Latest Planning News
10th May 2023ViewsTPX attending the LPOC Reception!
It was a pleasure for two team members to attend the LPOC Reception at the House of Commons, Westminster on 24th April. This event included people such as Craig Mackinlay MP at the House of Commons, Rachel Maclean (Minister for Housing), and Lord Parkinson (Heritage Minister) who discussed the challenges of obtaining approval for renovation or restoration work and improving energy efficiency.
They agreed on the need for simplified planning rules and initiatives to balance preservation with energy efficiency. Lord Parkinson reassured attendees that owners’ interests were being addressed across all government departments.
Between 2007 and 2022 the number of full-time Conservation Officers fell from 1,224 to 526
Craig also recognised the lack of specialist contractors and the high material costs associated with maintaining and improving a listed property, particularly the challenges this will present as the government encourages owners of all homes to improve energy efficiency.Rachel discussed new initiatives aimed at helping owners and tenants of listed properties, including a consultation on how to make it easier for businesses to operate out of listed buildings.
Both Tanya and Simon from TPX attended this event and asked the following:
“What is being done about the lack of planners and conservation officers. Also, She said about conservation officers being so unflexible and not seeing the bigger picture of listed buildings’ custodians.”
tANYA ASKED
“What are the plans to address how EPC’s are assessed given the results are disproportionally skewed to the cost of energy unit to the user rather than device energy efficiency and more carbon-friendly sources. The problem is even more acute for those who own listed buildings.”
simon asked [...]
14th April 2023News / ViewsWe are pleased to announce that we have moved the location of our TPX office!
After some fantastic years at St Georges Business Centre, we are looking forward to the new surroundings at the University of Portsmouth’s – Technopole Building.
The Technopole Building offers us a state of the art working facilities, making the perfect environment for us to grow our business. Technopole is located conveniently close to the M275 (the main road leading into the city) and we’re thrilled to have it as the new home of our business.
All of our contact information remains the same.
Our new location:
Room 204 Technopole, Kingston Cres, North End, Portsmouth PO2 8FA [...]
13th March 2023Latest News / OpinionChange of use from C4 to Sui Generis is a very common planning application that is submitted to the LPA’s in a big number. Most of them getting rejected mainly on the basis of impact on the living conditions and amenities of the occupiers and neighbors.
What is a C4 HMO ?
Use Class C4 covers small HMO’s being occupied by between 3 and 6 unrelated persons. The use class is predicated upon persons resident and not on the number of bedrooms within the building
What is a Sui Generis HMO?
Sui Generis HMO is shared houses occupied by 7 or more unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom.
After reading the above two statements, what I have understood is conversion of a C4 property to Sui Generis wholly depends on the ”Number of Occupiers” of the property and not on the number of bedrooms or other amenities provided by the property.
This raises a question: why does this require a planning permission? Is it considered material change of use?
When the original guidance was brought out in 2010 the Government made clear that the change of use from a C4 to a Sui-Generis HMO was to be decided on a case by case basis and given the fact and degree of the change of use. The government went so far as suggesting that one or two additional persons within a C4 HMO may not actually result in a change of use requiring planning permission.
The issue is somewhat more basic than this. At planning school we as planners are told one simple truth.
“A change of use is where you move from one use class to another”
As a profession we are set up from the start (Day 3 to be precise) to see changes of use as binary. It either is or it isn’t because of use class. This is because the Use Classes Order itself is a wholly permissive document purportedly telling us what falls into each class so that we can judge whether a ‘Material Change of Use’ would happen. The problem is that there is no legal definition of a Material Change of Use other than the view of the decision maker based on a fact and degree judgment.
In recent appeal cases the knotty problem of whether the addition of a person resulted in a material change of use has reached the annulled halls of the Planning Inspectorate and they are consistently ruling in one direction.
No, it is not.
Recent appeals have focused on the truth of the matter rather than a blind assessment of the Use Classes Order, much to the chagrin of the Planning Committee which was recently accused of having a shockingly low understanding of planning law and practice.
Lets think about that truth for a minute.
Development is judged on the ‘description of development’ in S55(1)(2) and (3) of the Act.
We don’t need planning permission for the addition of bedrooms under S55(2) if these works are wholly internal. The use is predicated upon people and not bedrooms and so just adding rooms to an existing HMO does nothing.
Then we move on to the harm in the public interest, i.e. the observable effect.
Adding more people to an HMO well yes that adds more people. But when does that become noticeable?
Would you honestly be able to tell if one more person moved into a family home? Most likely not! Whats the difference in one more person in terms of noise or car parking or amenity space needs or refuse? So why is an HMO so different from this reality. In the main HMO occupiers have less reliance on cars, they generate the same amount of refuse and potential noise and the alterations to create an HMO often improve the existing energy and noise abatement characteristics of the building. Yes there may be one more person living there but in terms of the effect itself this is negligible.
In one of the recent planning appeals for three properties for change of use from C4 HMO to Sui Generis HMO the inspector concluded just that. The addition of 1 more occupant to the property would not require any external alterations nor indeed a material change of use that would require planning permission. After the site visit the inspector was also damming of the Council’s approach stating that the amount of communal living space was acceptable and meets the requirements of the National Space Standards.
And this is a growing trend.
We have been tracking similar appeals in England where Inspectors are correctly asking the question whether a 6 to 7 or 6 to 8 person HMO needs planning permission from the LPA as the works and the effect do not cross the threshold for development needing planning permission.
I think it’s time to rethink the requirement of planning permission for a conversion for 6 bed C4 HMO to a 7 bed Sui Generis. When it is well understood the addition of 1 more occupant does not have any demonstrable impact on the living conditions, noise, parking or amenities. This in its own would free up a substantive amount of workload within an already crippled system and allow planning officers to assess real development in the public interest.
By Shivam Sagwall [...]
9th December 2022ViewsIt is the proper time to study the ‘planning guarantee’ as the Local Planning Authorities (LPAs) are taking ever more time to decide on the application.
I understand the bulk of the work of the local planning officer, including their capacity and skills to do all the work, but still, they have the responsibilities and liabilities to adhere to this policy:
Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (hereinafter “the 2012 Regulations”).
“Refund of fees in relation to planning applications not determined within 26 weeks9A.—(1) Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission or for the approval of reserved matters shall be refunded to the applicant in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be.
(2) Paragraph (1) does not apply where—
the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period;
the Secretary of State gives a direction under section 77 of the 1990 Act(1) in relation to the application before the period mentioned in paragraph (1) has expired;
the applicant has appealed to the Secretary of State under section 78(2) of the 1990 Act(2) before the period mentioned in paragraph (1) has expired; or
any person who is aggrieved by any decision of the local planning authority or the Secretary of State in relation to the application has made an application to the High Court before the period mentioned in paragraph (1) has expired.
(3) In this regulation “valid application” is—
where the application is made to a local planning authority, to have the same meaning as in article 29(3) of the Development Management Procedure Order;
where the application is made under section 62A of the 1990 Act, to have the same meaning as in article 29(3) of the Development Management Procedure Order (but with the references in that definition to articles 5, 6, 8 and 12 of that Order being construed as references to those articles as applied by a development order made pursuant to section 76C of the 1990 Act).”
It is not normal for me to scrutinise the application of government policy however I now have a case which has lead me to look further into it.
The planning application was validated on 23/05/22, and the 26th week period for non-determination is on 21/11/22. The law implies that the 26 weeks will start when the local planning authority receives a valid application.
I do not know if the case officer is aware of Regulation 9 of the 2012 Regulations of the Town and Country Planning Act (TCPA) 1990 “Refund of fees in relation to planning applications not determined within 26 weeks”.
I am also not keen to know if there are LPAs that returned the applicant’s payment for non-determination of the application.
Paragraph 9A does not apply if the applicant and the LPA have agreed in writing that the application is to be determined within an extended period. The LPA’s case officer has not asked for a time extension even though the decision’s due date of 18/7/22 has been passed. On the face of it then the fee is due for a refund.
However what happens if the council and the applicant agree an extension?
In the case of Provectus Remediation Limited vs Derbyshire County Council the High Court ruled that
“A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.”
The above statement makes clear that my client is liable for a refund. However, my client is not interested in the refund. He wants his application to be determined. This then demonstrates the one sided nature of the regulation.
If he demands the refund then application will then be set aside as it will be out of time and not a priority.
If he agree’s an extension then the LPA may determine the application in the time period given but he also loses the protection of the planning guarantee.
The court decision on Provectus Remediation Limited vs Derbyshire County Council on 8 June 2018 is a good example of the proper interpretation of Regulations 9A. But, in my opinion, is not fair to the applicant because if the council asked for a time extension and the applicant agreed, there is no time limit on the determination of the application. It is just a one-time extension agreement between the local authority and the applicant, and the local authority can have unlimited time to determine the application, and the applicant’s fee cannot be refunded.
The applicant should think twice before agreeing to the time extension, but in my opinion and in my experience, the applicant does not have the choice to disagree because no policy or law protects the applicant once they disagree. I can say that this Regulation is one-sided once the applicant agrees with the time extension. How unfortunate!
By Anchie Balbido [...]
23rd November 2022ViewsThere is no doubt we are in a housing crisis but we are getting mixed messages. Nationally theGovernment aims to see 300,000 houses built per annum by 2025. Meanwhile at the local levelresidents oppose new development which they argue will swamp existing towns and villagesand lead to the loss of valued countryside and overstretch medical and other public services.
For much of the country there is a moratorium on housebuilding as pollution of our rivers andcoastal areas and pressure on heathlands restrict where we can build. Many towns and cities,despite being identified for further growth by Central Government now find themselves withnowhere to build either due to no land being available for housebuilding in their administrativeareas or having in the past drawn Green Belts too tightly.
The result has been a surge in high rise developments, increasing housing densities, oftenwithout amenity space other than balconies and with limited on-site parking.
The implications for personal well-being are too dreadful to consider. If lock-down during thepandemic showed us anything it was the need for gardens or easy access to open areas. It is alesson which seems to have been quickly forgotten by our political masters, but which resonateswith local communities.
Even where developers manage to find sites local planning authorities seem to go out of theirway to be obstructive with a growing list of requirements and charges which at best delaydevelopment and at worst make schemes uneconomic.
When I came into planning it was understood that the role of the planning authority was to workwith developers to ensure that the right type of development took place at the right time and inthe right place. Schemes were only to be refused where they caused demonstrable harm.
Today local planning authorities seem to see their role as being to stop development. This is inpart due to too many experienced planners leaving local authorities either through earlyretirement, voluntary redundancy or attracted by better pay and conditions in the private sector.
While we all accept there is a national housing shortage, unless Central Government canunblock the barriers to growth, whether physical or political, the problem will still be with us formany years to come.
By Keith Oliver [...]
14th November 2022ViewsEveryone knows there is a housing crisis unless you have been living under a rock.But just how bad is it in Cornwall?
Truth be told, it is bad, very bad in fact it is utterly dire, soul destroying, that kind of ‘dire’.
Why?
We know Cornwall has always had a plethora of holiday lets & second homes. Cornwall has alwaysbeen popular for stay-cations. But, Covid ramped it up and many took advantage of SA andshort-term holiday lets. Word quickly spread and soon landlords took advantage of the‘need’ to cater for the influx of stay-cationers and soon began giving notice to their tenantsand turning their long- term rentals over to short term holiday lets advertised on AirBnb.
‘Homelessness’ became an issue of biblical proportions. Literally 100’s of viewings for oneproperty available for long term lets. Businesses began to suffer as they couldn’t recruitfrom outside their immediate environs because there was no accommodation to housestaff. Tenants couldn’t up-size or downsize because of the shortage of property. Those fewlandlords that hadn’t opted for the short term lets put their rental prices up as the demandnotched up. Even one bed flats became unaffordable with sky high prices and as rare as theproverbial rocking horse s**t.
So now Cornwall has a housing crisis and Cornwall Council are in a state of flux and lookingfor ways to clamp down on any additional properties becoming short term lets.
Some ‘resorts’ like St. Ives residents voted to take action against second home ownership.By inserting a “principal residence” condition into the sale of new-build properties, amechanism known as Policy H2, the St Ives Area Neighbourhood Development Plan hopedto curb the influx of investment buyers, while providing better and more sustainablehousing prospects for locals.
However, the residents soon realised that the town has been sucked out by holiday lets inthe last couple of years because H2 doesn’t stop existing properties from being turned intoholiday lets. They also faced issues such as no-fault evictions . Now they realise they should have tackled the existing market head on.The average sale price of a home in the heart of St Ives has risen from £336,153 in 2016 to£556,493 this year. Local estate agents attribute some of that increase to heighteneddemand throughout the south-west since the Covid pandemic. Some residents are callingfor intervention at national level and are seeking a new planning use class for non-permanent occupancy, so any person wishing to convert an existing property frompermanent to non-permanent use would need to apply for planning permission.
Would that work?
To some degree yes it would. A new class use would certainly mean anyone who wanted tochange to a short term holiday let would have to justify it in terms of sustainability andtourism needs. The LPA could introduce an Article 4 similar to those that operate HMO’s
Article 4’s where only so many are allowed within a specified radius. This would stoplocalised saturation.
However, currently, there is no such legislation governing the whole of Cornwall but there isa need and a mood for it.
We definitely need clarity. We absolutely need a separate Class use for short term lets. Thedisparity between differing LPA’s between placing short term lets into either C3 or C1 needsremoving and a new Class Use creating.
This would go some way to stopping anymore jumping on the ‘lets make a quick buck’bandwagon. That, alongside speedier determinations and an upturn in house building wouldhelp greatly.
Until that happens, Cornwall is grinding to a halt, jobs are available but only to those livinglocally. Businesses are having a hard time recruiting but the homeless problem won’t beresolved short term.
Undoubtedly, it’s time some urgent action, for Cornwall to step outside of its comfort zoneand bring in policy to only allow holiday lets on new builds not existing housing stock andmaybe, those adopting this business model should consider a less ‘harmful’ strategy andone that does less damage to the escalating housing problem?
By: Helen Morris-Ruffle [...]
28th September 2022Latest News / ViewsOn Saturday 24th of September 2022 I stepped in front of the Camera and an audience of 25 property investors and summarised our journey to VICTORY like this:
20 years experience, 2 years writing, three separate CPD accreditation’s and one crowdfunder campaign and VICTORY kicks off for the first time at 9am! Jonathan McDermott – Just before VICTORY kicked off!
20 years is a long time to spend in any profession, let alone Town Planning! It is fair to say that planning is one of the most thankless tasks within the building industry. Planners are habitually wrong to someone they interact with! If they approve a planning permission then they are hated by the neighbours. If they refuse an application then they are blocking progress within an area.
Over the last 20 years I have seen more and more cases of developers falling into the traps laid for them within the planning system and all for no good reason. The planning system itself is an approval engine. You just need to know how to operate the machine in the most efficient way possible.
That’s what VICTORY is all about. Its and instruction manual to get the planning machine to effectively deliver what its meant to deliver in the most efficient way.
It’s also designed to take into account the differences between the different planning jurisdictions of Great Britain and the tendency for the planning system to be bent or broken by respective governments over time.
Most of all VICTORY is made to allow you to win the game. Planning is indeed a game and so to win the game you must know the rules! There is no sense in walking onto a rugby pitch carrying an golf bag so why would you play the planning game in any other way than how it is meant to be played?
Ultimately we made VICTORY to be a self contained as possible. Giving you all of the tools at the outset in order to critically look at, appraise and review sites with a view to what would be possible if you played the game as the planners do. That is the ultimate goal of the VICTORY model. To give you a tool kit to use when playing the game well so you can break the rules like an artist.
VICTORY is a CPD Accredited Programme
In order to gain accreditation from our partners at The CPD Group we have taken the exhaustive steps of submitting the organisation as a CPD Accredited Training Provider.
The Author and Trainer on this Course, Jon McDermott, as a CPD Accredited Trainer.
And, finally, the programme was submitted for its own CPD Accreditation which it gained in September 2022.On completion of this programme attendee’s are issued with 8 hrs of CPD Credits
Photos from the Day
Here is what people were saying about the day
“This was a fantastic day. thank you to all involved. I learnt a lot, met old friends and reconnected with my why. I cannot recommend this course highly enough. Many thanks to you and all”Dan H
“Thanks Town Planning Expert for amazing this course”Summit A
“A double thumbs up endorsement from me for the VICTORY course! Well worth doing to not only refresh ground I had already covered in the past, but there were plenty of new nuggets and info that has expanded my knowledge and that I can apply immediately. Thanks again Jon (and Tanya)!”Don W
“Just finished a great day on planning with TPX. Never too old to learn”Trevor W
“Smashed it mate, well done.”James B
“Thanks Jon and team! Great day of learning”Ross G
“Fab day as always with TPX. Thanks very much to all involved but especially Jonathan McDermott and Tanya McDermott for pulling it all together so seamlessly.”Katherine G
“A fantastic day, full of immediately implementable knowledge from an expert in his field. No NLP bullshit or further up sells that are normally associated with property courses, just pure knowledge from a top class professional. I believe I gained more from this in respects to increasing my planning knowledge than I did working in the land and planning department of a national house builder at the start of my career. Look forward to working with Jon and the TPX team on future acquisitions. Many Thanks, Dan”Dan S
“Fabulous content, lovely positive vibe in the room. Knowing the trades in the room would have been useful for future projects. Maybe networking/ dinner option after the learning. Excellent day as expected. Thankyou!!”Course Feedback
Whats next for VICTORY
At TPX we want to change the Property Education Sector from the current model to that of Education means Education. That’s the reason why we have gone and achieved the CPD Accreditation for it and why when asked…”where is the upsell?” the simple answer was…”there isn’t one! This is about your education and not our profit margin!”
The feedback from VICTORY S1 has been immense and the interest in the programme has meant that we are now planning S2 and S3! We therefore plan to run VICTORY on a quarterly basis throughout the year with the course updated every time to take into account changes within planning practice and procedure.
That’s why we number the VICTORY days as seasons, it’s to help us track where we are at and to make sure we are always providing information at the cutting edge.
Season 2 – 3rd December 2022, Reading Berkshire
For S2 the VICTORY day migrates from Central London and down the Elizabeth Line to leafy Berkshire. S2 can be booked through Eventbrite at the link below and we cannot wait to bring S2 to Reading in December!
https://www.eventbrite.co.uk/e/the-victory-plan-masterclass-series-2-how-to-get-planning-permission-tickets-390524016847
Season 3 – The North East! – March 2023
Following the success of S1 we were contacted by The Property Thing who are a North East based networking group from Darlington. We are in the process of discussions with them for VICTORY S3 to travel to the North East for a day in March 2023. Stay tuned to the website for more on this as it progresses.
VICTORY needs you!
Education for the sake of Education means for VICTORY to change the world we need people to tell us that this is what they want! So, following the example of The Property Thing, the call to action is this. If you want a VICTORY day to head to your part of the UK then contact us at victory@tpexpert.co.uk and we will be happy to discuss the possibility with you.
The journey to bring VICTORY to the world has been an eye opener and has revealed more about our property education sector that I ever wanted to know. At then end of the day this is just the beginning for VICTORY and hopefully we can make a difference to those that attend and prove that education means education! [...]
30th June 2022Latest News / NewsIt is fair to say that planning is getting harder. The days of a cordial discussion with officers at the LPA’s we work with are long gone and today the role of the planning consultant is more focused in tempering the almost natural desire of applicants to maximise every development opportunity.
Maximisation is all well and good in the right circumstances however this can often lead to multiple applications and a trip to see the Planning Inspector when dealt with incorrectly. The issue with the maximisation theory always falls on the simple fact that in order to do so you must inevitably break a rule or two. You must try and push what is possible beyond the thin ice and into something that is often described as over-development.
So what is the cure to this?
The first letter in our VICTORY model is V for Verify. The verify checkpoint is there for developers to establish whether they are following the rules inside a rules based system.
For most it is hard to believe that planning is part of a rules based system however in order for any system to operate it is based on a presumptive set of rules. In planning in England these stem from the National Planning Policy Framework (NPPF). The Council’s own rule book, their core strategy or similar, must be demonstrably compatible with the NPPF in order to pass scrutiny.
Following the rules gains greater weight and clarity within the proposed Levelling Up and Regeneration Bill 2022 which at section 83 proposes to establish in law the primacy of the national development management policies over any local policy with emphasis on the national first approach. Section 84 of the bill then goes on to establish the basis for the National Development Management Policies (NDMP) themselves as a wholly separate sub-set of the National Planning Policy Framework.
Ultimately this focus on a national (England only at least) rule book is there to achieve two fundemental objectives.
Firstly, the new NDMP is designed to reduce repetition that occurs in every Local Planning Authority in England. At present every local plan has ostensibly the same policies in them governing design, heritage, development in the countryside, transport and town centre development. The idea behind the NDMP is to redirect the production of these policies to the Secretary of State of the day rather than the planning policy teams at the individual LPA’s.
Secondly, and most likely, is the desire by Government to create consistency in decision making across England and the most effective way to do that is to reduce local discretionary decision making to matters that are wholly local. Variations in decision making from authority to authority on matters that are outlined in full within the NPPF has created a culture of decision making where the ways applications are treated in adjoining boroughs differs wildly.
This brings me to the salient question at the heart of this article. In planning is boring the new sexy? is simply following the rules the new way of doing things because the time for innovation in planning is coming to an end.
Let us take Croydon as an example. The London Borough of Croydon attempted to boost its housing supply by innovating a new rule. Its landmark Suburban Design Guide Supplementary Planning Document encouraged focused intensification within the borough by, inter-alia, taking large family homes and redeveloping the land to form blocks of 7, 8 and 9 flats. The result was that whole sites were accumulated creating a massive oversupply of 1 and 2 bedroom dwellings whilst the supply of three bedroom houses dwindled.
In 2021 the LPA brought its new Local Plan into force which had to put the brakes on this landmark policy seeking to protect three and four bedroom family homes from redevelopment or conversion to HMOs, reinforcing the need for all new schemes to deliver at least 50% 3 bedroom homes or better and driving up the need to provide on-site car parking.
Today the short term innovation of the SPD is nearly at an end. The present powers-that-be at Croydon have voted to remove the SPD in its entirety as the borough seeks to recover its housing market.
The new sexy form of development in Croydon is not a block of flats ,of which there are presently 834 flats on the market right now on Rightmove, but is instead the boring and vanilla family home of which only 204 three bedroom houses exist on the market with prices ranging from 250k to 800k. Market demand today is for a three bedroom family home and not the mass of flats presently on the market.
So what is the answer?
The NDMP and Bill tell a very clear story. The new way of planning is going to be following the rules first and innovating second and not the other way around. As consultants we are seeing the result of that today with policy compliant decisions being those that LPA’s struggle to refuse or defend at appeal and those, more innovative, schemes being those that take greater scrutiny. Knowledge of local and national policy at the earliest stage becomes a deciding factor in site selection.
In the future who you know at the LPA will be less important than how well you know from the National Policies.
by Jon McDermott [...]
19th May 2022ViewsWell we have had about a week to poor over it and had the benefit of analysis from some very learned individuals. Here is our summary of what the Queens Speach means for planning in England.
That is assuming the government can get it through!
On 11 May 2022 the Government introduced to the House of Commons the Levelling-up andRegeneration Bill and the Levelling Up and Regeneration: further information policy paper. Both are designed to make provision for making changes to the way the established planning system works. These propose very Conservative (with a Capital C) changes to the system that will feel friendly to the Blue areas of England.
Planning Data
The Bill introduces the concept of planning data and some broad definitions of what is it includes. It also prescribes a route where a faliure to comply with a planning data request from the LPA will render the whole submission null and void.
The Bill proposes regulations for the provision of public notices and the information that LPA’s must make avaliable to the public and in what form.
LPA’s must use approved software (by the SoS) for the collection and storage of Planning Data hence the days of weird websites and ‘local solutions’ are numbered.
Development Plans
The Bill reinforces the primacy of national development management policy over local policies and where there is a dispute weighs heavilly in favour of national policies first.
A new definition of national development management policy is to be introduced and so this foreshadows the SoS designating a new National Development Management Policy Document which will set out national policies on issues that apply in most local authorities.
The Bill stipulates that determinations must be made in accordance with the development plan and NDMPs unless material considerations strongly indicate otherwise. The primacy of policy over local discretionary decision making therefore returns to planning.
The NPPF will be reformed once again (version 4 on its way) and this will include the removal of the rolling five-year housing land supply penalty for Local Plans that are less than 5 years old.
Heritage
Heritage assets gain further protections with the requirement to preserve or enhance being incorperated within the 1990 Act for the first time.
Street Votes
The bill introduces the concept of street-votes which reads very much like an extension of the Local Development Order powers of the early 2000’s. The street vote powers would allow residents on a street to bring forward proposals to extend or redevelop their properties in line with their design preferences.
Crown Development
This, on the surface, appears to be a modest re-introduction of Circular 18/84 allowances for crown development that is considered to be of national importance.
Minor Variations in Planning Permission
This introduces new powers to amend planning permissions in limited circumstances to providegreater flexibility following recent caselaw. The new provisions will allow an applicant to make “non substantial changes” to a permission, “including descriptor of development and conditions”.
Development Commencement notices
A commencement notice will be required before any work is commenced on site in accordance with a planning permission. This essentially fixes the gap in the current legislation and removes the need for LDC’s on applications that have been implemented.
Completion notices
This fixes the gap within legislation allowing LPA’s on uncompleted sites to issue a notice specifying when the work must be finished. After which date the planning permission for the unfinishedparts will cease if the work is not completed.
Enforcement
Much of the enforcement section of the bill is a big fix of discrepancies and weaknesses within the Act. The main points are:
A universal time limit of 10 years for all development;Enforcement warning notices for approvable development; Temporary stop notice effect increased to 56 days; Removal of ground a appeals where a planning application has been made for the same development; Penalties for delays caused by the appellant is responsible for undue delay in the progress of the appeal; Penalties for non-compliance are also increased; Relief from enforcement of planning conditions in specified circumstances. Doubling fee’s for retrospective applications in line with the current ground a fee.
Community Consultation
The Bill suggests changes to bring England in line with wales in terms of community consultation as a required pre-submission step for larger forms of development. These provisions are already in place in wales and expected to take the same form.
Infrastructure Levy
CIL and much of S106 is to be abolished in favour of a national Infrastructure Levy that will replace both with one combined levy. Unlike CIL, IL is to be charged as a proportion of property value. The Policy Paper explains further that it is the Government’s intention indeed to reduce the scale of s106 planning obligations so that s106 agreements will be used: (1) on the largest sites in place of IL (provided that the value of the infrastructure being provided in that way is not less than that which would be achieved under IL); and (2) on other sites where “narrowly focused” s106s will be used to provide onsite infrastructure. The Policy paper also suggests that the Government’s intention is that Affordable Housing will be delivered through the IL.
Environmental Outcomes Reports
The bill makes provision for regulations to allow plans that have an impact relating to environmental protection to be assessed through environmental outcomes reports. The Explanatory Note suggests that these build on the mandatory information required in the reporting stages of an environmental impact assessment or a strategic environmental assessment.
Compulsory Purchase
There are minor changes to compulsory purchase proposed. these are summerised as:
Publishing notices of the making of a CPO must also be done in successive editions of a weekly local newspaper and on an appropriate website; Changes the minimum 21 day objection period so it must be at least 21 days;Notice of confirmation of the CPO must also be published on a website for at least six weeks;There will no longer be an automatic right for objectors to require a public local inquiry into the confirmation of the CPO; CPO will be allowed subject to conditions.
Overall the bill reads and feels like a return to the expert system of the 1950’s. Discretionary decision making gets harder and a more nationalised focus on planning takes its place. Lets see if planning V2022 works for the best.
By Jon McDermott [...]
4th April 2022Latest News / NewsIn 2020 I did an Anti-Guru vlog which you can see here:
Within the vlog I raised the simple premise, that was nutrient neutrality was going to spread and there was very little to stop Natural England rolling this out. In March 2022 another 42 authority areas were added to the list making the total 72.
In the words of the Planners at Darlington Council this caused the following reaction:
On 17th and 18th Feb (last Thursday and Friday) we received emails from Natural England and the Chief Planner from the Department for Levelling Up, Housing and Communities that the Borough of Darlington is now part of the Teesmouth & Cleveland Coast Special Protection Area/Ramsar which, from the information that we have received from them so far, means that the local planning authority, under the Habitats Regulations, has to carefully consider the nutrients impacts of any projects (including new development proposals) on habitats sites and whether those impacts may have an adverse effect on the integrity of a habitats site that requires mitigation, including through nutrient neutrality. This impacts on all planning applications which cover all types of overnight accommodation including new homes, student accommodation, care homes, tourism attractions and tourist accommodation and permitted development (which gives rise to new overnight accommodation) under the Town and Country Planning (General Permitted Development) (England) Order 20159. This advice also applies to planning applications at the reserved matters approval stage of the planning application process, and to applications for grants of prior approval and/or certificates of lawfulness for a proposed use or operation. This impacts on developments for one dwelling upwards. You will appreciate that this appears to be a very complex issue that has just been brought to our attention, along with the other affected local planning authorities and it is outside of our control, impacting on a large number of existing planning applications that we currently have with us. We have been advised to attend a number of workshops over the coming weeks presented by PAS and Natural England, with the first ones being open to Chief Planning Officers this week, which we will need to accept in order to understand what this new guidance and advice entails for both ourselves, developers and planning applications. Until we have a greater understanding of this new guidance, the mechanisms for implementing them across the Tees Valley authorities, we are currently not able to progress any planning applications for residential development/accommodation in any form. This has impacted upon over twenty of my current planning applications.Andrew HarkerPlanning Officer, Development Management
So what is happening?
Nutrient pollution is a big environmental issue for many of our most important places for nature in England. In freshwater habitats and estuaries, increased levels of nutrients (especially nitrogen and phosphorus) can speed up the growth of certain plants, impacting wildlife. This is called ‘eutrophication’ and it is damaging protected sites. As such, some sites are classified as being in ‘unfavourable condition’.
The sources of nutrients generally include sewage treatment works, septic tanks, livestock, arable farming and industrial processes. Where sites are already in unfavourable (poor) condition, extra wastewater from new housing developments can make matters worse.
By designing development alongside suitable mitigation measures, that additional damage can often be avoided. This approach is called ‘nutrient neutrality’. It essentially allows developments to be permitted without impacting on the condition of the important wildlife / protected sites.
What type of development needs to be nutrient neutral?
Nutrient neutrality is needed for overnight accommodation including new homes, student accommodation, care homes, tourism attractions and accommodation. The nutrient neutrality approach applies to proposals for a net increase in dwellings. Replacement dwellings are generally excluded.
So, campsites, glamping pods / holiday lets / shepherd’s huts etc are all included. This includes developments that propose to connect to the mains, off grid treatment works or composting toilets.
Other commercial development (not involving overnight accommodation) is generally not included, so nutrient neutrality does not apply to new schools, shops, offices etc.
Other applications will be considered on their individual merits, for example new industry, extensions to regional airports etc.
Does nutrient neutrality apply to the whole authority area?
It depends on the river catchment and the catchment boundaries for wastewater treatment works. The nutrient neutrality approach applies where the treated wastewater discharges into a sensitive catchment – either into the ground or surface water.
Check to see the extent of the sensitive river catchment and how much of the authority area is within this area, eg which towns, villages, ward boundaries.
The catchments for the wastewater treatment works also need checking. The catchment calculators include a list of the relevant wastewater treatment works (on the lookups tab). The river catchment and wastewater treatment work catchments can be different. Sometimes the waste from a development in one catchment is discharged into another catchment where nutrient neutrality applies. This is more likely to be the case when your development is located near the edge of the river catchment.
What legislation covers nutrient neutrality?
Many of our most internationally important water dependent places (lakes, rivers, estuaries, etc) are protected under the Conservation of Habitats and Species Regulations 2017 (as amended).
In accordance with this legislation, a Habitats Regulations Assessment (HRA) is needed for plans and projects that are likely to have a significant effect on the protected sites.
Natural England has included more information in their updated methodology.
In the short term….
Some councils will receive the advice from Natural England out of the blue, and it can be difficult to know what to do next. In the short term Council’s will put all applications on pause until they sort out their package of nutrient neutral measures.
Given that Natural England’s advice is being upheld by Inspectors and the High Court there is no mechanism available to prevent further spread of the issue beyond the 72 authorities already effected. [...]
22nd February 2022ViewsI have just recorded a podcast for a good property entrepreneur friend of mine, Dave Hartnet of Mountbatten Estates, and one thing it got me to do was reflect on the state of the system today in 2022.
The podcast also comes at a time of change, we have just had the first proper update to the UK Planning Portal for five years. We are seeing alterations to the way the Inspectorate works and we are seeing the new department for Leveling Up, Homes and Local Government announce its leveling up agenda.
But what about the front line of planning in England. In my previous article I reported that some 51 of the planning authorities this year have found themselves in presumption this year. Some have appalling rates of planning delivery with Southend propping up the country with a delivery of 31% over need over the past three years!
Remember that planning authorities are meant to deliver housing through granting sustainable developments:
9. These objectives should be delivered through the preparation and implementation of plans and the application of the policies in this Framework; they are not criteria against which every decision can or should be judged. Planning policies and decisions should play an active role in guiding development towards sustainable solutions, but in doing so should take local circumstances into account, to reflect the character, needs and opportunities of each area.Para 9 of the 2021 NPPF
38. Local planning authorities should approach decisions on proposed development in a positive and creative way. They should use the full range of planning tools available, including brownfield registers and permission in principle, and work proactively with applicants to secure developments that will improve the economic, social and environmental conditions of the area. Decision-makers at every level should seek to approve applications for sustainable development where possible.Para 38 of the 2021 NPPF
So what is happening today? Why is it that applications for development are seen so negatively from the outset rather than looking at things in a more positive light as per the instructions in para 38.
Ultimately it is all about time and culture.
I have a lot of sympathy with planning officers today. My former colleagues at Portsmouth are typically handling a rolling 100 applications each. If they adopt a 1 job per day strategy then that 100 days of work. Even if that does not sound much remember it is a rolling treadmill of applications so every app that drops off is replaced by another.
Add to that the government mandated time limits. An 8 week application needs to be dealt with inside of approximately 60 days. The math just does not balance. One application per day means that adding a case to the load will automatically lead to that case being 40 days overdue.
Having been a planning officer myself one job per day is a reasonable expectation for good decision making, its a principle that holds true for my workload today and so in essence any application is destined to go out of time.
Lets then turn to culture. Planning today is habitually in everyone’s bad books. For the Government planning must do more and deliver bigger and more beautiful buildings, for developers planning is seen as a blockage to development, for homeowners planners are just unfair adopting almost arbitrary views on development. This means that a Planning Officer today is everyone’s bad guy and can never be right.
I reflected upon this during a podcast recording in Lockdown 1 – I said to the interviewer “I am in a profession where I will never win the game, I will get close sometimes but never win” when questioned on this standpoint I reiterated the sentiment above. That is as a planner I am always upsetting someone. There is simply no equity in the process.
That lack of equity breeds culture in decision making. It is easier today for planners to ignore their statutory duty under the act and the NPPF and just refuse. This may feel very cynical however from experience it is the way the system is pushing the profession. With time limits and work pressure it is better to get an application off your desk rather than negotiate and work towards a shared solution. In council’s such as Maidstone and Southend in particular this is the norm with no negotiation during the process and in Southend in particular – no pre-application either. Refusing an application transfers the position of prime dark lord of planning from the Case Officer (now hero of the people for refusing your consent) to the Planning Inspectorate who are otherwise protected by layers of staff and procedure.
For council’s under the threat of government intervention through special measures a culture of refusal is otherwise counter productive as it simply does not deliver on government objectives for housing delivery and quality of decision making. However it today’s planning world one has to ask what is better?
By Jon McDermott [...]
17th January 2022Latest NewsJanuary, in the planning world at least, brings with it the grading of council performance known as the Housing Delivery Test.
HDT Layer Nimbus Maps – 2020 Result
The HDT is an important tool for Council’s and Government to understand what is going on with housing delivery and it is essentially there to mark the Council’s planning homework.
The result of the HDT is essentially 4 grades or results that will define what will happen with, or more importantly to, that LPA in the coming year.
The grades are as follows:
No Action – The LPA has achieved better than 95% of its housing delivery targets over the past three years
227 Authorities this year.
Action Plan – The first stage of sanction where the LPA has achieved between 95-85% of its targets and must therefore produce an action plan where it takes a long hard look at itself to understand what it could do better. Here is Portsmouth’s for 2021 as an example, more on them later! Portsmouth Action Plan.
23 Authorities this year.
Buffer – The second sanction where an LPA has achieved between 85-75% of its targets. 20% more housing target is added for the council to achieve and it must again produce an action plan.
19 Authorities this year.
Presumption – The third and final consequence where an LPA has achieved less that 75% of its targets. There are 51 authorities in this bracket this year with Southend-on-Sea leading the bottom with just 31% delivery.
In practice presumption has a few consequences for the planning authority as it engages the ’tilted balance’ in favour of sustainable development and can render a Local Plan or Neighbourhood Plan obsolete if the ballance is properly engaged.
There are but a few circumstances where the ballance cannot be engaged fullu and those are outlined chiefly at paras 11-14 of the 2021 NPPF. These include where the NPPF itself would provide a clear reason for refusal such as:
Habitats sites (and those sites listed in paragraph 181) Sites of Special Scientific Interest;Land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) Heritage Coast;Irreplaceable habitats;Designated heritage assets (and other heritage assets of archaeological interest;Areas at risk of flooding or coastal change.
Granted in the main you would need to go to the Inspectorate in order to get a proper hearing on the tilted balance as most, if not all LPA’s that are effected by the presumption, tend to attempt to maintain business as normal until they are told otherwise.
So why does a Planning Authority start to fail?
To answer this lets look at Portsmouth City Council. Year on year since the start of the HDT in 2018 they have been in decline on their statistics from a comparative excellent authority in 2018 with 122% delivery to a presumption authority in 2021 with just 54% delivery.
Portsmouth Civic Offices
The 2021 Action Plan blamed the following:
Slow delivery on consented sitesSlow delivery on allocated sites Insufficient forward land supply Insufficient Delivery of Planning Approvals Nitrate Mitigation factors (Natural England)Development Viability
All of the above, with the exception of Natural England, are within the LPA’s remit to control either by reducing implementation periods on consented schemes or latterly creating a change in culture at the LPA where para 1, 2 and 38 of the NPPF (that’s the duty to seek to grant planning permissions first) is embedded right at the outset.
The report also points to under funding within the planning sector generally and an unwillingness of other authorities near to Portsmouth to play fair. The fact that two of those authorities, namely Fareham and Havant, also find themselves in presumption this year does not bode well for the ability of PCC to work towards statements of common ground.
In the end the result is the same – Portsmouth are in presumption with a 54% delivery rate and just 3.2 years of housing left to them (reported in the 2021 Action Plan) and therefore the culture of the council, like all those in presumption, must change from ‘its not our fault’ to ‘only we can get ourselves out of this mess’.
So what does it all mean
The Big developers will be pouring over the HDT for the big wins this years. Desirable places like Mole Valley and Fareham will be under heavy pressure to grant planning permissions and get building on sites in the next 12 months. The buffer authorities will also be taking a long hard look at themselves – Can they ‘Pull a Gosport’ and get themselves out of the buffer in 1 year (GBC went from 84% to 100% in one year!). For me it is these buffer authorities that are of the most interest as they tend to be the ones that want it most and those are the LPA’s I will be paying attention to in 2023.
by Jonathan McDermott [...]
7th October 2021Latest News / OpinionThe Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (snappy title!) was laid before parliament on the 9th July and makes the much needed consequential changes following the wholesale alteration to the Use Classes Order in September of last year. A copy of the legislation can be found at https://www.legislation.gov.uk/uksi/2021/814/made
A number of the changes were previously consulted upon in the spring and can be summed up in this helpful document which we produced earlier in the year.
GPDO Consequential Changes Quick GuideDownload
However, there is one in there that has taken us all by surprise! Class G.
Now for those that know me I have lauded the benefits of Class G as it was the one remaining ways to gain the benefit of new dwellings in technically difficult circumstances and without the need for any form of permission at all from the Planning Authority. Sadly however those days are numbered as on the 1st August 2021 Class G loses its freedom and falls into the rank and file of prior approval matters determined by the planning authority through the prior notification process.
The matters for consideration by the LPA after the 1st of August are as follows:
(i)contamination risks in relation to the building;(ii)flooding risks in relation to the building;(iii)impacts of noise from commercial premises on the intended occupiers of the development;(iv)the provision of adequate natural light in all habitable rooms of the dwellinghouses;(v)arrangements required for the storage and management of domestic waste.
This now being a prior approval matter means that compliance with the national space standards is now a matter of fact rather than it being based on a reliance that Class G was not included within the original list or prior approvals caught by the NDSS.
I am gratified to Joshua Clayman of Windsor and Maindenhead Council for providing the legal clarity to the point of whether the development results in dwellings in their own right. Joshua points to the following in a recent debate with myself over email.
Whilst I have not specifically found an appeal regarding space standards and (the former version of) Class G, there is case law – Valentino Plus Ltd v SSCLG EWHC 19 (Admin) – that indicates ‘mixed use’ in the case of Schedule 2, Part 3, Class F of the GPDO 1995 (the precursor to Part 3, Class G of the 2015 Order) should be interpreted as a change to (up to) 3 planning units, namely a A1 shop and 2 self-contained flats. Hence, the self-contained flats are ‘true dwellings’ in the sense they are each their own planning unit.Whilst Class G has become a prior approval process, it still creates a mixed use, so the question still needs answering. The new prior approval wording refers to adequate natural light in all habitable rooms of the dwellinghouses. This also indicates the flats being created are true dwellings.Joshua Clayman
This should hopefully bring an end to the debate as to whether the national standards apply. As per my comment above it is my view that they now do.
However there is some good news, Class G in its new form becomes a Super G permitted development allowance which is available to all of the uses within Use Class E rather than just shop or financial and professional services. This includes the ability to do two flats above any of the following:
Shops (not already covered by Class F2),Financial and professional services,Restaurants and cafés,Offices,Research and development of products or processes,Industrial processes compatible with a residential area,Clinics,Health centres,Crèches,Day nurseries,Day centres,Gymnasiums or area for indoor sports and recreations (excluding swimming pools and skating rinks)
Uses such as Betting Office and Pay Day Loan Shop are also included within the Super G provisions as a carry over from its former life.
your ability to use Class G on a Listed Building or indeed any other building that is within an area not available to Class MA remain exactly the same.
Whilst it was a shock to the system to see Class G turn into a prior approval matter without announcement by the Government this would resolve one pertinent problem in a land deal of my own in Cornwall. The funding house on the project have been demanding a Certificate of Lawfulness or Planning Permission for the proposed works which we have (to this point) been saying is not required. Whilst it may now be a necessity it will remove the uncertainty from the equation and mean that we can get our papers in order using the 56 day process. It will also draw a final line under the last mechanism to get flats that are below the 37sqm threshold within the NDSS so at least finally we can draw an end to clients seeking to break or bend the rules because profit is more important that quality.
Transitional Arrangements
The explanatory memorandum with the SI is, as always, notoriously vague on the transitional arrangements for Class G but does state:
7.43 Paragraph 4 provides for transitional arrangements where the amended right contains substantially new conditions. For example, Class G of Part 4 is amended to introduce from 1 August 2021 a requirement for local consideration of matters of prior approval. However, development begun before this date may continue to proceedirrespective of whether an application for prior approval has been made.
Whilst the paragraph does not expressly state Class G of Part 3! (maybe a typo there!) it does make clear that if your development has begun you may continue it. However I am sure those schooled in planning law will also scream that Class G is a change of use and therefore governed by S56(b) of the Act which expressly states that the development is begun when the new use in instituted. Therefore with the transitional arrangements once again as clear as mud our old friend ‘fact and degree’ will come into play in the short to medium term.
This is only one of a vast number of changes happening in the summer of 2021 and so planning will once again be in a state of flux as we learn the new rules. Lets see what the story says in 8 months time!
by Jon McDermott [...]
31st August 2021OpinionBack in 2012 the NPPF included an important paragraph.
To deliver a wide choice of high quality homes, widen opportunities for homeownership and create sustainable, inclusive and mixed communities, localplanning authorities should:● plan for a mix of housing based on current and future demographictrends, market trends and the needs of different groups in the community(such as, but not limited to, families with children, older people, peoplewith disabilities, service families and people wishing to build their ownhomes);● identify the size, type, tenure and range of housing that is required inparticular locations, reflecting local demand; and● where they have identified that affordable housing is needed, set policiesfor meeting this need on site, unless off-site provision or a financialcontribution of broadly equivalent value can be robustly justified (forexample to improve or make more effective use of the existing housingstock) and the agreed approach contributes to the objective of creatingmixed and balanced communities. Such policies should be sufficientlyflexible to take account of changing market conditions over time.Para 50 of the 2012 NPPF
This paragraph was important because it provided the Council’s with the legislative backing to seek to control HMO’s. Sustainable, inclusive, mixed and balanced communities were the soundbites repeated in many planning decisions up and down the country where the Council has otherwise sought to refuse an application for an HMO. At no other point within the NPPF did the Council have a leg to stand on however the paragraph was just about vague enough to suggest that somehow the Government of the day wanted to create mixed and ballanced communities.
Roll on to the 2021 NPPF and para 50 is gone and is replaced by Para’s 60-63 of the framework which state:
To support the Government’s objective of significantly boosting the supply ofhomes, it is important that a sufficient amount and variety of land can come forwardwhere it is needed, that the needs of groups with specific housing requirements areaddressed and that land with permission is developed without unnecessary delay.To determine the minimum number of homes needed, strategic policies should beinformed by a local housing need assessment, conducted using the standardmethod in national planning guidance – unless exceptional circumstances justify analternative approach which also reflects current and future demographic trends andmarket signals. In addition to the local housing need figure, any needs that cannotbe met within neighbouring areas should also be taken into account in establishingthe amount of housing to be planned for.Within this context, the size, type and tenure of housing needed for different groupsin the community should be assessed and reflected in planning policies (including,but not limited to, those who require affordable housing, families with children, olderpeople, students, people with disabilities, service families, travellers, people whorent their homes and people wishing to commission or build their own homes).Where a need for affordable housing is identified, planning policies should specifythe type of affordable housing required, and expect it to be met on-site unless:a) off-site provision or an appropriate financial contribution in lieu can be robustlyjustified; andb) the agreed approach contributes to the objective of creating mixed andbalanced communities.Paras 60-63 of the 2021 NPPF
A broad brush notion of mixed and balanced communities for all has been replaced with the scalpel within para 63 which refers solely to mixed and balanced communities in relation to affordable housing only. Indeed paras 60, 61 and 62 take a different approach instructing LPA’s to render support where inter-alia:
Para 60: the needs of groups with specific housing requirements are addressed
Para 61: reflects current and future demographic trends and market signals
and
Para 62: the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to…students, people with disabilities…people who rent their homes…)
With this change in focus where does it leave the legislative support for control of HMO’s? Put simply the 2021 NPPF includes no policy relating to HMO’s positive or negative and no mention of control for this use class at all. As such it remains for the council’s to somehow glean continuing support from the new NPPF.
The silence or otherwise within the amended NPPF is deafening however the clear message is that the stalwart of mixed and balanced communities has now apparently been removed.
Further for those authorities seeking to remove Class L via an Article 4 Direction the new NPPF presents bad news to those council’s seeking a council wide control stating:
The use of Article 4 directions to remove national permitted development rightsshould:• where they relate to change from non-residential use to residential use, belimited to situations where an Article 4 direction is necessary to avoid whollyunacceptable adverse impacts (this could include the loss of the essentialcore of a primary shopping area which would seriously undermine its vitalityand viability, but would be very unlikely to extend to the whole of a towncentre)• in other cases, be limited to situations where an Article 4 direction isnecessary to protect local amenity or the well-being of the area (this couldinclude the use of Article 4 directions to require planning permission for thedemolition of local facilities)• in all cases, be based on robust evidence, and apply to the smallestgeographical area possible.Para 53 of the 2021 NPPF
The first new Article 4’s post July 2021 have directed their efforts to the smallest geographical area possible isolating individual streets or properties and so it seems that the LPA’s have heeded the Governments warning’s that a blanket removal of the Permitted Development toy box will not be tolerated.
By Jon McDermott [...]
24th June 2021OpinionIt is fair to say that planning authorities in England have their favourite forms of development and in equal measure those developments they love to hate. This behaviour comes from those at the very top of the department and filters down through the teams to form part of the personality of the planning authority. Those in Winchester will have heard of the ‘Winchester Way’. This is a good example of decision making behaviour (DMB) that can be tracked and exploited by a developer or planning consultant.
Positive and Negative DMB is in fact a proper application of case law and the principle of consistency in decision making.
It is well established case law that previous planning decisions are capable of being material considerations, meaning that they need to be taken into account by those determining subsequent applications for permission.
The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency….. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.”
Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise.
The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre. The application was approved at a full council meeting despite the planning officer’s report recommending refusal. One of the Co-Op’s grounds of challenge was that the council had failed to have regard to the importance of consistency in decision-making as it had refused to grant Aldi permission for a near-identical development on the same site the previous year due to adverse retail impacts on the town centre. The Co-Op also alleged that if the council had given consideration to its earlier decision, there had been a failure to give reasons as to why it had now reached a different decision and granted planning permission. Planning permission was quashed by the court after it held that the council had made clearly inconsistent decisions and had failed to provide adequate reasons for doing so. By failing to reference, let alone address, the previous refusal decision, the council had not explained how the previous concerns relating to adverse retail impacts had been addressed and allayed in the subsequent application.
Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” In essence, it was open to the council to reach a different decision but only if it had “grappled with the earlier reason for refusal based on retail impact and harm to the viability of the town centre”. The case emphasised that, in circumstances in which an earlier decision is a material consideration in the context of a current application, a decision-maker must provide clear reasons for any departure from their original position.
In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier. The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date.
Howell QC stated (at paragraph 100) that: “There is a public interest in securing reasonably consistency in the exercise of administrative discretion that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.” The earlier decision was not so different that it could reasonably be ignored. Any reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up-to-date and whether the reasons were equally applicable to the present case. Again, they would also have provided reasons for any departure from the previous decision. Permission has been granted for the secretary of state to appeal the decision in the Court of Appeal.
These two court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable.
So how do we apply this to DMB and how do we use this to our advantage?
DMB is part of the I for Intelligence and C for Compare considerations of our VICTORY model. What we are looking for here is evidence within the DMB of a council that they either like or dislike a particular form of development within their area.
Repeated approvals for broadly the same development = a positive DMB that would encourage more of the same.
Repeated refusals for broadly the same development = negative DMB and that development should rightly be avoided.
DMB can change over time with too much of a good thing. In Croydon Council the LPA very heavily promoted the idea of knocking down two storey three bedroom detached houses and building three storey blocks of flats. Many such applications later the LPA noticed that they had a lot of 1 and 2 bedroom flats in supply and very few three bedroom dwellings left. This spurned them to issue an Article 4 to prevent house to HMO without planning permission and change their DMB to enforce their own policies on ballance of properties within a development.
In Southampton City Council there was a profound negative DMB towards HMO’s this became so much so that it generated a very positive DMB towards Halls of Residence. Today in Southampton you can get planning permission for a massive hall but you have no hope of getting a single HMO.
By tracking the DMB you can track with reasonable confidence the kind of decision you may face within any particular council. Suffice it to say that DMB is particular to an individual planning authorities and so another reason why specialising in a particular area is key.
By Jon McDermott [...]
16th June 2021News / OpinionOn the 1st August 2021 the starting gun is fired and Class MA becomes available to applicants as an application type. Class MA takes over the relay from Class O on the same day and you can read our short guide on Class MA at https://www.tpexpert.org/knowledge/class-ma-commercial-business-and-service-uses-to-dwellinghouses/
One of the allowances within Class MA is the provision that buildings within Conservation Areas are not exempt from the class and can be converted. This is subject to clause (e) which states:
(e)where the building is located in a conservation area, and the development involves a change of use of the whole or part of the ground floor,the impact of that change of use on the character or sustainability of the conservation area;
Class MA does not seek to control the loss of vacant shopping uses aside from the requirement that the property must be vacant for 3 months. Para 7.7 of the explanatory memorandum states:
7.7 The Class MA right will provide for the change of use from any use within the Commercial, Business and Service use class (E) to residential (class C3) use. In order to prevent gaming, the building must have been in Commercial, Business and Service use for two years before benefiting from the right…..To protect successful businesses, the right will require the building to have been vacant for three continuous months immediately before the date of application for prior approval. The time that the premises is closed as a result of Government Covid-19 restrictions will not count towards this period where the building continues to be occupied by the owner or tenant. No more than 1,500 sq m of floorspace in any building may change use.
Thus the loss of a Commercial, Business and Service use is implied by the prior approval.
Para 7.8 of the memorandum states:
7.8……the impact of the loss of ground floor Commercial, Business and Service use on the character and sustainability of a conservation area.
Thus within para 7.8 does this give a Council a potential push back to Prior Approval in terms of the loss of the use on the character and sustainability of a Conservation Area?
The paragraph is sufficiently grey that most Council’s and their Conservation Officers will undoubtedly attempt to link use to character in order to retain an otherwise vacant shop in preference to seeking an appropriate alternative use. This is notwithstanding the comments within para 200 of the 2019 NPPF which states;
Local planning authorities should look for opportunities for new development withinConservation Areas and World Heritage Sites, and within the setting of heritageassets, to enhance or better reveal their significance. Proposals that preserve thoseelements of the setting that make a positive contribution to the asset (or whichbetter reveal its significance) should be treated favourably.
This does, however, appear to read as a bear trap for those seeking to do a Class MA application within a Conservation Area. Giving thought to the problem there are a number of solutions you could consider.
Seeking a building that is long term vacant should be a starter for 10. This allowance is directly targeted at those buildings which have been allowed to degrade and stagnate. A building that is in that state will benefit from the use and then benefit the Conservation Area.
Remember that external alterations are not allowed and you do not have any Part 7 (Non-domestic) PD allowances within a Conservation Area either so if you want to rip out that shopfront and replace it with something a bit more residential compatible then prepare for a chat with the Conservation Officer.
Finally consider a companion. Clause (e) only applies to development at ground floor level and so you could seek to retain the Ground Floor within Class E and select an appropriate companion use to your residential prospect. Uses that also fall within E include Gyms, Cafe’s Coffee Shops, Business Centres and Clinics and all of the above push your development towards a fashionable co-living footing.
As with all new PD allowances we will need to wait about 8 months (56 days + a 6 month Appeal) for the Inspectorate to settle things down and give us some appropriate decision making behaviour. Until then the LPA’s will be ‘interpreting with extreme prejudice’
By Jon McDermott [...]
11th June 2021Latest NewsThe case of THE QUEEN (on the application of RONALD WYATT, CHAIRPERSON OF BROOK AVENUE RESIDENTS AGAINST DEVELOPMENT (BARAD), ACTING IN A REPRESENTATIVE CAPACITY) Claimant and FAREHAM BOROUGH COUNCIL sought a Judicial Review on the decision of FBC to grant outline planning permission for a sizeable development of houses. This case is important because the grounds included questions over Natural englands advice note on Nitrate Neutrality.
In his judgement Mr Justice Jay concluded that:
In respect of the advice note
In my judgment, this advice is impeccable in all material respects. Mr Jones came closeto submitting that, because there was scientific uncertainty, no development couldproperly be permitted because deleterious impacts could not logically be excluded. Butthat is the whole point of the precautionary principle: the uncertainty is addressed byapplying precautionary rates to variables, and in that manner reasonable scientificcertainty as to the absence of a predicated adverse outcome will be achieved, thenotional burden of proof being on the person advancing the proposal. The applicationof precautionary values to relevant variables may well have been sufficient, withoutmore; but a further cushion is provided by the application of a precautionary buffer.
In respect of the detailed grounds of the challenge all those relating to Natural Englands Advice and methodology were re-soundly dismissed.
A copy of the judgement is below for reference.
THE QUEEN (on the application of RONALDWYATT, CHAIRPERSON OF BROOK AVENUERESIDENTS AGAINST DEVELOPMENT(BARAD), ACTING IN A REPRESENTATIVECAPACITY)Download [...]
10th June 2021News / OpinionSo the story goes like this.
Four applications for prior approval were submitted on the same day on the same site and were registered (notwithstanding some registration shenanigans by the LPA) on the same day namely the 16th March 2021. Keep that date in mind…its important!
The applications were for a 7 unit scheme, two different 8 unit schemes and a 9 unit scheme. we had to make them this way as Class O now requires binding floorplans.
Application No: 21/00796/PANB1C was approved on 10th May 2021. The plans showed that the dwellings approved in that scheme did not meet the 37sqm minimum in para 9A. This was fine as the application was submitted prior to the effective date for para 9A.
The two 8 unit schemes and the 9 unit scheme were refused for failure to comply with para 9A of Part 3 of Schedule 2 of the GPDO 2015 as amended by the 2020 regulations! All three are now subject to live and active appeals.
In relation to all three appeals prior approval was refused solely for the reason that the proposed plans shows units that would have a floor area less than 37m2. According to Paragragh 9A of Article 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), the proposal does not qualify as permitted development set within Class O, Schedule 2, the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
The Council’s standpoint on all three applications is fundamentally flawed and amounts to unreasonable behaviour that can result in an award of costs against the Council.
Para 9A was brought in by regulation 3 of the The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020. It is subject to transitional arrangements at regulation 12 of the same regulations.
Regulation 12(2) is clear and unambiguous and states:
(2) The amendment made by regulation 3 of these Regulations does not have effect in relation to development under—
(a)Class M, N, O, P, PA or Q of Part 3 of Schedule 2; or(b)Class A, ZA, AA, AB, AC or AD of Part 20 of Schedule 2,
where an application for prior approval is submitted before 6th April 2021.
There can be no other interpretation to paragraph 12(2). As such by refusing prior approval for applications clearly submitted to the council prior to the 6th April 2021 under regulation 3 and para 9A the council have erred in law and their decision is fundamentally flawed on that basis.
However this gets more serious than just no reading a paragraph.
I called the Council prior to making these appeals and spoke to the Interim Service Development Manager. In order to avoid these appeals the we invited the council to review the decisions and re-issue as a clear error in law occurred. The Manager declined to do this under the procedures within the planning act preferring the matter to be dealt with at appeal thus relying on the Inspector to correct the council’s mistake. The Managers explanation for the Council’s clear error was “The regulations change like the wind and the council cannot be expected to keep up with the regulations”.
The RTPI Code of Professional Conduct states:
Members must take all reasonable steps to maintain their professional competencethroughout their career…and; Members who, as employers or managers, have responsibility for other Members orprofessionals must take all reasonable steps to encourage and support them in themaintenance of professional competence.
No knowing the regulations should never be an excuse for a chartered town planner!
We anticipate that the Inspectorate will indeed tidy up the mess left behind by the LPA but fundamentally this should never have got to this point and just demonstrates the under-funding and under investment in the planning system over the last 20 years.
And most of all lets hope this results in a little re-training at Milton Keynes Council! [...]
6th May 2021NewsTPX are pleased to announce that the Inspectorate had today allowed our appeal and granted prior approval under Part 20 of the GPDO for the addition of floors at Pippins Court, 40 Waterside, Evesham, WR11 1BU.
In their decision the Inspector criticised the approach the Planning Committee took towards the key test of design over impact to street scene stating:
The proposal would replicate the existing floors to enlarge the two blocks.Thus, elevationally the appearance would only significantly change by itsenlargement of the same.I note the Council’s references to paragraphs 124, 127 and 130 of theFramework and I understand the concern that the increased height of theproposed building may appear incongruous in the street scene, but thepermitted development right is expressly intended to allow a building to beextended by up to 2 storeys. While this may result in a seemingly tall buildingbut that is an inevitable consequence of the permitted development right.Acceptance of such height is implicit in the introduction of the permitteddevelopment right, which supports the Government’s objective of significantlyboosting the supply of homes. A difference of up to 2 storeys from theprevailing height has therefore to be interpreted as not inconsistent with thearea for the purposes of this prior approval.
Appeal Ref: APP/H1840/W/21/3266807Pippins Court, 40 Waterside, Evesham, WR11 1BU
A full copy of the decision is attached below and our congratulations go to the applicants Property V Development and the architect Ben James.
APPEAL-DECISION-3266807Download
COSTS-DECISION-3266807Download [...]
7th April 2021Latest News / News / OpinionIts the 7th April and the National Standards and Prior Approval applications are now permanently conjoined. From yesterday the 6th of April it became impossible to generate new dwellings through Prior Approval in Part 2 and Part 20 of the GPDO.
This is explored in full in the explanatory memorandum which can be found at in our planningology section and states:
7.5 Regulation 3 of these Regulations amends Article 3 of the General Permitted Development Order to ensure that permission is not granted under Schedule 2 to that Order unless each dwellinghouse complies with the nationally described space standards which were published by the Department of Communities and Local Government on 27 March 2015, which should be read together with the notes added on 19 May 2016.
7.6 This change will ensure that all new homes provided through permitted development rights meet a minimum space per occupier and bedroom. These standards are reflected in Gross Internal Area measured and denoted in square metres (m2). In particular the gross internal floor area of any new homes must also, as a minimum, be no smaller than 37 square metres, including where this may provide a studio flat.
7.7 The detailed nationally described space standards can be found onlinehttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/524531/160519_Nationally_Described_Space_Standard____Final_Web_version.pdf
7.8 In relation to homes delivered under permitted development rights, this requirement will come into effect on 6 April 2021, and will apply to applications for prior approval submitted on or after that date.
I recently questioned MCHLG on this point and my email and their responce are in full below.
At this stage we are taking the direct interpretation within para 7.8 as reinforced by the transitional provisions in the SI and therefore conclude that Class G and Class L do not create dwellings that are liable to the National Space Standards.
by Jon McDermott [...]
15th March 2021OpinionThe term ‘Shell Application’ was given to me by Chris Dale, the then Head of Development Management at Woking Borough Council and describes an application that deals only with the external appearance of a building.
‘Shell Applications’ are full planning applications that normally co-incide with an application for prior approval where the prior approval allowance does not give provision for external alterations to the building to facilitate the conversion. Commonly they are submitted simultaneously or sequentially with a prior approval application under Class O of Part 3 Schedule 2 of the GPDO 2015 (As amended).
‘Shell Applications’ address the fundamental deficiencies within Class O in that they allow for alterations to occur to the existing building in order to facilitate its onward conversion. Now I say onward conversion because, if submitted correctly, the alterations to the exterior are assessed in the light of the existing layout and use of the building and not its proposed use.
There and decided benefits in dealing with ‘Shell Applications’ in this way.
Firstly, new windows and doors and other openings are to the existing Office, Light Industrial or Storage use. If those windows overlook garden or other buildings the Council cannot sustain an objection on the ground of overlooking or loss of privacy because the existing use does not generate those type of concerns.
The determining issues for prior approval schemes does not incluse considerations of privacy and overlooking and as such the existing and the proposed form of development cannot generate an objection on these grounds.
Secondly, what key determining issues exist, are dependent on the changes that are proposed. For example alterations to the exterior appearance of the building only will generate determining issues relating to design only.
Extensions to the existing building will generate design and amenity impact considerations.
Alterations to the car parking arrangement will be assessed in relation to Highways Safety.
However all of these again will be assessed in relation to the existing use of the building and not with a view to the onward conversion. This is again because planning decisions are assessed at the time that they are made and on their own individual merit and not in relation to the possible futures.
Shell Applications are also a good mechanism to mitigate CIL.
CIL assessments are made based on the sqm added to a development site however CIL includes a number of minor exemptions including the existing use exemption. The existing use exemption provides for a 100% deduction for existing floorspace so long as the building was used for its original purpose for 6 months out of the last 36 months.
Most CIL charging schedules have lower or zero rated CIL charges for new Office, Light Industrial or Storage floorspace. Certainly lower than residential charges. Whilst you would not be allowed to incorporate the new floorspace created as part of a shell scheme within a prior approval (due to the floorspace not existing on the correct date). However if the floorspace is ‘used’ whilst you are converting the rest of the building you may then apply for planning permission for the conversion of the new floorspace to additional dwellings and exempt the new floor area from CIL in that way. All is required is the patience and planning in order to otherwise mitigate CIL.
All in all dealing with the fabric of the building is becoming more important with the additions of natural light and national standards being brought into Class O development in 2020 and 2021 respectively. As such it is no longer good enough to just deal with the floorplan alone.
by Jon McDermott [...]
10th March 2021NewsPara 11d of the NPPF describes the ’tilted balance’ test. The tilted balance was put into the NPPF in order to address planning authority performance for those authorities that could not or would not grant planning permission for housing lead development to meet their own objectively assessed needs.
It works like this.
Para 11d sets up the tilted ballance stating:
Plans and decisions should apply a presumption in favour of sustainabledevelopment…d) where there are no relevant development plan policies, or thepolicies which are most important for determining the application areout-of-date(7), granting permission unless:i. the application of policies in this Framework that protect areas orassets of particular importance provides a clear reason forrefusing the development proposed(6); orii. any adverse impacts of doing so would significantly anddemonstrably outweigh the benefits, when assessed against thepolicies in this Framework taken as a whole.https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810197/NPPF_Feb_2019_revised.pdf
What Para 11d does is render the Local Plan out of date if the triggers within sub-para (7) are met. This defaults all applications to a determination based on the policies within the NPPF alone and matters of normal planning material consideration within the balance of the planning assessment tiled or skewed in favour of approving sustainable development. For a reminder Sustainable development is defined at para 8 of the NPPF.
The triggers for the tilted balance are set out within sub-para (7) which states:
This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, asset out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810197/NPPF_Feb_2019_revised.pdf
This is an or tests not an and test meaning that only one of the triggers needs to be true. 2021 is a landmark year for this because we now have three clear years of housing delivery test results to analyse and it is from this we can derive the 31 planning authorities that have failed to deliver housing lead development to the requisite standard over the past 3 years.
For these authorities the tilted balance is engaged subject to the clear reason clause within sub-para (6) which helpfully lists the clear reason’s by which the tilted ballance would not be readilly engaged. These are:
The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810197/NPPF_Feb_2019_revised.pdf
So for sites that are not hampered by the above (quite significant) constraints and within the area of control of the above named 31 Authorities the tiled balance will remain available until new HDT results are released in January 2022. Lets see if any of the named authorities can pull themselves out of the mire!
by Jon McDermott [...]
8th March 2021OpinionDo you have an asset that’s proving difficult to let? Would you just like to maximise marketability? A “flexible” or “dual-use” planning permission might be able to help.
A flexible planning permission allows occupiers to switch between specified planning uses without the need for multiple planning permissions. The right to switch lasts for ten years and the use in operation at the end of the ten year period becomes the lawful use of the property from that date onwards.
In order to qualify as a flexible planning permission, the permission should explicitly state that the uses are flexible in the description of development. Ideally, the permission should also reference Class V of the General Permitted Development Order 2015, to remove any uncertainty over whether the right to switch uses is intended to apply.
The accurate wording of the description of development is crucial. Planning permission which grants consent for “commercial accommodation including E, F1 and B8 ” would not usually be considered to be a flexible planning permission as it makes no reference to flexible use. In this example, a switch to any of the other uses listed could constitute a material change of use requiring a fresh permission.
whereas we use flexible permissions to re-instate permitted development allowances lost by Article 4 directions. For HMO’s and Dwellings specifically there is very little material difference between C3 and C4 and as such a flexible permission can indeed be considered.
An application for a flexible planning permission should make it clear that the uses applied for are intended to be used flexibly. The right to switch does not apply to changes to a betting office or a pay day loan shop, but otherwise there are no restrictions on the combination of uses that may be sought. Nor is there a limit on the number of times you can switch between uses during the ten year period. You will, however, need to ensure that no planning conditions or Section 106 obligations restrict the uses in any way.
In today’s modern world, where tenants want more fluidity to adapt and reform their businesses, offering a space that better suits their changing needs is vital. Flexible permissions are therefore a useful planning tool that can make space much more attractive to occupiers. Flexible workspace and co-working spaces are now “hot topics” and so developers may see more local authorities willing to engage in flexible permissions. The significant cost and time saved by not needing a new permission each time there is a change in use, means that flexible permissions can be good for all.
by Jon McDermott [...]
5th March 2021Opinion / ViewsDear Mr Jenrick
Please accept my apologies for the direct approach in this matter however as the Minister for Communities, Homes and Local Government I wished to write personally to discuss a troubling issue within the Planning System in England.
Paras 39 to 46 of the 2019 NPPF places within policy for the first time the importance of strong and productive pre-application engagement between Local Planning Authorities and Applicants, Agents and Developers in order to create greater certainty and deliver better forms of development.
Para 40 of the NPPF is particularly pertinent and states:
Local planning authorities have a key role to play in encouraging other parties to take maximum advantage of the pre-application stage. They cannot require that a developer engages with them before submitting a planning application, but they should encourage take-up of any pre-application services they offer. They should also, where they think this would be beneficial, encourage any applicants who are not already required to do so by law to engage with the local community and, whererelevant, with statutory and non-statutory consultees, before submitting their applications.
Whilst these sentiments are laudable there is a fundamental disconnect between the NPPF, the pre-application services actually offered by LPA’s and the weight developers can actually place on that advice in making decisions on whether to develop buildings or sites.
As LPA’s are not held liable for any pre-application advice offered either by themselves or by the courts it is often the case that they will renege on advice issued within pre-application enquiries or be inconsistent between enquiries.
As planning consultants we look to LPA’s to provide pre-application advice and be consistent in their dealings between pre-app and main applications.
To offer some examples:
In one case in Barnet pre-application advice was offered twice on the same site and then upon review by a different officer fundamental changes were requested leading to the refusal of planning permission at committee stage with the chair of the planning committee asserting that they were not bound to the pre-application advice of officers.
In another case in Croydon pre-application advice was requested twice on the same site. The LPA offered inconsistent advice citing that a change in planning officers resulted in a change in opinion.
In a final, and most recent example in Chelmsford, pre-application advice was sought twice for the conversion and extension of a derelict public house. design advice was offered, taken and fully incorporated within the scheme. The development was summarily refused by the self same planning officer for design reasons deemed acceptable at pre-application stage.
Amongst other pressing issues it is these inconsistencies that draw in to question trust within the present planning system and moreover whether even an altered system would actually be fit for purpose.
As a practising Chartered Town Planner with some 19 years in the field I have watched the culture and attitude of planners within LPA’s shift from a point of approval unless material considerations dictate otherwise to a point of refuse unless otherwise justified. Sadly it is this ‘guilty until innocent’ approach that is driving down confidence within the system.
I look forward to your considered views on this subject and would be more than happy to discuss our insights further.
Yours Sincerely
Jon McDermott
Update! We have a response.
ResponseDownload
The Relevant Sections of the PPG referred to are here. [...]
3rd March 2021OpinionI have recently been advising a gentleman who approached us with a knotty planning problem. With their kind permission I requested that we be able to publish the story as it is an important cautionary tale and an example of the tightening noose around SA providers in England.
Extracts of the email’s are set out below with the kind permission of the developer in question.
First Email from Property Owner went like this:
I refurbished a property that I converted to a 6 bedroom HMO in 2019. I operated it as serviced accommodation letting out 6 individual rooms and had up-to 9 paying guests staying a night. I was genuinely surprised how successful it was and all the demand. The property was sometimes generating more than double the income a fully let HMO would make. We hired a cleaner who washed and changed the bedding, cleaned the rooms the house in between guests. The council came knocking and told me I had to stop as it was change of use and required planning. They have since given me an Enforcement notice so I’m not able to operate anymore and have had to revert back to HMO use with tenants living in the house on AST’s. Pre-application advice from the Council is that it would be refused I have the option of selling it as a HMO but really want to keep the house if I can operate as serviced accommodation. My communication with the council has been awful, they have been negative at every stage. They have treated me like a rogue landlord basically and feel bullied with no rights.
My Response in full:
Having read your email in detail please find my considered response. Further to the decision of Moore v. SSCLG EWCA Civ 1202 and other relevant cases in Cambridge and London Council’s have taken an increasing interest in Serviced Accommodation and its effect on Housing Supply. Regrettably property education courses on the subject omit the critical town planning components leaving investors like yourself vulnerable to enforcement action. Being unaware of planning law and practice is not a defence in these cases. When enforcing a breach of planning control the Council latterly has no duty towards you at all. They are permitted to treat you as if you have carried out a criminal offence as, if you had decided not to comply, it would have become a criminal matter dealt with by the Courts.
I, of course, appreciate fully the situation you find yourself in and the stress the enforcement process has put you under. I must however say that given your situation your options are expressly limited given that the Council has taken direct enforcement action. By taking this action they have already made a judgement that they would not grant planning permission were you to seek it. If in fact a planning permission were possible you would have been invited to make one.
In order to assist you I would need the address of the property, the planning authority that served notice and a copy of the enforcement notice they issued to you. I would also need to review their planning policies in order to advise whether you have a way out. It would not be appropriate for me to suggest a service at this stage without properly understanding whether such a service would indeed be successful. As Chartered Town Planners we should only suggest a course of action which is in the clients best interests. If selling the property would be in your best interest then that will ultimately be my advice to you.
The Plot Thickens
Firstly the council did offer me the option of applying for retrospective planning permission but I just didn’t have the money to pay their fees. I had a meeting with them and it sounded like they were open to having mixed use at the time but the pre-app confirmed that this was not the case. There are sections of the enforcement notice that are untrue. My property is the only property on the street with a driveway with off street parking. There is actually more noise than when it was operating for short term lets. I could install CCTV to mitigate any unauthorised activity which could potentially occur. On the pre-app they said “If an application was submitted for the proposed use it would likely be refused as it would be contrary to Local Plan Policy H9. The house has C4 use currently and is classed as a “Small HMO” upto 6 people, Sui Generis are large HMO’s so how can this be classed as a larger dwelling? The property wouldn’t be attractive to an owner occupier, is on a corner not middle of the street and opposite unused land. I can’t see why they don’t see the positives of change of use. Even if it would mean a maximum of 6 people at 1 time I would be open to that but no dialog at all.
My final answer on the subject
Having looked through the papers sent I can see why you are troubled. There are factual inaccuracies between the actual former use of the property and the use asserted within the Enforcement Notice as well as unsupported assertions within the notice itself.
Like the other advice you have received I would be duly concerned if you were to attempt an application. The letter ‘inviting’ an application is not an invitation at all but simply giving notice of your statutory right.
Furthermore the Enforcement Notice is now active and cannot be quashed or appealed against and as such this would ultimately guide the LPA into a refusal and a protracted and costly appeal.
In order to tidy up the case file it may be in your interest to seek confirmation from the Council that the use as an HMO is lawful as the Enforcement Notice incorrectly requires the use to revert to a dwellinghouse.
As unfair as this may sound I think you must seek to dispose of this property as failing to challenge the notice at the appropriate time has ultimately reduced your options to either the continued use of the property as an HMO or returning it to a family home. With this Enforcement Notice on the file I do not see how the council could actually approve serviced accommodation on this site and therefore I must consider that it is in your best interests to either continue to use the property as a 6 person HMO with all residents on AST’s or dispose of the property.
Comments on this case:
It is often sad when we as Town Planners have to get involved in the very business end of planning. Recovering sites from Enforcement Proceedings has a very low success rate and by that point you are always fighting a retreating position.
It is also upsetting when the property investor’s failing here was a lack of understanding. The assumption that SA did not actually need planning permission at all was the catalyst for the enforcement officer eventually catching up with them. This is sadly not the fault of the property investor but in fact it is a much wider problem within the property education sector which still, today, misses off the critical town planning component when extolling the virtues of Serviced Accommodation.
Finally I wanted to draw some conclusions on my advice to them going forward. Fighting an enforcement notice through a planning application always ends up at appeal. either the matter is refused by officers as they have already served notice and find it unacceptable or it is called in by councillors and dealt with at committee.
Such a process is costly to the applicant and time consuming with an uncertain future. It would have been wholly wrong for me to promise any positive outcome given where the development found itself as the chances of success were slim. As such the best course of action for the developer was to either retain the property as an HMO within Class C4 or sell the property is an as is state.
by Jon McDermott [...]
1st March 2021OpinionIt is seldom acceptable for a Council to add to the reasons for refusal on the submission of a planning application. In general the previous decision is one of overriding weight and when resubmitting a scheme should be done with the expectation that planning permission will be assessed against the same parameters. Therefore it is always frustrating when a planning decision is made at the Council add to the reasons for refusal despite this general presumption.
The presumption is repeated within the Costs Guidance in the NPPG which states:
What type of behaviour may give rise to a substantive award against a local planning authority?
Local planning authorities are at risk of an award of costs if they behave unreasonably with respect to the substance of the matter under appeal, for example, by unreasonably refusing or failing to determine planning applications, or by unreasonably defending appeals. Examples of this include:
preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations.
failure to produce evidence to substantiate each reason for refusal on appeal
vague, generalised or inaccurate assertions about a proposal’s impact, which are unsupported by any objective analysis.
refusing planning permission on a planning ground capable of being dealt with by conditions risks an award of costs, where it is concluded that suitable conditions would enable the proposed development to go ahead
acting contrary to, or not following, well-established case law
persisting in objections to a scheme or elements of a scheme which the Secretary of State or an Inspector has previously indicated to be acceptable
not determining similar cases in a consistent manner
failing to grant a further planning permission for a scheme that is the subject of an extant or recently expired permission where there has been no material change in circumstances
refusing to approve reserved matters when the objections relate to issues that should already have been considered at the outline stage
imposing a condition that is not necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects, and thus does not comply with the guidance in the National Planning Policy Framework on planning conditions and obligations
requiring that the appellant enter into a planning obligation which does not accord with the law or relevant national policy in the National Planning Policy Framework, on planning conditions and obligations
refusing to enter into pre-application discussions, or to provide reasonably requested information, when a more helpful approach would probably have resulted in either the appeal being avoided altogether, or the issues to be considered being narrowed, thus reducing the expense associated with the appeal
not reviewing their case promptly following the lodging of an appeal against refusal of planning permission (or non-determination), or an application to remove or vary one or more conditions, as part of sensible on-going case management.
if the local planning authority grants planning permission on an identical application where the evidence base is unchanged and the scheme has not been amended in any way, they run the risk of a full award of costs for an abortive appeal which is subsequently withdrawn
(This list is not exhaustive.)
Paragraph: 049 Reference ID: 16-049-20140306
Revision date: 06 03 2014
Whilst the overriding condition of a planning application governs that every application is assessed on its own individual merits the Council is only really permitted to re-evaluate something they have previously found acceptable based on a material change of circumstances.
Normally these circumstances need to be really big changes such as an alteration to the Local Plan or the introduction of a new SPD to supplement an existing policy point. Sometimes the changes are more widespread, such as a European designation being imposed. However a change in officer can also (unwittingly) lead to a re-evaluation.
It is often the case that a planning officer will not carry out a deep investigation into the planning history, particularly in relation to previous decisions, and will make a decision based on their own opinions. This can result in unpredictability within the system and frustration for applicants and agents.
Where such decision happen an appeal must reflect on the previous decision making processes first, especially where repeat applications have been made.
The Inspector will have regard to the decision as a matter of overriding weight and importance. Notwithstanding the change in view or planning officer it is well established case law that previous planning decisions are capable of being material considerations, meaning that they may need to be taken into account by those determining subsequent applications for permission.
The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency . Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.”
Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise.
The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre.
The application was approved at a full council meeting despite the planning officer’s report recommending refusal. One of the Co-Op’s grounds of challenge was that the council had failed to have regard to the importance of consistency in decision-making as it had refused to grant Aldi permission for a near-identical development on the same site the previous year due to adverse retail impacts on the town centre. The Co-Op also alleged that if the council had given consideration to its earlier decision, there had been a failure to give reasons as to why it had now reached a different decision and granted planning permission.
Planning permission was quashed by the court after it held that the council had made clearly inconsistent decisions and had failed to provide adequate reasons for doing so. By failing to reference, let alone address, the previous refusal decision, the council had not explained how the previous concerns relating to adverse retail impacts had been addressed and allayed in the subsequent application.
Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.”
In essence, it was open to the council to reach a different decision but only if it had “grappled with the earlier reason for refusal based on retail impact and harm to the viability of the town centre”. The case emphasised that, in circumstances in which an earlier decision is a material consideration in the context of a current application, a decision-maker must provide clear reasons for any departure from their original position.
In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier.
The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date.
Howell QC stated (at paragraph 100) that: “There is a public interest in securing reasonably consistency in the exercise of administrative discretion that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.”
The earlier decision was not so different that it could reasonably be ignored. Any reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up-to-date and whether the reasons were equally applicable to the present case. Again, they would also have provided reasons for any departure from the previous decision. Permission has been granted for the secretary of state to appeal the decision in the Court of Appeal.
These two court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable.
by Jon McDermott [...]
25th February 2021OpinionSo for this post I wanted to reflect upon the Raglan Gatehouse development and it’s journey through the planning system. This application is particularly pertinent as it was submitted and dealt with within the throws of the pandemic and is indicative of the additional efforts it took to get to a successful decision on the first run through planning.
Pre-application
Raglan is a special Listed Building and an important case study in how to get engagement from the LPA at an early stage. We applied for pre-application advice in June 2019. We needed pre-app advice because we were going to be proposing something that was very different to the norm and so we needed council involvement from the start! We received a warm answer to the proposal in November 2020 after two meetings with the Council and Councillors on both the proposals and the state of the building.
First Application – Getting the site secure
The LPA wanted an application for Listed Building Consent for site hording. This was submitted as requested and in parallel to the pre-app on the 25 Sep 2019 and approved on the 06 Nov 2019.
Second applications – The development itself
Following pre-app we got ourselves prepared for the main application. Getting prepared for any planning application is difficult but one of this complexity is hard work. By March we were ready…and then Covid arrived! We were gearing up for an application when Covid appeared within the UK. Whilst our applications were received on the 10 Mar 2020 they were not validated until Wed 10 Jun 2020. This was due to the Covid preventing registration of applications in Plymouth until site notices could be posted.
Covid also played another dimension within the LPA. For those who have read my post of planning as a team sport you will understand that the Council Planners do not like operating in isolation. Working at home meant just that! so normally efficient discourse between officers within the LPA and latterly between the LPA and us fell by the wayside. Agreements and amendments that should normally take weeks to resolve actually took months. Some 29 individual pieces of correspondence and 5 substantive amendments later planning permission was granted in November 2020.
Now I know this experience was not isolated to this one case study. In our home authority of Portsmouth registration of applications was put on hold for 6 months due to Nitrate and than a further 3 months for Covid. Suffice it to say that the Council has clawed some of this back and are now just 5 months behind on everything!
By means of comparison on this case study I wanted to compare the experience to the ideal reality. This is how it all looks:
Pre-Application: Covid Reality – 5 Months vs Who Knows!
Whilst most council’s have some guidance on how long pre-app can take it is a shot in the dark as to whether they can keep to it and on cases as complicated as raglan it is better to keep the conversation going rather than be combative.
Applications: Covid Reality – 10 Months vs Statutory time period of 2 months
This is where Covid really hit! Delays in registration, negotiation and the council seeking multiple amendments really hit the time periods for this application and as such what should have been a statutory 2 months became 10 months.
Whilst the Ministry for Housing, Communities and Local Government made clear that Planning Authorities were to attempt to keep calm and carry on the truth of the matter is that Council’s have all struggled to keep the system going during the pandemic.
If making applications today our current advice is to double the statutory time periods at least! Hopefully when the vaccinations come a sense of efficiency will return!
by Jon McDermott [...]
25th February 2021OpinionThe common failing of many application processes is a failure to understand the basics of the planning game. These are the Starting Position, The Appropriate Process and the End Game.
Like any good game of chess the basics are an important fundamental of the question of ‘how do I win the game’ and are adapted for each opponent you face. In Cricket a bowler changes his or her plan of attack dependent on the batsman facing them and this is no different for making a planning application.
Therefore ‘The Basics’ are the pathway to victory in any particular planning case.
To give this a practical example let me talk about a recent case that i was exposed to as a classic exploration of understanding the basics.
The Starting Position:
The development site was a house within the borough of Bromley. The developer wanted to use the property as a 12 person HMO and took advice from his architect to just apply for this! whilst the application was going through the developer carried out the change of use to a 12 person HMO!
So the Starting position was a 3 bedroom (max 5 person) house.
The Appropriate Process:
The developer just applied for planning permission for the addition of 7 people in a house that the planners thought was designed for 5 people. Planning permission was refused on noise, disturbance and parking grounds. This was clearly not the appropriate process as the jump between 5 and 12 people is massive in the eyes of a planner!
Bromley however does not control house to HMO. The appropriate process in this case would have been to change the use from a house to a 6 bedroom HMO under PD first! This would change the starting position from an uplift of 7 persons to an uplift of 6 persons. From this the developer could have applied for raises in the level of occupancy demonstrating at every stage that his HMO did not generate noise as existing. This 6 to 8, 8 to 10 and finally 10 to 12 once they had demonstrated to the council that the use was otherwise acceptable.
The End Game:
This is obvious from the case study – a 12 bedroom HMO. Unfortunately the handling of this case left the applicant with a painful appeal decision and enforcement notice to deal with which forced him to start from square 1 and the council enforced against the unauthorised large HMO use and required the building to be put back into a family home. This is not the end game the applicant intended but a good example of why understanding the basic’s is so critical!
by Jon McDermott [...]
15th February 2021OpinionIf you operate short term accommodation within London you will be well versed, i’m sure, in the provisions of the 90 Day Rule.
Within London you can sub-let your home for a maximum of 90 days per calendar year. Simply put, if you live in London and put up your whole home on Airbnb, you are allowed to have guests stay for a maximum of 90 nights a year – Airbnb even has a handy ‘nights booked’ counter so that you can see how many nights you have left.
Once you have reached your limit planning permission is needed to extend the number of nights as a ‘material change of use’. That is unless of course you wait until the next calendar year and use another packet of 90 days.
Restrictions on short-term lets in London have in fact been around since the 1970’s. Homeowners letting their home for a period less than 90 days used to require specific planning consent from their local councils. However in 2015 the limit was changed under the provisions of the Deregulation Act to allow for a maximum of 90 days prior to the need for a planning permission. If a homeowner wishes to rent their home using short-lets for more than 90 days, they must now apply for the relevant planning permission
44-Short-term use of London accommodation: relaxation of restrictions(1)The Greater London Council (General Powers) Act 1973 is amended as follows.(2)In section 25 (provision of temporary sleeping accommodation to constitute material change of use), after subsection (1) insert—“(1A)Subsection (1) is subject to section 25A.”(3)After section 25 insert—“25AException to section 25(1)Despite section 25(1), the use as temporary sleeping accommodation of any residential premises in Greater London does not involve a material change of use if two conditions are met.(2)The first is that the sum of—(a)the number of nights of use as temporary sleeping accommodation, and(b)the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year,does not exceed ninety.(3)The second is that, in respect of each night which falls to be counted under subsection (2)(a)—(a)the person who provided the sleeping accommodation for the night was liable to pay council tax under Part 1 of the Local Government Finance Act 1992 in respect of the premises, or(b)where more than one person provided the sleeping accommodation for the night, at least one of those persons was liable to pay council tax under Part 1 of that Act in respect of the premises.(4)For the purposes of subsection (2)(b), it does not matter whether any previous use was by the same person.”(4)After section 25A (inserted by subsection (3) above) insert—“25BFurther provision about section 25A(1)The local planning authority or the Secretary of State may direct that section 25A is not to apply—(a)to particular residential premises specified in the direction;(b)to residential premises situated in a particular area specified in the direction.(2)A direction under subsection (1) may be given only if the local planning authority or (as the case may be) the Secretary of State considers that it is necessary to protect the amenity of the locality.(3)The local planning authority may give a direction under subsection (1) only with the consent of the Secretary of State.(4)A direction under subsection (1) may be revoked by the person who gave it, whether or not an application is made for the revocation.(5)The Secretary of State may—(a)delegate the functions of the Secretary of State under subsection (1) or (4) to the local planning authority;(b)direct that a local planning authority may give directions under this section without the consent of the Secretary of State.(6)The Secretary of State may revoke a delegation under subsection (5)(a) or a direction under subsection (5)(b).(7)The Secretary of State may by regulations made by statutory instrument make provision—(a)as to the procedure which must be followed in connection with the giving of a direction under subsection (1) or in connection with the revocation of such a direction under subsection (4);(b)as to the information which must be provided where the local planning authority seeks the consent of the Secretary of State to the giving of a direction under subsection (1).(8)A statutory instrument containing regulations under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.(9)In this section, “local planning authority” has the same meaning as in the Town and Country Planning Act 1990 (see section 336(1) of that Act).”45-Short-term use of London accommodation: power to relax restrictions(1)The Secretary of State may by regulations made by statutory instrument provide that section 25(1) of the Greater London Council (General Powers) Act 1974 does not apply if conditions specified by the regulations are met.(2)Regulations under subsection (1) must include provision corresponding to section 25B of that Act.(3)Regulations under this section may amend the Greater London Council (General Powers) Act 1973.(4)Regulations under this section may—(a)make different provision for different purposes;(b)include incidental, supplementary, consequential, transitional, transitory or saving provision.(5)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.Deregulation Act 2015
Whilst this was originally a London only issue the ’90 day concept’ is spreading.
In the case of appeal’s Appeal
A – Ref: APP/Q0505/C/18/3196460 – Notice 1 Flat 3, Roman House (Marino House), Severn Place, Cambridge CB1 1ALAppeals B to F inclusive – Notices 2 to 6 Flats 6, 7, 8, 9 & 11 Roman House, Cambridge CB1 1AL (See Schedule)Appeals G to M inclusive – Notices 7 to 13 Flats 1, 2, 3, 4, 5, 6, & 7 Florian House Cambridge CB1 1AQ (See Schedule)
Inspector Wharton concluded that:
In summary, therefore, it is my view that as a matter of fact and degree the variable nature of the transient uses of the properties has resulted in a distinctly different character of usage from that of a Class C3 use. I agree with the Council that the use of the units has resulted in some sort of hybrid use between Class C3 and a hotel Class C1 use. I acknowledge that the services provided are not anywhere near a full hotel service. Nevertheless the flats are let as separate suites of accommodation; they are let and advertised as a hotel might be and, most importantly have been let for many 1 or 2 night stays.There is no current minimum night’s stay and I agree with the Council that any void in the bookings is likely to be filled to avoid any loss of income and that the character of usage is affected by the unpredictability of the frequency of use. I consider that the shorter periods of residency clearly distinguish the nature of the uses at Roman House and Florian House from the more settled pattern of occupancy of atypical Class C3 use. The fact that letting patterns have significantly changed since the notices were issued does not alter my view that a change of use from Class C3 to a sui generis residential use has occurred.APP/Q0505/C/18/3196460 et al
Interestingly the Council relied on the judgment in Moore v. SSCLG EWCA Civ 1202 (“ Holiday lets may be a change of use”). The Council referred to the court’s finding that ‘It was not correct to say either that using a dwelling for commercial holiday lettings would never amount to a material change of use or that it would always amount to a material change of use. Rather in each case, it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodation’
The Cambridge case seem’s to have sparked wider interest by LPA’s in understanding both the SA market and the Holiday Market. Indeed a wide variety of reactions has resulted with Southend treating AirBnB style development as C1, Oxford treating the matter as a distinct sui-generis use with a 140 day time limit and BCP treating it as a ‘holiday let use’
I don’t think this is the end of the ’90 day’ question but I do think its time that the Government took one of the more sensible ramblings from the Labour Party Manifesto and consider a ‘Class C5 – Holiday and Short Term Letting’ use class.
By Jon McDermott [...]
12th February 2021ViewsQ: What does this description of land mean? Equestrian tie and not all green belt?
A: It means that the land can only be use for the keeping of horses and that not all of the land is within a greenbelt. [...]
News and Opinion
10th May 2023ViewsTPX attending the LPOC Reception!
It was a pleasure for two team members to attend the LPOC Reception at the House of Commons, Westminster on 24th April. This event included people such as Craig Mackinlay MP at the House of Commons, Rachel Maclean (Minister for Housing), and Lord Parkinson (Heritage Minister) who discussed the challenges of obtaining approval for renovation or restoration work and improving energy efficiency.
They agreed on the need for simplified planning rules and initiatives to balance preservation with energy efficiency. Lord Parkinson reassured attendees that owners’ interests were being addressed across all government departments.
Between 2007 and 2022 the number of full-time Conservation Officers fell from 1,224 to 526
Craig also recognised the lack of specialist contractors and the high material costs associated with maintaining and improving a listed property, particularly the challenges this will present as the government encourages owners of all homes to improve energy efficiency.Rachel discussed new initiatives aimed at helping owners and tenants of listed properties, including a consultation on how to make it easier for businesses to operate out of listed buildings.
Both Tanya and Simon from TPX attended this event and asked the following:
“What is being done about the lack of planners and conservation officers. Also, She said about conservation officers being so unflexible and not seeing the bigger picture of listed buildings’ custodians.”
tANYA ASKED
“What are the plans to address how EPC’s are assessed given the results are disproportionally skewed to the cost of energy unit to the user rather than device energy efficiency and more carbon-friendly sources. The problem is even more acute for those who own listed buildings.”
simon asked [...]
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14th April 2023News / ViewsWe are pleased to announce that we have moved the location of our TPX office!
After some fantastic years at St Georges Business Centre, we are looking forward to the new surroundings at the University of Portsmouth’s – Technopole Building.
The Technopole Building offers us a state of the art working facilities, making the perfect environment for us to grow our business. Technopole is located conveniently close to the M275 (the main road leading into the city) and we’re thrilled to have it as the new home of our business.
All of our contact information remains the same.
Our new location:
Room 204 Technopole, Kingston Cres, North End, Portsmouth PO2 8FA [...]
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13th March 2023Latest News / OpinionChange of use from C4 to Sui Generis is a very common planning application that is submitted to the LPA’s in a big number. Most of them getting rejected mainly on the basis of impact on the living conditions and amenities of the occupiers and neighbors.
What is a C4 HMO ?
Use Class C4 covers small HMO’s being occupied by between 3 and 6 unrelated persons. The use class is predicated upon persons resident and not on the number of bedrooms within the building
What is a Sui Generis HMO?
Sui Generis HMO is shared houses occupied by 7 or more unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom.
After reading the above two statements, what I have understood is conversion of a C4 property to Sui Generis wholly depends on the ”Number of Occupiers” of the property and not on the number of bedrooms or other amenities provided by the property.
This raises a question: why does this require a planning permission? Is it considered material change of use?
When the original guidance was brought out in 2010 the Government made clear that the change of use from a C4 to a Sui-Generis HMO was to be decided on a case by case basis and given the fact and degree of the change of use. The government went so far as suggesting that one or two additional persons within a C4 HMO may not actually result in a change of use requiring planning permission.
The issue is somewhat more basic than this. At planning school we as planners are told one simple truth.
“A change of use is where you move from one use class to another”
As a profession we are set up from the start (Day 3 to be precise) to see changes of use as binary. It either is or it isn’t because of use class. This is because the Use Classes Order itself is a wholly permissive document purportedly telling us what falls into each class so that we can judge whether a ‘Material Change of Use’ would happen. The problem is that there is no legal definition of a Material Change of Use other than the view of the decision maker based on a fact and degree judgment.
In recent appeal cases the knotty problem of whether the addition of a person resulted in a material change of use has reached the annulled halls of the Planning Inspectorate and they are consistently ruling in one direction.
No, it is not.
Recent appeals have focused on the truth of the matter rather than a blind assessment of the Use Classes Order, much to the chagrin of the Planning Committee which was recently accused of having a shockingly low understanding of planning law and practice.
Lets think about that truth for a minute.
Development is judged on the ‘description of development’ in S55(1)(2) and (3) of the Act.
We don’t need planning permission for the addition of bedrooms under S55(2) if these works are wholly internal. The use is predicated upon people and not bedrooms and so just adding rooms to an existing HMO does nothing.
Then we move on to the harm in the public interest, i.e. the observable effect.
Adding more people to an HMO well yes that adds more people. But when does that become noticeable?
Would you honestly be able to tell if one more person moved into a family home? Most likely not! Whats the difference in one more person in terms of noise or car parking or amenity space needs or refuse? So why is an HMO so different from this reality. In the main HMO occupiers have less reliance on cars, they generate the same amount of refuse and potential noise and the alterations to create an HMO often improve the existing energy and noise abatement characteristics of the building. Yes there may be one more person living there but in terms of the effect itself this is negligible.
In one of the recent planning appeals for three properties for change of use from C4 HMO to Sui Generis HMO the inspector concluded just that. The addition of 1 more occupant to the property would not require any external alterations nor indeed a material change of use that would require planning permission. After the site visit the inspector was also damming of the Council’s approach stating that the amount of communal living space was acceptable and meets the requirements of the National Space Standards.
And this is a growing trend.
We have been tracking similar appeals in England where Inspectors are correctly asking the question whether a 6 to 7 or 6 to 8 person HMO needs planning permission from the LPA as the works and the effect do not cross the threshold for development needing planning permission.
I think it’s time to rethink the requirement of planning permission for a conversion for 6 bed C4 HMO to a 7 bed Sui Generis. When it is well understood the addition of 1 more occupant does not have any demonstrable impact on the living conditions, noise, parking or amenities. This in its own would free up a substantive amount of workload within an already crippled system and allow planning officers to assess real development in the public interest.
By Shivam Sagwall [...]
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9th December 2022ViewsIt is the proper time to study the ‘planning guarantee’ as the Local Planning Authorities (LPAs) are taking ever more time to decide on the application.
I understand the bulk of the work of the local planning officer, including their capacity and skills to do all the work, but still, they have the responsibilities and liabilities to adhere to this policy:
Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (hereinafter “the 2012 Regulations”).
“Refund of fees in relation to planning applications not determined within 26 weeks9A.—(1) Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission or for the approval of reserved matters shall be refunded to the applicant in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be.
(2) Paragraph (1) does not apply where—
the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period;
the Secretary of State gives a direction under section 77 of the 1990 Act(1) in relation to the application before the period mentioned in paragraph (1) has expired;
the applicant has appealed to the Secretary of State under section 78(2) of the 1990 Act(2) before the period mentioned in paragraph (1) has expired; or
any person who is aggrieved by any decision of the local planning authority or the Secretary of State in relation to the application has made an application to the High Court before the period mentioned in paragraph (1) has expired.
(3) In this regulation “valid application” is—
where the application is made to a local planning authority, to have the same meaning as in article 29(3) of the Development Management Procedure Order;
where the application is made under section 62A of the 1990 Act, to have the same meaning as in article 29(3) of the Development Management Procedure Order (but with the references in that definition to articles 5, 6, 8 and 12 of that Order being construed as references to those articles as applied by a development order made pursuant to section 76C of the 1990 Act).”
It is not normal for me to scrutinise the application of government policy however I now have a case which has lead me to look further into it.
The planning application was validated on 23/05/22, and the 26th week period for non-determination is on 21/11/22. The law implies that the 26 weeks will start when the local planning authority receives a valid application.
I do not know if the case officer is aware of Regulation 9 of the 2012 Regulations of the Town and Country Planning Act (TCPA) 1990 “Refund of fees in relation to planning applications not determined within 26 weeks”.
I am also not keen to know if there are LPAs that returned the applicant’s payment for non-determination of the application.
Paragraph 9A does not apply if the applicant and the LPA have agreed in writing that the application is to be determined within an extended period. The LPA’s case officer has not asked for a time extension even though the decision’s due date of 18/7/22 has been passed. On the face of it then the fee is due for a refund.
However what happens if the council and the applicant agree an extension?
In the case of Provectus Remediation Limited vs Derbyshire County Council the High Court ruled that
“A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.”
The above statement makes clear that my client is liable for a refund. However, my client is not interested in the refund. He wants his application to be determined. This then demonstrates the one sided nature of the regulation.
If he demands the refund then application will then be set aside as it will be out of time and not a priority.
If he agree’s an extension then the LPA may determine the application in the time period given but he also loses the protection of the planning guarantee.
The court decision on Provectus Remediation Limited vs Derbyshire County Council on 8 June 2018 is a good example of the proper interpretation of Regulations 9A. But, in my opinion, is not fair to the applicant because if the council asked for a time extension and the applicant agreed, there is no time limit on the determination of the application. It is just a one-time extension agreement between the local authority and the applicant, and the local authority can have unlimited time to determine the application, and the applicant’s fee cannot be refunded.
The applicant should think twice before agreeing to the time extension, but in my opinion and in my experience, the applicant does not have the choice to disagree because no policy or law protects the applicant once they disagree. I can say that this Regulation is one-sided once the applicant agrees with the time extension. How unfortunate!
By Anchie Balbido [...]
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23rd November 2022ViewsThere is no doubt we are in a housing crisis but we are getting mixed messages. Nationally theGovernment aims to see 300,000 houses built per annum by 2025. Meanwhile at the local levelresidents oppose new development which they argue will swamp existing towns and villagesand lead to the loss of valued countryside and overstretch medical and other public services.
For much of the country there is a moratorium on housebuilding as pollution of our rivers andcoastal areas and pressure on heathlands restrict where we can build. Many towns and cities,despite being identified for further growth by Central Government now find themselves withnowhere to build either due to no land being available for housebuilding in their administrativeareas or having in the past drawn Green Belts too tightly.
The result has been a surge in high rise developments, increasing housing densities, oftenwithout amenity space other than balconies and with limited on-site parking.
The implications for personal well-being are too dreadful to consider. If lock-down during thepandemic showed us anything it was the need for gardens or easy access to open areas. It is alesson which seems to have been quickly forgotten by our political masters, but which resonateswith local communities.
Even where developers manage to find sites local planning authorities seem to go out of theirway to be obstructive with a growing list of requirements and charges which at best delaydevelopment and at worst make schemes uneconomic.
When I came into planning it was understood that the role of the planning authority was to workwith developers to ensure that the right type of development took place at the right time and inthe right place. Schemes were only to be refused where they caused demonstrable harm.
Today local planning authorities seem to see their role as being to stop development. This is inpart due to too many experienced planners leaving local authorities either through earlyretirement, voluntary redundancy or attracted by better pay and conditions in the private sector.
While we all accept there is a national housing shortage, unless Central Government canunblock the barriers to growth, whether physical or political, the problem will still be with us formany years to come.
By Keith Oliver [...]
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14th November 2022ViewsEveryone knows there is a housing crisis unless you have been living under a rock.But just how bad is it in Cornwall?
Truth be told, it is bad, very bad in fact it is utterly dire, soul destroying, that kind of ‘dire’.
Why?
We know Cornwall has always had a plethora of holiday lets & second homes. Cornwall has alwaysbeen popular for stay-cations. But, Covid ramped it up and many took advantage of SA andshort-term holiday lets. Word quickly spread and soon landlords took advantage of the‘need’ to cater for the influx of stay-cationers and soon began giving notice to their tenantsand turning their long- term rentals over to short term holiday lets advertised on AirBnb.
‘Homelessness’ became an issue of biblical proportions. Literally 100’s of viewings for oneproperty available for long term lets. Businesses began to suffer as they couldn’t recruitfrom outside their immediate environs because there was no accommodation to housestaff. Tenants couldn’t up-size or downsize because of the shortage of property. Those fewlandlords that hadn’t opted for the short term lets put their rental prices up as the demandnotched up. Even one bed flats became unaffordable with sky high prices and as rare as theproverbial rocking horse s**t.
So now Cornwall has a housing crisis and Cornwall Council are in a state of flux and lookingfor ways to clamp down on any additional properties becoming short term lets.
Some ‘resorts’ like St. Ives residents voted to take action against second home ownership.By inserting a “principal residence” condition into the sale of new-build properties, amechanism known as Policy H2, the St Ives Area Neighbourhood Development Plan hopedto curb the influx of investment buyers, while providing better and more sustainablehousing prospects for locals.
However, the residents soon realised that the town has been sucked out by holiday lets inthe last couple of years because H2 doesn’t stop existing properties from being turned intoholiday lets. They also faced issues such as no-fault evictions . Now they realise they should have tackled the existing market head on.The average sale price of a home in the heart of St Ives has risen from £336,153 in 2016 to£556,493 this year. Local estate agents attribute some of that increase to heighteneddemand throughout the south-west since the Covid pandemic. Some residents are callingfor intervention at national level and are seeking a new planning use class for non-permanent occupancy, so any person wishing to convert an existing property frompermanent to non-permanent use would need to apply for planning permission.
Would that work?
To some degree yes it would. A new class use would certainly mean anyone who wanted tochange to a short term holiday let would have to justify it in terms of sustainability andtourism needs. The LPA could introduce an Article 4 similar to those that operate HMO’s
Article 4’s where only so many are allowed within a specified radius. This would stoplocalised saturation.
However, currently, there is no such legislation governing the whole of Cornwall but there isa need and a mood for it.
We definitely need clarity. We absolutely need a separate Class use for short term lets. Thedisparity between differing LPA’s between placing short term lets into either C3 or C1 needsremoving and a new Class Use creating.
This would go some way to stopping anymore jumping on the ‘lets make a quick buck’bandwagon. That, alongside speedier determinations and an upturn in house building wouldhelp greatly.
Until that happens, Cornwall is grinding to a halt, jobs are available but only to those livinglocally. Businesses are having a hard time recruiting but the homeless problem won’t beresolved short term.
Undoubtedly, it’s time some urgent action, for Cornwall to step outside of its comfort zoneand bring in policy to only allow holiday lets on new builds not existing housing stock andmaybe, those adopting this business model should consider a less ‘harmful’ strategy andone that does less damage to the escalating housing problem?
By: Helen Morris-Ruffle [...]
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28th September 2022Latest News / ViewsOn Saturday 24th of September 2022 I stepped in front of the Camera and an audience of 25 property investors and summarised our journey to VICTORY like this:
20 years experience, 2 years writing, three separate CPD accreditation’s and one crowdfunder campaign and VICTORY kicks off for the first time at 9am! Jonathan McDermott – Just before VICTORY kicked off!
20 years is a long time to spend in any profession, let alone Town Planning! It is fair to say that planning is one of the most thankless tasks within the building industry. Planners are habitually wrong to someone they interact with! If they approve a planning permission then they are hated by the neighbours. If they refuse an application then they are blocking progress within an area.
Over the last 20 years I have seen more and more cases of developers falling into the traps laid for them within the planning system and all for no good reason. The planning system itself is an approval engine. You just need to know how to operate the machine in the most efficient way possible.
That’s what VICTORY is all about. Its and instruction manual to get the planning machine to effectively deliver what its meant to deliver in the most efficient way.
It’s also designed to take into account the differences between the different planning jurisdictions of Great Britain and the tendency for the planning system to be bent or broken by respective governments over time.
Most of all VICTORY is made to allow you to win the game. Planning is indeed a game and so to win the game you must know the rules! There is no sense in walking onto a rugby pitch carrying an golf bag so why would you play the planning game in any other way than how it is meant to be played?
Ultimately we made VICTORY to be a self contained as possible. Giving you all of the tools at the outset in order to critically look at, appraise and review sites with a view to what would be possible if you played the game as the planners do. That is the ultimate goal of the VICTORY model. To give you a tool kit to use when playing the game well so you can break the rules like an artist.
VICTORY is a CPD Accredited Programme
In order to gain accreditation from our partners at The CPD Group we have taken the exhaustive steps of submitting the organisation as a CPD Accredited Training Provider.
The Author and Trainer on this Course, Jon McDermott, as a CPD Accredited Trainer.
And, finally, the programme was submitted for its own CPD Accreditation which it gained in September 2022.On completion of this programme attendee’s are issued with 8 hrs of CPD Credits
Photos from the Day
Here is what people were saying about the day
“This was a fantastic day. thank you to all involved. I learnt a lot, met old friends and reconnected with my why. I cannot recommend this course highly enough. Many thanks to you and all”Dan H
“Thanks Town Planning Expert for amazing this course”Summit A
“A double thumbs up endorsement from me for the VICTORY course! Well worth doing to not only refresh ground I had already covered in the past, but there were plenty of new nuggets and info that has expanded my knowledge and that I can apply immediately. Thanks again Jon (and Tanya)!”Don W
“Just finished a great day on planning with TPX. Never too old to learn”Trevor W
“Smashed it mate, well done.”James B
“Thanks Jon and team! Great day of learning”Ross G
“Fab day as always with TPX. Thanks very much to all involved but especially Jonathan McDermott and Tanya McDermott for pulling it all together so seamlessly.”Katherine G
“A fantastic day, full of immediately implementable knowledge from an expert in his field. No NLP bullshit or further up sells that are normally associated with property courses, just pure knowledge from a top class professional. I believe I gained more from this in respects to increasing my planning knowledge than I did working in the land and planning department of a national house builder at the start of my career. Look forward to working with Jon and the TPX team on future acquisitions. Many Thanks, Dan”Dan S
“Fabulous content, lovely positive vibe in the room. Knowing the trades in the room would have been useful for future projects. Maybe networking/ dinner option after the learning. Excellent day as expected. Thankyou!!”Course Feedback
Whats next for VICTORY
At TPX we want to change the Property Education Sector from the current model to that of Education means Education. That’s the reason why we have gone and achieved the CPD Accreditation for it and why when asked…”where is the upsell?” the simple answer was…”there isn’t one! This is about your education and not our profit margin!”
The feedback from VICTORY S1 has been immense and the interest in the programme has meant that we are now planning S2 and S3! We therefore plan to run VICTORY on a quarterly basis throughout the year with the course updated every time to take into account changes within planning practice and procedure.
That’s why we number the VICTORY days as seasons, it’s to help us track where we are at and to make sure we are always providing information at the cutting edge.
Season 2 – 3rd December 2022, Reading Berkshire
For S2 the VICTORY day migrates from Central London and down the Elizabeth Line to leafy Berkshire. S2 can be booked through Eventbrite at the link below and we cannot wait to bring S2 to Reading in December!
https://www.eventbrite.co.uk/e/the-victory-plan-masterclass-series-2-how-to-get-planning-permission-tickets-390524016847
Season 3 – The North East! – March 2023
Following the success of S1 we were contacted by The Property Thing who are a North East based networking group from Darlington. We are in the process of discussions with them for VICTORY S3 to travel to the North East for a day in March 2023. Stay tuned to the website for more on this as it progresses.
VICTORY needs you!
Education for the sake of Education means for VICTORY to change the world we need people to tell us that this is what they want! So, following the example of The Property Thing, the call to action is this. If you want a VICTORY day to head to your part of the UK then contact us at victory@tpexpert.co.uk and we will be happy to discuss the possibility with you.
The journey to bring VICTORY to the world has been an eye opener and has revealed more about our property education sector that I ever wanted to know. At then end of the day this is just the beginning for VICTORY and hopefully we can make a difference to those that attend and prove that education means education! [...]
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30th June 2022Latest News / NewsIt is fair to say that planning is getting harder. The days of a cordial discussion with officers at the LPA’s we work with are long gone and today the role of the planning consultant is more focused in tempering the almost natural desire of applicants to maximise every development opportunity.
Maximisation is all well and good in the right circumstances however this can often lead to multiple applications and a trip to see the Planning Inspector when dealt with incorrectly. The issue with the maximisation theory always falls on the simple fact that in order to do so you must inevitably break a rule or two. You must try and push what is possible beyond the thin ice and into something that is often described as over-development.
So what is the cure to this?
The first letter in our VICTORY model is V for Verify. The verify checkpoint is there for developers to establish whether they are following the rules inside a rules based system.
For most it is hard to believe that planning is part of a rules based system however in order for any system to operate it is based on a presumptive set of rules. In planning in England these stem from the National Planning Policy Framework (NPPF). The Council’s own rule book, their core strategy or similar, must be demonstrably compatible with the NPPF in order to pass scrutiny.
Following the rules gains greater weight and clarity within the proposed Levelling Up and Regeneration Bill 2022 which at section 83 proposes to establish in law the primacy of the national development management policies over any local policy with emphasis on the national first approach. Section 84 of the bill then goes on to establish the basis for the National Development Management Policies (NDMP) themselves as a wholly separate sub-set of the National Planning Policy Framework.
Ultimately this focus on a national (England only at least) rule book is there to achieve two fundemental objectives.
Firstly, the new NDMP is designed to reduce repetition that occurs in every Local Planning Authority in England. At present every local plan has ostensibly the same policies in them governing design, heritage, development in the countryside, transport and town centre development. The idea behind the NDMP is to redirect the production of these policies to the Secretary of State of the day rather than the planning policy teams at the individual LPA’s.
Secondly, and most likely, is the desire by Government to create consistency in decision making across England and the most effective way to do that is to reduce local discretionary decision making to matters that are wholly local. Variations in decision making from authority to authority on matters that are outlined in full within the NPPF has created a culture of decision making where the ways applications are treated in adjoining boroughs differs wildly.
This brings me to the salient question at the heart of this article. In planning is boring the new sexy? is simply following the rules the new way of doing things because the time for innovation in planning is coming to an end.
Let us take Croydon as an example. The London Borough of Croydon attempted to boost its housing supply by innovating a new rule. Its landmark Suburban Design Guide Supplementary Planning Document encouraged focused intensification within the borough by, inter-alia, taking large family homes and redeveloping the land to form blocks of 7, 8 and 9 flats. The result was that whole sites were accumulated creating a massive oversupply of 1 and 2 bedroom dwellings whilst the supply of three bedroom houses dwindled.
In 2021 the LPA brought its new Local Plan into force which had to put the brakes on this landmark policy seeking to protect three and four bedroom family homes from redevelopment or conversion to HMOs, reinforcing the need for all new schemes to deliver at least 50% 3 bedroom homes or better and driving up the need to provide on-site car parking.
Today the short term innovation of the SPD is nearly at an end. The present powers-that-be at Croydon have voted to remove the SPD in its entirety as the borough seeks to recover its housing market.
The new sexy form of development in Croydon is not a block of flats ,of which there are presently 834 flats on the market right now on Rightmove, but is instead the boring and vanilla family home of which only 204 three bedroom houses exist on the market with prices ranging from 250k to 800k. Market demand today is for a three bedroom family home and not the mass of flats presently on the market.
So what is the answer?
The NDMP and Bill tell a very clear story. The new way of planning is going to be following the rules first and innovating second and not the other way around. As consultants we are seeing the result of that today with policy compliant decisions being those that LPA’s struggle to refuse or defend at appeal and those, more innovative, schemes being those that take greater scrutiny. Knowledge of local and national policy at the earliest stage becomes a deciding factor in site selection.
In the future who you know at the LPA will be less important than how well you know from the National Policies.
by Jon McDermott [...]
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19th May 2022ViewsWell we have had about a week to poor over it and had the benefit of analysis from some very learned individuals. Here is our summary of what the Queens Speach means for planning in England.
That is assuming the government can get it through!
On 11 May 2022 the Government introduced to the House of Commons the Levelling-up andRegeneration Bill and the Levelling Up and Regeneration: further information policy paper. Both are designed to make provision for making changes to the way the established planning system works. These propose very Conservative (with a Capital C) changes to the system that will feel friendly to the Blue areas of England.
Planning Data
The Bill introduces the concept of planning data and some broad definitions of what is it includes. It also prescribes a route where a faliure to comply with a planning data request from the LPA will render the whole submission null and void.
The Bill proposes regulations for the provision of public notices and the information that LPA’s must make avaliable to the public and in what form.
LPA’s must use approved software (by the SoS) for the collection and storage of Planning Data hence the days of weird websites and ‘local solutions’ are numbered.
Development Plans
The Bill reinforces the primacy of national development management policy over local policies and where there is a dispute weighs heavilly in favour of national policies first.
A new definition of national development management policy is to be introduced and so this foreshadows the SoS designating a new National Development Management Policy Document which will set out national policies on issues that apply in most local authorities.
The Bill stipulates that determinations must be made in accordance with the development plan and NDMPs unless material considerations strongly indicate otherwise. The primacy of policy over local discretionary decision making therefore returns to planning.
The NPPF will be reformed once again (version 4 on its way) and this will include the removal of the rolling five-year housing land supply penalty for Local Plans that are less than 5 years old.
Heritage
Heritage assets gain further protections with the requirement to preserve or enhance being incorperated within the 1990 Act for the first time.
Street Votes
The bill introduces the concept of street-votes which reads very much like an extension of the Local Development Order powers of the early 2000’s. The street vote powers would allow residents on a street to bring forward proposals to extend or redevelop their properties in line with their design preferences.
Crown Development
This, on the surface, appears to be a modest re-introduction of Circular 18/84 allowances for crown development that is considered to be of national importance.
Minor Variations in Planning Permission
This introduces new powers to amend planning permissions in limited circumstances to providegreater flexibility following recent caselaw. The new provisions will allow an applicant to make “non substantial changes” to a permission, “including descriptor of development and conditions”.
Development Commencement notices
A commencement notice will be required before any work is commenced on site in accordance with a planning permission. This essentially fixes the gap in the current legislation and removes the need for LDC’s on applications that have been implemented.
Completion notices
This fixes the gap within legislation allowing LPA’s on uncompleted sites to issue a notice specifying when the work must be finished. After which date the planning permission for the unfinishedparts will cease if the work is not completed.
Enforcement
Much of the enforcement section of the bill is a big fix of discrepancies and weaknesses within the Act. The main points are:
A universal time limit of 10 years for all development;Enforcement warning notices for approvable development; Temporary stop notice effect increased to 56 days; Removal of ground a appeals where a planning application has been made for the same development; Penalties for delays caused by the appellant is responsible for undue delay in the progress of the appeal; Penalties for non-compliance are also increased; Relief from enforcement of planning conditions in specified circumstances. Doubling fee’s for retrospective applications in line with the current ground a fee.
Community Consultation
The Bill suggests changes to bring England in line with wales in terms of community consultation as a required pre-submission step for larger forms of development. These provisions are already in place in wales and expected to take the same form.
Infrastructure Levy
CIL and much of S106 is to be abolished in favour of a national Infrastructure Levy that will replace both with one combined levy. Unlike CIL, IL is to be charged as a proportion of property value. The Policy Paper explains further that it is the Government’s intention indeed to reduce the scale of s106 planning obligations so that s106 agreements will be used: (1) on the largest sites in place of IL (provided that the value of the infrastructure being provided in that way is not less than that which would be achieved under IL); and (2) on other sites where “narrowly focused” s106s will be used to provide onsite infrastructure. The Policy paper also suggests that the Government’s intention is that Affordable Housing will be delivered through the IL.
Environmental Outcomes Reports
The bill makes provision for regulations to allow plans that have an impact relating to environmental protection to be assessed through environmental outcomes reports. The Explanatory Note suggests that these build on the mandatory information required in the reporting stages of an environmental impact assessment or a strategic environmental assessment.
Compulsory Purchase
There are minor changes to compulsory purchase proposed. these are summerised as:
Publishing notices of the making of a CPO must also be done in successive editions of a weekly local newspaper and on an appropriate website; Changes the minimum 21 day objection period so it must be at least 21 days;Notice of confirmation of the CPO must also be published on a website for at least six weeks;There will no longer be an automatic right for objectors to require a public local inquiry into the confirmation of the CPO; CPO will be allowed subject to conditions.
Overall the bill reads and feels like a return to the expert system of the 1950’s. Discretionary decision making gets harder and a more nationalised focus on planning takes its place. Lets see if planning V2022 works for the best.
By Jon McDermott [...]
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4th April 2022Latest News / NewsIn 2020 I did an Anti-Guru vlog which you can see here:
Within the vlog I raised the simple premise, that was nutrient neutrality was going to spread and there was very little to stop Natural England rolling this out. In March 2022 another 42 authority areas were added to the list making the total 72.
In the words of the Planners at Darlington Council this caused the following reaction:
On 17th and 18th Feb (last Thursday and Friday) we received emails from Natural England and the Chief Planner from the Department for Levelling Up, Housing and Communities that the Borough of Darlington is now part of the Teesmouth & Cleveland Coast Special Protection Area/Ramsar which, from the information that we have received from them so far, means that the local planning authority, under the Habitats Regulations, has to carefully consider the nutrients impacts of any projects (including new development proposals) on habitats sites and whether those impacts may have an adverse effect on the integrity of a habitats site that requires mitigation, including through nutrient neutrality. This impacts on all planning applications which cover all types of overnight accommodation including new homes, student accommodation, care homes, tourism attractions and tourist accommodation and permitted development (which gives rise to new overnight accommodation) under the Town and Country Planning (General Permitted Development) (England) Order 20159. This advice also applies to planning applications at the reserved matters approval stage of the planning application process, and to applications for grants of prior approval and/or certificates of lawfulness for a proposed use or operation. This impacts on developments for one dwelling upwards. You will appreciate that this appears to be a very complex issue that has just been brought to our attention, along with the other affected local planning authorities and it is outside of our control, impacting on a large number of existing planning applications that we currently have with us. We have been advised to attend a number of workshops over the coming weeks presented by PAS and Natural England, with the first ones being open to Chief Planning Officers this week, which we will need to accept in order to understand what this new guidance and advice entails for both ourselves, developers and planning applications. Until we have a greater understanding of this new guidance, the mechanisms for implementing them across the Tees Valley authorities, we are currently not able to progress any planning applications for residential development/accommodation in any form. This has impacted upon over twenty of my current planning applications.Andrew HarkerPlanning Officer, Development Management
So what is happening?
Nutrient pollution is a big environmental issue for many of our most important places for nature in England. In freshwater habitats and estuaries, increased levels of nutrients (especially nitrogen and phosphorus) can speed up the growth of certain plants, impacting wildlife. This is called ‘eutrophication’ and it is damaging protected sites. As such, some sites are classified as being in ‘unfavourable condition’.
The sources of nutrients generally include sewage treatment works, septic tanks, livestock, arable farming and industrial processes. Where sites are already in unfavourable (poor) condition, extra wastewater from new housing developments can make matters worse.
By designing development alongside suitable mitigation measures, that additional damage can often be avoided. This approach is called ‘nutrient neutrality’. It essentially allows developments to be permitted without impacting on the condition of the important wildlife / protected sites.
What type of development needs to be nutrient neutral?
Nutrient neutrality is needed for overnight accommodation including new homes, student accommodation, care homes, tourism attractions and accommodation. The nutrient neutrality approach applies to proposals for a net increase in dwellings. Replacement dwellings are generally excluded.
So, campsites, glamping pods / holiday lets / shepherd’s huts etc are all included. This includes developments that propose to connect to the mains, off grid treatment works or composting toilets.
Other commercial development (not involving overnight accommodation) is generally not included, so nutrient neutrality does not apply to new schools, shops, offices etc.
Other applications will be considered on their individual merits, for example new industry, extensions to regional airports etc.
Does nutrient neutrality apply to the whole authority area?
It depends on the river catchment and the catchment boundaries for wastewater treatment works. The nutrient neutrality approach applies where the treated wastewater discharges into a sensitive catchment – either into the ground or surface water.
Check to see the extent of the sensitive river catchment and how much of the authority area is within this area, eg which towns, villages, ward boundaries.
The catchments for the wastewater treatment works also need checking. The catchment calculators include a list of the relevant wastewater treatment works (on the lookups tab). The river catchment and wastewater treatment work catchments can be different. Sometimes the waste from a development in one catchment is discharged into another catchment where nutrient neutrality applies. This is more likely to be the case when your development is located near the edge of the river catchment.
What legislation covers nutrient neutrality?
Many of our most internationally important water dependent places (lakes, rivers, estuaries, etc) are protected under the Conservation of Habitats and Species Regulations 2017 (as amended).
In accordance with this legislation, a Habitats Regulations Assessment (HRA) is needed for plans and projects that are likely to have a significant effect on the protected sites.
Natural England has included more information in their updated methodology.
In the short term….
Some councils will receive the advice from Natural England out of the blue, and it can be difficult to know what to do next. In the short term Council’s will put all applications on pause until they sort out their package of nutrient neutral measures.
Given that Natural England’s advice is being upheld by Inspectors and the High Court there is no mechanism available to prevent further spread of the issue beyond the 72 authorities already effected. [...]
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22nd February 2022ViewsI have just recorded a podcast for a good property entrepreneur friend of mine, Dave Hartnet of Mountbatten Estates, and one thing it got me to do was reflect on the state of the system today in 2022.
The podcast also comes at a time of change, we have just had the first proper update to the UK Planning Portal for five years. We are seeing alterations to the way the Inspectorate works and we are seeing the new department for Leveling Up, Homes and Local Government announce its leveling up agenda.
But what about the front line of planning in England. In my previous article I reported that some 51 of the planning authorities this year have found themselves in presumption this year. Some have appalling rates of planning delivery with Southend propping up the country with a delivery of 31% over need over the past three years!
Remember that planning authorities are meant to deliver housing through granting sustainable developments:
9. These objectives should be delivered through the preparation and implementation of plans and the application of the policies in this Framework; they are not criteria against which every decision can or should be judged. Planning policies and decisions should play an active role in guiding development towards sustainable solutions, but in doing so should take local circumstances into account, to reflect the character, needs and opportunities of each area.Para 9 of the 2021 NPPF
38. Local planning authorities should approach decisions on proposed development in a positive and creative way. They should use the full range of planning tools available, including brownfield registers and permission in principle, and work proactively with applicants to secure developments that will improve the economic, social and environmental conditions of the area. Decision-makers at every level should seek to approve applications for sustainable development where possible.Para 38 of the 2021 NPPF
So what is happening today? Why is it that applications for development are seen so negatively from the outset rather than looking at things in a more positive light as per the instructions in para 38.
Ultimately it is all about time and culture.
I have a lot of sympathy with planning officers today. My former colleagues at Portsmouth are typically handling a rolling 100 applications each. If they adopt a 1 job per day strategy then that 100 days of work. Even if that does not sound much remember it is a rolling treadmill of applications so every app that drops off is replaced by another.
Add to that the government mandated time limits. An 8 week application needs to be dealt with inside of approximately 60 days. The math just does not balance. One application per day means that adding a case to the load will automatically lead to that case being 40 days overdue.
Having been a planning officer myself one job per day is a reasonable expectation for good decision making, its a principle that holds true for my workload today and so in essence any application is destined to go out of time.
Lets then turn to culture. Planning today is habitually in everyone’s bad books. For the Government planning must do more and deliver bigger and more beautiful buildings, for developers planning is seen as a blockage to development, for homeowners planners are just unfair adopting almost arbitrary views on development. This means that a Planning Officer today is everyone’s bad guy and can never be right.
I reflected upon this during a podcast recording in Lockdown 1 – I said to the interviewer “I am in a profession where I will never win the game, I will get close sometimes but never win” when questioned on this standpoint I reiterated the sentiment above. That is as a planner I am always upsetting someone. There is simply no equity in the process.
That lack of equity breeds culture in decision making. It is easier today for planners to ignore their statutory duty under the act and the NPPF and just refuse. This may feel very cynical however from experience it is the way the system is pushing the profession. With time limits and work pressure it is better to get an application off your desk rather than negotiate and work towards a shared solution. In council’s such as Maidstone and Southend in particular this is the norm with no negotiation during the process and in Southend in particular – no pre-application either. Refusing an application transfers the position of prime dark lord of planning from the Case Officer (now hero of the people for refusing your consent) to the Planning Inspectorate who are otherwise protected by layers of staff and procedure.
For council’s under the threat of government intervention through special measures a culture of refusal is otherwise counter productive as it simply does not deliver on government objectives for housing delivery and quality of decision making. However it today’s planning world one has to ask what is better?
By Jon McDermott [...]
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17th January 2022Latest NewsJanuary, in the planning world at least, brings with it the grading of council performance known as the Housing Delivery Test.
HDT Layer Nimbus Maps – 2020 Result
The HDT is an important tool for Council’s and Government to understand what is going on with housing delivery and it is essentially there to mark the Council’s planning homework.
The result of the HDT is essentially 4 grades or results that will define what will happen with, or more importantly to, that LPA in the coming year.
The grades are as follows:
No Action – The LPA has achieved better than 95% of its housing delivery targets over the past three years
227 Authorities this year.
Action Plan – The first stage of sanction where the LPA has achieved between 95-85% of its targets and must therefore produce an action plan where it takes a long hard look at itself to understand what it could do better. Here is Portsmouth’s for 2021 as an example, more on them later! Portsmouth Action Plan.
23 Authorities this year.
Buffer – The second sanction where an LPA has achieved between 85-75% of its targets. 20% more housing target is added for the council to achieve and it must again produce an action plan.
19 Authorities this year.
Presumption – The third and final consequence where an LPA has achieved less that 75% of its targets. There are 51 authorities in this bracket this year with Southend-on-Sea leading the bottom with just 31% delivery.
In practice presumption has a few consequences for the planning authority as it engages the ’tilted balance’ in favour of sustainable development and can render a Local Plan or Neighbourhood Plan obsolete if the ballance is properly engaged.
There are but a few circumstances where the ballance cannot be engaged fullu and those are outlined chiefly at paras 11-14 of the 2021 NPPF. These include where the NPPF itself would provide a clear reason for refusal such as:
Habitats sites (and those sites listed in paragraph 181) Sites of Special Scientific Interest;Land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) Heritage Coast;Irreplaceable habitats;Designated heritage assets (and other heritage assets of archaeological interest;Areas at risk of flooding or coastal change.
Granted in the main you would need to go to the Inspectorate in order to get a proper hearing on the tilted balance as most, if not all LPA’s that are effected by the presumption, tend to attempt to maintain business as normal until they are told otherwise.
So why does a Planning Authority start to fail?
To answer this lets look at Portsmouth City Council. Year on year since the start of the HDT in 2018 they have been in decline on their statistics from a comparative excellent authority in 2018 with 122% delivery to a presumption authority in 2021 with just 54% delivery.
Portsmouth Civic Offices
The 2021 Action Plan blamed the following:
Slow delivery on consented sitesSlow delivery on allocated sites Insufficient forward land supply Insufficient Delivery of Planning Approvals Nitrate Mitigation factors (Natural England)Development Viability
All of the above, with the exception of Natural England, are within the LPA’s remit to control either by reducing implementation periods on consented schemes or latterly creating a change in culture at the LPA where para 1, 2 and 38 of the NPPF (that’s the duty to seek to grant planning permissions first) is embedded right at the outset.
The report also points to under funding within the planning sector generally and an unwillingness of other authorities near to Portsmouth to play fair. The fact that two of those authorities, namely Fareham and Havant, also find themselves in presumption this year does not bode well for the ability of PCC to work towards statements of common ground.
In the end the result is the same – Portsmouth are in presumption with a 54% delivery rate and just 3.2 years of housing left to them (reported in the 2021 Action Plan) and therefore the culture of the council, like all those in presumption, must change from ‘its not our fault’ to ‘only we can get ourselves out of this mess’.
So what does it all mean
The Big developers will be pouring over the HDT for the big wins this years. Desirable places like Mole Valley and Fareham will be under heavy pressure to grant planning permissions and get building on sites in the next 12 months. The buffer authorities will also be taking a long hard look at themselves – Can they ‘Pull a Gosport’ and get themselves out of the buffer in 1 year (GBC went from 84% to 100% in one year!). For me it is these buffer authorities that are of the most interest as they tend to be the ones that want it most and those are the LPA’s I will be paying attention to in 2023.
by Jonathan McDermott [...]
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7th October 2021Latest News / OpinionThe Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (snappy title!) was laid before parliament on the 9th July and makes the much needed consequential changes following the wholesale alteration to the Use Classes Order in September of last year. A copy of the legislation can be found at https://www.legislation.gov.uk/uksi/2021/814/made
A number of the changes were previously consulted upon in the spring and can be summed up in this helpful document which we produced earlier in the year.
GPDO Consequential Changes Quick GuideDownload
However, there is one in there that has taken us all by surprise! Class G.
Now for those that know me I have lauded the benefits of Class G as it was the one remaining ways to gain the benefit of new dwellings in technically difficult circumstances and without the need for any form of permission at all from the Planning Authority. Sadly however those days are numbered as on the 1st August 2021 Class G loses its freedom and falls into the rank and file of prior approval matters determined by the planning authority through the prior notification process.
The matters for consideration by the LPA after the 1st of August are as follows:
(i)contamination risks in relation to the building;(ii)flooding risks in relation to the building;(iii)impacts of noise from commercial premises on the intended occupiers of the development;(iv)the provision of adequate natural light in all habitable rooms of the dwellinghouses;(v)arrangements required for the storage and management of domestic waste.
This now being a prior approval matter means that compliance with the national space standards is now a matter of fact rather than it being based on a reliance that Class G was not included within the original list or prior approvals caught by the NDSS.
I am gratified to Joshua Clayman of Windsor and Maindenhead Council for providing the legal clarity to the point of whether the development results in dwellings in their own right. Joshua points to the following in a recent debate with myself over email.
Whilst I have not specifically found an appeal regarding space standards and (the former version of) Class G, there is case law – Valentino Plus Ltd v SSCLG EWHC 19 (Admin) – that indicates ‘mixed use’ in the case of Schedule 2, Part 3, Class F of the GPDO 1995 (the precursor to Part 3, Class G of the 2015 Order) should be interpreted as a change to (up to) 3 planning units, namely a A1 shop and 2 self-contained flats. Hence, the self-contained flats are ‘true dwellings’ in the sense they are each their own planning unit.Whilst Class G has become a prior approval process, it still creates a mixed use, so the question still needs answering. The new prior approval wording refers to adequate natural light in all habitable rooms of the dwellinghouses. This also indicates the flats being created are true dwellings.Joshua Clayman
This should hopefully bring an end to the debate as to whether the national standards apply. As per my comment above it is my view that they now do.
However there is some good news, Class G in its new form becomes a Super G permitted development allowance which is available to all of the uses within Use Class E rather than just shop or financial and professional services. This includes the ability to do two flats above any of the following:
Shops (not already covered by Class F2),Financial and professional services,Restaurants and cafés,Offices,Research and development of products or processes,Industrial processes compatible with a residential area,Clinics,Health centres,Crèches,Day nurseries,Day centres,Gymnasiums or area for indoor sports and recreations (excluding swimming pools and skating rinks)
Uses such as Betting Office and Pay Day Loan Shop are also included within the Super G provisions as a carry over from its former life.
your ability to use Class G on a Listed Building or indeed any other building that is within an area not available to Class MA remain exactly the same.
Whilst it was a shock to the system to see Class G turn into a prior approval matter without announcement by the Government this would resolve one pertinent problem in a land deal of my own in Cornwall. The funding house on the project have been demanding a Certificate of Lawfulness or Planning Permission for the proposed works which we have (to this point) been saying is not required. Whilst it may now be a necessity it will remove the uncertainty from the equation and mean that we can get our papers in order using the 56 day process. It will also draw a final line under the last mechanism to get flats that are below the 37sqm threshold within the NDSS so at least finally we can draw an end to clients seeking to break or bend the rules because profit is more important that quality.
Transitional Arrangements
The explanatory memorandum with the SI is, as always, notoriously vague on the transitional arrangements for Class G but does state:
7.43 Paragraph 4 provides for transitional arrangements where the amended right contains substantially new conditions. For example, Class G of Part 4 is amended to introduce from 1 August 2021 a requirement for local consideration of matters of prior approval. However, development begun before this date may continue to proceedirrespective of whether an application for prior approval has been made.
Whilst the paragraph does not expressly state Class G of Part 3! (maybe a typo there!) it does make clear that if your development has begun you may continue it. However I am sure those schooled in planning law will also scream that Class G is a change of use and therefore governed by S56(b) of the Act which expressly states that the development is begun when the new use in instituted. Therefore with the transitional arrangements once again as clear as mud our old friend ‘fact and degree’ will come into play in the short to medium term.
This is only one of a vast number of changes happening in the summer of 2021 and so planning will once again be in a state of flux as we learn the new rules. Lets see what the story says in 8 months time!
by Jon McDermott [...]
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31st August 2021OpinionBack in 2012 the NPPF included an important paragraph.
To deliver a wide choice of high quality homes, widen opportunities for homeownership and create sustainable, inclusive and mixed communities, localplanning authorities should:● plan for a mix of housing based on current and future demographictrends, market trends and the needs of different groups in the community(such as, but not limited to, families with children, older people, peoplewith disabilities, service families and people wishing to build their ownhomes);● identify the size, type, tenure and range of housing that is required inparticular locations, reflecting local demand; and● where they have identified that affordable housing is needed, set policiesfor meeting this need on site, unless off-site provision or a financialcontribution of broadly equivalent value can be robustly justified (forexample to improve or make more effective use of the existing housingstock) and the agreed approach contributes to the objective of creatingmixed and balanced communities. Such policies should be sufficientlyflexible to take account of changing market conditions over time.Para 50 of the 2012 NPPF
This paragraph was important because it provided the Council’s with the legislative backing to seek to control HMO’s. Sustainable, inclusive, mixed and balanced communities were the soundbites repeated in many planning decisions up and down the country where the Council has otherwise sought to refuse an application for an HMO. At no other point within the NPPF did the Council have a leg to stand on however the paragraph was just about vague enough to suggest that somehow the Government of the day wanted to create mixed and ballanced communities.
Roll on to the 2021 NPPF and para 50 is gone and is replaced by Para’s 60-63 of the framework which state:
To support the Government’s objective of significantly boosting the supply ofhomes, it is important that a sufficient amount and variety of land can come forwardwhere it is needed, that the needs of groups with specific housing requirements areaddressed and that land with permission is developed without unnecessary delay.To determine the minimum number of homes needed, strategic policies should beinformed by a local housing need assessment, conducted using the standardmethod in national planning guidance – unless exceptional circumstances justify analternative approach which also reflects current and future demographic trends andmarket signals. In addition to the local housing need figure, any needs that cannotbe met within neighbouring areas should also be taken into account in establishingthe amount of housing to be planned for.Within this context, the size, type and tenure of housing needed for different groupsin the community should be assessed and reflected in planning policies (including,but not limited to, those who require affordable housing, families with children, olderpeople, students, people with disabilities, service families, travellers, people whorent their homes and people wishing to commission or build their own homes).Where a need for affordable housing is identified, planning policies should specifythe type of affordable housing required, and expect it to be met on-site unless:a) off-site provision or an appropriate financial contribution in lieu can be robustlyjustified; andb) the agreed approach contributes to the objective of creating mixed andbalanced communities.Paras 60-63 of the 2021 NPPF
A broad brush notion of mixed and balanced communities for all has been replaced with the scalpel within para 63 which refers solely to mixed and balanced communities in relation to affordable housing only. Indeed paras 60, 61 and 62 take a different approach instructing LPA’s to render support where inter-alia:
Para 60: the needs of groups with specific housing requirements are addressed
Para 61: reflects current and future demographic trends and market signals
and
Para 62: the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to…students, people with disabilities…people who rent their homes…)
With this change in focus where does it leave the legislative support for control of HMO’s? Put simply the 2021 NPPF includes no policy relating to HMO’s positive or negative and no mention of control for this use class at all. As such it remains for the council’s to somehow glean continuing support from the new NPPF.
The silence or otherwise within the amended NPPF is deafening however the clear message is that the stalwart of mixed and balanced communities has now apparently been removed.
Further for those authorities seeking to remove Class L via an Article 4 Direction the new NPPF presents bad news to those council’s seeking a council wide control stating:
The use of Article 4 directions to remove national permitted development rightsshould:• where they relate to change from non-residential use to residential use, belimited to situations where an Article 4 direction is necessary to avoid whollyunacceptable adverse impacts (this could include the loss of the essentialcore of a primary shopping area which would seriously undermine its vitalityand viability, but would be very unlikely to extend to the whole of a towncentre)• in other cases, be limited to situations where an Article 4 direction isnecessary to protect local amenity or the well-being of the area (this couldinclude the use of Article 4 directions to require planning permission for thedemolition of local facilities)• in all cases, be based on robust evidence, and apply to the smallestgeographical area possible.Para 53 of the 2021 NPPF
The first new Article 4’s post July 2021 have directed their efforts to the smallest geographical area possible isolating individual streets or properties and so it seems that the LPA’s have heeded the Governments warning’s that a blanket removal of the Permitted Development toy box will not be tolerated.
By Jon McDermott [...]
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24th June 2021OpinionIt is fair to say that planning authorities in England have their favourite forms of development and in equal measure those developments they love to hate. This behaviour comes from those at the very top of the department and filters down through the teams to form part of the personality of the planning authority. Those in Winchester will have heard of the ‘Winchester Way’. This is a good example of decision making behaviour (DMB) that can be tracked and exploited by a developer or planning consultant.
Positive and Negative DMB is in fact a proper application of case law and the principle of consistency in decision making.
It is well established case law that previous planning decisions are capable of being material considerations, meaning that they need to be taken into account by those determining subsequent applications for permission.
The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency….. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.”
Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise.
The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre. The application was approved at a full council meeting despite the planning officer’s report recommending refusal. One of the Co-Op’s grounds of challenge was that the council had failed to have regard to the importance of consistency in decision-making as it had refused to grant Aldi permission for a near-identical development on the same site the previous year due to adverse retail impacts on the town centre. The Co-Op also alleged that if the council had given consideration to its earlier decision, there had been a failure to give reasons as to why it had now reached a different decision and granted planning permission. Planning permission was quashed by the court after it held that the council had made clearly inconsistent decisions and had failed to provide adequate reasons for doing so. By failing to reference, let alone address, the previous refusal decision, the council had not explained how the previous concerns relating to adverse retail impacts had been addressed and allayed in the subsequent application.
Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” In essence, it was open to the council to reach a different decision but only if it had “grappled with the earlier reason for refusal based on retail impact and harm to the viability of the town centre”. The case emphasised that, in circumstances in which an earlier decision is a material consideration in the context of a current application, a decision-maker must provide clear reasons for any departure from their original position.
In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier. The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date.
Howell QC stated (at paragraph 100) that: “There is a public interest in securing reasonably consistency in the exercise of administrative discretion that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.” The earlier decision was not so different that it could reasonably be ignored. Any reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up-to-date and whether the reasons were equally applicable to the present case. Again, they would also have provided reasons for any departure from the previous decision. Permission has been granted for the secretary of state to appeal the decision in the Court of Appeal.
These two court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable.
So how do we apply this to DMB and how do we use this to our advantage?
DMB is part of the I for Intelligence and C for Compare considerations of our VICTORY model. What we are looking for here is evidence within the DMB of a council that they either like or dislike a particular form of development within their area.
Repeated approvals for broadly the same development = a positive DMB that would encourage more of the same.
Repeated refusals for broadly the same development = negative DMB and that development should rightly be avoided.
DMB can change over time with too much of a good thing. In Croydon Council the LPA very heavily promoted the idea of knocking down two storey three bedroom detached houses and building three storey blocks of flats. Many such applications later the LPA noticed that they had a lot of 1 and 2 bedroom flats in supply and very few three bedroom dwellings left. This spurned them to issue an Article 4 to prevent house to HMO without planning permission and change their DMB to enforce their own policies on ballance of properties within a development.
In Southampton City Council there was a profound negative DMB towards HMO’s this became so much so that it generated a very positive DMB towards Halls of Residence. Today in Southampton you can get planning permission for a massive hall but you have no hope of getting a single HMO.
By tracking the DMB you can track with reasonable confidence the kind of decision you may face within any particular council. Suffice it to say that DMB is particular to an individual planning authorities and so another reason why specialising in a particular area is key.
By Jon McDermott [...]
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16th June 2021News / OpinionOn the 1st August 2021 the starting gun is fired and Class MA becomes available to applicants as an application type. Class MA takes over the relay from Class O on the same day and you can read our short guide on Class MA at https://www.tpexpert.org/knowledge/class-ma-commercial-business-and-service-uses-to-dwellinghouses/
One of the allowances within Class MA is the provision that buildings within Conservation Areas are not exempt from the class and can be converted. This is subject to clause (e) which states:
(e)where the building is located in a conservation area, and the development involves a change of use of the whole or part of the ground floor,the impact of that change of use on the character or sustainability of the conservation area;
Class MA does not seek to control the loss of vacant shopping uses aside from the requirement that the property must be vacant for 3 months. Para 7.7 of the explanatory memorandum states:
7.7 The Class MA right will provide for the change of use from any use within the Commercial, Business and Service use class (E) to residential (class C3) use. In order to prevent gaming, the building must have been in Commercial, Business and Service use for two years before benefiting from the right…..To protect successful businesses, the right will require the building to have been vacant for three continuous months immediately before the date of application for prior approval. The time that the premises is closed as a result of Government Covid-19 restrictions will not count towards this period where the building continues to be occupied by the owner or tenant. No more than 1,500 sq m of floorspace in any building may change use.
Thus the loss of a Commercial, Business and Service use is implied by the prior approval.
Para 7.8 of the memorandum states:
7.8……the impact of the loss of ground floor Commercial, Business and Service use on the character and sustainability of a conservation area.
Thus within para 7.8 does this give a Council a potential push back to Prior Approval in terms of the loss of the use on the character and sustainability of a Conservation Area?
The paragraph is sufficiently grey that most Council’s and their Conservation Officers will undoubtedly attempt to link use to character in order to retain an otherwise vacant shop in preference to seeking an appropriate alternative use. This is notwithstanding the comments within para 200 of the 2019 NPPF which states;
Local planning authorities should look for opportunities for new development withinConservation Areas and World Heritage Sites, and within the setting of heritageassets, to enhance or better reveal their significance. Proposals that preserve thoseelements of the setting that make a positive contribution to the asset (or whichbetter reveal its significance) should be treated favourably.
This does, however, appear to read as a bear trap for those seeking to do a Class MA application within a Conservation Area. Giving thought to the problem there are a number of solutions you could consider.
Seeking a building that is long term vacant should be a starter for 10. This allowance is directly targeted at those buildings which have been allowed to degrade and stagnate. A building that is in that state will benefit from the use and then benefit the Conservation Area.
Remember that external alterations are not allowed and you do not have any Part 7 (Non-domestic) PD allowances within a Conservation Area either so if you want to rip out that shopfront and replace it with something a bit more residential compatible then prepare for a chat with the Conservation Officer.
Finally consider a companion. Clause (e) only applies to development at ground floor level and so you could seek to retain the Ground Floor within Class E and select an appropriate companion use to your residential prospect. Uses that also fall within E include Gyms, Cafe’s Coffee Shops, Business Centres and Clinics and all of the above push your development towards a fashionable co-living footing.
As with all new PD allowances we will need to wait about 8 months (56 days + a 6 month Appeal) for the Inspectorate to settle things down and give us some appropriate decision making behaviour. Until then the LPA’s will be ‘interpreting with extreme prejudice’
By Jon McDermott [...]
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11th June 2021Latest NewsThe case of THE QUEEN (on the application of RONALD WYATT, CHAIRPERSON OF BROOK AVENUE RESIDENTS AGAINST DEVELOPMENT (BARAD), ACTING IN A REPRESENTATIVE CAPACITY) Claimant and FAREHAM BOROUGH COUNCIL sought a Judicial Review on the decision of FBC to grant outline planning permission for a sizeable development of houses. This case is important because the grounds included questions over Natural englands advice note on Nitrate Neutrality.
In his judgement Mr Justice Jay concluded that:
In respect of the advice note
In my judgment, this advice is impeccable in all material respects. Mr Jones came closeto submitting that, because there was scientific uncertainty, no development couldproperly be permitted because deleterious impacts could not logically be excluded. Butthat is the whole point of the precautionary principle: the uncertainty is addressed byapplying precautionary rates to variables, and in that manner reasonable scientificcertainty as to the absence of a predicated adverse outcome will be achieved, thenotional burden of proof being on the person advancing the proposal. The applicationof precautionary values to relevant variables may well have been sufficient, withoutmore; but a further cushion is provided by the application of a precautionary buffer.
In respect of the detailed grounds of the challenge all those relating to Natural Englands Advice and methodology were re-soundly dismissed.
A copy of the judgement is below for reference.
THE QUEEN (on the application of RONALDWYATT, CHAIRPERSON OF BROOK AVENUERESIDENTS AGAINST DEVELOPMENT(BARAD), ACTING IN A REPRESENTATIVECAPACITY)Download [...]
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10th June 2021News / OpinionSo the story goes like this.
Four applications for prior approval were submitted on the same day on the same site and were registered (notwithstanding some registration shenanigans by the LPA) on the same day namely the 16th March 2021. Keep that date in mind…its important!
The applications were for a 7 unit scheme, two different 8 unit schemes and a 9 unit scheme. we had to make them this way as Class O now requires binding floorplans.
Application No: 21/00796/PANB1C was approved on 10th May 2021. The plans showed that the dwellings approved in that scheme did not meet the 37sqm minimum in para 9A. This was fine as the application was submitted prior to the effective date for para 9A.
The two 8 unit schemes and the 9 unit scheme were refused for failure to comply with para 9A of Part 3 of Schedule 2 of the GPDO 2015 as amended by the 2020 regulations! All three are now subject to live and active appeals.
In relation to all three appeals prior approval was refused solely for the reason that the proposed plans shows units that would have a floor area less than 37m2. According to Paragragh 9A of Article 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), the proposal does not qualify as permitted development set within Class O, Schedule 2, the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
The Council’s standpoint on all three applications is fundamentally flawed and amounts to unreasonable behaviour that can result in an award of costs against the Council.
Para 9A was brought in by regulation 3 of the The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020. It is subject to transitional arrangements at regulation 12 of the same regulations.
Regulation 12(2) is clear and unambiguous and states:
(2) The amendment made by regulation 3 of these Regulations does not have effect in relation to development under—
(a)Class M, N, O, P, PA or Q of Part 3 of Schedule 2; or(b)Class A, ZA, AA, AB, AC or AD of Part 20 of Schedule 2,
where an application for prior approval is submitted before 6th April 2021.
There can be no other interpretation to paragraph 12(2). As such by refusing prior approval for applications clearly submitted to the council prior to the 6th April 2021 under regulation 3 and para 9A the council have erred in law and their decision is fundamentally flawed on that basis.
However this gets more serious than just no reading a paragraph.
I called the Council prior to making these appeals and spoke to the Interim Service Development Manager. In order to avoid these appeals the we invited the council to review the decisions and re-issue as a clear error in law occurred. The Manager declined to do this under the procedures within the planning act preferring the matter to be dealt with at appeal thus relying on the Inspector to correct the council’s mistake. The Managers explanation for the Council’s clear error was “The regulations change like the wind and the council cannot be expected to keep up with the regulations”.
The RTPI Code of Professional Conduct states:
Members must take all reasonable steps to maintain their professional competencethroughout their career…and; Members who, as employers or managers, have responsibility for other Members orprofessionals must take all reasonable steps to encourage and support them in themaintenance of professional competence.
No knowing the regulations should never be an excuse for a chartered town planner!
We anticipate that the Inspectorate will indeed tidy up the mess left behind by the LPA but fundamentally this should never have got to this point and just demonstrates the under-funding and under investment in the planning system over the last 20 years.
And most of all lets hope this results in a little re-training at Milton Keynes Council! [...]
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6th May 2021NewsTPX are pleased to announce that the Inspectorate had today allowed our appeal and granted prior approval under Part 20 of the GPDO for the addition of floors at Pippins Court, 40 Waterside, Evesham, WR11 1BU.
In their decision the Inspector criticised the approach the Planning Committee took towards the key test of design over impact to street scene stating:
The proposal would replicate the existing floors to enlarge the two blocks.Thus, elevationally the appearance would only significantly change by itsenlargement of the same.I note the Council’s references to paragraphs 124, 127 and 130 of theFramework and I understand the concern that the increased height of theproposed building may appear incongruous in the street scene, but thepermitted development right is expressly intended to allow a building to beextended by up to 2 storeys. While this may result in a seemingly tall buildingbut that is an inevitable consequence of the permitted development right.Acceptance of such height is implicit in the introduction of the permitteddevelopment right, which supports the Government’s objective of significantlyboosting the supply of homes. A difference of up to 2 storeys from theprevailing height has therefore to be interpreted as not inconsistent with thearea for the purposes of this prior approval.
Appeal Ref: APP/H1840/W/21/3266807Pippins Court, 40 Waterside, Evesham, WR11 1BU
A full copy of the decision is attached below and our congratulations go to the applicants Property V Development and the architect Ben James.
APPEAL-DECISION-3266807Download
COSTS-DECISION-3266807Download [...]
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7th April 2021Latest News / News / OpinionIts the 7th April and the National Standards and Prior Approval applications are now permanently conjoined. From yesterday the 6th of April it became impossible to generate new dwellings through Prior Approval in Part 2 and Part 20 of the GPDO.
This is explored in full in the explanatory memorandum which can be found at in our planningology section and states:
7.5 Regulation 3 of these Regulations amends Article 3 of the General Permitted Development Order to ensure that permission is not granted under Schedule 2 to that Order unless each dwellinghouse complies with the nationally described space standards which were published by the Department of Communities and Local Government on 27 March 2015, which should be read together with the notes added on 19 May 2016.
7.6 This change will ensure that all new homes provided through permitted development rights meet a minimum space per occupier and bedroom. These standards are reflected in Gross Internal Area measured and denoted in square metres (m2). In particular the gross internal floor area of any new homes must also, as a minimum, be no smaller than 37 square metres, including where this may provide a studio flat.
7.7 The detailed nationally described space standards can be found onlinehttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/524531/160519_Nationally_Described_Space_Standard____Final_Web_version.pdf
7.8 In relation to homes delivered under permitted development rights, this requirement will come into effect on 6 April 2021, and will apply to applications for prior approval submitted on or after that date.
I recently questioned MCHLG on this point and my email and their responce are in full below.
At this stage we are taking the direct interpretation within para 7.8 as reinforced by the transitional provisions in the SI and therefore conclude that Class G and Class L do not create dwellings that are liable to the National Space Standards.
by Jon McDermott [...]
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15th March 2021OpinionThe term ‘Shell Application’ was given to me by Chris Dale, the then Head of Development Management at Woking Borough Council and describes an application that deals only with the external appearance of a building.
‘Shell Applications’ are full planning applications that normally co-incide with an application for prior approval where the prior approval allowance does not give provision for external alterations to the building to facilitate the conversion. Commonly they are submitted simultaneously or sequentially with a prior approval application under Class O of Part 3 Schedule 2 of the GPDO 2015 (As amended).
‘Shell Applications’ address the fundamental deficiencies within Class O in that they allow for alterations to occur to the existing building in order to facilitate its onward conversion. Now I say onward conversion because, if submitted correctly, the alterations to the exterior are assessed in the light of the existing layout and use of the building and not its proposed use.
There and decided benefits in dealing with ‘Shell Applications’ in this way.
Firstly, new windows and doors and other openings are to the existing Office, Light Industrial or Storage use. If those windows overlook garden or other buildings the Council cannot sustain an objection on the ground of overlooking or loss of privacy because the existing use does not generate those type of concerns.
The determining issues for prior approval schemes does not incluse considerations of privacy and overlooking and as such the existing and the proposed form of development cannot generate an objection on these grounds.
Secondly, what key determining issues exist, are dependent on the changes that are proposed. For example alterations to the exterior appearance of the building only will generate determining issues relating to design only.
Extensions to the existing building will generate design and amenity impact considerations.
Alterations to the car parking arrangement will be assessed in relation to Highways Safety.
However all of these again will be assessed in relation to the existing use of the building and not with a view to the onward conversion. This is again because planning decisions are assessed at the time that they are made and on their own individual merit and not in relation to the possible futures.
Shell Applications are also a good mechanism to mitigate CIL.
CIL assessments are made based on the sqm added to a development site however CIL includes a number of minor exemptions including the existing use exemption. The existing use exemption provides for a 100% deduction for existing floorspace so long as the building was used for its original purpose for 6 months out of the last 36 months.
Most CIL charging schedules have lower or zero rated CIL charges for new Office, Light Industrial or Storage floorspace. Certainly lower than residential charges. Whilst you would not be allowed to incorporate the new floorspace created as part of a shell scheme within a prior approval (due to the floorspace not existing on the correct date). However if the floorspace is ‘used’ whilst you are converting the rest of the building you may then apply for planning permission for the conversion of the new floorspace to additional dwellings and exempt the new floor area from CIL in that way. All is required is the patience and planning in order to otherwise mitigate CIL.
All in all dealing with the fabric of the building is becoming more important with the additions of natural light and national standards being brought into Class O development in 2020 and 2021 respectively. As such it is no longer good enough to just deal with the floorplan alone.
by Jon McDermott [...]
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10th March 2021NewsPara 11d of the NPPF describes the ’tilted balance’ test. The tilted balance was put into the NPPF in order to address planning authority performance for those authorities that could not or would not grant planning permission for housing lead development to meet their own objectively assessed needs.
It works like this.
Para 11d sets up the tilted ballance stating:
Plans and decisions should apply a presumption in favour of sustainabledevelopment…d) where there are no relevant development plan policies, or thepolicies which are most important for determining the application areout-of-date(7), granting permission unless:i. the application of policies in this Framework that protect areas orassets of particular importance provides a clear reason forrefusing the development proposed(6); orii. any adverse impacts of doing so would significantly anddemonstrably outweigh the benefits, when assessed against thepolicies in this Framework taken as a whole.https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810197/NPPF_Feb_2019_revised.pdf
What Para 11d does is render the Local Plan out of date if the triggers within sub-para (7) are met. This defaults all applications to a determination based on the policies within the NPPF alone and matters of normal planning material consideration within the balance of the planning assessment tiled or skewed in favour of approving sustainable development. For a reminder Sustainable development is defined at para 8 of the NPPF.
The triggers for the tilted balance are set out within sub-para (7) which states:
This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, asset out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810197/NPPF_Feb_2019_revised.pdf
This is an or tests not an and test meaning that only one of the triggers needs to be true. 2021 is a landmark year for this because we now have three clear years of housing delivery test results to analyse and it is from this we can derive the 31 planning authorities that have failed to deliver housing lead development to the requisite standard over the past 3 years.
For these authorities the tilted balance is engaged subject to the clear reason clause within sub-para (6) which helpfully lists the clear reason’s by which the tilted ballance would not be readilly engaged. These are:
The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810197/NPPF_Feb_2019_revised.pdf
So for sites that are not hampered by the above (quite significant) constraints and within the area of control of the above named 31 Authorities the tiled balance will remain available until new HDT results are released in January 2022. Lets see if any of the named authorities can pull themselves out of the mire!
by Jon McDermott [...]
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8th March 2021OpinionDo you have an asset that’s proving difficult to let? Would you just like to maximise marketability? A “flexible” or “dual-use” planning permission might be able to help.
A flexible planning permission allows occupiers to switch between specified planning uses without the need for multiple planning permissions. The right to switch lasts for ten years and the use in operation at the end of the ten year period becomes the lawful use of the property from that date onwards.
In order to qualify as a flexible planning permission, the permission should explicitly state that the uses are flexible in the description of development. Ideally, the permission should also reference Class V of the General Permitted Development Order 2015, to remove any uncertainty over whether the right to switch uses is intended to apply.
The accurate wording of the description of development is crucial. Planning permission which grants consent for “commercial accommodation including E, F1 and B8 ” would not usually be considered to be a flexible planning permission as it makes no reference to flexible use. In this example, a switch to any of the other uses listed could constitute a material change of use requiring a fresh permission.
whereas we use flexible permissions to re-instate permitted development allowances lost by Article 4 directions. For HMO’s and Dwellings specifically there is very little material difference between C3 and C4 and as such a flexible permission can indeed be considered.
An application for a flexible planning permission should make it clear that the uses applied for are intended to be used flexibly. The right to switch does not apply to changes to a betting office or a pay day loan shop, but otherwise there are no restrictions on the combination of uses that may be sought. Nor is there a limit on the number of times you can switch between uses during the ten year period. You will, however, need to ensure that no planning conditions or Section 106 obligations restrict the uses in any way.
In today’s modern world, where tenants want more fluidity to adapt and reform their businesses, offering a space that better suits their changing needs is vital. Flexible permissions are therefore a useful planning tool that can make space much more attractive to occupiers. Flexible workspace and co-working spaces are now “hot topics” and so developers may see more local authorities willing to engage in flexible permissions. The significant cost and time saved by not needing a new permission each time there is a change in use, means that flexible permissions can be good for all.
by Jon McDermott [...]
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5th March 2021Opinion / ViewsDear Mr Jenrick
Please accept my apologies for the direct approach in this matter however as the Minister for Communities, Homes and Local Government I wished to write personally to discuss a troubling issue within the Planning System in England.
Paras 39 to 46 of the 2019 NPPF places within policy for the first time the importance of strong and productive pre-application engagement between Local Planning Authorities and Applicants, Agents and Developers in order to create greater certainty and deliver better forms of development.
Para 40 of the NPPF is particularly pertinent and states:
Local planning authorities have a key role to play in encouraging other parties to take maximum advantage of the pre-application stage. They cannot require that a developer engages with them before submitting a planning application, but they should encourage take-up of any pre-application services they offer. They should also, where they think this would be beneficial, encourage any applicants who are not already required to do so by law to engage with the local community and, whererelevant, with statutory and non-statutory consultees, before submitting their applications.
Whilst these sentiments are laudable there is a fundamental disconnect between the NPPF, the pre-application services actually offered by LPA’s and the weight developers can actually place on that advice in making decisions on whether to develop buildings or sites.
As LPA’s are not held liable for any pre-application advice offered either by themselves or by the courts it is often the case that they will renege on advice issued within pre-application enquiries or be inconsistent between enquiries.
As planning consultants we look to LPA’s to provide pre-application advice and be consistent in their dealings between pre-app and main applications.
To offer some examples:
In one case in Barnet pre-application advice was offered twice on the same site and then upon review by a different officer fundamental changes were requested leading to the refusal of planning permission at committee stage with the chair of the planning committee asserting that they were not bound to the pre-application advice of officers.
In another case in Croydon pre-application advice was requested twice on the same site. The LPA offered inconsistent advice citing that a change in planning officers resulted in a change in opinion.
In a final, and most recent example in Chelmsford, pre-application advice was sought twice for the conversion and extension of a derelict public house. design advice was offered, taken and fully incorporated within the scheme. The development was summarily refused by the self same planning officer for design reasons deemed acceptable at pre-application stage.
Amongst other pressing issues it is these inconsistencies that draw in to question trust within the present planning system and moreover whether even an altered system would actually be fit for purpose.
As a practising Chartered Town Planner with some 19 years in the field I have watched the culture and attitude of planners within LPA’s shift from a point of approval unless material considerations dictate otherwise to a point of refuse unless otherwise justified. Sadly it is this ‘guilty until innocent’ approach that is driving down confidence within the system.
I look forward to your considered views on this subject and would be more than happy to discuss our insights further.
Yours Sincerely
Jon McDermott
Update! We have a response.
ResponseDownload
The Relevant Sections of the PPG referred to are here. [...]
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3rd March 2021OpinionI have recently been advising a gentleman who approached us with a knotty planning problem. With their kind permission I requested that we be able to publish the story as it is an important cautionary tale and an example of the tightening noose around SA providers in England.
Extracts of the email’s are set out below with the kind permission of the developer in question.
First Email from Property Owner went like this:
I refurbished a property that I converted to a 6 bedroom HMO in 2019. I operated it as serviced accommodation letting out 6 individual rooms and had up-to 9 paying guests staying a night. I was genuinely surprised how successful it was and all the demand. The property was sometimes generating more than double the income a fully let HMO would make. We hired a cleaner who washed and changed the bedding, cleaned the rooms the house in between guests. The council came knocking and told me I had to stop as it was change of use and required planning. They have since given me an Enforcement notice so I’m not able to operate anymore and have had to revert back to HMO use with tenants living in the house on AST’s. Pre-application advice from the Council is that it would be refused I have the option of selling it as a HMO but really want to keep the house if I can operate as serviced accommodation. My communication with the council has been awful, they have been negative at every stage. They have treated me like a rogue landlord basically and feel bullied with no rights.
My Response in full:
Having read your email in detail please find my considered response. Further to the decision of Moore v. SSCLG EWCA Civ 1202 and other relevant cases in Cambridge and London Council’s have taken an increasing interest in Serviced Accommodation and its effect on Housing Supply. Regrettably property education courses on the subject omit the critical town planning components leaving investors like yourself vulnerable to enforcement action. Being unaware of planning law and practice is not a defence in these cases. When enforcing a breach of planning control the Council latterly has no duty towards you at all. They are permitted to treat you as if you have carried out a criminal offence as, if you had decided not to comply, it would have become a criminal matter dealt with by the Courts.
I, of course, appreciate fully the situation you find yourself in and the stress the enforcement process has put you under. I must however say that given your situation your options are expressly limited given that the Council has taken direct enforcement action. By taking this action they have already made a judgement that they would not grant planning permission were you to seek it. If in fact a planning permission were possible you would have been invited to make one.
In order to assist you I would need the address of the property, the planning authority that served notice and a copy of the enforcement notice they issued to you. I would also need to review their planning policies in order to advise whether you have a way out. It would not be appropriate for me to suggest a service at this stage without properly understanding whether such a service would indeed be successful. As Chartered Town Planners we should only suggest a course of action which is in the clients best interests. If selling the property would be in your best interest then that will ultimately be my advice to you.
The Plot Thickens
Firstly the council did offer me the option of applying for retrospective planning permission but I just didn’t have the money to pay their fees. I had a meeting with them and it sounded like they were open to having mixed use at the time but the pre-app confirmed that this was not the case. There are sections of the enforcement notice that are untrue. My property is the only property on the street with a driveway with off street parking. There is actually more noise than when it was operating for short term lets. I could install CCTV to mitigate any unauthorised activity which could potentially occur. On the pre-app they said “If an application was submitted for the proposed use it would likely be refused as it would be contrary to Local Plan Policy H9. The house has C4 use currently and is classed as a “Small HMO” upto 6 people, Sui Generis are large HMO’s so how can this be classed as a larger dwelling? The property wouldn’t be attractive to an owner occupier, is on a corner not middle of the street and opposite unused land. I can’t see why they don’t see the positives of change of use. Even if it would mean a maximum of 6 people at 1 time I would be open to that but no dialog at all.
My final answer on the subject
Having looked through the papers sent I can see why you are troubled. There are factual inaccuracies between the actual former use of the property and the use asserted within the Enforcement Notice as well as unsupported assertions within the notice itself.
Like the other advice you have received I would be duly concerned if you were to attempt an application. The letter ‘inviting’ an application is not an invitation at all but simply giving notice of your statutory right.
Furthermore the Enforcement Notice is now active and cannot be quashed or appealed against and as such this would ultimately guide the LPA into a refusal and a protracted and costly appeal.
In order to tidy up the case file it may be in your interest to seek confirmation from the Council that the use as an HMO is lawful as the Enforcement Notice incorrectly requires the use to revert to a dwellinghouse.
As unfair as this may sound I think you must seek to dispose of this property as failing to challenge the notice at the appropriate time has ultimately reduced your options to either the continued use of the property as an HMO or returning it to a family home. With this Enforcement Notice on the file I do not see how the council could actually approve serviced accommodation on this site and therefore I must consider that it is in your best interests to either continue to use the property as a 6 person HMO with all residents on AST’s or dispose of the property.
Comments on this case:
It is often sad when we as Town Planners have to get involved in the very business end of planning. Recovering sites from Enforcement Proceedings has a very low success rate and by that point you are always fighting a retreating position.
It is also upsetting when the property investor’s failing here was a lack of understanding. The assumption that SA did not actually need planning permission at all was the catalyst for the enforcement officer eventually catching up with them. This is sadly not the fault of the property investor but in fact it is a much wider problem within the property education sector which still, today, misses off the critical town planning component when extolling the virtues of Serviced Accommodation.
Finally I wanted to draw some conclusions on my advice to them going forward. Fighting an enforcement notice through a planning application always ends up at appeal. either the matter is refused by officers as they have already served notice and find it unacceptable or it is called in by councillors and dealt with at committee.
Such a process is costly to the applicant and time consuming with an uncertain future. It would have been wholly wrong for me to promise any positive outcome given where the development found itself as the chances of success were slim. As such the best course of action for the developer was to either retain the property as an HMO within Class C4 or sell the property is an as is state.
by Jon McDermott [...]
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1st March 2021OpinionIt is seldom acceptable for a Council to add to the reasons for refusal on the submission of a planning application. In general the previous decision is one of overriding weight and when resubmitting a scheme should be done with the expectation that planning permission will be assessed against the same parameters. Therefore it is always frustrating when a planning decision is made at the Council add to the reasons for refusal despite this general presumption.
The presumption is repeated within the Costs Guidance in the NPPG which states:
What type of behaviour may give rise to a substantive award against a local planning authority?
Local planning authorities are at risk of an award of costs if they behave unreasonably with respect to the substance of the matter under appeal, for example, by unreasonably refusing or failing to determine planning applications, or by unreasonably defending appeals. Examples of this include:
preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations.
failure to produce evidence to substantiate each reason for refusal on appeal
vague, generalised or inaccurate assertions about a proposal’s impact, which are unsupported by any objective analysis.
refusing planning permission on a planning ground capable of being dealt with by conditions risks an award of costs, where it is concluded that suitable conditions would enable the proposed development to go ahead
acting contrary to, or not following, well-established case law
persisting in objections to a scheme or elements of a scheme which the Secretary of State or an Inspector has previously indicated to be acceptable
not determining similar cases in a consistent manner
failing to grant a further planning permission for a scheme that is the subject of an extant or recently expired permission where there has been no material change in circumstances
refusing to approve reserved matters when the objections relate to issues that should already have been considered at the outline stage
imposing a condition that is not necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects, and thus does not comply with the guidance in the National Planning Policy Framework on planning conditions and obligations
requiring that the appellant enter into a planning obligation which does not accord with the law or relevant national policy in the National Planning Policy Framework, on planning conditions and obligations
refusing to enter into pre-application discussions, or to provide reasonably requested information, when a more helpful approach would probably have resulted in either the appeal being avoided altogether, or the issues to be considered being narrowed, thus reducing the expense associated with the appeal
not reviewing their case promptly following the lodging of an appeal against refusal of planning permission (or non-determination), or an application to remove or vary one or more conditions, as part of sensible on-going case management.
if the local planning authority grants planning permission on an identical application where the evidence base is unchanged and the scheme has not been amended in any way, they run the risk of a full award of costs for an abortive appeal which is subsequently withdrawn
(This list is not exhaustive.)
Paragraph: 049 Reference ID: 16-049-20140306
Revision date: 06 03 2014
Whilst the overriding condition of a planning application governs that every application is assessed on its own individual merits the Council is only really permitted to re-evaluate something they have previously found acceptable based on a material change of circumstances.
Normally these circumstances need to be really big changes such as an alteration to the Local Plan or the introduction of a new SPD to supplement an existing policy point. Sometimes the changes are more widespread, such as a European designation being imposed. However a change in officer can also (unwittingly) lead to a re-evaluation.
It is often the case that a planning officer will not carry out a deep investigation into the planning history, particularly in relation to previous decisions, and will make a decision based on their own opinions. This can result in unpredictability within the system and frustration for applicants and agents.
Where such decision happen an appeal must reflect on the previous decision making processes first, especially where repeat applications have been made.
The Inspector will have regard to the decision as a matter of overriding weight and importance. Notwithstanding the change in view or planning officer it is well established case law that previous planning decisions are capable of being material considerations, meaning that they may need to be taken into account by those determining subsequent applications for permission.
The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency . Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.”
Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise.
The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre.
The application was approved at a full council meeting despite the planning officer’s report recommending refusal. One of the Co-Op’s grounds of challenge was that the council had failed to have regard to the importance of consistency in decision-making as it had refused to grant Aldi permission for a near-identical development on the same site the previous year due to adverse retail impacts on the town centre. The Co-Op also alleged that if the council had given consideration to its earlier decision, there had been a failure to give reasons as to why it had now reached a different decision and granted planning permission.
Planning permission was quashed by the court after it held that the council had made clearly inconsistent decisions and had failed to provide adequate reasons for doing so. By failing to reference, let alone address, the previous refusal decision, the council had not explained how the previous concerns relating to adverse retail impacts had been addressed and allayed in the subsequent application.
Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.”
In essence, it was open to the council to reach a different decision but only if it had “grappled with the earlier reason for refusal based on retail impact and harm to the viability of the town centre”. The case emphasised that, in circumstances in which an earlier decision is a material consideration in the context of a current application, a decision-maker must provide clear reasons for any departure from their original position.
In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier.
The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date.
Howell QC stated (at paragraph 100) that: “There is a public interest in securing reasonably consistency in the exercise of administrative discretion that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.”
The earlier decision was not so different that it could reasonably be ignored. Any reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up-to-date and whether the reasons were equally applicable to the present case. Again, they would also have provided reasons for any departure from the previous decision. Permission has been granted for the secretary of state to appeal the decision in the Court of Appeal.
These two court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable.
by Jon McDermott [...]
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25th February 2021OpinionSo for this post I wanted to reflect upon the Raglan Gatehouse development and it’s journey through the planning system. This application is particularly pertinent as it was submitted and dealt with within the throws of the pandemic and is indicative of the additional efforts it took to get to a successful decision on the first run through planning.
Pre-application
Raglan is a special Listed Building and an important case study in how to get engagement from the LPA at an early stage. We applied for pre-application advice in June 2019. We needed pre-app advice because we were going to be proposing something that was very different to the norm and so we needed council involvement from the start! We received a warm answer to the proposal in November 2020 after two meetings with the Council and Councillors on both the proposals and the state of the building.
First Application – Getting the site secure
The LPA wanted an application for Listed Building Consent for site hording. This was submitted as requested and in parallel to the pre-app on the 25 Sep 2019 and approved on the 06 Nov 2019.
Second applications – The development itself
Following pre-app we got ourselves prepared for the main application. Getting prepared for any planning application is difficult but one of this complexity is hard work. By March we were ready…and then Covid arrived! We were gearing up for an application when Covid appeared within the UK. Whilst our applications were received on the 10 Mar 2020 they were not validated until Wed 10 Jun 2020. This was due to the Covid preventing registration of applications in Plymouth until site notices could be posted.
Covid also played another dimension within the LPA. For those who have read my post of planning as a team sport you will understand that the Council Planners do not like operating in isolation. Working at home meant just that! so normally efficient discourse between officers within the LPA and latterly between the LPA and us fell by the wayside. Agreements and amendments that should normally take weeks to resolve actually took months. Some 29 individual pieces of correspondence and 5 substantive amendments later planning permission was granted in November 2020.
Now I know this experience was not isolated to this one case study. In our home authority of Portsmouth registration of applications was put on hold for 6 months due to Nitrate and than a further 3 months for Covid. Suffice it to say that the Council has clawed some of this back and are now just 5 months behind on everything!
By means of comparison on this case study I wanted to compare the experience to the ideal reality. This is how it all looks:
Pre-Application: Covid Reality – 5 Months vs Who Knows!
Whilst most council’s have some guidance on how long pre-app can take it is a shot in the dark as to whether they can keep to it and on cases as complicated as raglan it is better to keep the conversation going rather than be combative.
Applications: Covid Reality – 10 Months vs Statutory time period of 2 months
This is where Covid really hit! Delays in registration, negotiation and the council seeking multiple amendments really hit the time periods for this application and as such what should have been a statutory 2 months became 10 months.
Whilst the Ministry for Housing, Communities and Local Government made clear that Planning Authorities were to attempt to keep calm and carry on the truth of the matter is that Council’s have all struggled to keep the system going during the pandemic.
If making applications today our current advice is to double the statutory time periods at least! Hopefully when the vaccinations come a sense of efficiency will return!
by Jon McDermott [...]
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25th February 2021OpinionThe common failing of many application processes is a failure to understand the basics of the planning game. These are the Starting Position, The Appropriate Process and the End Game.
Like any good game of chess the basics are an important fundamental of the question of ‘how do I win the game’ and are adapted for each opponent you face. In Cricket a bowler changes his or her plan of attack dependent on the batsman facing them and this is no different for making a planning application.
Therefore ‘The Basics’ are the pathway to victory in any particular planning case.
To give this a practical example let me talk about a recent case that i was exposed to as a classic exploration of understanding the basics.
The Starting Position:
The development site was a house within the borough of Bromley. The developer wanted to use the property as a 12 person HMO and took advice from his architect to just apply for this! whilst the application was going through the developer carried out the change of use to a 12 person HMO!
So the Starting position was a 3 bedroom (max 5 person) house.
The Appropriate Process:
The developer just applied for planning permission for the addition of 7 people in a house that the planners thought was designed for 5 people. Planning permission was refused on noise, disturbance and parking grounds. This was clearly not the appropriate process as the jump between 5 and 12 people is massive in the eyes of a planner!
Bromley however does not control house to HMO. The appropriate process in this case would have been to change the use from a house to a 6 bedroom HMO under PD first! This would change the starting position from an uplift of 7 persons to an uplift of 6 persons. From this the developer could have applied for raises in the level of occupancy demonstrating at every stage that his HMO did not generate noise as existing. This 6 to 8, 8 to 10 and finally 10 to 12 once they had demonstrated to the council that the use was otherwise acceptable.
The End Game:
This is obvious from the case study – a 12 bedroom HMO. Unfortunately the handling of this case left the applicant with a painful appeal decision and enforcement notice to deal with which forced him to start from square 1 and the council enforced against the unauthorised large HMO use and required the building to be put back into a family home. This is not the end game the applicant intended but a good example of why understanding the basic’s is so critical!
by Jon McDermott [...]
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15th February 2021OpinionIf you operate short term accommodation within London you will be well versed, i’m sure, in the provisions of the 90 Day Rule.
Within London you can sub-let your home for a maximum of 90 days per calendar year. Simply put, if you live in London and put up your whole home on Airbnb, you are allowed to have guests stay for a maximum of 90 nights a year – Airbnb even has a handy ‘nights booked’ counter so that you can see how many nights you have left.
Once you have reached your limit planning permission is needed to extend the number of nights as a ‘material change of use’. That is unless of course you wait until the next calendar year and use another packet of 90 days.
Restrictions on short-term lets in London have in fact been around since the 1970’s. Homeowners letting their home for a period less than 90 days used to require specific planning consent from their local councils. However in 2015 the limit was changed under the provisions of the Deregulation Act to allow for a maximum of 90 days prior to the need for a planning permission. If a homeowner wishes to rent their home using short-lets for more than 90 days, they must now apply for the relevant planning permission
44-Short-term use of London accommodation: relaxation of restrictions(1)The Greater London Council (General Powers) Act 1973 is amended as follows.(2)In section 25 (provision of temporary sleeping accommodation to constitute material change of use), after subsection (1) insert—“(1A)Subsection (1) is subject to section 25A.”(3)After section 25 insert—“25AException to section 25(1)Despite section 25(1), the use as temporary sleeping accommodation of any residential premises in Greater London does not involve a material change of use if two conditions are met.(2)The first is that the sum of—(a)the number of nights of use as temporary sleeping accommodation, and(b)the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year,does not exceed ninety.(3)The second is that, in respect of each night which falls to be counted under subsection (2)(a)—(a)the person who provided the sleeping accommodation for the night was liable to pay council tax under Part 1 of the Local Government Finance Act 1992 in respect of the premises, or(b)where more than one person provided the sleeping accommodation for the night, at least one of those persons was liable to pay council tax under Part 1 of that Act in respect of the premises.(4)For the purposes of subsection (2)(b), it does not matter whether any previous use was by the same person.”(4)After section 25A (inserted by subsection (3) above) insert—“25BFurther provision about section 25A(1)The local planning authority or the Secretary of State may direct that section 25A is not to apply—(a)to particular residential premises specified in the direction;(b)to residential premises situated in a particular area specified in the direction.(2)A direction under subsection (1) may be given only if the local planning authority or (as the case may be) the Secretary of State considers that it is necessary to protect the amenity of the locality.(3)The local planning authority may give a direction under subsection (1) only with the consent of the Secretary of State.(4)A direction under subsection (1) may be revoked by the person who gave it, whether or not an application is made for the revocation.(5)The Secretary of State may—(a)delegate the functions of the Secretary of State under subsection (1) or (4) to the local planning authority;(b)direct that a local planning authority may give directions under this section without the consent of the Secretary of State.(6)The Secretary of State may revoke a delegation under subsection (5)(a) or a direction under subsection (5)(b).(7)The Secretary of State may by regulations made by statutory instrument make provision—(a)as to the procedure which must be followed in connection with the giving of a direction under subsection (1) or in connection with the revocation of such a direction under subsection (4);(b)as to the information which must be provided where the local planning authority seeks the consent of the Secretary of State to the giving of a direction under subsection (1).(8)A statutory instrument containing regulations under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.(9)In this section, “local planning authority” has the same meaning as in the Town and Country Planning Act 1990 (see section 336(1) of that Act).”45-Short-term use of London accommodation: power to relax restrictions(1)The Secretary of State may by regulations made by statutory instrument provide that section 25(1) of the Greater London Council (General Powers) Act 1974 does not apply if conditions specified by the regulations are met.(2)Regulations under subsection (1) must include provision corresponding to section 25B of that Act.(3)Regulations under this section may amend the Greater London Council (General Powers) Act 1973.(4)Regulations under this section may—(a)make different provision for different purposes;(b)include incidental, supplementary, consequential, transitional, transitory or saving provision.(5)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.Deregulation Act 2015
Whilst this was originally a London only issue the ’90 day concept’ is spreading.
In the case of appeal’s Appeal
A – Ref: APP/Q0505/C/18/3196460 – Notice 1 Flat 3, Roman House (Marino House), Severn Place, Cambridge CB1 1ALAppeals B to F inclusive – Notices 2 to 6 Flats 6, 7, 8, 9 & 11 Roman House, Cambridge CB1 1AL (See Schedule)Appeals G to M inclusive – Notices 7 to 13 Flats 1, 2, 3, 4, 5, 6, & 7 Florian House Cambridge CB1 1AQ (See Schedule)
Inspector Wharton concluded that:
In summary, therefore, it is my view that as a matter of fact and degree the variable nature of the transient uses of the properties has resulted in a distinctly different character of usage from that of a Class C3 use. I agree with the Council that the use of the units has resulted in some sort of hybrid use between Class C3 and a hotel Class C1 use. I acknowledge that the services provided are not anywhere near a full hotel service. Nevertheless the flats are let as separate suites of accommodation; they are let and advertised as a hotel might be and, most importantly have been let for many 1 or 2 night stays.There is no current minimum night’s stay and I agree with the Council that any void in the bookings is likely to be filled to avoid any loss of income and that the character of usage is affected by the unpredictability of the frequency of use. I consider that the shorter periods of residency clearly distinguish the nature of the uses at Roman House and Florian House from the more settled pattern of occupancy of atypical Class C3 use. The fact that letting patterns have significantly changed since the notices were issued does not alter my view that a change of use from Class C3 to a sui generis residential use has occurred.APP/Q0505/C/18/3196460 et al
Interestingly the Council relied on the judgment in Moore v. SSCLG EWCA Civ 1202 (“ Holiday lets may be a change of use”). The Council referred to the court’s finding that ‘It was not correct to say either that using a dwelling for commercial holiday lettings would never amount to a material change of use or that it would always amount to a material change of use. Rather in each case, it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodation’
The Cambridge case seem’s to have sparked wider interest by LPA’s in understanding both the SA market and the Holiday Market. Indeed a wide variety of reactions has resulted with Southend treating AirBnB style development as C1, Oxford treating the matter as a distinct sui-generis use with a 140 day time limit and BCP treating it as a ‘holiday let use’
I don’t think this is the end of the ’90 day’ question but I do think its time that the Government took one of the more sensible ramblings from the Labour Party Manifesto and consider a ‘Class C5 – Holiday and Short Term Letting’ use class.
By Jon McDermott [...]
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12th February 2021ViewsQ: What does this description of land mean? Equestrian tie and not all green belt?
A: It means that the land can only be use for the keeping of horses and that not all of the land is within a greenbelt. [...]
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Trevor Wilcock
11. December, 2020.
I have used Tpx for 4 years. Mainly on hmo and commercial planning apps.
They just don’t get it wrong.
Always willing to help and often a quick q&a can save literally days.
It really boosts your confidence being informed enough to explain to “property professionals” the intricacies of your strategy for a property.
TPX give you that grounding.