The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”

It was then amended to read:

The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”

The council then approved by way of section 73 a further change so that it was to read:

The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting that Order with or without modification), for no other goods.

However, the council neglected to include that wording in a condition. It was simply part of the description of the development.

The Supreme Court held that the permission was to be interpreted as constraining the use of the retail unit so that it was for the sale of non-food goods only. But for our purposes, this is an example that the courts (1) routinely treat conditions as able validly to restrict the operation of the Use Classes Order and/or General Permitted Development Order and (2) are perhaps currently more benevolent towards the local planning authority’s position than has previously been the case where there has been procedural imprecision, as long as what was intended was clear.

My 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions referred to another recent example, Dunnett Investments Limited v Secretary of State (Court of Appeal, 29 March 2017) which concerned this condition:

This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.

The court held that “express planning consent” did not include prior approval pursuant to the “office to residential” permitted development right. The restriction applied.

So care is needed! Where there are restrictive conditions which would restrict the flexibility that the new class E would otherwise give, of course consideration can be given to applying to remove those conditions by way of section 73 application.

Thirdly, when applications for planning permission are now to be determined, careful consideration will need to be given to the proposed description of development and no doubt there will be issues arising as to whether decision makers are justified in imposing conditions which restrict the operation of the new Use Classes Order and General Permitted Development Order flexibilities. It will be the B1(a), (b) and (c) arguments all over again, but writ large.

I hope that we will have updated Planning Practice Guidance. In the meantime, the current Planning Practice Guidance has passages such as these:

“It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.

1. necessary;

2. relevant to planning;

3. relevant to the development to be permitted;

4. enforceable;

5. precise; and

6. reasonable in all other respects.”

“Is it appropriate to use conditions to restrict the future use of permitted development rights or changes of use?

Conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn.Area-wide or blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness and necessity. The local planning authority also has powers under article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015 to enable them to withdraw permitted development rights across a defined area, where justified.

Will that guidance be sufficient to avoid disputes? I doubt it.

Am I entitled to apply for planning permission simply for Class E use? Given that Parliament now deems changes within class E not be material, why not? How will such applications be determined as against development plan policies which are likely to be at odds with such an approach, and how will CIL be calculated, given that many CIL charging schedules distinguish as between, for instance, retail and office use?

Fourthly, planning permission will still be required for operational works that materially affect the external appearance of the building. To what extent will local planning authorities seek to exert control by that route, as we have sometimes seen with office to residential conversions? How to guard against plainly substandard conversions of shops to offices and of, for instance, units on out of town business parks to shops?

Fifthly, there is going to be much focus on how precisely the General Permitted Development Order operates in relation to the new class. For an initial period, until 31 July 2021, the GPDO will operate as against how the relevant use was categorised before the changes to the Use Classes Order became effective. Are we to expect further changes to the GPDO in the coming period?

Sixthly, quite apart from these planning law constraints, private law constraints imposed by way of, for instance, restrictive covenants and user covenants in leases will still apply.

But, there’s no way round it, class E has huge implications for much of the world around us, from central business district to market town, to out of town retail or business park. It also brings with it, and this is its very point, huge opportunities to allow for adaptation and for entrepreneurship. How is all this going to work out in practice? Will people start using the new freedoms and then find that inevitably in due course the rules tighten again, by which time the horse has bolted, or, that for land owners, they may have unwittingly lost the right to the use which was most valuable in investment terms? E is also for experiment.

Simon Ricketts, 24 July 2020 (expanded version 25 July 2020)

PS and for Emily! Happy birthday daughter.

Personal views, et cetera

Build, Build, Build* (*Terms & Conditions Apply)

The Government is about to announce two major proposals for significant deregulation of the planning system by way of amendment of the Use Classes Order and the General Permitted Development Order. According to Robert Jenrick’s 30 June 2020 letter to MPs:

“I will create a new broad category of ‘commercial, business and service’ uses which will allow commercial, retail and leisure uses greater freedom to adapt to changing circumstances.”

(“In undertaking this reform, I recognise that there are certain uses which give rise to important local considerations; for example to ensure local pubs and theatres are protected, or to prevent the proliferation of hot food takeaways or betting shops”).

There will also be “… a new permitted development right to encourage regeneration and put empty buildings back to good use. This will serve to bring forward additional much needed homes and boost investment opportunities for the construction industry.

The right will allow free-standing vacant and redundant commercial and residential buildings to be demolished – and rebuilt as residential use within the footprint of the existing building. I recognise that development in certain locations requires individual consideration and therefore, I propose that the right does not apply, for example, in national parks and conservation areas or to listed buildings.”

The reforms, due to come into law in September, follow on from those contained in the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020, which were laid before Parliament on 24 June 2020 and which were summarised in my 26 June 2020 blog post New Planning Legislation! A Detailed Guide. The most radical of these measures was the creation of a new “building upwards” permitted development right: “works for the construction of up to two additional storeys of new dwellinghouses immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats”.

My Town colleagues Lida Nguyen, Rebecca Craig, Victoria McKeegan and Meeta Kaur have created a flow chart to describe how the new “building upwards” right will work, when it comes into law on 1 August 2020. It is not straight-forward:

The new rights will of course be equally complex to navigate. The complexity of dealing with any use classes or permitted development rights question is accentuated for those without an expensive subscription to a legal updating service: the Government still does not provide access to up to date consolidated versions of secondary legislation and so it is extremely difficult for non-professionals to navigate the inevitable regulatory trip hazards.

Many of us of course continue to query whether the new right should have been further constrained – that the flow diagram is too simple (leading one to wonder perhaps whether the traditional planning application route isn’t quite so unwieldy after all…). Clive Betts, chair of the Housing, Communities and Local Government Committee, set out a number of specific questions in his 8 July 2020 letter to MHCLG Minister of State Christopher Pincher:

⁃ “What will the Government do to ensure that basic standards, including minimum room sizes and guarantees of amenity space, will apply to new PDRs.”

⁃ “What will the Government do to ensure that local authorities do not, as a consequence of new PDRs, miss out on the funding they need to provide vital infrastructure and affordable housing for their communities?”

⁃ (With reference to the proposed Building Safety Bill, which will implement a new fire safety regime) “Could you confirm…that where a building is extended in height above 18 metres (or six storeys) through the new PDR, that it will then fall under the scope of the new building safety regime?

⁃ “What rights will local authorities have to object to a scheme which damages the local streetscape?”

⁃ “How will the rights of existing business, e.g. pubs and restaurants, be protected to ensure that they can continue to operate in an area changing its mix of development?”

⁃ “What research has the Government undertaken into the potential impact on leaseholders of these changes and what protections will the Government put in place to ensure that they are not financially disadvantaged as a consequence?”

(We now have further detail in relation to the proposed Building Safety Bill, referred to in that third bullet point. MHCLG has published its 18 July 2020 press statement Landmark building safety law to keep residents safe and accompanying guide, although until we see the draft Bill on 20 July we will not have the answer to that question as to whether the duties in the Bill will apply to development carried out by way of permitted development rights, which personally I would guess that surely they would but we shall see…).

Aside from those substantive concerns, which will equally apply to the proposed “demolish commercial to replace with residential” permitted development right, there are inevitably a number of uncertainties as to various aspects of the “building upwards” right. For instance:

⁃ Does the existing building have to be entirely in residential use? What if, say, there are any commercial units on the ground floor?

⁃ How is the adequacy of natural daylight to be determined? This cannot be allowed to turn into inconclusive debates as to “BRE compliance” given the flexibility urged in the BRE guidance itself as to application of its tests.

⁃ What is the scope for the local planning authority to refuse prior approval on the basis of effect on amenity, overlooking, privacy and loss of light? If any exercise of the right would lead to one or more of these problems, due to the inherent circumstances of the building, can the local planning authority refuse permission even if that thwarts the owner’s ability to rely on the right?

⁃ What amounts to “completion” and what are the practical implications of the development having been substantially carried out but not completed by the three years’ deadline?

Any project to construct additional storeys onto an existing block of flats also of course brings all manner of private law complexities: a minefield of landlord and tenant, building management, private nuisance and rights to light issues for example. It is often not the need for planning permission that scuppers the proposal.

Don’t just listen to me: it’s worth reading the Government’s own Regulatory Policy Committee’s lukewarm endorsement of the impact assessment accompanying the 24 June changes. The assessment had estimated that the “building upwards” right could lead to approximately 81,000 homes being built above existing structures. I would be astonished.

Simon Ricketts, 18 July 2020

Personal views, et cetera