Wednesday, 21 March 2018

Amended application fees

I imagine that most of my professional readers will be aware by now of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 (SI 2017 No.1314) which came into effect in mid-January.

Article 2 has increased application fees generally by 20% (rounded up to whole pounds) as the government had previously announced.

Article 5(2) of these amendment regulations has removed the fee exemption previously contained in Article 5 of the 2012 fee regs which had relieved applicants of any liability to pay an application fee where they were applying for planning permission due either to the removal of a permitted development right by an Article 4 Direction or to its removal by a condition attached to a planning permission.

The fee increase in respect of applications for prior approval under the GPDO is dealt with separately by Article 5(3) of the new regulations (as it was by the previous version of these regulations when prior approval applications were introduced). The recent amendments to these fees generally do no more than increase the fees by 20%, but the fee for prior approval under Part 4 (temporary buildings and uses) is the same [now £96] whether or not any building operations are involved (under Class E, in connection with temporary film-making). Unless I had previously mis-read the original fees regulations, this is in contrast to the earlier rule that a fee of £172 was payable for a combined application for both operational development and building operations under Part 4, Class E.

The £96 fee is now also payable for applications under Part 7 (non-domestic extensions, alterations etc), and Part 14 (renewable energy) in addition (as before) to those made under Part 6 (agricultural and forestry) and Part 11 (heritage and demolition).

Having waded through these amendment regulations, as well as various other amendment regulations on other subjects recently, I am bound to say that it would make life far easier for everyone who has to interpret, apply and operate under this detailed subordinate legislation if, instead of simply amending the earlier statutory instrument by reference, the government were to replace the previous version entirely. Whilst this might involve reprinting large wodges of text which had not in fact been amended, it would make the exercise of understanding the regulations as a whole a great deal easier for all concerned.


Monday, 12 March 2018

STOP PRESS :::: PD rights for residential conversions extended

There has been much speculation as to whether the government would extend the PD right under Class P (for the residential conversion of buildings used for storage within Use Class B8). An absolute deadline for the commencement of residential use required all developments of this type to be completed no later than 15 April 2018, failing which this PD right would lapse.

However MHCLG has now announced a one-year extension of this deadline. I don’t know yet whether the government has laid an amending Order to give effect to this extension, or if not how soon they expect to do so, but they have left this extension of time extremely late, and have no doubt caused much anxiety and inconvenience to property owners and developers by failing to make up their minds earlier about extending this deadline.

In the same announcement, the Ministry has confirmed their intention (which they had previously canvassed) to extend the PD right under Class Q to enable either up to three dwellings to be created on a single agricultural unit (as now), but subject to a slightly increased cumulative floorspace limit of 465 square metres (compared with the previous cumulative limit of 450 sq m), or alternatively up to five dwellings, each of which would be limited to no more than 100 sq m. Within these limits, it seems that developers will be allowed to ‘mix and match’ their development, provided that no more than three of the new dwellings exceed the 100 sq m limit (but still subject to the overall limit of five dwellings).

I think we shall need to see the actual wording of the amendment order to understand exactly how these new limits will work, especially in relation to a combination of larger and smaller dwellings.

The government has also announced a proposed enlargement of PD rights for the erection of agricultural buildings on larger agricultural holdings under Part 6, which will enable buildings of up to 1,000 sq m to be erected (in place of the current limit of 465 sq m). Again, precise details will need to be checked when the amending order to the GPDO is made.

UPDATE (13.3.18): I am grateful to Steve Jupp for pointing out that the amending order is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018 (SI 2018 No.343), which was made on 8 March and takes effect on 6 April.

I haven’t had time yet to get my head round the detailed drafting amendments but, for the purposes of Class Q, a “larger dwellinghouse” is defined as a dwellinghouse developed under Class Q which has a floor space of more than 100 square metres and no more than 465 square metres, and a “smaller dwellinghouse” is defined as a dwellinghouse developed under Class Q which has a floor space of no more than 100 square metres.

Subject to this definition, in the case of a larger dwellinghouse within an established agricultural unit the cumulative number of separate larger dwellinghouses developed under Class Q must not exceed 3; nor must the cumulative floor space of the existing building or buildings changing use to a larger dwellinghouse or dwellinghouses under Class Q exceed 465 square metres. Similarly, in the case of a smaller dwellinghouse within an established agricultural unit, the cumulative number of separate smaller dwellinghouses developed under Class Q must not exceed 5; nor must the floor space of any one separate smaller dwellinghouse exceed 100 square metres.

The development under Class Q (together with any previous development under Class Q) within one and the same agricultural unit must not result in either or both of the following—
(i) a larger dwellinghouse or larger dwellinghouses having more than 465 square metres of floor, and/or
(ii) the cumulative number of separate dwellinghouses exceeding 5.

So far as Class P is concerned, this is now amended so that the PD right under this class is only disapplied if the prior approval date falls on or after 10 June 2019 (so the deadline has been extended for around 14 months) and there is now also a condition that the development must be completed within a period of 3 years starting with the prior approval date.


Friday, 9 March 2018


I quite frequently receive queries from correspondents that could very easily be answered by referring to one or other of my two books - A Practical Guide to Permitted Changes of Use (currently in its Second Edition) and The Essential Guide to the Use of Land and Buildings under the Planning Acts, and I often answer these questions by drawing the enquirer’s attention to the relevant passage in one or other of these two books.

This suggests to me that there are still some of you out there who haven’t yet bought either or both of these two books, who would benefit greatly by having access to them, either on your bookshelf, or by accessing the electronic version on your computer. I have been told by readers that they have found these two books a huge help in guiding them through the law and practice relating to the use of land and buildings and changes of use. At least two correspondents told me that the book paid for itself within a week of their receiving it, by providing the answer to particular problems that they had encountered and to which they had been unable to find the answer from other sources.

The two books are complementary to each other, and together they provide a very full explanation of the issues that affect the use of land and buildings and changes of use. Having the electronic version of the books is clearly the modern way of accessing the text quickly and conveniently, and so Bath Publishing are currently making a special offer, which will give you a free copy of the electronic version of both books when you buy the printed editions of the two books together. This offer therefore gives you £200-worth of conveniently accessible and extremely valuable information on these important subjects for a combined price of only £100 (compared with a total cost of £150 if you were to buy the print/digital bundle for each book separately).

If you click on the Down arrow on the right-hand side in either of the drop-down lists below each book title which you can see in the left-hand margin of this page, you will find the details of this offer, and can order online through that link. Don’t miss out; you will find these two books an invaluable resource, which will save you much time and frustration in discovering the answers to the problems and conundrums that so frequently arise in this area of planning law and practice.


Tuesday, 27 February 2018

Convertibility of agricultural buildings – revised advice

The Housing Ministry (formerly De-CLoG) has at last revised its advice on the convertibility of agricultural buildings under Part 3, Class Q, in the Second Schedule to the GPDO.

Readers will recall that paragraph 105 of the online PPG, as revised in March 2015, stated rather starkly that It is not the intention of this permitted development right to allow rebuilding work which “would go beyond what is reasonably necessary for the conversion of the building to residential use”, so that “it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right”, but did not enlarge on this gnomic utterance, leaving it open to some rather imaginative interpretation by LPAs.

I had always been clear, and I think it was generally accepted even before this revision to paragraph 105 was made in 2015, that the works permitted under Class Q(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, especially if they are of rather insubstantial construction. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted. (See paragraph 9.7 in Chapter 9 of my first book, A Practical Guide to Permitted Changes of Use - page106 in the Second Edition.)

Unfortunately, quite a few LPAs seized on the revised guidance in March 2015 as an opportunity to refuse prior approval for various residential conversions of agricultural buildings which, in my view, did not involve such extensive work as to take the development outside the scope of Class Q(b), even taking into account that revised guidance.

Internal works were one particular bone of contention, and I argued strongly that such works should be seen as being entirely removed from the definition of development by virtue of section 55(2)(a) in the 1990 Act, so that they did not in any event form part of the development that was permitted by Class Q(b), and were thus not caught by the restrictive wording of paragraph 105 of the PPG.

The Housing Ministry has now at last conceded this point in the following wording, added to paragraph 105 on 22 February: “Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls.” These are not prohibited by Class Q

In the revised wording of paragraph 105, the Ministry has also referred to the High Court judgment in Hibbitt v SSCLG [2016] EWHC 2853 (Admin) as an example of a discussion of the difference between conversions and rebuilding. However, I have always taken the view that Hibbitt simply confirmed the well understood principle mentioned above. As I put it in a blog post on the convertibility of agricultural buildings on 14 November 2016, it was not even necessary to call in aid the wording of the PPG, as revised in March 2015, in order to interpret the plain words of the GPDO. But I warned that we should be wary of reading more than this into the Hibbitt judgment. What I called “the structural issue” has in effect two limbs. The first is the fundamental point, which was dealt with by Hibbitt (i.e. Does the development consist simply of necessary building operations, or does it comprise substantial demolition and reconstruction of the previous structure?).

The second aspect of this structural issue - the question of how much internal work can be carried out inside the building within the scope of Class Q, which has now been clarified by the latest revision of paragraph 105 last week, was one that I had found it necessary to discuss in great detail, and at great length, in Appendix D to the Second Edition of A Practical Guide to Permitted Changes of Use, but the latest revision of paragraph 105 has now made most of that debate unnecessary.

It is still my view that the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

It is very much to be hoped, however, that the latest revision to paragraph 105 of the PPG will finally put a stop to any further arguments about internal structural works carried out to agricultural buildings before or during their residential conversion under Class Q.


Tuesday, 23 January 2018

Going to appeal

On Wednesday 1 March last year, I reported on the High Court decision in Winters v. SSCLG [2017] EWHC 357 (Admin), on the premature commencement of development that required a prior approval application under the relevant part of Schedule 2 to the GPDO. However, this case went on to the Court of Appeal on 5 December. I have not yet caught up with the CA judgment, but will report on it as soon as I have had a chance to read it. I felt that the first instance judgment was entirely in line with the current understanding of the law relating to ‘jumping the gun’ on permitted development, but at least one judge has clearly been persuaded that there is an arguable point to be made in favour of a contrary view. My money would nevertheless have been on the High Court judgment being upheld, but we shall see whether I was right or wrong about this.

On Wednesday 1 November, I drew attention to the judgment in Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin), in which the issue of implied conditions arose again. This is another judgment which seemed to me to demonstrate an entirely correct application of the law on this topic as it is currently understood (taking on board the observations of Lord Carnwath JSC in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74). The Lambeth case also went up to the Court of Appeal on 1 December, and when I get hold of the judgment it will be interesting to see what they have made of it.

Finally, on Friday 8 December, I mentioned the High Court judgment in Braintree DC v SSCLG [2017] EWHC 2743, as to the meaning of "isolated" in paragraph 55 of the NPPF. However, I understand that this too is going on to the Court of Appeal, and so I will postpone comment on that case until we see what the Court of Appeal has to say on this issue.

UPDATE (3 March 2018): I am informed that the appeal to the Court of Appeal in the case of Winters has now been withdrawn, and so the High Court judgment in this case stands unchallenged.


Tuesday, 9 January 2018

Whither De-CLoG?

One of the really big and important announcements yesterday in the course of Theresa May’s masterly and authoritative re-shuffle of her cabinet was that Sayid Javid, in addition to keeping his current job, is to be known in future as the Secretary of State for HOUSING, Communities and Local Government, and his department will be similarly renamed. The whole world stands back in amazement at this revolutionary and epoch-making change.

Voters who don’t follow these matters as closely as planning anoraks (planoraks?) like me may not be aware that Housing has in fact been one of this ministry’s major responsibilities for the past 70 years. But now this closely-guarded state secret has been revealed to the whole world.

My immediate problem is that I will no longer be able to refer to the Department as “De-CLoG” (a name, incidentally, which I did not coin myself - one of my friends in the Planning Inspectorate told me that this is the name by which the Department is known within PINS). “De-HoCLoG” just doesn’t work, and even if we use an updated variant on the department’s own preferred moniker, so that it becomes HCLG, this doesn’t exactly trip off the tongue.

I know; I’ve just had an idea. We should call it the Ministry (or Department, if you prefer) of Housing and Local Government. Brilliant! I wonder why nobody ever thought of such an obvious name before. In practice, now that Housing is the first element in the Department’s name, the popular press will probably refer to it simply as “the Housing Department”, and to the Secretary of State as “the Minister of Housing”. In public relations terms, this spotlight on the Department’s housing brief may not be to the government’s advantage.

There is still a junior housing minister, and Dominic Raab (MP for Esher and Walton) has today replaced Alok Sharma in this role. Raab was previously a junior minister in the Department of Justice. The PM had already set Housing as a major priority for De-CLoG, and so the name change simply underlines the fact that Javid will be held personally responsible if the Department fails to deliver, both literally and metaphorically, on the housing front.

He will have an uphill struggle, however. Thanks to the enthusiastic welcome given by Eric Pickles (‘Uncle Eric’, remember him?) to entirely unnecessary austerity cuts imposed by the Treasury under the Tory-dominated coalition government, De-CLoG took a particularly hard hit in terms of staff numbers, with the result that it is now woefully short of the staff resources it needs to beef up housing delivery, or to perform its various other functions effectively.

Early last year I expressed scepticism following publication of the government’s Housing White Paper. To use one of Theresa May’s favourite mantras – “Nothing has changed. Nothing. Has. Changed.” The White Paper re-stated the government’s aim of building a million new homes by 2020. As I pointed out last year, this would require an annual completion rate as high as, if not higher than, the building rate achieved under the dynamic leadership of Harold Macmillan as Minister of Housing and Local Government in the early 1950s, which included a substantial proportion of publicly funded social housing [yes, “council houses”]. Does the government seriously expect the private sector now to match that building rate without such a significant public sector input? We are already a quarter of the way through the period within which their ambitious housing target was to be achieved. Were there a quarter of a million housing starts or housing completions in 2017? If not, then the build rate will have to accelerate to an even higher annual figure if the government is to stand any chance of meeting its 1 million-home target by the end of 2020.

The basic problem is the same across all areas of government - housing, the NHS, social care, education, and many others. Despite empty words from the Prime Minister, austerity continues apace, and more spending cuts are in the pipeline. Our public services are crying out for extra spending and urgent capital investment. Raising the pathetically low rate of standard rate income tax (and, for the sake of fairness, also raising higher rates of tax going well above 50%) is the only way that this can be achieved. This is, of course, against the Conservative Party’s religion, and so it won’t happen under this government. Not surprisingly, the government’s efforts to appeal to younger voters and to a wider social spread of voters are unlikely to yield the electoral dividends they seem to expect. This government (like all its predecessors) will be judged by its record, not by public relations 'spin'.