Budget statement – more GPDO changes

As I have noted before, George Osborne loves to include planning announcements in his budget statements. Today’s written budget statement (published to coincide with the Chancellor’s budget speech in the Commons) promises a review of the General Permitted Development Order. After so many amendments over almost 20 years since it was first published in 1995 it certainly needs it. Dare one hope that some of the more opaque drafting to be found in parts of the Order might at last be clarified?

A number of us have noted that recent additions to the GPDO do not grant an automatic right to carry out permitted development, but involve a prior approval procedure which I described the other day as “planning permission-lite”. It seems that the government has recognised this, and intends to make what amounts to a three-tier system of planning consents a permanent feature of the planning system.

As the budget statement puts it, there are already and will continue to be, first, simple permitted development rights for small-scale changes, then prior approval rights for development requiring consideration of specific issues, and then planning permission for larger scale development. I am not convinced that there is likely in practice to be any significant difference between the second and third kind of consent so far as the applicant is concerned. There will still be hoops to jump through and the possibility of applications being turned down, with the consequent time and expense of going to appeal. I drew attention the other day to the wide discretion that LPAs would appear to have in practice to refuse prior approval of barn conversions, even though they now come (at least in theory) under the category of ‘permitted development’.

In addition, further extensions of permitted development rights are proposed. The government is going to consult on further changes of use to residential use, for example from warehouses (B8) and light industrial structures (B1(c)). They are also considering extra PD rights for commercial premises to allow the expansion of facilities such as car parks and loading bays within existing boundaries (although only “where there is little impact on local communities”, which suggests that this will be one of the changes that will be subject to a prior approval procedure).

One other idea that emerged from the Budget Statement was the suggestion that for people who want to build their own home, the government will consult on creating a new ‘Right to Build’, giving custom builders a right to a plot from councils, and a £150 million repayable fund to help provide up to 10,000 serviced plots for custom build. It will be interesting to see how what appears in effect to be a ‘reverse-compulsory purchase’ concept will work.

© MARTIN H GOODALL

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Subdividing a planning unit

Ben Wharfe recently raised a query with me as a comment on an early post I wrote on “curtilage confusion”. I thought that rather than shunting this, together with my reply, into the comments section of that post, it would justify a wider airing in the main part of the blog.

Ben drew my attention to the Court of Appeal’s judgment in Wakelin v. SSE 1978 JPL 769. His query actually related to the subdivision of a single dwellinghouse, but I don’t think that Wakelin is directly in point here, as the position is clearly governed now by section 55(3)(a) of the 1990 Act, which specifically declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part which is so used.. As the later decision of the Court of Appeal in Arun established, it is the 4-year rule that applies here, even if the breach of planning control is in fact and a breach of condition. To that extent, Wakelin has been superseded, because that case involved just such a breach of condition, and this point was lightly dismissed as a consideration by Lord Denning.

Thus section 55(2)(f) has no application so far as the subdivision of a house is concerned, because the position is entirely governed by section 55(3)(a). However, there is a slight doubt as to the precise effect of section 55(2)(f) in other cases. On one reading of the wording of this sub-paragraph, it may not necessarily apply to subdivision of a planning unit as such, although it certainly covers any change of use within the same use class. So for example, change of use from a butcher’s shop to use as a post office (both within Use Class A1) is not to be taken for the purposes of the Act to involve development of the land. But subdivision or amalgamation of planning units may nonetheless amount to a material change of use if it has the effect of changing the character of the use. The Court of Appeal’s judgment in Wakelin is one example, and the more recent High Court judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 (involving the amalgamation of seven dwellings so as to re-convert the building to use as a single dwelling) is another example, where the change in the size of the planning unit was held to affect the character of the use in planning terms (in a broad sense, not confined to its possible environmental effects) and was thus a material change of use amounting to development, notwithstanding the fact that the earlier and later uses were all within one and the same use class.

This may come as a surprise to many people, as there seems to be a general assumption that section 55(2)(f) covers subdivision of a planning unit, so long as the use of all of the new planning units created by this subdivision remains within one and the same use class. Richmond clearly established that this is not necessarily so with regard to the amalgamation of two or more planning units, but it seems that the same could equally apply to the sub-division of a planning unit. A material change of use does not necessarily occur upon the sub-division of a planning unit, but if this changes the character of the use (in planning terms) then this may amount to a material change of use, notwithstanding section 55(2)(f). It is quite frankly a ‘grey’ area, and I suppose that, as in so many other cases, it will be ‘a matter of fact and degree’, dependent of the precise circumstances of each such change to the planning unit.

© 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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PERMITTED CHANGES OF USE – the seminar

In addition to publishing my new book, “A Practical Guide to Permitted Changes of Use”, BATH PUBLISHING are also organising a seminar on this subject, which is to be held at the RIBA at 66 Portland Place, London W1B 1AD on Friday 27 November. [NOTE THE CHANGE OF VENUE.]

This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £120 +VAT if you book before 25 October and includes a copy of my book (worth £40 when published), which will be given to all delegates to the event. [UPDATE: The early bird discount has been extended (for readers of this blog only) until 13 November. For details, see the post on 26 October, which tells you how to claim this discount when booking.]

The seminar will cover some of the issues that give rise to difficulty in relation to this type of permitted development, followed by a panel discussion:

• Restrictive conditions in planning permissions - Do they or don’t they preclude permitted development?

• The 56-day rule in practice

• Structural issues (including partial demolition and structural alterations)

• Prior approval - material considerations and appropriate conditions

You can read more about the programme and venue or book online on the Bath Publishing site here.

Professional delegates will be able to claim 2½ hours’ CPD for this event.

If you have already ordered the book and wish to attend enter the discount code COUPRE35 when booking online to make sure you are not charged for the book again.

Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button below the seminar icon on the left-hand side of this page, by calling Bath Publishing on 01225 577810 or by sending your cheque and full contact details to:

BATH PUBLISHING LIMITED 27 Charmouth Road Bath BA1 3LJ

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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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Judicial Review of office to residential changes

The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

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Further planning changes put off until after the General Election

In the interval between Christmas and the New Year, De-CLoG sneaked out its “Ninth Statement of New Regulation: January to June 2015”, which (if what it says on the tin is to be believed) lists all the subordinate legislation that De-CLoG ministers intend to bring into force between 1 January and 30 June 2015. The word “all” is not actually used in the document, but it is reasonable to assume that if the government had a firm intention to introduce any other measures before the General Election they would have been included in this document.

The statement is therefore unintentionally revealing in having omitted a number of significant planning changes which were loudly trumpeted by ministers last year, and which would certainly have been included in the list of forthcoming measures if the government still intended to bring them forward before the General Election.

Among the previously proposed changes about which the document is deafeningly silent are further amendments to the GPDO to enable more changes of use in addition to those previously introduced within the past two years. These were expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

There is no mention, either, of the government’s intention to make permanent those permitted development rights which currently expire in May 2016. We had been promised that the existing time limit for completing office to residential conversions would be extended from 30 May 2016 to 30 May 2019. It doesn’t look as this is going to happen this side of the General Election. The same applies to the right to build larger domestic extensions (under Part 1), currently expiring in May 2016.

Another measure that it seems will not be coming forward is the right to make alterations to shops, so as to allow retailers to alter their premises, plus additional PD rights covering (among other things) further extensions to houses and business premises, over and above existing permitted extensions.

Turning to the Use Classes Order, there is no mention of the proposed merger of Use Classes A1 and A2 in a single new ‘town centre’ use class. This was expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). Similarly there is no mention of the intended restriction of the scope of the current A2 use class, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses.

Another measure of which no mention is made is the suggested increase in floorspace in a building in retail use (including the introduction of mezzanine floors), currently limited to 200 sq m, that can be made without its coming within the definition of development under section 55 (and therefore requiring planning permission). [I thought the original provision in the 2004 Act had been brought into force with effect from 10 May 2006, but I haven’t been able to put my finger on the SI which confirmed this limit, and have begun to wonder whether this provision in the 2004 Act is actually in force. Perhaps someone can enlighten me.]

There is one measure (relating to a proposed reduction in qualifying time for the Right to Buy scheme) which has been pencilled in for April 2015, but is flagged up as being “dependent on the Deregulation Bill”. The same would apply to the previously announced intention to relax section 25(3) of the Greater London (General Powers) Act 1973, so as to allow some types of short-term lettings in Greater London that are currently prohibited by that sub-section of the 1973 Act. But in this case, there is no mention of the proposed measure in the De-CLoG statement. Is this another measure that has bitten the dust?

Perhaps it was the realisation that these various measures could not now be brought forward before the General Election that led to George Osborne refraining from re-announcing them yet again in his Autumn Statement.

In Cloud-cuckoo-land, where Tory members of our coalition government seem to live, it is confidently expected that the government will be able to introduce these various measures after the General Election, and in the meantime they will no doubt feature as commitments in the Tory Party election manifesto. In the real world, where the rest of us live, the survival of the present government after May seems a little less than probable. An incoming government of a different political composition may not wish to continue with these proposals, and so this may be the end of the road for the present government’s planning ‘reform’ agenda.

UPDATE: I am grateful to Sally Davis of G L Hearn and to Ray Tutty of Savills, both of whom kindly emailed me with a note of the provision that I had been unable to find, which specifies the limit for internal enlargements of retail floorspace. This was Article 4 of the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006, which inserted Article 2A in the original DMPO stating that the amount specified under section 55(2A) of the Act is 200 square metres. Any change in this floorspace limit would therefore be by means of a further amendment of the DMPO. It would still be possible for this change to be made in the time available, but its omission from the statement of forthcoming subordinate legislation suggests that the government may not see it as a priority.

NOTE: As readers are no doubt well aware, the coalition government did manage at the last minute to make the promised changes to the GPDO. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

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Permitted Changes of Use – the book and the seminar

By the beginning of October, preparations were well in hand for the publication of my book - A Practical Guide to Permitted Changes of Use, but we were still awaiting an announcement of the government’s intentions with regard to the completion deadline for the residential conversion of offices under Class O, which had been due to expire on 30 May 2016.

This announcement eventually came on 12 October, and was supplemented by a further press statement from De-CLoG the following day, which included the news that demolition of existing office buildings and new build will in future be part of the permitted development under Class O.

The announcement could not have been worse-timed from the point of view of our production schedule for the book. We had to make a rapid assessment of the details that had been announced and decide how to deal with the prospective changes to Class O (and one or two other expected changes, such as the residential conversion of launderettes and light industrial buildings).

A crucial factor was clearly going to be the actual timing of these various changes. De-CLoG’s Press Office are still unsure about the precise timetable, but the best guess seems to be that these changes will all take effect at the end of next May. We have decided that there would be no point in delaying the publication of the book for six months, and so (having included in the text such details of the forthcoming changes as are presently known) we have now sent the book to the printers. This unexpected delay has meant that we will miss our intended October publication date, but the book should now come out about a week or ten days into November.

Bath Publishing have extended the pre-publication price offer on the book until 13 November, and so this is your last chance to order this book at the special pre-publication price of £35. You can order your copy now by clicking through on the link on the left-hand side of this page.

In the meantime, bookings for the seminar linked to the publication of the book have been going so well that we had sold out all the 106 places that were originally available by 16 October. Unfortunately, the larger lecture room at the Institution of Civil Engineers in Great George Street is not available, and so in view of the continuing demand for tickets, we have moved the seminar to the RIBA at 66 Portland Place, London W1B 1AD. This is equally central and equally easy to reach by public transport, and moving to the new venue will ensure that we don’t have to disappoint anyone else who would like to attend. Bookings had reached 146 by this morning, and we now have capacity for up to 250 in total. If you have already booked, Bath Publishing will be in touch with more details about the change of venue later this week.

In view of the phenomenal response that we have had, we have also extended the deadline for ‘early bird’ online bookings at the reduced price of £120 (for readers of this blog only) to 13 November, but this will be your last chance to book for the seminar at this bargain price (including a copy of the book within this price). You can book your place now by clicking through on the link on the left-hand side of this page and entering the discount code COUPRE25 when prompted, or by calling Bath Publishing on 01225 577810. Bookings made after 13 November will only be accepted at the full price of £145.

© MARTIN H GOODALL

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Change of use of shops to residential use

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

As predicted in my post on 18 July (“And now – A1 to C3?”), De-CLoG has now published a consultation paper suggesting this and other changes to the GPDO which (among other things) would allow change of use of some shops to residential use. This consultation paper is only a week late, having been promised for “the end of July”.

These changes were foreshadowed in the 2013 Budget Statement. De-CLoG is proposing to create a permitted development right for change of use (together with the associated physical works – in contrast with the recent provisions for change of use from office to residential) from a small shop (Class A1) or from professional/financial services (Class A2) to residential use (Class C3). It also proposes to allow a change of use from retail (A1) to use as a bank or a building society branch (within Class A2) (but not to other uses within this use class) and from agricultural use to residential use. I will deal with these latter proposals in a separate post.

The department’s stated intention is to find new uses for shops that no longer have a future. The consultation paper gives a perfunctory nod towards the “town centre first” policy set out in the NPPF, but does not propose to restrict the new permitted development right to a particular type of retail unit or site (e.g. secondary retail frontage). The proposed amendment will allow for necessary works for the residential conversion, including a new frontage, windows and doors.

The developer will be required to apply to the LPA for prior approval in respect of design, the potential impact of the loss of the retail unit on the economic health of the town centre, the need to maintain an adequate provision of essential local services such as post offices, and the potential impact of the change of use on the character of the local area. This will allow the local authority to have regard to their local plan policies for the area. So LPAs will still have quite a wide discretion over the determination of these change of use applications. In practice, it looks as though this alone could largely negative the liberalisation that the government claims to be seeking. This point is impliedly recognised in the consultation paper, which points out that the refusal of prior approval will be subject to appeal if local authorities are found to be using it unreasonably to prevent these changes of use.

The proposed permitted development right will be limited to A1 and A2 premises of not more than 150 square metres floor area, and will allow conversion to a single dwelling house or a maximum of four flats (but not a small HMO). Premises in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage sites (“Article 1(5) land”) will be excluded.

The consultation paper recognises that local planning authorities can issue Article 4 Directions to prevent or restrict such changes of use, although it does include a reminder that compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

© MARTIN H GOODALL

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G Loomis NRX Fly Rods Sales Event Changes for 2016

Its a good time to be a G.Loomis fan.

Never before has there been a sale on NRX Fly and Spey rods. 

View Sale Items!

Since conception the G. Loomis NRX is one serious rod to contend with! Other manufacturers scrambled to come up with a design to match the performance and durability of the NRX and most contenders have yet to equal the abilities of this Nano Resin creation.

NRX Fly and Spey Rods

The original color Stealth Matte Black with Blue wraps identified with the bold power the NRX is capable of while the next year came the second color of Evergreen with Green wraps which defines the gentle forgiving nature of the Nano Resin Technology.

Both colors deserve the right to adorn the NRX. Countless inquiries about what one color is the proper choice only led all discussion into a stalemate stance.

So what is the right color choice? Sometimes the obvious answer is not in our own opinions but better matched to the environment in which we place the subject in. Since the NRX line of rods spans the anglers needs from lite presentation trout streams to the explosive power of unforgiving saltwater beast such as tarpon and Permit it was concluded that no one color could properly identify across the board spectrum.

For 2016 the choice was made to establish color identification to the NRX family of fly rods. The NRX Trout, Trout LP, Trout Nymph, Salmon/Steelhead and Two Hand Spey will acquire the Evergreen color while the Saltwater and Saltwater Pro-1 NRX fly rods with be identified with Matte Black / Blue Wraps.

We believe a wise choice has come about that in the end helps everyone. The angler will better understand the thought behind each individual rod, the dealer will see improved availability and G.Loomis will see a more streamline manufacturing that will allow time for future innovations.

With this change comes some inventory that needs to be cleared. Here is a list of models and colors that are affected...

• NRX Lite Presentation - All Matte Black w/Blue Wraps
• NRX Trout - All Matte Black w/Blue Wraps
• NRX Nymph - All Matte Black wBlue Wraps
• NRX Salmon / Steelhead - All Matte Black w/Blue Wraps
• NRX Two Hand Spey - All Matte Black w/Blue Wraps
• NRX Salt - All Evergreen w/Green Wraps
• NRX Salt Pro 1 - All Evergreen w/Green Wraps

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Judicial review – a different solution

One of the drawbacks of judicial review, as anyone who has ever been involved with the process will be very well aware, is that when a decision is quashed by the court the decision under challenge is not reversed; it is simply set aside, leaving the decision-maker to retake the decision. The decision-maker in redetermining the matter can very easily reach the same decision again, provided that they do so in a way that avoids the legal error that led to the original decision being quashed. There are several examples of which I am aware where there have been successive quashing orders of a retaken decision; but the public body or authority involved will nearly always get their own way in the end. Thus a successful action seeking to judicially review an unlawful action or decision all too often proves to be a pyrrhic victory.

The court cannot substitute its own judgment for that of the LPA or other body whose decision is under challenge, because the court simply does not have before it all the relevant facts that would need to be taken into account and weighed up in retaking the decision, nor does it have the necessary expertise to exercise a technical (as distinct from legal) judgment. But in planning cases, at least, it would be entirely possible to introduce amending legislation (whether primary legislation or, possibly, a simple rule change) to provide that when planning permissions and perhaps certain other planning-related decisions by LPAs are quashed, jurisdiction would then pass to the Secretary of State (in practice, the Planning Inspectorate on his behalf) to redetermine the application as if it had been made to him in the first instance. This might or might not involve a public inquiry, depending on the circumstances of the case. A mandatory order requiring the issue of an enforcement notice (admittedly very rare in practice) might also be transferred to the Secretary of State for implementation.

I am not aware of this suggestion ever having been put forward before, although I would not be at all surprised to learn that something of this sort may have been canvassed at some time in the past. However, I do not expect that it is an idea that government (of any political persuasion) is likely to take up, unless there is a groundswell of opinion resulting from dissatisfaction at the outcome of the current judicial review process in planning cases.

© MARTIN H GOODALL

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