But……. I’m Just a Town Planner

Jon’s flagship talk, Permitted Development and Prior Notification – Planning’s Cheat Codes, continues. Check below for the next tour date!

Next Up – Regents Park PIN 

19-2-2018 Berkshire PIN

20 – 2 – 2018 Regents Park PIN 

7 – 3- 2018 Croydon Property Meet 

18 – 4- 2018 Bloomsbury WIN

2 – 5- 2018 St Pancras PPN

15 – 5 – 2018  Regents Park PIN

21/26 – 5 – 2018 Whitebox Monaco Retreat

26 – 6 – 2018 Blackpool PPN

12 – 07 – 18 Cambridge Property Community

16 – 7 – 2018 Peterborough PPN

17 – 09 – 18 Property Vault talk, Gravesend

 

 

 

 

Permitted Development 7 Years On

It has been some 7 years since the release of the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2010. The first in a raft of amendments to the faithful General Permitted Development Order (1995) that became part of the government’s ‘new way’ of planning.

The use of the Permitted Development Orders has become the standard mechanism for the Government to release development land from the grip of the Local Planning Authorities and have become the bane of any Local Authority seeking to preserve employment or retail uses within their areas.

The last 7 years have seen many ‘interpretations’ of the same document so in this article I shall go through some of the pitfalls that have arisen and how budding developers can overcome them.

Knowing the starting use

The biggest pitfall by far is knowing what the authorised starting use is because this can have a massive effect on what permitted development rights are available to you.

To give an example:

Class B1(a) Office and Class A2 Financial and Professional Service

The permitted development allowances for Office (B1a) to residential development is set out within Class O of the 2015 GPDO. The permitted development allowances for Financial and Professional Services (A2) are set out within Classes G and M of the 2015 (GPDO). They are vastly different in terms of their scope. Hence knowing the starting use is vital to knowing what options you have.

The difference between the two uses can be amazingly subtle and comes down to visitation. A Class A2 use is a retail use whose primary function relies on passing trade – people being dragged in off the street to engage with a service. An Office (Class B1a) is a private use who does not require passing trade to function. How closely a use sits into one or another is dependent on how close to either definition the original use gets.

Take a solicitor’s office.

Solicitors can be either B1(a) or A2 depending on how the solicitors themselves operated the business. A solicitors that just did work by email or over the phone or kept records could be B1(a). Alternatively a Solicitor that offered legal aid, walk in appointments and a reception desk is more likely to be in A2.

Knowing the starting use can be critical therefore to understanding what you can and cannot get away with under the Permitted Development Rights and will have massive implications for a decision.

The only way to be 100% sure of a starting use is via a Certificate of Lawful Development or a Planning Permission so the starting point should always be the planning history for any site.

Survey, Survey, Survey.

Classes M (Retail to Resi), N (Sui-Generis uses to Resi), Q (Agriculture to Resi), P (Storage to Resi) and PA (Light Industrial to Resi) are all space limited. What this means is there is a maximum limit on the amount of space you may use to facilitate your conversion.

This is where a detailed survey of the building is critical (not simply relying on the Valuation Office Agency or estate agent figures) as all of the space limits are based on gross floor space not net usable floor space.

The floors areas are maximum limits and are non negotiable.

They are as follows:

Class M – 150sqm
Class N – 150sqm
Class Q – 465sqm
Class P – 500sqm
Class PA – 500sqm

In absence of a detailed survey the Council can and will question the floor area based on the information they have available including the ordnance survey plan for the property. The burden of proof (the requirement to prove the floor area) falls to the applicant and not the Council.

In order to address this problem the solution is to get a detailed survey done at the outset. Never believe what you read!

The Time Travel Paradox

All of the permitted development rights (excluding Class G) include an effective date. This is the date at which the building must have been in use, either for office or retail or storage etc and all of these dates are set some or more 3 years back in time.

This was done in order to prevent a change of use into a prior approval bearing use.

Therefore it is reasonably obvious that you could not expect to change use into one of these prior approval bearing uses and no one would attempt that argument. Not unless they had a time machine anyway!

There are however a number of applicants per year that attempt such a feat and that fall over on this simple point of principle hence the advice always relates back to knowing the starting use and the rules relating to that use.

Information Overload

The rules on the information the Council is allowed to ask for – the information needed to start the 56 day clock are well set out at Class V(W) of Part 3 of Schedule 2 of the General Permitted Development Order (2015).

This states:

W.—(1) The following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required.

(2) The application must be accompanied by—

(a)a written description of the proposed development, which, in relation to development proposed under Class C, M, N or Q of this Part, must include any building or other operations;

(b)a plan indicating the site and showing the proposed development;

(c)the developer’s contact address;

(d)the developer’s email address if the developer is content to receive communications electronically; and

(e)where sub-paragraph (6) requires the Environment Agency(1) to be consulted, a site-specific flood risk assessment,

together with any fee required to be paid.

The Council must register and start the clock when they have received the information requirements set out in Class V(W). This message has not, however, filtered down to the staff registering or validating these applications.

The information requirements are strict and inflexible. The Council will always invariably ask for information beyond this. For example they may hold out for a Community Infrastructure Levy Form because it is in their validation list or floorplans because it is considered to assist the application. Unfortunately providing this information can also forestall the registration of an application and may raise questions that ultimately harm the application. Therefore whenever I am advising someone entering into prior notification I always give the same advice. Give the council only what they need and not what they want in order to register and start your application.

Keep an eye on the clock

Your council only get 56 days to answer the prior notification. Thats it! Once the council goes beyond the 56 days and they have not given an answer you have a deemed permission. This means you automatically get what you want when the clock exceeds the 56 day limit.

These 56 days are calendar days not working days. They include boxing days, weekends, christmas, easter, summer holidays and any other time when the LPA is not there!

So long as your application is valid (see class V(W)) then the clock starts the moment they have the required information and the fee. If the Council takes 2 weeks to register then that’s their time.

I recently dealt with this with an Authority on the South Coast.

They were holding out on registration for a Community Infrastructure Levy Form. They had everything else on the list and the fee.

After not hearing from them for the 4 of the 6 weeks they were allowed I contacted them with a gentle reminder that the time period had started and that they had two weeks left.

After a day of waiting on an answer I received a response from the head of service apologising and undertaking to get matters moving as soon as possible.

The moral of the story is that it’s your job to watch the clock. The council will not tell you when things go wrong.

Some Conclusions

Prior notification remains the preferred way of unlocking development of sites across the country and the only effective way of delivering new dwellings in the countryside.

However there are pitfalls out there which should be avoided at all costs.

Knowledge of the rules and the process is the best defence to a planning authority that may be stalling for time.

Planning in Rural Areas

In 2012 the Department for Communities and Local Government was a bit thick. In their drive to simplify the planning system they sought to revolutionize the available government practice guidance by taking some 7000 pages over 25 Planning Policy Guidance (PPG’s) and Planning Policy Statements (PPS’s) to just 65 pages that would form the National Planning Policy Framework (NPPF).

This was (mostly) done by using the DELETE button.

In rural areas the effect to Government Rural Planning Policy was profound. Planning Policy Statement 7: Sustainable Development in Rural Areas was published in August 2004 and for 8 years was the benchmark planning policy document for rural areas. Its 27 pages included provision for frontage infil in rural areas, tests for tourism and agriculture based businesses and most importantly the key rules for new dwellings in the countryside.

It was reduced to 3 paragraphs in the NPPF, Paragraphs 28, 54 and 55. Of these Paragraph 55 is the most important for developers and states:  

  1. To promote sustainable development in rural areas, housing should be

located where it will enhance or maintain the vitality of rural communities.

For example, where there are groups of smaller settlements, development in

one village may support services in a village nearby. Local planning authorities

should avoid new isolated homes in the countryside unless there are special

circumstances such as:

  • the essential need for a rural worker to live permanently at or near their

place of work in the countryside; or

  • where such development would represent the optimal viable use of a

heritage asset or would be appropriate enabling development to secure

the future of heritage assets; or

  • where the development would re-use redundant or disused buildings and

lead to an enhancement to the immediate setting; or

  • the exceptional quality or innovative nature of the design of the dwelling.

Such a design should:

– be truly outstanding or innovative, helping to raise standards of design

more generally in rural areas;

– reflect the highest standards in architecture;

– significantly enhance its immediate setting; and

– be sensitive to the defining characteristics of the local area.

 

All planning decisions are plan lead decisions, they must have regard to the Local Plan or Core Strategy and the National Planning Policy Framework so from Para 55 we can gauge some general rules governing rural planning decisions.

No, now what is the next question?

Within the open countryside outside towns and villages there is an overriding presumption against development unless the special circumstances in para 55 dictate otherwise or the site is allocated in the Local Plan. This has always been the case, ever since the first true Town and Country Planning Act in 1947. Developments in the open countryside will seldom meet the tests of Sustainable Development outlined in paras 7 and 14 of the NPPF and as such one must always be looking to an allocation of land or one of the key special circumstances in Para 55.

It is very common for new property speculators to receive a refusal to the principle of the development of houses in the Countryside because they have not met one of the key tests or (moreover) they have attempted to site a large housing estate in the middle of nowhere.

The one happy exception to this comes in the form of Para 49 of the NPPF which states:

  1. Housing applications should be considered in the context of the presumption

in favour of sustainable development. Relevant policies for the supply of

housing should not be considered up-to-date if the local planning authority

cannot demonstrate a five-year supply of deliverable housing sites.

Here the Planning Inspectors and the High Court have been content to conclude that where a Council cannot demonstrate a 5 year supply then any land that is not otherwise protected (National Park, Area of Outstanding Natural Beauty, Site of Special Scientific Interest etc) could be fair game and assessed only on the principles of Sustainable Development.

There has, however, been a gradual finessing of what Para 49 means in practice and in reality farmers fields in the North York Moors are still far from Sustainable.  

Developers can check up on the status of the Council’s 5 year supply by downloading a copy of the Annual Monitoring Report (AMR). This should be produced yearly by council and will say succinctly how far ahead or behind they are.     

Getting Allocated

Larger developers do not leave things to chance. They have very large and expensive planning teams working with planning authorities to allocate sites in the next Local Plan. These are sites that are already secured in some way and are part of their land bank.

Getting allocated changes the policy rules from a presumption against to a presumption for the development because the Council themselves have concluded that they need the development in that location and there is a Policy Allocation to support it.

Getting allocated establishes the principle of development and also the level of development that will be acceptable on the site.

Smaller Developers can engage with the same process using the Strategic Housing Land Allocation Assessment (SHLAA) or encouraging a Parish to prepare a Neighbourhood Plan.

The SHLAA is one of the first stages of plan preparation and normally follows a ‘call for sites’ where landowners are encouraged to submit their site freely for assessment. Getting your site in the SHLAA (normally by filling out a simple form) starts the 5 year process of getting a site allocated within a Local Plan.

The Neighbourhood Planning Process, brought forward by the Localism Act, enables Parish’s, Villages, Towns and Neighbourhoods to engage with the Plan Making Process by preparing their own planning policy document. Again Smaller developers can engage with this by providing a housing site for consideration or even instigating the process. Again this is a five year wait but as said a Policy Allocation is worth it.

Special Circumstances

If your in a rush and can’t wait five years or so then you need to use one of the Special Circumstances outlined in Para 55 of the NPPF  

the essential need for a rural worker to live permanently at or near their

place of work in the countryside;

Again this has always been the case. Rural workers homes receive a condition or ‘Agricultural Tie’ limiting who can occupy them. There has to be an established agricultural business, you can’t just make one up, and the building must be built at or near their place of work (not in the middle of nowhere).

Buildings with an ‘Agricultural Tie’ can have this condition removed but only after a year of marketing at the market rate for an agricultural workers home.

There are some agricultural businesses that do not need workers so beware of (inter alia) Alpaca and Lama farms as the Courts have gotten wise to this. Alpaca’s and Lama’s live in the high Andes Mountains of South America and rarely come in to contact with or need humans for anything!     

where such development would represent the optimal viable use of a

heritage asset or would be appropriate enabling development to secure

the future of heritage assets;

In the open countryside owning a listed building, finally, makes sence! If your lucky to own a listed barn, hall or other structure and the Council’s Conservation Planner agrees with you that the best use for the building is to turn it into a house then you may use this very special circumstance as the duty to preserve a listed building outweighs the need to protect the countryside for its own sake.

It is important to remember that Listed Buildings are protected for their Special Architectural or Historic Interest so before you run off and buy that amazing Grade 2 Listed Abandoned Asylum in the Dorset Countryside (no hints) remember that you should make friends with the Conservation Planner and Heritage England who will helpfully guide you on what bits you need to keep.    

where the development would re-use redundant or disused buildings and

lead to an enhancement to the immediate setting

This circumstance follows the principle of wrong development in the wrong location. If your able to secure such a site the Council has a duty to secure an improvement to it.

This provision works best for old or redundant buildings that are an eyesore and where the use, if restarted, would be undesirable.  Importantly there must be previous development on the land.

In the main this focuses on builders yards, open storage, car wreckers and other more nasty businesses (yes all of the above do exist within the countryside) that are best suited to an industrial estate and not the verdant green of the Chilterns.  

Well designed housing on such sites is often considered preferable to the existing use and is supported using this special circumstance.  

the exceptional quality or innovative nature of the design of the dwelling.

Well you could always make them pretty! The high quality design circumstance applies the balanced argument that the design is so go it should be allowed in all other respects. To qualify the design you (or your architect) produces must:  

be truly outstanding or innovative, helping to raise standards of design more generally in rural areas;

reflect the highest standards in architecture;

significantly enhance its immediate setting; and

be sensitive to the defining characteristics of the local area.

These are very big targets to hit and developers are often limited to one or two houses. A bespoke estate of architectural brilliance is highly unlikely but I remain to be pleasantly proved wrong.

As you can tell the above will still take time and as such one must not rush into a Countryside Project, leave at least 12 months free to get this sorted and expect at least 1 resubmission or 1 trip to see Mr Inspector before you get approval.

Well there is always Permitted Development

Designed for the super busy and those who really need to be onsite Now! The Permitted Development Allowances for Commercial to Residential Conversions are a viable quick method of getting new dwellings in the Countryside.

They may not be used for Listed Buildings, Areas of Outstanding Natural Beauty, Conservation Areas, a site of special scientific interest, a safety hazard area, a military explosives storage area, a scheduled monument, National Park or World Heritage Site. You will note that I have not mentioned Greenbelt in that list.

Classes G, M, N, O, PA and Q of Part 3 of Schedule 2 of the General Permitted Development Order 2015 (As amended) are all available for the Developer to utilize with the correct Prior Notification Application and remain the most viable method of converting a building into a dwelling.

However, these are not for the uneducated so it is always best to speak to a planning consultant BEFORE you buy to make sure you can rely on the valuable PD allowance.  

In conclusion development in the countryside is not impossible however the pitfalls exist where the wrong strategy is used on the wrong site or where the developer does not have the time to wait for policy to catch up with their aspirations.

High quality development which seeks to resolve a problem, save a listed building or is just architecturally excellent will always be rewarded.

However before entering any development speak to your friendly neighbourhood planning consultant (the RTPI has an amazing list) to get you on the right track from the start.

Jonathan McDermott is a Chartered Town Planner, Principal Town Planner for Town Planning Expert and educator with Whitebox Property Solutions on Property Developers Secrets and Property Planning Masterclass.      

 

     

 

 

 

Permitted Development Conditions

One of the questions I get my clients to ask is WHY!

in this case it was why have the planning authority removed my permitted development rights.

The site in question related to:

The application Ref TWC/2016/1029, dated 1 November 2016 and approved on 7 March 2017 subject to conditions. The development permitted was the erection of 4 No. dwellings and garages.

The condition in dispute was No. 15 which stated that:

“Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking or re-enacting that order with or without modification), the following development shall not be undertaken without express planning permission first being obtained from the Local Planning Authority:
· extension to the dwelling
· free standing building within the curtilage of the dwelling
· addition or alteration to the roof
· erection of a porch
· hard surfacing
· any windows or dormer windows”

The reason given for the condition was is:
“To enable the Local Planning Authority to control the development and so safeguard the character and visual amenities of the area, and to ensure that adequate private open space is retained within the curtilage of the building.

On advice our client, through TPX, appealed this condition and the appeal was successful.

In summary the inspector said:

The provisions of paragraph 200 of the NPPF and paragraph: 017 Reference ID: 21a-017-20140306 of the PPG are clear and unambiguous. The Council’s delegated report is silent on the exceptional circumstances that are relied upon in order to justify the removal of permitted development rights. The reason for the condition refers to the need to safeguard the character and
visual amenities of the area and to ensure that adequate private open space is retained within the curtilage of the building. The wording of this condition is not precise to the circumstances surrounding the application (building or buildings) nor does it explain why such harm would be so exceptional as to warrant refusal without the condition.

The requirements to justify such a condition are high and as such any time you get a condition like this you should always ask WHY!

3…2…1…HMO!

Busy Day for TPX Group on Wednesday 26th July.

We had three HMO’s in with the Planning Inspectorate and the Local Planning Authority

2 HMO’s were granted on appeal, one with costs and the other without.

1 HMO was granted at committee where the committee stated ‘this is one of the highest quality HMO’s we have seen’

Not bad for a Days Work