Permitted development for office conversions to be permanent

The long-awaited announcement of the proposed extension or removal of the May 2016 deadline for the completion of the residential conversion of offices finally came yesterday in a press release issued jointly by 10, Downing Street and De-CLoG. The measures that were announced are far more wide-ranging than this, and include a new Housing and Planning Bill and a whole raft of other planning changes, which we shall have to get to grips with in the coming months.

With preparations for the publication of my new book at an advanced stage, I have inevitably been focused on this topic for the past few weeks, and this is likely to continue until we finally go to press. We had hoped to do this no later than the end of this week, but must first try to establish the likely timetable for the necessary GPDO amendment order. The bare bones of the government press release gave no hint of this, nor of the detailed provisions that it will contain.

The most reliable indication of ministers’ intentions was set out in their “Technical consultation on planning” of July 2014. This canvassed the proposal either to extend or to make permanent all the permitted development rights which were due to expire in May 2016. The proposal in the case of Part 3, Class O was to extend the completion deadline by three years to 30 May 2019, but there were later hints that the deadline might be removed altogether, and this is what has now been announced.

The Government’s original proposal was to amend Class O with effect from May 2016, and it was emphasised in the 2014 consultation paper that these amendments would not come into force until the existing permitted development right ends in May 2016. The amended permitted development under Class O would replace the existing right.

It was the government’s intention that the exemption of certain areas (‘Article 2(5) land’) which applies to the current permitted development right would not be extended to apply to the new permitted development right under Class O, but there are rumours that the government has been persuaded to keep these exemptions in place.

It was also proposed that in addition to prior approval of the impact of the proposed development in relation to highways and transport, flooding and contamination, prior approval would also now be required in respect of the potential impact of the significant loss of the most strategically important office accommodation. However, in order to avoid this being used as an easy excuse by LPAs to refuse these prior approval applications, this would be tightly defined. The existing general exclusions would continue to apply (i.e. listed buildings and land within their curtilage, scheduled monuments and land within their curtilage, safety hazard areas and military explosive storage areas).

So far as the potential impact of the significant loss of the most strategically important office accommodation is concerned, the relevant provision would no doubt take a similar form to the existing provisions in Class M and Class P (if this intention is now carried forward into the GPDO amendment order). The list of matters requiring prior approval might therefore include an extra item along these lines :

“(d) where the authority considers the building to which the development relates is located in an area that is strategically important for providing office accommodation within Class B1(a) (offices) of the Schedule to the Use Classes Order, whether it is undesirable for the building to change to a residential use because of the impact of the change of use on adequate provision of facilities of the sort that may be provided by a building falling within Use Class B1(a) (offices), but only where there is a reasonable prospect of the building being used to provide such facilities.”

However, whether a provision of this sort will find its way into the amendment order, and the precise form it may take, remains (at the time of writing) a matter of speculation.

The government’s original intention had been to make an amending order in sufficient time to ensure that local planning authorities would be given more than a year to prepare for the introduction of the new permitted development right and, although it was not spelt out explicitly, to make Article 4 Directions where they consider it necessary to do so; but an amending order made within the remaining time before the end of May 2016 removing the exempted areas with effect from that date would leave LPAs with significantly less than a year in which to make Article 4 Directions to replace these exemptions.

Whilst Article 4 Directions could still be put in place before the end of May 2016 if LPAs were to embark on the process more or less immediately, the essential point is that they would not be able to give 12 months’ notice of those directions, so as to avoid what could potentially be very large compensation claims if planning permission is subsequently refused for the residential conversion of offices that could have been carried out as permitted development in the absence of the Article 4 Direction. The equally unattractive alternative from the point of view of the affected LPAs would be to postpone the coming into effect of any such Article 4 Direction so as to avoid the risk of compensation becoming payable, but at the risk of laying their areas open to a rush of prior approval applications for the residential conversion of offices in the formerly exempted areas in the meantime.

This difficulty could be avoided if the government were either to retain the existing exempted areas under Article 2(5) and Part 3 of Schedule 1 (as it has been suggested they now intend to do) or, alternatively, to postpone their removal from the GPDO for up to (say) 18 months, in order to give LPAs the opportunity to put Article 4 Directions in place at least a year before the protected areas lose their exemption.

The amendment order could be made and laid before parliament this week, or we may have to wait several weeks or even months before it comes forward. However, developers will wish to end the current uncertainty as soon as possible, in order to unlock the funding for these office conversion schemes that had all but dried up in advance of the original May 2016 completion deadline. If the government is sympathetic to the commercial needs of the developers, they won’t delay any longer before introducing the necessary amendments to the GPDO.

UPDATE (2.30 p.m. 13/10/15): In a press release issued this morning Brandon Lewis (the Minister for Housing and Planning) said that offices that have already received prior approval for residential conversion will now have three years to complete the conversion. No doubt all office conversions under Class O will be subject to a three-year completion condition in future (which already applies under a number of other Classes in Part 3).

Lewis has also confirmed that (as previously rumoured) the new permitted development right under Class O will allow office buildings to be demolished and replaced with new buildings for residential use, and that permitted development will also be extended to include the change of use of light industrial buildings within Class B1 and launderettes (still a sui generis use).

As I suggested above, the exemption of certain areas under Article 2(5) will not immediately be removed. I suggested 18 months’ grace, but the government has agreed to allow a three-year period until May 2019 before these exemptions disappear.

© MARTIN H GOODALL

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Financial incentives to be offered for injunctions

Enforcement action against breaches of planning control has always been the Cinderella of the planning service in most planning authorities, and the squeeze on council budgets has only served to further weaken local councils’ exercise of their enforcement powers. It can be a very expensive exercise, especially if the enforcement action is simply ignored by a recalcitrant developer, so that the council has to resort to applying for an injunction.

Now, however, albeit rather late in the day, De-CloG has announced a new fund to give LPAs some financial help in dealing with proceedings for injunctions in planning cases. Of course, if local authority funding had not been cut in the first place, this extra financial support might not have become necessary, but no doubt it will be welcomed by any hard-pressed authority having to go for an injunction against a persistent breach of planning control, or at least it may be until they read the small print.

The fund provided by De-CloG is £1 million, of which £200K will be available between now and 31 March this year, and the remaining £800K will be available until 31 March 2016. However, this funding is not as generous as it sounds. The maximum grant for any one case is limited to not more than half the council’s estimated costs, but is limited to a maximum payment of £10K.

So the maximum amount of grant that an LPA can apply for is £10,000 (or 50% of their estimated legal costs, whichever is the lesser) towards the cost of securing a Court Injunction in the High Court or County Court. The authority is required to provide a costs estimate setting out details of anticipated legal costs likely to be incurred in preparing and issuing legal proceedings and attending court, but this estimate is not to include non-legal specialist officer time. The LPA must take responsibility for any legal costs incurred in excess of £10K or in excess of any lesser sum that may be granted.

The fund is solely for use by LPAs in England, towards the cost of securing a Court injunction (High or County Court), under Section 187B of the Town and Country Planning Act 1990, against actual or apprehended breaches of planning control to be restrained. Funding is only available where other enforcement options have been, or would be, ineffective, or where there have been persistent breaches of planning control over a long period.

Funding will not be available for court proceedings which have already been started, or where an appellant lodges an appeal under section 174 against an enforcement notice that the LPA has issued. The criteria refer to an appeal made “within 28 days of receiving the notice”, but as the notice will usually come into effect within a fairly short time after the minimum 28-day period, it seems a little odd that an LPA could be deprived of funding for injunction proceedings where an enforcement notice is timed to come into effect (say) 35 days after service, and the developer appeals after 28 days but within the 35-day period.

LPAs will have to jump through hoops to get the funding they are seeking. Before a grant is made, they will have to demonstrate why the action is in the general interest, explain the degree and flagrancy of the breach of planning control, set out the enforcement history for the site (e.g. what other measures have failed over a long period of time), explain any urgency needed to remedy the breach, set out the planning history of the site, provide details of previous planning decisions in relation to the site, set out consideration of the Public Sector Equality Duty (section 149 of the Equality Act 2010) and Human Rights Act 1998, and demonstrate that an injunction is a proportionate remedy in the circumstances of the individual case, in addition to stating the amount of funding requested, including a breakdown of estimated legal spend on legal costs in 2014-15 and 2015-16. And all of this must be written in no more than 1,000 words, writing on one side of the paper only in the Head of Planning’s best joined-up handwriting. Deductions from funding will be made for untidy handwriting, poor grammar and spelling errors. (OK – I made the last bit up, apart from the thousand-word limit, but you get the general drift.)

And that’s not all. To qualify for consideration, the authority is required to confirm that it has adopted the enforcement best practice recommended in paragraph 207 of the National Planning Policy Framework and published its plan to manage enforcement of breaches proactively. The authority’s enforcement plan must have been published at least three months prior to applying for grant and the authority is required to confirm adherence to the recommendations of the National Planning Policy Framework with regard to the way in which the authority monitors the implementation of planning permissions, investigates alleged breaches of planning control; and takes enforcement action whenever it is expedient to do so.

Finally, to support the application for funding, the authority will be required to provide an active web link for their published local enforcement plan together with written confirmation that they are adhering to the objectives of the plan in a positive, pro-active and proportionate way and have been doing so for at least the previous three months.

Contractors engaged by De-CLoG (Ivy Legal) will assess applications for funding against the eligibility criteria in January, April, July and October, and applications for grant must be received no later than the last working day of the relevant application month.

You might think that someone in De-CLoG is trying to make it difficult, if not practically impossible, for local authorities actually to get their hands on this money! I wonder what level of take-up there is going to be when the amount of work involved in applying for funding, and the sum that is likely to be doled out, are taken into account. Getting funding might prove to be more difficult than getting the injunction itself, and many LPAs may conclude that it’s not worth the hassle.

© MARTIN H GOODALL

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We’re all going to be film stars!

Not to be outdone by the forthcoming second series of ‘The Planners’ on the telly (which, by the way, is going to be re-titled “Not in My Back Yard!”), Uncle Eric has decided that the cameras should be allowed into planning committee meetings and planning hearings and inquiries.

New guidance is to be issued by De-CLoG, which "will make clear the rights for members of the press and public, including local bloggers and hyper-local [?] journalists, to report, film and tweet planning appeal hearings." In a press release, De-CLoG ministers express the hope that “this will open up a previously mysterious and rarely seen side of the planning process”.

The new freedom to record and film proceedings, including the use of digital and social media can be exercised in future in appeal hearings and inquiries, provided that it does not disrupt proceedings. According to the blurb, "Inspectors will advise people present at the start of the event that the proceedings may be recorded and/or filmed, and that anyone using social media during or after the end of the proceedings should do so responsibly."

Pickles is particularly annoyed, because previous guidance he published in June, which was intended to open up planning committee meetings in the same way, has been deliberately ignored by some councils. Unfortunately, he omitted to write this into recent changes to subordinate legislation on the conduct of council meetings, and so he can do no more for the time being other than to huff and puff about it (something Uncle Eric is rather good at doing).

The press release ‘names and shames’ several of the offending councils:

• Wirral Council banned a blogger from filming its planning committee on health and safety grounds, asserting the ban was necessary as they cannot ‘police’ people filming.

• Tower Hamlets stopped a 71 year old resident and OAP campaigner filming a council meeting in June 2013. Council officers asserted that allowing filming could lead to “reputational damage to the authority”

• Keighley Town Council stopped a council meeting when a group of pensioners started to film the meeting and called in the police who escorted the 11 residents from the town hall. Officials argued allowing filming would be a “breach of Standing Orders”

• Blogger Richard Taylor, producing a guide for citizens on how to film meetings, has warned that some councils have demanded identity papers, such as a passport, before allowing filming, and warned “be prepared for the police to be called and the possibility of arrest, especially if you intend to film, photograph, tweet or take notes on a laptop” (Apparently, he was threatened with arrest when he tried to film Huntingdon District Council.)

• Bexley Council has asserted it intends to continue to prohibit audio and visual filming due to its “agreed protocol”

• Stamford Town Council meeting has reaffirmed its ban on a newspaper reporter tweeting from a council meeting, due to “concerns about 140 character snippets of information not accurately portraying a debate”

I have no more sympathy than Pickles with these weak excuses. If meetings are open to the public (as most planning committee meetings must be by law), there can be no reasonable objection to the proceedings being filmed, photographed and recorded, or reported ‘live’ on social media.

On the other hand, if you have attended as many different planning committee meetings as I have, you may well understand the reluctance of elected members to have their ‘deliberations’ broadcast to the great unwashed. The sad fact is that the standard of debate in many planning committees is absolutely dire, and the poor calibre of elected members, their profound ignorance of planning principles and procedures, and general lack of common sense is appallingly obvious. When officers in one authority claimed that allowing filming could lead to “reputational damage to the authority”, their fears may well have been justified!

As for opening up planning inquiries and hearings to the cameras, camera phones and recorders, I rather suspect that interest in recording the proceedings in this way will rapidly wane. It is rare even to see a local print journalist at an appeal hearing or inquiry, and those members of the public who bother to attend mostly drift away by lunchtime on the first day. The plain fact is that for those not directly involved in the process, it is arcane and incomprehensible, and opening it up to the cameras is not going to change that.

Major public inquiries into controversial development proposals might attract the TV cameras, but they will have the same problem as print journalists who have tried to cover these proceedings in the past. The bigger the development scheme, the longer the inquiry, and for journalists and TV crews it is likely to prove as exciting as watching paint dry.

Still, it makes a good silly season story, and Uncle Eric can feel satisfied that he has taken yet another decisive step to improve the planning system. Never mind, that we are still not building more than a tiny proportion of the new homes that are so urgently needed. Never mind that local planning authorities are starved of funds and can hardly cope with their work as a result. And never mind that all Uncle Eric’s previous brave words and stirring deeds have done virtually nothing to make any really significant change to the planning system.
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UPDATE (30 August 2013): I am told that Merton Council has begun webcasting various meetings within the past few months, including its Planning Applications Committee (although I am told that after two meetings no further webcasts have been made due to "technical difficulties"). A correspondent has suggested that readers should watch the first three applications presented on 18 April.

The webcasts can be accessed on:

http://www.merton.public-i.tv/core/portal/webcasts

This is not a link, but if you copy and paste this URL into the address line on your browser, the page should open. Don’t panic when you get no sound at the beginning. The camera was switched on before the meeting began, and the sound only starts when the Chairman opens the meeting, 7½ minutes into the recording. (You can move the cursor along to get to this point without having to watch usual the pre-meeting comings and goings in total silence. Alternatively, the menu on the right of the page enables you to go straight to the start of each item. The first application is reached about 10¾ minutes ibnto the recording.)

The 18 April meeting seems fairly typical to me. One thing you’ll notice is that the proceedings might reasonably be described as ‘unhurried’. It takes over 20 minutes, including the planning officer’s introduction, and public statements, before the members of the committee start to discuss the first application around 33½ minutes into the recording.

Anyway, see what you make of it.


© MARTIN H GOODALL

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‘White van man’ with the flags could be prosecuted

Strood’s ‘white van man’, who achieved overnight fame as a result of a tweet by Labour’s (now ex-) Shadow Attorney General, Emily Thornberry, might possibly be liable to prosecution under section 224(3) of the Town and Country Planning Act 1990. This sub-section provides that if any person displays an advertisement in contravention of the Control of Advertisements Regulations, he shall be guilty of an offence and liable on summary conviction to a fine of such amount as shall be prescribed, not exceeding Level 4 on the standard scale and, in the case of a continuing offence (i.e. if the advertisement goes on being displayed), one-tenth of Level 4 on the standard scale for each day during which the offence continues after conviction.

No doubt some readers already have in mind two possible objections to this proposition. First, is the display of a flag an ‘advertisement’ for these purposes? Secondly, is the display of flags not either exempted or granted deemed consent by the Control of Advertisements Regulations? Let’s look at each of those points in turn.

Without going into chapter and verse, it is well-settled law that if a flag or other display is likely to draw attention to the premises where the flag is displayed (even domestic premises), this counts as an ‘advertisement’. The Control of Advertisements Regulations themselves recognise this by exempting certain flags from control, and by giving deemed consent for the display of various other flags. But here’s the snag; the regulations are quite prescriptive as to what is actually permitted, and if the display does not comply with the conditions prescribed by the regulations, then it is unlawful. Even after Uncle Eric’s much-trumpeted (but in fact very limited) ‘liberalisation’ of the rules in 2012, there are still some quite strict rules as to what, and how, flags may be displayed.

Class H of Schedule 1 (adverts that are exempt from control altogether) allows the display of any country’s national flag, civil ensign or civil air ensign, but neither the flag nor the flagstaff may display any subject matter additional to the design of the flag, other than a black mourning ribbon. Now I know that the permanent addition of a black mourning ribbon to England’s national football flag might well be justified, but if you look at the lowest of the three flags displayed on the house in Strood, it had the England FA’s shield on it. So it doesn’t qualify as the country’s national flag, and it does display subject matter additional to the design of the cross of St George. So this one would not appear to be exempt under Sch 1, Class H.

In any event, it would appear to be implicit in the Control of Advertisements Regulations that a flag is expected to be flown from a flagpole, not draped across the wall of a building like a banner. This is not explicitly stated in Schedule 1, but the deemed consent granted for certain other flags by Schedule 3 (see below) certainly does refer specifically to flags flown from variously located flagpoles. It would also appear to be implicit in Schedule 1 (again, by analogy with Schedule 3) that the exemption granted by Class H applies only to a single flag, not to two or more.

In addition, Standard Condition 3 in the Second Schedule provides that any advertisement displayed shall be maintained in a condition that does not impair the visual amenity of the site. This is, of course, a matter of judgment, and I make no comment on the effect that festooning the house with flags in this case may have had on the visual amenity of the site in this case.

Turning now to Class 7 in Schedule 3 (adverts which have deemed consent), this class (together with several sub-classes) permits an advertisement in the form of a flag, but in each case attached to a single flagstaff, mounted at various angles. Bearing in mind that national flags are covered by Sch 1, Class H, none of the types of flag authorised by Sch 3, Class 7 includes any national flags (although it does include a flag bearing the device of any sports club, so flying the English FA flag from a flagpole would be OK). In any event, this deemed consent certainly doesn’t extend to flags draped over the wall of a house. Furthermore, on sites comprising less than 10 houses, only one flag is permitted.

As readers will have gathered from previous posts in this blog on the subject of flags, I think the whole business of regulating the display of flags under the Control of Advertisements Regulations is a complete nonsense, but if an eager and ambitious enforcement officer in the local planning authority for the Strood area wants to make a name for themselves, then the opportunity to do so is presented by a possible prosecution under section 224(3) of the 1990 Act in this case. The evidence is there in the form of Ms Thornberry’s photograph, and it would merely be necessary to call her to prove the photo. (If she proved to be a reluctant witness, her attendance could be compelled by a witness summons.) This case would be bound to attract huge attention from the media, and so this would be a real feather in the cap for the enforcement officer, and a valuable addition to their CV.

Taking my tongue out of my cheek for a moment - if the display of flags (particularly the flag of St George) were to be thought to be provocative or racist in some areas (and I am not for one moment suggesting that this applies to the example in Strood), then prosecution under section 224(3) of the 1990 Act might be an effective way of nipping it in the bud.

One final thought, particularly bearing in mind the approaching festive season – what about Christmas lights? These, and particularly the more extravagant displays, could also be the target for prosecutions under section 224(3), if they were thought to be objectionable in terms of their effect on the amenity of the area. (November 5th is behind us now, but this is the point at which I should perhaps observe the warning on the fireworks to “Light blue touch paper, and retire to a safe distance”!)

© MARTIN H GOODALL

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Dealing with heavy weather

THE WAY OF A SHIP in the sea is not as great a mystery as the Bible makes it out to be. Most of us can understand that a boat left to its own resources in heavy seas will tend to adopt a position that’s roughly broadside on to the wind.

Most keelboats will settle that way, and be quite happy, when all sail is taken down. Often, there’s a tendency, especially with sloops, for the bow to drift downwind a bit, which causes the hull to gather way and forereach. You can counteract that by lashing the helm to leeward, so that every time she tries to go forward the rudder will point her up into the wind and stop her in her tracks.  This is known as lying ahull, and works fine until conditions get so bad that your boat is being lifted by large breaking waves and hurled bodily down to leeward.

Most of us can also understand that things would be better if the boat could be made to lie with the pointy end facing the oncoming waves. Then she’d be presenting a much smaller area to the force of breaking waves, and she’d be much more difficult to overturn.

The question is how do you keep her facing that way in heavy weather without the help of an engine?  If you can keep the bow still in the water, then of course she will lie downwind as if she were made fast to a post. The sea anchor, made fast at the bow, is designed to do that, to act as a post, although it’s a post that actually moves very slowly through the water. But while it works well for boats with even, shallow draft, the sea anchor won’t keep a normal keel boat pointed into the waves, no matter whether it’s a fin keeler or a full keeler.

The Pardeys, a well known and very experienced cruising couple, claim to have kept their 29-footer pointing more or less into the waves by setting a sea anchor from a bridle, with one end of the bridle attached to the bow and the other to the stern. By taking up slack on one end of the bridle or the other, you can  of course alter the way the boat lies.

I’ve never tried this, but I have serious doubts whether normal people could manage this trick. For a start, I can’t imagine how I would be able to drag a sea anchor with its mass of small lines and its 25- to 30-foot spread of parachute material across the deck and over the side to windward in a heavy gale.

So I have never tried to lie bow-on to the waves in heavy weather. My method, in a full-keeler, is simply to lie ahull with the tiller lashed to leeward, until things get too dicey, and then to run off downwind under a storm job or bare poles. You need lots of sea room to do that, of course. A fin keeler is best kept moving at all times, but this needs a fit crew.

Some boats will lie about 45 to 60 degrees off the wind with the help of a special storm mainsail. It’s cut so that a lot of its area is aft of the boat’s underwater pivot point, the center of lateral resistance, so that it tries to point her up into the waves all the time.  But most boats these days don’t come equipped with a storm main, and few of us realize that using a third reef in the working mainsail instead doesn’t cut it, because that actually moves the sail’s center of effort farther forward, instead of aft where you want it.

 Anyway, the only real way to sort out this problem is to go out in bad weather and experiment with your own boat. The best way would be to persuade some experienced sailor with a sister ship to take you offshore, hunting for a storm, and watch what he or she does to cope with heavy weather. But I’d say your chances of pulling that off are rather slim.

Today’s Thought
Everybody talks about the weather, but nobody does anything about it.

— Charles Dudley Warner, Editorial, the Hartford Courant, c. 1890

Tailpiece

Overhead at a Boy Scout meeting:

“Did you ever have one of those days when you felt just a little untrustworthy, disloyal, unhelpful, discourteous, cowardly, and antagonistic toward those wretched old women who always wait for suckers to help them across the goddam road?”

(Drop by every Monday, Wednesday, Friday for a new Mainly about Boats column.)

 

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