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.