Tuesday, March 24, 2015

Shroud adverts on large buildings

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

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

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

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

Tuesday, March 17, 2015

Further protection for pubs (1)

Ministers stated their intention on 26 January this year to strengthen the protection of pubs identified as assets of community value, by bringing forward “at the earliest opportunity” amendments to the Second Schedule to the General Permitted Development Order so that in England the listing of a pub as an asset of community value would trigger a removal of the permitted development rights, under Part 3 for change of use, and under Part 31 for demolition, of those pubs that have been designated as ACVs.

The promised changes to the GPDO have now been made, by an amendment order laid before parliament last week. With effect from 6 April 2015, there is a restriction on the changes of use permitted by Part 3, Classes A, AA and C, in respect of a building used within Class A4 (drinking establishments), where that building has been either nominated or designated as an “asset of community value”. Furthermore, even where the developer is not aware of the building having been either nominated or designated as an asset of community value, the permitted development under Class 3 is subject to the prior condition mentioned below.

A public house (as well as other land and buildings) may be designated by the LPA as an asset of community value, on the application of the parish council or a recognised community interest group under Part 5, Chapter 3 of the Localism Act 2011, as supplemented by the Assets of Community Value (England) Regulations 2012 (SI 2012 No.2421) (which came into effect on 21 September 2012). Public houses seem to be the type of property most commonly designated under the Act, representing slightly more than one-third of designated ACVs, with a very high proportion of nominations (not far short of 90%) having led successfully to the designation of pubs as assets of community value.

The primary effect of an ACV designation is a moratorium on the disposal of the property. However, in addition, there is now a restriction on the changes of use that are permitted by Part 3, Class A (change of use to a use within Use Class A1 – shop or other retail use), Class AA (change of use to a use within Use Class A3 – for the sale of food and drink for consumption on the premises, i.e. a restaurant or cafĂ©) and Class C (change of use to a use within Use Class A2 – financial or professional services).

The restriction applies where the building is used for a purpose falling within Class A4 (drinking establishments) and either it has been designated as an ACV, or the LPA has notified the developer that it has been nominated as an ACV (i.e. proposed for designation as such) under section 89(2) of the Localism Act 2011.

In the case of a building which is already a designated ACV, the restriction lasts for the period of 5 years beginning with the date on which the building was entered on the list of assets of community value. The restriction no longer applies where the building has been removed from that list under regulation 2(c) of the Assets of Community Value (England) Regulations 2012 following a successful appeal against listing, or because the local authority no longer considers the land to be land of community value, or where the building has been removed from that list under section 92(4)(a) of the Localism Act 2011 following the local authority’s decision on a review that the land concerned should not have been included in the local authority’s list of assets of community value. In those cases, the restriction applies during the period from the date on which the building was entered on the list of assets of community value to the date on which it was removed from that list.

In the case of a building that has been nominated as an ACV, but which has not yet been designated as such, the restriction lasts from the date on which the LPA notifies the developer of the nomination, to the date on which the building is entered on the list of assets of community value, or a list of land nominated by unsuccessful community nominations under section 93 of the Localism Act 2011. It follows that if the nomination results in the designation of the building as an ACV, the 5-year restriction mentioned above will then apply immediately, so that the restriction on the change of use will continue without a break, subject only to its possible termination by the removal of the building from the list of ACVs in the meantime.

In the case of a building which is not an asset of community value but which is used for a purpose falling within Class A4 (drinking establishments) it is a condition that, before beginning the development, the developer must send a written request to the LPA as to whether the building has been nominated for designation as an ACV. This request must include the address of the building, the developer’s contact address and the developer’s email address if the developer is content to receive communications electronically.

If the building is nominated for designation, whether before or after the date of the developer’s request, the LPA must notify the developer as soon as is reasonably practicable after it is aware of the nomination, and upon that notification development is not permitted for the specified period mentioned above. Development under Classes A, AA or C must not begin before the expiry of a period of 56 days following the date of the developer’s request as to whether the building has been nominated for designation as an ACV and must be completed within a period of 1 year of the date of that request.

I will deal with the changes to temporary uses under Part 4 and demolition under Part 31 in a later post.


Thursday, March 12, 2015

They were only playing ping-pong

There is a song in “Oh, what a lovely war!” (the popular musical satire on the First World War) entitled ‘They were only playing leapfrog’. It occurred to me that a modern equivalent would be ‘They were only playing ping-pong’ (as one Lord’s amendment after another amendment was scrapped by the Commons and sent right back). Well, it doesn’t quite scan, but you get the general drift.

After the Commons discussed the Lords’ amendments to the Deregulation Bill on 10 March, the Bill has gone back to the House of Lords, and the rejected amendments are due to be re-considered by them next week, on Monday (16th March). If the Lords follow their usual practice, the ‘offending’ amendments will then be withdrawn and the Bill will finally be passed by the House of Lords, and will then go for Royal Assent.

So the Bill could finally become the Deregulation Act 2015 next week. This leaves precious little time to lay the relevant statutory instrument to amend the Greater London (General Powers) Act 1973, but other statutory instruments are continuing to come forward, so perhaps my supposition that a certain amount of time would have to be allowed before the dissolution of parliament was incorrect. But can the government go on laying this subordinate legislation before parliament right up to the last minute?

Dissolution is due on 30th March, but there is a rumour that Tory MPs have been told to empty their desks and their lockers in time for prorogation on or about the 25th. By my calculation, this will leave barely a week in which to lay the requisite statutory instrument, if that is indeed procedurally possible. Will they make it in time? This is getting to be like one of those old films, with a final car chase (accompanied by loud and urgent music and much squealing of tyres) leading to the denouement right at the very end.

I am glad that I am not a property owner in Greater London, wanting to make my property available for short-term lets. They must be biting their nails by now.


Wednesday, March 11, 2015

The 56-day rule – another example

I am grateful to a correspondent for passing on to me details of another appeal decision, issued last month, which dealt with the practical operation of the 56-day rule. This appeal related to a prior approval application under Part 3, Class MB, involving the residential conversion of a detached barn to produce two dwellings. The appellant claimed that he did not receive notification of the council’s decision within the 56-day period. It was agreed by both parties that the 56-day period would have expired on 4 June 2014. The council’s decision was dated 3 June, but the decision was not authorised under the council’s scheme of delegation until 4 June. Thus the decision could not have been sent out until Day 56 at the earliest.

The applicant stated that he had received the decision by post on 9 June, and that the council’s website was also updated with details of the decision on that day. He stated that the decision was not emailed to him. The council did not comment on or contradict any of this evidence. The inspector therefore held that, if the decision was posted on 4 June it would have been received by the appellant after the 56-day period and therefore that the postal notification did not take place within the statutory period.

As in the Tower Hamlets appeal (under Part 24), which I summarised in a previous post, the inspector in this case appears to have assumed that notification of the council’s decision must not only be dispatched (whether by hand, by post or electronically) within the 56-day period, but that it must actually be received by the applicant within that period.

Maybe in light of both of the Tower Hamlets decision and now this decision we can assume that this is the rule (until or unless the High Court tells us otherwise!). On the other hand, I understand that there have been other appeal decisions on the 56-day rule (which I have not seen) that went the other way, so maybe the jury is still out on this issue.

One other point that can be quickly disposed of is the implied suggestion (which has also been raised elsewhere) that publication of the council’s decision on its website could be taken as ‘notifying the applicant’ of the council’s decision. In my view, this could not amount to notification for the purposes of paragraph N(9)(c). Notification requires a written communication addressed to the applicant (or their agent), whether by post or by email, and merely posting information on the council’s website would not suffice for this purpose.

UPDATE: I now have the appeal reference for the decision reported above, kindly supplied by Mike Rutter. It is 2224715. If you go into the Planning Portal website, search for appeals and type in this reference, a few more key clicks will bring up a PDF of the decision letter.


Monday, March 9, 2015

Barn conversions – the new rules re-interpreted

As many readers have discovered, the interpretation of the rules on prior approval of the proposed residential conversion of agricultural buildings has been much more restrictive than we had been led to expect, and it has clearly not reflected ministerial intentions.

This is largely due to the actual drafting of the provisions in Part 3, Class MB of the Second Schedule to the GPDO. These really ought to be amended, but for various reasons ministers have not found an opportunity to do so, other than a minor change in April 2014 to make it clear that the provisions of the NPPF are to be taken into account only so far as they are relevant to the specific matters to which a prior approval application relates (e.g. highways and traffic, noise, site contamination, etc.).

In an attempt to counter the unduly restrictive approach that has been taken, both by LPAs and by the Planning Inspectorate, to Class MB in particular, the government amended their on-line Planning Practice Guidance last week, on 5 March, to explain their view as to how these permitted development rights are intended to operate.

The notes below summarise some of the points that have now been incorporated in the government’s online planning practice guidance.

Limits on building operations

On this topic, the new guidance does actually reinforce the approach which has hitherto been taken in these cases.

The definition of a “building” in Article 1(2) of the GPDO includes “any structure or erection” as well as any part of a building. This may be relevant in the context of the residential conversion of agricultural buildings, as it could in principle include various buildings and structures of unconventional, and perhaps in some cases rather insubstantial, construction. The well-known judicial authorities on what constitutes a building or structure could also be relevant in this context (e.g. Cardiff Rating Authority -v- Guest Keen Baldwin [1949] 1 KB 385, Skerritts of Nottingham v. SSETR (No.2) [2000] 2 P.L.R 102; [2000] JPL 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)).

However, the works permitted under Class MB(b) are restricted to what is reasonably necessary for the building to function as a dwellinghouse, and any partial demolition must also be limited to the extent reasonably necessary to carry out the building operations that are permitted by this class. This imposes a practical constraint on the convertibility of some buildings. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.

In their amended on-line practice guidance, the government has confirmed that it is not the intention of the permitted development right under Class MB(b) to include the construction of new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes with the external works to provide for residential use that the building would be considered to have the permitted development right.

In any event, the development under Class MB(b) must not consist of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse, and partial demolition to the extent reasonably necessary to carry out the building operations listed here. Furthermore, the development must not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point.

The inclusion of roofs and walls in the list of items that can be installed or replaced as part of the building operations permitted by Class MB might be thought to allow scope for some significant rebuilding or replacement of the existing fabric, but an appeal decision in Bedfordshire, issued in February 2015, provides clear confirmation that the extent of the proposed building operations must not go beyond what is “reasonably necessary” for the building to function as a dwellinghouse, so that substantial demolition of the building and its effective replacement would be outside the scope of the development that is permitted. This is a factor which will clearly be a material consideration in the consideration and determination of the prior approval application

The strict limitation on the works that may be carried out under Class MB(b), combined with the condition that they must not extend outside the envelope of the pre-existing building, does not allow the creation of any hard surface or other engineering works (such as the laying of gravel) to provide any hard surfaces within the curtilage for the purposes of parking, or the provision of a patio, etc. Nor is there any provision (as there is in Classes M and MA) for permitted development under Part 41, Class B that would allow any such works to be carried out. Furthermore, such works cannot be carried out under Part 1 of the Second Schedule, because such development is specifically excluded by Class MB. Planning permission will therefore be required if it is desired to incorporate any such facilities in the development, and all the usual policy considerations relating to development in the countryside will apply to the determination of such an application.

A further appeal decision in Nottinghamshire also illustrates this point. The inspector in this case held that the proposed barn conversion would involve such major changes and reconstruction as to go beyond the scope of the development permitted by Class MB(b). The building had a metal frame and walls comprising a single metal skin, plus an element of blockwork, and a roof of corrugated asbestos fibreboard. What was required to enable the adaptation of the building for residential use amounted to substantial demolition and reconstruction of the building, plus various physical alterations. This was quite clearly beyond the scope of Class MB(b).

The National Planning Policy Framework

When determining a prior approval application, the LPA must also have regard to the National Planning Policy Framework (issued by the Department for Communities and Local Government in March 2012) so far as relevant to the subject matter of the prior approval, as if the application were a planning application. The words in italics were added to the GPDO with effect from 6 April 2014.

This amendment became necessary because, when determining prior approval applications under Class J, LPAs had been interpreting paragraph N, including the words “as if the application were a planning application”, as giving them a wide discretion to take into account other policy considerations in addition to the short list of criteria set out in Class J. The amendment makes it clear that the only policies in the NPPF that can be taken into account in determining an application for prior approval are those that are relevant to the strictly limited criteria set out in respect of the specified class of development. This has been confirmed and reinforced by appeal decisions, where inspectors have been robust in excluding considerations that go outside those parameters.

This point has been further reinforced by the amendment to the government’s on-line Planning Practice Guidance, which points out that this procedure was amended in April 2014 to make clear that the local planning authority must only consider the NPPF to the extent that it is relevant to those matters on which prior approval is sought, for example, transport, highways, noise etc.

In relation to Classes MA (conversion of an agricultural building to use as a school or nursery) and MB (residential conversion of an agricultural building), in particular, the revised ministerial practice guidance explains in some detail how an LPA should approach the question as to whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use. The practice guidance makes it clear that when an LPA considers location and siting it should not be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant. (This is explained in more detail in the note on rural development policy below.)

Limits on dwelling numbers

Paragraph MB.1(c) provides that the cumulative number of separate dwellinghouses developed within an established agricultural unit must not exceed three. There has been some confusion over the precise interpretation of this provision but, in amending their on-line Planning Practice Guidance on 5 March, the government has made it clear that it was their intention that the total number of new homes (3 dwellinghouses) should not include existing residential properties within the established agricultural unit, unless they were created by the use of this permitted development right on a previous occasion, in which case they would be counted.

The Planning Inspectorate can be expected in future to apply this guidance in determining planning appeals where this point is in issue, in contrast with a previous appeal decision in which one inspector held that the 3-dwelling limit applied to all such dwellings, and was not limited only to the number created under Class MB. The effect of that appeal decision was that any dwellings already in existence on the agricultural unit would count towards this total, so that if there were already three built under previous planning permissions, then no more could be created under Class MB.

The revised ministerial guidance in the government’s on-line Planning Practice Guidance does not, however, resolve the difficulty posed by the drafting of the Order. The interpretation of legislation does not depend on what ministers think it says or would like it to say. The courts may not, therefore, agree with the advice set out in the government’s online practice guidance, if a local planning authority were to challenge this interpretation of the 3-dwelling limit in a future case.

Rural development policy

One of the criteria to be considered by the LPA when determining an application for prior approval of proposed development under Classes MA and MB(a) (both relating to conversion of an agricultural building), but not under Class M, is whether the location or siting of the building makes it impractical or undesirable for the building to change from agricultural use to use as a school or nursery (under Class MA) or to a residential use (under Class MB(a)). This has proved to be a major stumbling block for applicants in obtaining approval of these proposed conversions of agricultural buildings. Ministers did not intend to allow LPAs such broad scope for rejecting proposals for the conversion of agricultural buildings, but the drafting of Classes MA and MB has up to now been interpreted as giving an LPA a considerable measure of freedom to refuse the application on policy grounds. At least half of all such applications for residential conversion under Class MB up to the early part of 2015 are thought to have been refused (and there was anecdotal evidence that there had been an even higher rate of refusal in some areas). Furthermore, by early 2015, 9 out of 10 of the appeals against such refusals had been dismissed by the Planning Inspectorate (a significantly higher proportion than in other types of planning appeal).

This has prompted the government to amend their on-line Planning Practice Guidance to address in particular the issue as to whether the ‘sustainability’ of the proposed development is intended to be a material consideration in determining an application for prior approval of the proposed change to residential use. The revised ministerial guidance makes it clear that the permitted development right does not apply a test in relation to sustainability of location. This is deliberate, as the right recognises that many agricultural buildings will not be in village settlements and may not be able to rely on public transport for their daily needs. Instead, the local planning authority can consider whether the location and siting of the building would make it impractical or undesirable to change use to a house.

The revised practice guidance then goes on to explain what is meant by “impractical or undesirable” for the change to residential use. Impractical or undesirable are not defined in the Order, and the LPA should apply a reasonable ordinary dictionary meaning in making any judgment. “Impractical” reflects that the location and siting would “not be sensible or realistic”, and “undesirable” reflects that it would be “harmful or objectionable”.

When considering whether it is appropriate for the change of use to take place in a particular location, an LPA should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the LPA would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.

There may, however, be circumstances where the impact cannot be mitigated. Therefore, when looking at location, LPAs may, for example, consider that because an agricultural building on the top of a hill with no road access, power source or other services, its conversion is impractical. Additionally, the location of the building whose use would change may be undesirable if it is adjacent to other uses such as intensive poultry farming buildings, silage storage or buildings with dangerous machines or chemicals.

When an LPA considers location and siting it should not therefore be applying tests from the NPPF except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant.

Adopted policies in the Development Plan are also capable of being a material consideration when determining a prior approval application, but it is clear from the revised ministerial practice guidance that adopted policies on development in the open countryside, development in the Green Belt (where applicable) and sustainable development, especially taking account of the availability or non-availability of easily accessible local services and any generation of car-borne movements that might arise from this will not usually be relevant and are unlikely to be valid reasons for refusal of a prior approval application.


Friday, March 6, 2015

Catching up

Continuing work on “The Book” (actually a writing project involving several different titles), combined with a recent holiday, has resulted in a more than usually lengthy delay since my last post here.

There is quite a backlog of topics on which I could write, but still being very short of time, I will just make a few passing comments on some topical issues.

The government, and their various opponents, are now in full election mode, with only three weeks left before parliament is dissolved, when the so-called ‘short’ campaign (a full five weeks of it) commences. There is clearly going to be quite a bit of unfinished business left over, the ultimate fate of which is going to depend on the outcome of the election.

Rather surprisingly, Eric Pickles’ current PPS threw doubt the other day on the government’s intention to go ahead with their previously enthusiastic proposal to make permanent those permitted development rights that are currently due to expire on 30 May 2016. These comprise the authorisation of larger domestic extensions and the residential conversion of offices that fall within Use Class B1(a). So even if we get a Conservative, or Conservative-led, government after 7 May, it seems there is now some doubt as to whether these temporary permitted development rights will be extended to 30 May 2019, as the government had proposed, and then perhaps be made permanent.

Despite ministerial harrumphing (and Uncle Eric is very good at doing that, if nothing else), relaxation of the restriction on short-term lets in Greater London still remains in doubt. The Bill on which this depends (which is expected to become the Deregulation Act 2015), having proceeded at a snail’s pace through the House of Lords, had its Third Reading there on 4 March and now awaits what our parliamentarians delight in calling “Ping-pong” (consideration of Lords’ amendments by the Commons, return of any rejected amendments to the Lords for further consideration, and so on – hence the name), which is due on 10 March.

Royal Assent should follow quite quickly after that, possibly even the very next day (11 March) but the new Act will not actually amend the 1973 Act, which prohibits short-term lets in Greater London; it will simply give the Secretary of State power to make a statutory instrument amending or modifying that prohibition. Up to yesterday, I had been under the impression that there is no longer enough time left in which to lay such subordinate legislation before parliament in this session, but I see that the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 were made yesterday, laid before Parliament today (just 25 days before parliament is dissolved), and will come into force on 6 April, i.e. in one calendar month from now.

If the Deregulation Act receives Royal Assent next week, on the day after a very quick consideration of Lords amendments, we already know that the relevant section will come in to force immediately on the passing of the Act; so could Uncle Eric make the requisite Order on 12 March, lay it before parliament on 13 March and bring it into force on 13 April? That would allow no more than 18 days for theoretical consideration of this statutory instrument before the dissolution of parliament. I don’t have access to a copy of Erskine May, so I don’t know whether this is procedurally permissible or not. Perhaps the Opposition could put a spanner in the works by proposing a negative resolution in that event.

However, if I was right in my previous assumption that by the time the Deregulation Bill receives Royal Assent it will then be too late to lay fresh subordinate legislation before parliament, or if it can be de-railed by the tabling of a negative resolution, then it will be entirely dependent on the view on this issue that is adopted by the ministers who are in office after 7 May as to whether this ever comes forward. Ministers have not in any event said that they will wholly revoke the restriction on short-term lets in Greater London, and so any amending order that may be made could be quite limited in its effect, and be hedged around with various ifs and buts.