High Street Pressure

It seems like every day we hear of another High Street Chain filing for administration or bankruptcy. In 2018 (more than ever) the high street is under threat.

Our shopping habits have changed so drastically in the past 10 years that the retailers are not able to maintain pace with the technology that seeks to usurp them.

Take Amazon for example, this company founded in 1994 has grown to be worth 4.1 Billion in 2017 from an online bookstore and support for their kindle e-book reader platform to an online store that sells…everything (well almost).

Granted there is still something about going to see the product you are buying in person however the transaction itself is often now online with better deals to be had. I am as guilty as the next person in doing this. For the last two years my Christmas Shopping was a breeze, I didn’t have to go out in the cold or fight with the queues. I just sat at my laptop with my wife in front of a Sunday afternoon movie and logged onto Very and did everything there. It all arrived and was wrapped (in the paper also bought online) and sent with cards (also bought online).

Planning Policy (at least locally) however has not moved on. It is still stuck in the misty eyed image of Britain in the 30’s where you went and did everything in the high street. If you look at any planning policy for any town centre in the UK and compare it to the last iteration of that policy, or the one before that. Nothing has changed! In fact in Portsmouth they decided to make the City Centre Bigger! this notwithstanding a City Centre with 15% vacancy and a major retail development site that has been stalled since at least 2002.

Para 23 of the 2012 NPPF states: Planning policies should be positive, promote competitive town centre environments and set out policies for the management and growth of centres over the plan period. In drawing up Local Plans, local planning authorities should:
1. recognise town centres as the heart of their communities and pursue policies to support their viability and vitality
2. define a network and hierarchy of centres that is resilient to anticipated future economic changes
3. define the extent of town centres and primary shopping areas, based on a clear definition of primary and secondary frontages in designated centres, and set policies that make clear which uses will be permitted in such locations
4. promote competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres
5. retain and enhance existing markets and, where appropriate, re-introduce or create new ones, ensuring that markets remain attractive and competitive
6. allocate a range of suitable sites to meet the scale and type of retail, leisure, commercial, office, tourism, cultural, community and residential development needed in town centres. It is important that needs for retail, leisure, office and other main town centre uses are met in full and are not compromised by limited site availability. Local planning authorities should therefore undertake an assessment of the need to expand town centres to ensure a sufficient supply of suitable sites
7. allocate appropriate edge of centre sites for main town centre uses that are well connected to the town centre where suitable and viable town centre sites are not available. If sufficient edge of centre sites cannot be identified, set policies for meeting the identified needs in other accessible locations that are well connected to the town centre
8. set policies for the consideration of proposals for main town centre uses which cannot be accommodated in or adjacent to town centres
recognise that residential development can play an important role in ensuring the vitality of centres and set out policies to encourage residential development on appropriate sites
9. where town centres are in decline, local planning authorities should plan positively for their future to encourage economic activity.

This is all well and good however it is often mis-interpreted at Local Plan Making Stage as a ‘maintain the status quo’ as it fails to identify how LPA’s should respond to a town centre in decline.
In academia the solution has been talked about for some time, compaction. This theory postulated by many more intelligent than I ( http://www.reading.ac.uk/PeBBu/state_of_art/urban_approaches/compact_city/compact_city.htm ) encourages the creation of more compact and therefore more efficient urban environments in order to foster regeneration. When applied to town centre’s this would seek the re-drawing of boundaries to make the retail part of the centre smaller. The effect of this would follow a logical chain:

The centre is expansive with vacancies throughout

The boundary of the retail centre is redrawn making the centre smaller

The areas excluded are re-allocated as housing revival areas

The building owners seek to redevelop their properties within the new HRA’s

The existing retailers within the HRA’s move to the vacancies within the compacted town centre. If encouragement is required then CIL or S106 could be used from the development in the HRA to give rent grants of guarantee’s for retailers needing to move.

All of the above would accord with Para 23 of the NPPF but would require a change in practice by the individual LPA.

The same compaction process however can be applied to individual shops without LPA involvement or a radical change in policy.

A large (former BHS or Poundworld) for example in a town centre in decline is typically arranged over two or more stories.

S55(1) and (2aii) of the Town and Country Planning Act allows us to sub-divide that larger unit into say three smaller units by internal alterations only. The ground and first floors are sub-divided accordingly and the units are compacted.

Smaller units are easier to rent in a town centre than larger units as they are more attractive to a wider range of users.

Class G of Part 3 of Schedule 2 of the General Permitted Development Order 2015 (As amended) allows us to then to convert the new upper floor spaces into up to 2 flats above each retail unit.

3 x 2 = 6

Para 23 of the 2012 NPPF recognises the importance of residential within a town centre and that’s why Class G exists.

Whenever I speak to developers and they ask ‘what is your favourite permitted development route’ I always give the same answer ‘Class G’. Hopefully you can see why!

I want our town centres to have a purpose however this will never happen if we do not grapple with the problems of today and plan properly for the future. Shopping has gone online, banking is going online ( https://news.sky.com/story/full-list-of-natwest-and-rbs-branches-which-will-close-11151127 ). At this stage the planning profession is waiting for the next big name to announce its departure. But for the property Investor that departure could be the next big opportunity.

1960’s Planning Conditions- Groovy Man

Just had an interesting one across my desk.
The Council alledge that a condition from a 1960’s planning permission removes permitted development rights. Groovy Man!

Just had an interesting one across my desk.

The Council alledge that a condition from a 1960’s planning permission removes permitted development rights. The condition states:

Notwithstanding the provisions of the Town and Country Planning (Genaral Development) Orders 1950 and 1960 no structures other than those to the rear shall be constructed without prior written consent of the LPA.

In full is my responce to this condition (names have been removed to protect the innocent):


XXXXXXXXX has forwarded your email for comment.

I note condition 9 of Planning Permission GOB4089.

Condition 9 refers only to the 1950 and 1960 Town and Country Planning General Development Orders.

Based on my research of planning legislation I can find no General Development Order 1950 or 1960. The chronology of major development orders governing ‘permitted development’ is as follows:

The Town and Country Planning General Development Order 1948.
The Town and Country Planning General Development Order 1959.
The Town and Country Planning General Development Order 1963.
The Town and Country Planning General Development Order 1973.
The Town and Country Planning General Development Order 1977.
The Town and Country Planning General Development Order 1988.
The Town and Country Planning (General Permitted Development) Order 1995.
The Town and Country Planning (General Permitted Development) (England) Order 2015.

Indeed I can find no Statutory Instrument titled Town and Country Planning General Development Order 1950 or 1960 other than the The Town and Country Planning (Use Classes) Order 1950 SI 1950/1131.

In the first instance I would surmise that the Condition is neither sufficiently precise or related to an actual Staturory Instrument and is thererore unenforcable.

I remind the Council of the tests of enforcability. The NPPF (para 206) says that Planning conditions should only be imposed where they are necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise and reasonable in all other respects. All conditions should be judged against these six tests.

For the benefit of completeness however I shall continue.

I will assume that the condition is actually referencing the The Town and Country Planning General Development Order 1948 and  The Town and Country Planning General Development Order 1959. The condition makes no provision for what happens if those orders are either recinded or modified. Appendix A or Circular 11/95 provides the accepted wording for ensuring that Permitted Development Conditions do not become obsolete and states:

50. Notwithstanding the provisions of the Town and Country Planning (General Permitted
Development) Order 1995 (or any order revoking and re–enacting that Order with or
without modification), no garages shall be erected [other than those expressly authorised
by this permission] (paragraphs 86-88).

51. Notwithstanding the provisions of the Town and Country Planning (General Permitted
Development) Order 1995 (or any order revoking and re-enacting that Order with or without
modification ), no fences, gates or walls shall be erected within the curtilage of any
dwellinghouse forward of any wall of that dwellinghouse which fronts onto a road
(paragraphs 86-88).

52. Notwithstanding the provisions of the Town and Country Planning (General Permitted
Development) Order 1995 (or any order revoking and re–enacting that Order) (with or
without modification), no windows/dormer windows [other than those expressly authorised
by this permission] shall be constructed.

The Town and Country Planning General Development Order 1948 was revoked by the The Town and Country Planning General Development Order 1959. The 1959 order ceased to have any effect in 1963 when it was revoked. In absence of any provision within the condition addressing the obselecense of the 1959 GDO it is surmised that the condition became unenforcable when the referenced GDO was revoked.

In the second instance then I surmise that the condition is neither sufficiently precise or related to an active Staturory Instrument and is thererore unenforcable.

As such it is submitted that the Client may indeed rely upon the provisions of the The Town and Country Planning (General Permitted Development) (England) Order 2015 as the condition is not sufficiently precise or well worded to include any order revoking and re-enacting the 1948 or 1959 GDO’s.

In ther event that the Council requires an application I intend to proceed using a Certificate of Lawful Use application citing that the client may rely upon ‘permitted development’.

I look forward to the responce from your Legal Team

As with my post a few weeks ago on understanding the relationship between conditions and planning permission this is another example of a condition imposed which failed to future proof itself. Notwithstanding the obvious failing of citing the incorrect (or missing!) SI the condition does not consider the possibility of life beyond the 1960’s or indeed beyond 1963 as it turned out!

I am grateful to Martin Goodhall and his post of 28 December 2015 in respect of this issue and his analysis of the relevant caselaw. In particular Martin states:

There are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by express reference to the relevant statutory instrument in the wording of the condition. As Sir Douglas Franks QC put it in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806:

“As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.”

In light of the judgments in City of London, RFU and Royal London Mutual Insurance, Sir Douglas Franks’ inclusion of the UCO in the requirement for express words in the condition, mentioning the relevant Order, can no longer be taken as authoritative so far as the UCO itself is concerned, but in relation to the GPDO, the Court of Appeal subsequently concluded in Dunoon Developments Ltd -v- SSE [1992] JPL 936 that Article 3(4) of the GPDO was not engaged by a condition which contained no reference to the GPDO. Farquharson LJ held that:

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO 2015] identifies the activities included in this general consent……….Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more.”

In our seminar in November, Ben Garbett made the point that no judgment since Dunoon Developments has suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The later cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) [and to Article 3(1) of the UCO], and cannot properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition. On the contrary, Carpet Decor and Dunoon Developments remain the leading (and indeed the only) authorities so far as the exclusion of the GPDO is concerned.

Source: Martin Goodall’s Planning Law Blog

His analysis reinforces my own and as such we await respose from the Council’s legal teams citing that the condition is now obsolete.


The Man Who New Best

The moral of the story is to take advice before submitting an application you may not require.

A client owned two shops in a secondary shopping street with two flats above.

We advised he convert the upper floor to 4 flats, i.e. 2 flats per shop, under permitted development, then once these were complete and occupied to submit a Prior Notification to the Council to convert the shops to a further 2 flats.

This would circumvent local policies and avoid any unnecessary payments to the council.

For reasons best known to himself he wanted a planning permission from the council so instead applied to convert the premises into six flats. After 4 months the client is still waiting for a decision!

Had he taken our advice the upper flats at least would by now have been completed and occupied.

The cost to him is at least

Planning application – £1540 (flats @£385)
Lost income – £1600 (assuming £400 per flat per month for two months)

as compared to

Conversion of upper floor to 4 flat – free
Income – £1600

The notification for the change of use for the shops would also have been submitted, and may even have been approved.

Conversion of 2 shops to 2 flats – £160

Of course this is all done with planning permission, just using the permitted rights given by the Government.

The moral of the story is to take advice before submitting an application you may not require.

Brighton goes HMO Heavy

Brighton goes HMO Heavy – A Brighton landlord has been told to stop letting a family home to students – the fourth since new rules over shared houses in the city were introduced.
St Mary Magdalene Street

On 16th June The Brighton and Hove News reported the following:

Fourth student landlord told to convert shared house back to family home

A Brighton landlord has been told to stop letting a family home to students – the fourth since new rules over shared houses in the city were introduced.
St Mary Magdalene Street

Last December, Laura Dwyer-Smith was refused retrospective council planning permission to continue using 22 St Mary Magdalene Street as a four-bed House in Multiple Occupation (HMO). It had been let to students since September 1, according to her planning application.

The authority said the tenancy breached local powers applying in five council wards designed to stop over-concentration of student homes in any given location. Rules specify that new houses in multiple occupation (HMOs) will not be allowed where it would take the proportion of HMOs within 50 metres to over 10 per cent.

The landlord appealed against refusal, leaving a final decision to the Planning Inspectorate’s Andrew Steen. In his judgement Mr Steen said the change of use would mean at least 10 per cent of homes within 50 metres would be HMOs. This, he added, would breach council planning policies designed to prevent noise and disturbance and promote a healthy mixed community.

It means the house cannot now be used as an HMO after September 7.

Last month another planning inspector backed a council enforcement action over a student house at 21 Upper Wellington Road, Brighton. It must cease as an HMO by August 20.

And last year, two properties in Bernard Road were also told to convert back into family homes – although one, at 17 Bernard Road, is now the subject of an appeal after permission was refused to use it as a small HMO rather than a large one. Students are still living there and paying about £3,000 a month in rent to landlords Mr and Mrs Donald Rayward.

Planning committee chair Councillor Julie Cattell said: “It’s encouraging to have the Inspectorate’s support for the second time in two months. The universities make a major contribution to our economy and culture.

“But those benefits are easily undermined for residents if we allow over-concentrations of students to change the character of individual streets.”

In April 2013 the council assumed special powers meaning landlords need planning permission to convert homes to HMOs in five council wards. These are Hanover and Elm Grove, Hollingdean and Stanmer, Moulsecoomb and Bevendean, Queen’s Park and St Peter’s and North Laine.

A small HMO is defined as a property let to between three and six unrelated people sharing facilities. Such premises also need a licence from the environmental health department in 12 council wards. More information is on the council’s website: HMOs and planning, plus HMOs and licensing.

These applications failed because they exceeded the Council’s 10% within 50m threshold policy which has been in place since April 2013.

The Inspectorate is giving increasing support to threshold type policies as they give tightly defined break points at which point a new HMO becomes acceptable. This type of policy is well supported within the NPPF at para 50 which states:

To deliver a wide choice of high quality homes, widen opportunities for home ownership and create sustainable, inclusive and mixed communities, local planning authorities should:

plan for a mix of housing based on current and future demographic trends, market trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes);

identify the size, type, tenure and range of housing that is required in particular locations, reflecting local demand; and

where they have identified that affordable housing is needed, set policies for meeting this need on site, unless off-site provision or a financial contribution of broadly equivalent value can be robustly justified (for example to improve or make more effective use of the existing housing stock) and the agreed approach contributes to the objective of creating mixed and balanced communities. Such policies should be sufficiently flexible to take account of changing market conditions over time.

The relevant sections highlighted IN BOLD.

Where landlords such as those reported on fall over is where they do not do their due diligence on the area they are investing in before carrying out the change to an HMO. Most, if not all, councils will tell you the HMO’s within a particular street that they are aware of. Any good planning consultant (shameless plug for TPX) will stress test it for you.

If the percentage in the street is well over the threshold then this would be an easy refusal for a Council and at appeal.

1-2% over the threshold may be worth an application but only as part of a subject to planning deal.

Under the threshold percentages should be applied for before someone else does.

If it was an HMO before the critical date….prove it!

In doing your due diligence get the vendor to prove its HMO credentials. Items such as AST’s Utility Bills and Council Tax demands can go a long way to securing a historic HMO use.

Remember that its your job to prove the use. Not the Council’s