Prior Approval of Permitted Development Ongoing Problems and Issues

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1 RTPI South West DEVELOPMENT MANAGEMENT 11 October 2017 Prior Approval of Permitted Development Ongoing Problems and Issues Martin Goodall, Keystone Law [All references are to Part 3 of the Second Schedule to the GPDO unless otherwise stated.] Time limits Class P (residential conversion of a storage building [from B8]) Use of the building within Use Class C3 (dwellinghouses) must begin no later than 15th April If the residential use begins after that date, it is no longer PD. (No extension to this deadline has [yet] been announced.) [But note Impey v SSE (1984) 47 P. & C. R. 157 and Welwyn Hatfield v SSCLG [2011] UKSC 15 (per Lord Mance at para 29) - this change of use does not depend on actual residential occupation. It occurs at the point when the building is ready for residential occupation.] Class PA (residential conversion of a light industrial building from [from B1(c)]) Prior approval applications under this class are now permissible (since 1 October 2017). Legislative changes Various changes of use from Use Class A4 (Drinking establishments) ceased to be PD with effect from 23 May 2017, (i.e. under Class A to A1 or A2, or under Class B to A3, also under Part 4, Class C (for use as a state-funded school for up to two academic years) and Class D (to various business uses for a period of up to two years). [PD rights for the demolition of drinking establishments (A4) have also been removed from Part 11.] [But note that the use of many pubs had in fact changed to Use Class A3 (gastro-pub, restaurant and bar, etc.) before 23 May 2017 simply by virtue of the extent of their expanded food business, and these A3 businesses can still change use under Class A, (and also temporarily under Class C or D of Part 4).] Instead of C/U from A4 to A3, Class AA now permits change of use from a use falling within Class A4 to a use falling within Class A4 (drinking establishments) with a use falling within Class A3 (restaurants and cafes) ( drinking establishments with expanded food provision ). The converse change of use is also permitted by Class AA. Part 4, Class CA permits development consisting of the provision of temporary school buildings on vacant commercial land and the use of that land as a state-funded school for up to 3 academic years (subject to the usual limitations, and conditional upon a prior approval application). [ Vacant commercial land means any land on which all buildings have been demolished; and which was last used for a purpose falling within Class B1 (business), Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class D2 (assembly and leisure) or as a school.]

2 Confirmation and clarification of various points Preclusive conditions (GPDO, Article 3(4)) The Court of Appeal upheld the High Court judgment in Dunnett Investments Limited v SSCLG [2017] EWCA Civ 192. Express reference to GPDO not necessary in order to preclude PD in accordance with GPDO Article 3(4). CA cited Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 in support of this proposition. Whilst there is no such thing as an implied condition, an existing condition can be construed in such a way as to imply a term in that condition that is necessary to give proper effect to its intention. Qualifying criteria versus the 56-day rule It is well established that the 56-day rule has no application where the qualifying criteria in a particular case are not met. If the proposed development does not qualify as permitted development for any reason (and this would include any failure to comply with the conditions subject to which Part 3 grants deemed planning permission for this type of development), then it is simply not permitted development in any event. This was clearly demonstrated by an appeal decision in Gloucestershire [ ]. In these circumstances, any failure on the part of the LPA to notify the applicant as to whether prior approval is given or refused, either within the 56-day period or at all, cannot give rise to any right to carry out the development. This has now also been confirmed the CA in Keenan v Woking BC [2017] EWCA Civ 438. [However, this would probably not justify an LPA trying retrospectively to go behind its own prior approval where it subsequently considers that the development does not in fact qualify as PD under Part 3. See R. v. Sevenoaks DC, Ex p Palley [1994] E.G.C.S On the other hand, Ex p Palley would not apply where there has been no determination of the prior approval application.] Premature commencement of PD ( Jumping the gun ) It was clearly established by decided appeals that commencing PD before a prior approval application has been made and determined (or before the 56-day period has expired) disqualifies the development form being PD. This has been confirmed by the High Court in Winters v SSCLG [2017] EWHC 357. Fallback position PD rights can legitimately represent a fallback position in relation to other proposed development of the same site - Mansell v Tonbridge and Malling BC [2017] EWCA Civ Prior approval is not a necessary prerequisite to establishing a fallback position, provided other evidence establishes a clear intention to proceed with the PD if PP not granted for the alternative development. Floorspace limit under Class Q Paragraph Q.1(b) provides that the cumulative floorspace of the existing building or buildings changing use under Class Q within an established agricultural unit must not exceed 450 sq m. This relates to the actual floor area converted under Class Q [and/or under the former Class MB], together with the floor area now to be converted. Paragraph Q.1(h) provides that

3 the development (together with any previous development under Class Q [and/or under the former Class MB]) must not result in a building or buildings having more than 450 sq m of floor space in residential use. In Mansell v Tonbridge and Malling BC (cited above), it was argued by a claimant seeking to overturn a prior approval granted by the LPA that the 450 sq m floorspace limit applies to the entirety of the building(s) in which some of the floorspace has been or is to be converted under Class Q. The Court of Appeal firmly rejected this argument. The wording of paragraph Q.1(b) makes it clear that the floorspace limit applies only to the cumulative floor space of the existing building or buildings changing use under Class Q. Similarly paragraph Q.1(h) makes it clear that the development under Class Q (together with any previous development under Class Q [and/or under the former Class MB]) would result in a building or buildings having more than 450 square metres of floor space having a use falling within Class C3. Curtilage listing of barn near listed farmhouse as disqualification under Class Q Disqualification only applies if the barn was genuinely within the curtilage of the listed building at the time of first listing. Note that this depends on functional (as well as spatial) relationship of barn with the listed building (Sinclair-Lockhart s Trustees v Central Land Board (1950) 1 P.& C.R. 195). Barn must have been in domestic (not agricultural) use at the time (R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin)). Burford v SSCLG [2017] EWHC 1493 (Admin) also serves as a reminder that (as per Dyer v Dorset CC [1989] 1 Q.B. 346) to qualify as curtilage, the land on which the barn stands must also have formed one enclosure with the listed building. [But note section 1(5) of Planning (Listed Buildings and Conservation Areas) Act 1990 if barn was physically attached to the listed farmhouse, it is listed.] Convertibility of the agricultural building It is clear from the actual wording of Class Q(b) that the development permitted by that class (and by its predecessor, Class MB in the 1995 Order) does not, and was never intended to, authorise the substantial demolition and reconstruction of the pre-existing building, nor does it enable the extensive rebuilding of an insubstantial structure so as to create what would in substance be a new building. 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. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted. This was further emphasised by the revised PPG issued in March 2015, which confirmed that it is not the intention of what was then Class MB(b) (now Class Q(b)) to permit the construction of new structural elements for the building. The judgment in Hibbitt v. SSCLG [2016] EWHC 2853 (Admin) has endorsed this approach to the structural issue. However, this case was largely fact-dependent, and should not be given undue weight. It simply confirms the well understood principle, which was repeated in the revised PPG, that PD under Class Q(b) does not extend to a building that cannot be converted to residential use without building operations that would be so extensive as to amount either to substantial rebuilding of the pre-existing structure or, in effect, the creation of a new building, and which would therefore go well beyond the scope of the operations permitted by Class Q.

4 Subject to this, the wording of Class Q(b) does allow building operations reasonably necessary to convert the building to residential use, and these operations can properly include the installation or replacement of (inter alia) roofs or exterior walls to the extent reasonably necessary for the building to function as a dwellinghouse, and also partial demolition to the extent reasonably necessary to carry out these building operations. Sustainability of location Paragraphs 108 and 109 of the National Planning Practice Guidance make it clear that prior approval cannot be refused on the grounds that the location of the development is unsustainable (in contrast to a refusal of PP on this ground). A challenge to this ministerial advice, and its practical application, was rejected by the High Court in East Herts DC v SSCLG [2017] EWHC 465 (Admin). Restriction on parking permits under section 106 The judgment of the High Court in R (Khodari) v. Kensington and Chelsea RLBC [2015] EWHC 4084, where it was held (following an earlier judgment, Westminster City Council v. SSCLG [2013] EWHC 690 (Admin)) that a covenant in a section 106 agreement which purported to prohibit tenants of a residential development from applying to the council for residents parking permits was outside the scope of section 106, so that matters of this nature cannot be governed or controlled by this means, was reviewed by the Court of Appeal in May ([2017] EWCA Civ 333). The judgment confirmed that the section 106 agreement was not within the powers of section 106, but this agreement was also made under section 16 of the Greater London Council (General Powers) Act 1974, and the parking covenant was within the powers of that section. Thus in Greater London, if a planning agreement is made under (inter alia) section 16 of the Greater London Council (General Powers) Act 1974, it may lawfully containing a covenant prohibiting applications by residents of the development for parking permits within a CPZ. However, outside Greater London, it remains the case that a section 106 agreement cannot prohibit applications for residents parking permits in a CPZ. Various work-arounds to avoid this problem have been put forward by LPAs, but their practicability and enforceability has not yet been definitively tested For readers of A Practical Guide to Permitted Changes of Use: Please see amended text below, to be substituted for the second paragraph in 9.5 (on page 102 in the Second Edition) : Development under Class Q is also precluded where permitted development has been carried out on the established agricultural unit since 20 March 2013 under Part 6, Class A(a) or B(a) (works for the erection, extension or alteration of an agricultural building) or, where development under Class Q begins after 20 March 2023, within 10 years before the date when development under Class Q begins. [The words whichever is the lesser which appeared in Class MB in the 1995 Order are not repeated in the 2015 Order.] This prevents the residential conversion of an agricultural building for at least

5 10 years where any permitted development under Class A(a) or Class B(a) of Part 6 has been carried out on the established agricultural unit since 20 March However, it does not prevent a residential conversion where the permitted development under Part 6 was carried out on the established agricultural unit before 20 March 2013, even (in that case) if the development under Part 6 was the erection of the actual building to be converted (subject to the possible effect of the rule in Kwik Save see paragraph A.12 of Appendix A). Nor does it prevent a residential conversion where any other development has been carried out on the established agricultural unit, at any time, under a planning permission (unless prohibited by a condition in the planning permission see paragraph A.5 of Appendix A). Lest planning officers should have any doubts on the point, it should be noted that there is no 10-year moratorium on development under Class Q where permitted development under Part 6 took place before 20 March MARTIN H GOODALL LARTPI Keystone Law, Bristol October 2017