Change of use from B1(a) office to C3 residential without planning permission to be allowed

Following the story in the Telegraph earlier this week (22nd January) Communities Secretary Eric Pickles confirmed today (24th January) that new planning measures will be introduced to allow change of use from B1(a) office to C3 residential without planning permission. 

This is subject to a prior approval process covering significant transport and highway impacts; and development in safety hazard zones, areas of high flood risk and land contamination. The permitted development rights will only cover change of use and any associated physical development which currently requires a planning application will continue to need one. 

It is perhaps interesting that only B1(a) is referred to. This class does not include an office in use within Class A2 (financial and professional services) and the other Class B1 uses namely (b) use for research and development of products or processes or (c) any industrial purpose being a use which can satisfactorily be carried out in a residential area are also by definition excluded.

It is nevertheless hoped that this initiative will allow existing buildings to be quickly brought back into productive use although there are a whole host of issues that will inevitably arise in consequence of this change including Landlord & Tenant and lease user restriction issues together with infrastructure requirements and pressures on available facilities. There are also going to be issues about residential standards, additional amenity space requirements and the negotiation of affordable housing provision or s.106 agreement / Community Infrastructure Levy. Maybe these issues aren't seen as important by Government and the need for growth and additional housing overrides all. 

The new permitted development right will be in place for 3 years (initially), and the change will need to be effected within that time in order to benefit from the relaxation.

It is recognised that because local circumstances vary, local authorities will have an opportunity to seek an exemption if they can demonstrate there would be substantial adverse economic consequences on the basis of either (a) the loss of a nationally significant area of economic activity or (b) substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring. Such an exemption will apparently be granted by the Secretary of State only in exceptional circumstances.

In respect of the first head requests will be assessed by considering: the scale of the adverse impact in absolute terms; the significance of the adverse impact at a national level; the degree to which there is likely to be a strategic and long-term adverse economic impact; and whether the proposed area of exemption is the smallest area necessary to address the potential adverse economic impact.

In respect of the second head requests will be assessed by considering: the scale of the impact in absolute terms; the significance of the adverse impact at the level of the local authority or wider; the degree to which there is likely to be a strategic and long-term adverse economic impact; and whether the proposed area of exemption is the smallest area necessary to address the potential adverse economic impact. 

The Chief Planner has confirmed today (24th January) that the changes will come into force in Spring 2013 and submissions in support of exemption applications must be received by CLG by 5pm on Friday 22nd February 2013.

It would appear that a number of significant local authorities are already planning to make application for exemption from these proposals. The Corporation of London is the obvious example and it has been suggested in a number of quarters that both Westminster and Kensington & Chelsea councils are also going to apply to opt out. Before long the floodgates will no doubt open and the proposal will be shot through not unlike the rear extensions relaxation and the threatened spate of Article 4 Directions.

Further permitted development reforms allowing conversion temporarily for 2 years include:

• allowing agricultural buildings to be converted for other business uses without the need for planning permission up to a specific size still to be determined subject to a prior approval process for conversions beyond that size to guard against unacceptable impacts, such as flooding, transport and noise and subject to a restriction on being able to convert to residential dwellings;
• increased thresholds for permitted development rights for change of use between business / office (B1) and warehouse (B8) classes and from general industry (B2) to B1 and B8 from 235 square metres to 500 square metres; and 
• town centre uses that can convert to other uses include shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1).

Can a public authority rely on its own unlawful act to found a criminal prosecution?

An interesting question, which has not been the subject of direct authority, arose in the case of White and another v South Derbyshire District Council [2012] EWHC 3495 (Admin).

In essence, the High Court (Lord Justice Gross and Mr Justice Singh) sitting as a Divisional Court of the Queen’s Bench Division was asked to decide in an appeal by way of case stated from the Magistrates’ Court whether a public authority, which had (in 2001) acted ultra vires in granting a licence for a caravan site on land that did not have an express grant of planning permission under the Town and Country Planning Act 1990, could rely on the unlawfulness of its own act in order to found a subsequent criminal prosecution.

The appellants, to whom the licence transferred in 2007, were convicted in the Magistrates' Court of permitting land to be used for the purposes of a caravan site without being the holder of a site licence in breach of s1 Caravan Sites and Control of Development Act 1960.

They appealed their conviction to the High Court and on appeal, the district council submitted that when it purported to grant a licence to the appellants' predecessor it had no power to do so and therefore the licence was invalid on its face. However, the district council was unable to show the court any authority in which the prosecution has been entitled to rely on the unlawfulness of its own act to found a criminal prosecution.

The High Court accepted the appellants' primary submission that the prosecution could not succeed since the district council was seeking to rely on the unlawfulness of its own actions in granting the licence as the basis for the prosecution.

In doing so Singh J. said that it was clear that, once a court of competent jurisdiction had decided that an act was ultra vires, it would normally be treated as having no legal effect. He went on to quote from Administrative Law: Wade and Forsyth (10th Edition), at page 253 saying “However the court would invalidate an order only if the right remedy was sought by the right person in the right proceedings and circumstances. The order might be “a nullity” and “void” but those terms had no absolute sense: their meaning was relative, depending upon the court’s willingness to grant relief in any particular situation.”

He recognised that in some cases, a void act might have some legal effect for some purposes, and the law would strive to protect innocent third parties who had relied upon the apparent validity of that act. Indeed, he thought that there would be circumstances in which the courts would allow a person to raise an ultra vires argument even in a case which was not brought by way of judicial review. On the facts of the instant case however, the invalidity of the site licence was not apparent on its face. It would have required the reasonable person to go considerably behind the face of the document in order to understand the reason for its invalidity.

The High Court also rejected the district council's argument that a prosecution was the only way in which it could enforce the law and regularise the legal position on the basis that it was possible for the Mayor or an individual member to have issued an application for judicial review to quash the licence and that, notwithstanding that such an application would have been outside the three-month time limit, the court has a discretion to extend the time limit. Indeed Lord Justice Gross was clear that “the criminal law should not be invoked merely because of the prosecutor’s frustration at the perceived absence of public or civil law alternatives”.

Accordingly the High Court allowed the appeal and quashed the appellants' convictions.

Heritage planning regulation under the Enterprise & Regulatory Reform Bill

The 2012 Bill has passed its Commons stages and is currently in Committee in the Lords. The next Committee hearing is 9th January 2013 and the position could still change before final Royal Assent.

Clauses 52 to 55 and schedule 17 of the Bill, in the version printed following first reading in the Lords, would amend both planning and historic environment legislation (at least in England).

The Bill proposes, among other things, the following:

• the Abolition of Conservation Area Consent (CAC);
• changes to the Listing regime; and
• the introduction of Certificates of Immunity from Listing (CILs), Heritage Partnership Agreements (HPAs), Listed Building Consent Orders (LBCOs) and Lawful Works Certificates (LWCs).

Abolition of CAC

CAC is to be abolished and reproduced in the planning system.

The proposal includes changes to the Town and Country Planning Act 1990 (the Planning Act):

• Making it a criminal offence to carry out relevant demolition (i.e. demolition of a building in a conservation area not excluded by s75 Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act) or a direction made under it) without planning permission (new s196A(1) Planning Act);
• Applying the health and safety exception in s9 Listed Buildings Act to this provision;
• Allowing local planning authorities (LPAs) to retain the usual range of enforcement provisions and giving English Heritage power to prosecute or seek an injunction in respect of relevant demolition;
• Creating a new ground of appeal against an enforcement notice where relevant demolition was urgently necessary in the interests of health and safety; and
• Providing that there would be no time limit for taking enforcement action against relevant demolition by virtue of a new sub-section (2A) in s171B Planning Act.

Listing

The Bill proposes (new s1 (5A) Listed Buildings Act) to enable a listing to be narrowed by the list providing that:

• any object or structure fixed to the building or any pre-1948 curtilage structure is not to be treated as part of the building for listing purposes; and
• that any part or feature of the building is not of special architectural or historic interest.

CILs

Certificates of Immunity from Listing would (new s6 (A1) Listed Buildings Act) be able to be granted without a planning application or planning permission for the alteration, extension or demolition of the building. 

HPAs

New ss 26A and 26B would be inserted into the Listed Buildings Act to provide for HPAs.

An HPA would be agreed between the LPA and the owner of a building or part of a building. An HPA might also include the Secretary of State, English Heritage, other LPAs, persons interested in, occupying or involved with managing the building and any other person with special knowledge of the building or listed buildings more generally.

It would have to be in writing and provide for periodic review, termination and variation. An HPA may also grant listed building consent, with or without conditions, and such consent will run with the land. HPAs may also specify works which do not require consent, provide for works to be done and deal with public access and funding.

Apart from the need to comply with any conditions on a listed building consent (if works are carried out under it), a heritage partnership agreement will not bind non-parties, nor does it run with the land.

Consultation, publicity and the terms of any agreement may be specified in regulations by the Secretary of State. Indeed, the requirements for consultation and publicity in the regulations will be of particular importance if listed building consent is to be granted.

LBCOs

LBCOs will grant consent for certain works subject to any specified conditions (new ss 26C and 26D). These orders will operate either at a national level (made by the Secretary of State), or locally (made by the LPA). These are analogous with the General Permitted Development Order and local development orders.

LWCs

The proposed s26H Listed Buildings Act would introduce CLWs for listed buildings which might cover proposed works or those which have already been carried out and would be a useful reform providing a formal mechanism for resolving such questions or issues.