PERMITTED DEVELOPMENT ISSUES

Transcription

1 PERMITTED DEVELOPMENT ISSUES 6 June 2018 David Evans, Consultant Solicitor

2 INTRODUCTION Permitted Development in the Town & Country Planning Act 1990 and the General Permitted Development Order Statutory background - Exclusions - Scope - Procedures - Offices to dwellings - Barns to dwellings - Discussion

3 STATUTORY BACKGROUND Section 55 Definition of development - Section 57 PP required for development - Section 58 Ways to grant PP: by a Development Order (DO); Local DO; or by way of an application to an LPA by way of DO - Section 59 Power to grant PP by Order granted to Secretary of State - Section 60 Scope of the power to grant PP by Order - Section 61 Supplementary provisions - Rest of Part III largely irrelevant likewise DMPO

4 STATUTORY BACKGROUND - 2 The Town and Country Planning (General Permitted Development Order) 2015 Statutory Instrument No. 2015/596 - Amended by: SI 2015/659; SI 2016/332; SI 2017/619; and SI 2018/343 - Schedule 2 19 parts: from dwellinghouses to development for national security purposes; focus here on Part 3 Changes of Use The width of the GPDO to my mind makes the task of determining its overall purpose well nigh impossible. Cranston J. at para. 48 in Eatherley v LB Camden [2016] EWHC 3108 (Admin)

5 EXCLUSIONS GENERALLY - Article 2(3), 2(4) and 2(5) Land - but not always - Article 4 Directions (and Art 5 Directions minerals) - EIA Development; see Art 3 (10) - Conservation of Habitats and Species Regulations 2010; see Art 3(1) - Planning condition; see Art 3(4)

6 EXCLUDED BY CONDITION - 1 Dunnett Investments Ltd v Secretary of State for Communities and Local Government and East Dorset DC [2017] JPL 848 Facts: B1 Office block; Application to convert from B1(a) to C3 SoS: Refused on the basis that a planning condition stated: 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. 2. In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal."

7 EXCLUDED BY CONDITION - 2 Court of Appeal upheld High Court decision; see: [2016] EWHC 534 (Admin) - Applied Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 - no bar in implying words into conditions but a grant for a particular use could not in itself amount to an exclusion - Words used must clearly evince an intention to exclude GPDO; this was found from the words and for no other purpose whatsoever and the requirement to obtain express consent for other uses - Condition read purposively; see also Lambeth LBC v SSCLG [2018] EWCA Civ 844

8 SCOPE OF PD RIGHTS - 1 Eatherley v London Borough of Camden [2016] EWHC 3108 Admin CoL for basement extension granted on the basis that this amounted to enlargement, improvement and alteration of a dwellinghouse under Schedule 2 Part1 of the GPDO Neighbour successfully challenged this decision - No boundaries to the permission granted by the GPDO - Whether as a matter of fact and degree the process amounts to: different activities, each of substance, so that one is not merely ancillary to the other - Engineering aspect of the development not PD; separate activity of substance so requires PP

9 SCOPE OF PD RIGHTS - 2 Orange PCS Ltd v Islington LBC [2006] EWCA Civ 157 Permission is only crystallised once prior approval granted; therefore change in status of land designation of CA - after approval granted did not remove rights Change in status before prior approval consent granted is however material; see SoS appeal decision Townsley v Secretary of State [2009] EWHC 3522 (Admin) Use has to exist before PD rights can be used

10 SCOPE OF PD RIGHTS - 3 Can a positive decision under PD be overridden should it turn out the development is not PD? - R v Sevenoaks DC ex parte Palley [1994] EG 148 No: it is inherent in that determination that the authority necessarily accepts that the proposed development does qualify as PD - Keenan v Woking BC and SSCLG [2017] EWCA Civ 438 and R (Marshall) v E Dorset DC [2018] EWHC 226 (Admin) Maybe: the proposed development must fall squarely within the description of Permitted development Part 6 only? - Part 3 para W(3) deals with validity - Need to demonstrate that the land is capable of benefiting from the permission; see appeal decision ref: APP/H2733/A/14/

11 PROCEDURE GPDO is self-contained; DMPO not relevant - Important to follow the required procedures; no scope for deviation Winters v. SSCLG [2017] EWHC 357 (Admin) Prior approval application submitted for an extension; works started before authorisation obtained SoS decision upheld by the High Court GPDO not capable of authorising development that had already been started

12 PROCEDURE - 2 GPDO, Schedule 2, Part 3, Para W Sets out what an LPA can consider, inc. under different classes 56 Day Rule Murrell v SSCLG [2010] EWCA Civ Valid application an objective question of law - Does not apply if the proposal does not meet the qualifying criteria for PD; see SoS Appeal decision ref. no

13 PROCEDURE - 3 CONDITIONS GPDO, Schedule 2, Part 3, Para W(13) - Power to grant approval subject to conditions reasonably related to the subject matter of the prior approval

14 OFFICES TO DWELLINGS - 1 GPDO, Schedule 2, Part 3, Class O - Rolling 3 year time limit - No building operations authorised but possible to combine with a separate planning permission for these; see SoS appeal decision ref No minimum size limits; see SoS appeal decision refs and Last use; status of partly implemented planning permissions might not oust GPDO; see SoS Appeal decision refs and

15 OFFICES TO DWELLINGS Planning unit must be solely in B1(a) to qualify Burdle v Secretary of State [1972] 3 All ER 240 the unit of occupation is the appropriate planning unit to consider, until or unless a smaller unit is identified which is in a separate use, both physically and functionally - Applied in two SoS Appeal decisions where Class O (formerly Class J) rights did not apply because the offices were part of a mixed use planning unit; see refs and

16 OFFICES TO DWELLINGS - 3

17 OFFICES TO DWELLINGS - 4 Utopia Village, Primrose Hill, London A good treatise on the applicable considerations then in force - See PINS ref. no. APP/X5210/A/14/

18 BARNS TO DWELLINGS - 1 GPDO, Schedule 2, Part 3, Class Q(a) [as amended] - Sole agricultural use ; on or before 20 March 2013 (or 10 years use if brought in afterwards) Subsequent alternative uses ousts PD rights; see SoS appeal decision ref and Definition of agricultural building ; see Part 3, Para X so used for the purposes of a trade or business the enterprise must be commercial in nature

19 BARNS TO DWELLINGS - 2 Up to the applicant to demonstrate that the qualifying criteria is met - GPDO, Schedule 2, Part 3, Paras W(3) and W(9) - Pratt v SSCLG [2016] EWHC 637 (Admin) Appeal dismissed because of contradictory evidence Appeal to HC unsuccessful because appellant held to discharge evidential burden

20 BARNS TO DWELLINGS - 3 GPDO, Schedule 2, Part 3, Class Q(b) permits: building operations reasonably necessary to convert the building.. - Para. Q(i) permits installation or replacement of windows, doors, roofs, or exterior walls, installation of services, subject to the caveat that they are: reasonably necessary for the building to function as a dwellinghouse and partial demolition to the extent reasonably necessary to carry out these building operations.

21 BARNS TO DWELLINGS - 4 GPDO, Schedule 2, Part 3, Class Q(b) permits: building operations reasonably necessary to convert the building.. - Para. Q(i) permits installation or replacement of windows, doors, roofs, or exterior walls, installation of services, subject to the caveat that they are: reasonably necessary for the building to function as a dwellinghouse and partial demolition to the extent reasonably necessary to carry out these building operations.

22 BARNS TO DWELLINGS 5 INTERNAL WORKS Revised Ministerial Guidance NPPG para. 105 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, which are not prohibited by Class Q. (Paragraph: 105 Reference ID: )

23 BARNS TO DWELLINGS - 6 LOCATION East Herts DC v SSCLG [2017] EWHC 465 (Admin) - Condition Q.2(1)(e): location or siting. makes it otherwise impractical or undesirable - SoS allowed an appeal against the LPA decision to refuse. LPA challenged - Held: NPPF para. 55 did not apply; rather NPPG paras 108 and 109 applied: The permitted development right does not apply a test in relation to location as it is recognised the many agricultural buildings are not likely to be in villages and are unlikely to rely on public transport for their daily needs.

24 BARNS TO DWELLINGS - 7

25 BARNS TO DWELLINGS - 8 Hibbitt v Secretary of State for Communities and Local Government [2016] EWHC distinction between conversion and the associated works reasonably necessary to carry out that conversion, and rebuilding

26 SUMMARY Key considerations - Qualifying use - Evidential burden - Procedure - Ever changing

27 DISCUSSION Permitted Development Rights Expansion a good thing?

28 NOTIFICATION FOR PRIOR APPROVAL FOR A PROPOSED CHANGE OF USE OF A BUILDING FROM OFFICE USE (CLASS B1(A)) TO A DWELLINGHOUSE (CLASS C3) Nick Boles, 2013 Under-used and out-dated offices bought back to life and provide much needed homes Eric Pickles, 2014 Get Britain building again and fix our broken housing market Local planning authorities can only assess a limited number of matters : Transport/Highways implications Land Contamination Flood Risk Impacts of noise from surrounding uses on future occupiers Trading Estate location (above) and building (below) With thanks to Linda Sparrow an MSC student at Anglia Ruskin for these slides

29 KEY ISSUES Brickdale House before development BENEFITS Delivering housing quickly 30,575 additional new homes in England since 2015 (1 in 10) Revitalise vacant buildings Provide smaller units so housing sites focus on family dwellings Smaller units = more affordable pricing Brownfield sites Brickdale House after development AT WHAT COST? No Affordable/Social Housing Supplied No improvements to surrounding infrastructure Less than minimum space standards (15 sq m) Loss of commercial space & increase in rents

30 FLOW CHART OF TWO KEY ISSUES AND POTENTIAL OUTCOMES

31 DISCLAIMER These slides have been made available for educational purposes only. Their contents do not constitute legal advice and should not be relied on as such advice. Should you require advice on a specific matter please contact: David Evans Consultant Solicitor Tel: david.evans@keystonelaw.co.uk