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):

Dear XXXXXXXX

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.

Groovy!

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:

50
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

 

 

Primary Use – the Bedtime Story Version

The primary planning use is always the last known lawful use of the building (unless abandoned and you really don’t want to go there!) Only one of the three triggers above can alter the primary use. There is no other mechanism by which you may claim an alternative use class for a property.

I have had two cases in recent times where there has been applicant confusion over the primary use.

Case 1 concerns a property that had been in use as offices for 9 years, prior to that it was a hostel.

The applicant wanted to make the case that in accordance with Class O of the General Permitted Development Order the property had been offices at the right time and that they could rely on Class O to convert it to dwellings.

Case 2 concerns a property that had been vacant for 9 years and previously was used as storage ancillary to retail.

Again the applicant wanted to rely on their Part 3 rights for storage to resi as there was no upper limit on the number of flats.

Both cases were declined based on the fact that the respective uses within B1 and B8 were not lawful.

In both cases the due diligence done by the applicants was somewhat lacking.

There are three ways to establish a lawful use.

  1. By a planning permission
  2. By a permitted change under Part 3 of the GPDO
  3. By time (which in the case of the above was 10 years)

The primary planning use is always the last known lawful use of the building (unless abandoned and you really don’t want to go there!) Only one of the three triggers above can alter the primary use. There is no other mechanism by which you may claim an alternative use class for a property.

Whilst the time triggers provided in Class O of Part 3 (inter alia) say the use must be active it must also be lawful. The other part of these tests that is often ignored.

The moral of the story is proper due diligence. Check and recheck the authorised use before you buy otherwise you too could purchase a very expensive hostel for office money!

If in doubt check with a planning consultant or the Planning Authority, it only takes one phone call!

 

What is ‘Permitted Development’ anyway?

There is always some confusion in Planning Practice what ‘Permitted Development’ is. To the lay person development that you do not need to get a planning permission for. To the experienced practitioner it is a bit more than that. However, even to Senior Planning Officers it can be a bit…confusing.

There is always some confusion in Planning Practice what ‘Permitted Development’ is. To the lay person development that you do not need to get a planning permission for. To the experienced practitioner it is a bit more than that. However, even to Senior Planning Officers it can be a bit…confusing.

To give a case in point i was dealing with an application for prior notification in Surrey (the case file can be found here).

The Planning Officer sent me this:

Dear Mr Jonathan McDermott

Thank you for your application. Please note Condition 11 of the original planning permission 81/510 restricts the use of the building to Office use only. Therefore a application will be required to remove or vary the planning condition restricting the use to office use before the prior approval application can be considered.

You have also submitted another application for external alteration Ref: PLAN/2016/0478.

I would advise withdrawing both applications and submitting a application to remove or vary the planning condition.

Kind Regards

************** | Planning Officer | Planning Services

My view…Nice try. Here is my responce:

Dear *************

Further to your email and our telcon

The condition prohibits a permitted change within the same Use Class, namely Class II of the 1972 UCO.

Class II of the UCO included: Use as an Office for Any Purpose. – I attach a copy of the 1972 UCO for your reference.

The modern version of this condition would state: The proposed development shall only be used for offices within Class B1(a) and for no other purpose within Class B1 of the Use Classes Order. The purpose being to resist movement within the same class to a seemingly unacceptable alternative use within that class.

The condition does not prohibit any other use as allowed by the General Permitted Development Order 2015 (As Amended). Were it to do so it would directly seek to remove permitted development rights to change use under the 1963 GPDO. A modern condition to this effect would state: No development permitted by Part 3 of Schedule 2 of the General Permitted Development Order 2015 shall be carried out without planning permission from the Local Planning Authority.

It is clear that the condition in question is not seeking a removal of permitted development rights and as such only has the effect of resisting movement within the same use class (namely Class II now Class B1).

The application before you is for a permitted change via prior notification under Part O of Class 3 of Schedule 2 of the 2015 GPDO It does not seek a change of use within the same Class and as such is not in breach of the condition in question.

The Council is reminded that there are two mechanisms to seek the removal of a condition either by direct removal (s73 of the Town and Country Planning Act) or by a new planning permission. Permitted development is not relief from the burden of a planning permission but is in fact a new planning permission granted by development order of the Secretary of State – see S59 of the Town and Country Planning Act 1990. I say again that the application before you is for a permitted change via prior notification under Part O of Class 3 of Schedule 2 of the 2015 GPDO and as such can be determined accordingly.

Finally the Council is reminded that it may only determine within the boundaries of Part W of Class 3 of Schedule 2 of the 2015 order and that compliance with previous conditions is not listed within the determinant criteria.

I look forward to the response from your legal team.

Kind regards

Jonathan McDermott BSc MA MRTPI

Principal Town Planner

Low and behold the Council’s Legal Team agreed with me.

The argument is valid because of what ‘permitted development’ represents which is a planning permission.

S59 of the Town and Country Planning Act makes clear that the SoS may make an order granting planning permission wholesale. The General Permitted Development Order 2015 (as amended) is one such order. The Conditions of Permitted Development are conditions of the Planning Permission granted. The provisions are the restrictions imposed to when PD does and does not apply.

Strangely this is something that is not taught in Planning School!

As these are planning permissions in their own right they have the same effect in terms of control of development. Indeed a whole brace of case-law has been established looking at matters that are close to, but not quite, permitted development.

It also can help with your Affordable Housing strategy. At the same authority as the howler above they have accepted that the prior notification scheme is affordable housing free and the top up scheme of five additional units is also affordable housing free (thanks Reading and West Berkshire for that)

So the next time you are asked by a solicitor whether you have planning permission for a permitted development matter say yes! and point them to S59 of the Act and the GPDO 2015.