NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. 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.
As readers of this blog will be aware, the legal challenge brought by the London Boroughs of Islington, Richmond, Camden and Lambeth against the amendment to the GPDO last May allowing change of use from office to residential use (subject to a prior approval process) was due to take place on Wednesday 4 December, and Mr Justice Collins duly presided at the hearing on that day.
What I had not appreciated until now was the very narrow scope of the challenge mounted by these four authorities. They confined themselves to challenging the process that De-CLoG adopted in deciding whether, and if so which, parts of the areas of these authorities should be exempted from the new rules. They have not sought to challenge the amendment order itself by which the new PD rights were inserted in the GPDO. All they are asking for, it seems, is a re-run of the consultation process in their areas. Their complaint is that outside consultants were brought in by De-CLoG to carry out this exercise and applied a points system to score each LPA’s area, using criteria of which the councils were unaware. If the councils had known how the assessment was to be carried out, they might (they say) have presented the case for exemption in a way that could have produced a different result. I must say that this seems to me to be a rather weak argument, but it is up to Mr Justice Collins to make of it what he will.
The consequence of the current High Court action being narrowly confined to the way in which these four authorities’ applications for exemption were dealt with, and the fact that they have not sought to challenge the actual amendment order to the GPDO, is that this new legislation cannot now be struck down by the court, and so even if these four London Boroughs win their case, it will not affect the operation of the new rules in any other area. Even in the areas of the four boroughs concerned, there must be considerable doubt as to how the court could deal with the position in the interim while any re-consultation takes place. This makes it all the more likely, in my view, that the court may not in practice feel able to grant the relief that the four boroughs are seeking.
This was clearly a point that troubled Collins J in the course of the hearing, and he queried whether these four councils could legitimately refrain from determining applications for prior approval until any re-consultation process has been completed. However, there would appear to be no legal basis for doing this. Failure to determine pending prior approval applications could lead to approval by default under the 56-day rule, and counsel for Lambeth did in fact make this point.
As I predicted, judgment has been reserved. It is just possible that judgment could be delivered shortly before the Christmas vacation, but it is more likely to be handed down early in the New Year.
Meanwhile, some observers have recently noted a trend among certain LPAs to refuse prior approval for office to residential conversions on grounds not confined to transport and highway impacts, on-site contamination risks or flooding risks. For example, in a particularly controversial case that had received some attention in the press, Camden LBC recently refused prior approval for reasons that included issues such as lack of affordable housing, lack of a financial contribution towards educational provision or public open space, no ecology and habitat plan, and no means (by way of a planning obligation under section 106) of securing the achievement of level 3 of the Code for Sustainable Homes. This council seems to be spoiling for a fight, and it will be interesting to see the outcome of any resulting appeal, and the possible High Court proceedings that might follow.
Clearly Camden are seeking to rely on the drafting in the amended GPDO to which I have previously drawn attention in this Blog (see “Offices to residential – a further thought” posted on Wednesday, 22 May 2013) that the LPA should “have regard to the NPPF as if the application were a planning application”. I wrote that one might read this phrase as though it is applicable only insofar as the NPPF is relevant to the consideration of transport and highways impacts, contamination risks and flooding risks, but I was not confident that such a narrow interpretation would necessarily be placed on the requirement to have regard to the NPPF, and this recent decision by Camden appears to confirm my fears on this score.
There is no specific requirement in the GPDO amendment to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act (which provides that where the development plan is required to be taken into account in the determination of any application under the planning legislation, the application must be determined in accordance with the development plan unless material considerations indicate otherwise) does not apply. However, the NPPF does refer to the development plan in such a way as to bring its provisions into consideration, even though section 38(6) may not apply as such. In practice, it seems that Camden are seeking to bring their local policies into the equation in reliance on the NPPF in just this way.
Writing in May, I observed that if such considerations were to be taken into account, this would appear to defeat the whole object of this amendment to the GPDO in removing obstacles to development (at least for a three-year period). And yet I had a nagging suspicion that there has been some legislative sleight of hand here, which takes away with one hand what appears to have been given by the other. I speculated as to whether this issue might become the subject of dispute, appeals and even litigation, and now it appears that it will.
At the time of writing, I am not aware of any appeals against the refusal of prior approval of office to residential conversions that have yet been determined, and I would be very grateful if any reader is able to alert me to any such decisions as and when they are issued.
© MARTIN H GOODALL
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