Monday, 11 September 2017
Apart from noting the litigation relating to the painting of the ‘stripey house’ in Kensington & Chelsea (which involved a section 215 Notice, later quashed by the High Court in April of this year – see House-painting not within the scope of section 215, posted here on Tuesday, 2 May 2017), I have not attempted to follow in any detail the long and convoluted battle between Mrs Lisle-Mainwaring and her neighbours, who had recruited the assistance of the LPA in their struggle to thwart her plans to redevelop the site. It was this that had led to the painting of the house with red and white vertical stripes by way, in effect, of protest against the neighbours’ unrelenting campaign.
I did, however, report the quashing of Mrs Lisle-Mainwaring’s intended development plans in the High Court last November (Stripey house – another twist in the tale, posted here on Wednesday, 2 November 2016). That decision has now been overturned by the Court of Appeal. I do not yet have a note of the neutral citation number of the Court of Appeal’s decision, but the court was clear in their decision to restore the Inspector’s original appeal decision allowing Mrs Lisle-Mainwaring’s appeal against the refusal of planning permission by RBKC for demolition of the house (which had actually been in use as an office) and its replacement by a new dwelling, with the now obligatory double basement without which one simply couldn’t bear to live in London nowadays.
The office use had ceased, and the Inspector had found that there was no realistic prospect of the building being returned to office use. There was therefore no sustainable policy objection to the proposed development. Lindblom LJ, in allowing the appeal, held that the Inspector was entitled to reach such a conclusion, and that his decision was not legally flawed (contrary to the view expressed by the High Court).
The Court of Appeal’s judgment does not impinge in any way on the other High Court decision in which it had been held that the paint scheme applied to a house cannot properly be the subject of a section 215 notice, and so that decision stands. In practice, however, the days of the stripey house are now numbered, because it will disappear on being demolished to make way for its replacement.
Dare we hope that this finally puts an end to this long and convoluted legal saga?
© MARTIN H GOODALL
Friday, 8 September 2017
I am sure that readers have noticed that there has been a longer interval than ever before since I last published a post on this blog, on Wednesday 19 July. The sole reason for this was that I was very fully engaged in completing my next book – The Essential Guide to THE USE OF LAND AND BUILDINGS under the Planning Acts. The book is expected to be published early in November.
My publishers, Bath Publishing describe the new book as the definitive handbook on this subject. It explains the legal rules governing the use of land and buildings as well as material changes of use. The text first sets out the rules that apply to the use of land generally and to material changes of use. It then explains the provisions of the Use Classes Order in detail. Chapters are also included on Permitted Changes of Use, Unlawful Uses and Lawful Use Certificates, including how to apply for a certificate as well as the procedure for appealing against the refusal of an LUC application. The book brings all this together in a convenient and accessible work of reference that will prove invaluable for everyone who needs to know the rules that govern the use of land and buildings and changes of use.
Bearing in mind that my previous book already covers the subject of permitted changes of use very fully, the chapter on this topic in the new book is a fairly brief summary, and so the new book should be seen as a companion volume to that earlier book.
The scope of the book can be appreciated by a glance through the list of chapter headings:
1. General introduction
2. The planning unit and the concept of ‘curtilage’
3. Changes of use - an overview
4. Change of use or operational development?
5. Changes of use prescribed or excluded by statute
6. Restrictions on uses or on changes of use
7. Legal effect of various changes affecting a use
8. The Use Classes Order - an overview
9. Shops and retail services
10. Catering uses
11. Business and industrial uses
12. Non-domestic residential accommodation
14. Houses in multiple occupation
15. Non-residential institutions
16. Assembly and leisure uses
17. Agriculture, horticulture and forestry
18. Permitted changes of use
19. Unlawful uses
20. Lawful use certificates
21. LDC appeals
You have probably noticed already the link in the left-hand margin of this page showing the front cover of the new book. This enables readers of this blog to pre-order the book, and to avail themselves of an excellent bargain. The cover price is only £50 (the same price as the Second Edition of A Practical Guide to Permitted Changes of Use), and for this price you will get not only the new book itself, but a copy of the digital edition of the new book as well. But don’t delay. This bargain will only be available until the publication date; after that, it will cost £50 for the book and another £50 if you also want the digital edition.
We are organising another seminar in connection with the publication of the new book, which will be held in London at the RIBA on Friday 17 November. I’ll publish details of the seminar shortly.
© MARTIN H GOODALL
Wednesday, 19 July 2017
I have not posted any new items on this blog for a while, because I have been extremely busy finishing the text of my next book, which I am hoping to send off to the publishers this week. (It is due for publication in the late Autumn.) But there is one case in particular that I have been wanting to write about here, which brings me back to one of my favourite topics – the issue of “curtilage”.
In Burford v SSCLG  EWHC 1493 (Admin), in which judgment was given on 23 June, the High Court had to consider the definition of “curtilage” in the context of Part 1, Class E of the Second Schedule to the GPDO. This arose from a decision in an enforcement notice appeal, which the claimant was seeking to challenge under section 289.
I have written ad nauseam on the distinction between the planning unit and the curtilage of a building that stands within that planning unit. The two are not synonymous. In the instant case, an LDC had been issued that confirmed that an area of land (which included the land on which an outbuilding was subsequently built, purportedly as PD) was within the residential planning unit, and it was contended that the wording of the LDC confirmed in effect not only that the land in question was within the planning unit but also that it formed part of the residential curtilage.
It is well understood that the “curtilage” of a building (such as a dwellinghouse) does not represent a use of the land for the purposes of the planning legislation. Thus, it is not possible to obtain a Lawful Development Certificate that will confirm that part (or the whole) of a particular piece of land is within the curtilage of the dwelling as such. [In practice, this can be achieved by applying for an LDC under section 192 in respect of the intended erection of an outbuilding or swimming pool, etc. If the LPA believes it is not within the domestic curtilage, and cannot therefore be PD under Part 1, Class E, they will refuse to issue a certificate. In the event of a dispute, the refusal to grant an LDC may be tested by way of an appeal under section 195.]
The basis of the legal challenge in Burford was that the Inspector’s decision, dismissing a section 174 appeal against an enforcement notice directed at the erection of the building in question, was irreconcilable with the terms of an LDC that the LPA had previously issued, confirming the lawfulness of “use of the land and buildings within the land edged red on the plan for purposes incidental to the enjoyment of the dwelling house known as Oakcutts”. However, in his decision letter in the enforcement appeal, the Inspector stated :- “All that the LDC confirms is that all of the land edged red (which is all within the ownership of the appellants) may be used for the purposes stated in the LDC; that may be garden-type use or it may be some other incidental use, e.g. a paddock for horses, or it may be a mix of several incidental uses. Further, curtilage is not a land use at all and does not necessarily comprise all of the land in someone’s ownership or all of the land forming a planning unit. What constitutes the curtilage of any dwelling is a matter that has been before the courts on a number of occasions and is a matter of law. Whilst I will make a determination on the curtilage in this decision, it is ultimately for the courts to determine in any given case.”
There was no dispute between the parties that all the land forming the LDC application and decision was one planning unit or that its use was now residential; i.e. a dwelling and other uses and buildings that were incidental to the residential use of that dwelling. However the Inspector concluded that, whilst this was now an accepted fact, it did not appear to him that the land was curtilage. The domestic curtilage of the house was confined to the clearly physically separate land immediately to the north, west and south of the dwelling. All the other land was physically separated from it by fences and hedges at least until November 2015. Prior to October 2014 there seem to have been just paddocks on the large area to the east and northeast of the dwelling except for the mobile home and other buildings close to the northern boundary. That use, albeit with others, may have continued until November 2015.
This led to the Inspector’s finding that, whether looked at in terms of how it appears on the ground or the uses to which it was and is put, and taking into account the way in which the courts have considered what is and what is not the curtilage of a building, the large rectangular area that lay to the east of the dwelling could not be described as curtilage. It was used as horse paddocks, with the animals being kept separate from the much smaller garden area that constituted the curtilage.
Even without this case having come to court, I would unhesitatingly have said that, based on his findings of fact, the Inspector was absolutely right.
When this matter came before the High Court, the judge rather surprisingly made no mention of the judgment that I have always regarded as the locus classicus in relation to this issue - Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P.& C.R. 195. Instead, he cited the Court of Appeal decision in Attorney General ex rel Sutcliffe v Calderdale BC (1982) 46 P.&C.R. 399 (a case on which it would be unwise to place too much reliance). He also mentioned Dyer v Dorset CC  1 QB 346 (complete with its misleading reference to the dictionary definition of “curtilage”), although he did then draw attention to the Court of Appeal’s reservations about this, as expressed in Skerritts of Nottingham Ltd v SSETR  QB 59. In that Court of Appeal judgment, Robert Walker LJ went on to say this: “.........the curtilage of a substantial listed building is likely to extend to what are or have been, in terms of ownership and function, ancillary buildings. Of course, as Stephenson LJ noted in the Calderdale case, 46 P&CR 399, at 407, physical ‘layout’ comes into the matter as well. In the nature of things the curtilage within which a mansion’s satellite buildings are found is bound to be relatively limited. But the concept of smallness is in this context so completely relative as to be almost meaningless, and unhelpful as a criterion.”
Nevertheless I still retain my reservations about Calderdale.
The challenge in the instant case was based on a submission that in determining the curtilage for the main dwelling house at the Site, the Inspector erred by reaching a conclusion on the curtilage issue which was irreconcilable with the extant LDC (or CLEUD) granted by the LPA in respect of the Site in December 2015 or, alternatively, by failing adequately to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed. This involved arguing that the paddock area should properly be included within the curtilage, a proposition which seems to me to have been pretty hopeless in view of numerous findings over the years that have reached a contrary conclusion in relation to such areas.
Supperstone J rejected the contention that the Inspector’s conclusion concerning the curtilage of the dwelling house was irreconcilable with the LDC. All that the LDC determined was that the Site may lawfully be used for purposes incidental to the enjoyment of the dwelling-house. The LDC did not consider whether the land was within the curtilage of the dwelling house, nor did it accept that the land (including the Site) fell within the “garden” of the dwelling-house. His lordship accepted the counter-submission made on behalf of the Secretary of State and the LPA that whilst the function of the land is relevant to the question of curtilage, it is not determinative. The LDC simply certified that the land in question had been used “for purposes incidental to the enjoyment of the dwelling house known as Oakcutts”. It was determinative only of one necessary condition of the Site forming part of the curtilage, and the Inspector treated it as such. The LDC was of no assistance in resolving the question of whether the land is attached to the dwelling house forming one enclosure with it.
Nor did his lordship accept the Appellant’s contention that the Inspector failed to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed. It was clear from the Inspector’s analysis in his decision letter that he did so. Supperstone J observed that the challenge to the Inspector’s decision was essentially a rationality challenge. Whether something falls within a “curtilage” is a question of fact and degree and thus primarily a matter for the decision maker. It was for the Inspector to decide what weight should be given to each of the relevant factors. The judge was satisfied that, on the evidence, the Inspector was entitled to conclude that the land on which the building subject to the enforcement notice was erected was not within the curtilage of the dwelling house because it “was physically separated from other land by fences and hedges at least until November 2015”. The land was therefore unattached to the land surrounding the dwelling house and not forming one enclosure with it.
Accordingly, for the reasons given in the judgment, the Inspector did not err in deciding that the building did not benefit from the permitted development right in Part 1, Class E of the Second Schedule to the GPDO because it was not “within the curtilage of the dwelling house”.
On balance, I do not believe that this takes the law on the definition of “curtilage” any further. It simply follows the well-known rules that have become established over the past 70 years or so. It seems to me that the judge was bound to reach the conclusion he did, as was the Inspector, whose original appeal decision was clearly unassailable. The one point which the case does perhaps amplify is that the identification of a building’s curtilage is not solely dependent on its functional relationship with the building in question (under the Sinclair-Lockhart test), but that it must also be within an area of land surrounding the building that forms one enclosure with it. To that extent, the judgment in Dyer may still be relevant, provided that one bears in mind that other aspects of the Dyer judgment were expressly rejected by the Court of Appeal in Skerritts of Nottingham.
© MARTIN H GOODALL
Monday, 26 June 2017
Not for the first time, the High Court has been called upon in Steer v SSCLG  EWHC 1456 (Admin) to consider the duty of a decision-maker under section 66 of the Listed Buildings Act to have special regard to the desirability of preserving (among the other things listed in that section) the setting of a listed building. The glossary annexed to the NPPF defines the “setting of a heritage asset” as:
“The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral.”
Paragraphs 128 to 134 of the NPPF explain how section 66 is expected to work in practice, and further guidance is to be found in the government’s online Planning Practice Guidance, in addition to a publication by Historic England: “The Setting of heritage Assets (Historic Environment Good Practice Advice in Planning: 3)” Although the last of these does not constitute a statement of government policy, it is intended to provide information on good practice in implementing historic environment policy in the NPPF and PPG. I don’t propose to include quotations here from these documents, which will be found in the judgment.
The instant case concerned the setting of Kedleston Hall, Derbyshire – a Grade I Listed Building owned by the National Trust (who objected to the proposed development because, in its opinion, it would have a harmful impact on the setting and significance of the heritage asset, which would not be outweighed by the benefits of the housing). The NT, however, was not a party to these proceedings, but Historic England appeared by counsel as an interested party.
The claimant (a local resident) had objected to the two planning applications that had been the subject of appeals allowed by the Secretary of State’s planning inspector. The first application was for outline planning permission for the erection of up to 400 dwellings and a convenience store. The second application was for outline planning permission for the erection of up to 195 dwellings in the southern half of the same site.
The Claimant’s principal ground of challenge was that the Inspector erroneously applied a narrow interpretation when determining the setting of Kedleston Hall, in which a physical or visual connection was needed, despite the existence of an historical, social and economic connection between the Hall and its agricultural estate lands. This approach, it was claimed, was inconsistent with the broad meaning given to “setting” in the NPPF, the PPG and Historic England’s ‘Good Practice Advice’. At the Inquiry, there was a body of expert evidence stating the historical connection did bring the appeal site within the setting of the Hall.
In her conclusions, Mrs Justice Lang noted that there was a significant amount of material before the Inspector in support of the submission that the appeal site formed part of the setting of both Kedleston Hall and the Park because of the historical, social and economic association between the Hall and the agricultural lands of its Estate and drew attention to Historic England’s observations on the issue of the setting of Kedlestone Hall and its Park, the significance of that setting and the impact of the proposals on the significance of the setting, which Historic England had set out in a written response to consultation by the LPA. English Heritage’s position was that the proposed housing development would harm the significance which Kedleston Hall and the Grade 1 registered Park and Garden derives from its setting.
The National Trust had also drawn attention to the significance of Kedleston Hall’s setting, a point that was also reiterated by the Gardens Trust, who had pointed out that “............the setting of a heritage asset is a much wider concept than mere visibility” and that “Historic England defines setting as the surroundings in which [the asset] is experienced [their emphasis]. Views, while they may be an important part of this experience and clearly identify the presence of a setting, do not constitute its totality, or even the greater part of it..”. The Development Control Archaeologist at Derbyshire County Council expressed a similar view.
Mrs Justice Lang pointed out that the Inspector was required to address this evidence in his decision letter, whether or not he agreed with it. It related to a main issue in the appeal, on which the developer disagreed with the objectors. Much of the evidence was given by experts. Historic England was a statutory consultee and a “decision-maker should give the views of statutory consultees … ‘great’ or ‘considerable’ weight. A departure from those views requires ‘cogent and compelling reasons’. (See Shadwell Estates Ltd v Breckland DC  EWHC 12 (Admin), at .)
The Inspector accepted the evidence as to the historic social and economic connections between the Hall and Park and the area in which the appeal site was situated, but he rejected the evidence and submissions that the appeal site was part of the setting of the Hall, despite the historic social and economic connections. The Inspector concluded that the appeal site was not part of the Hall’s setting because of the lack of a physical or visual connection, which he treated as essential to the identification of “surroundings in which a heritage asset is experienced” (NPPF definition of “setting”). The Inspector recorded that it had been argued that the historical, social and economic connection – the appeal site being part of the estate of which the Hall and Park were the hub – brought the appeal site within the setting of the Hall. He determined, however, that there has to be more of a physical or visual connection than that, otherwise land completely remote from the Hall could be deemed within its setting.
In the judge’s view, the Inspector’s findings clearly indicated that his focus was upon identifying a visual connection, and assessing the proposal’s impact upon it. The historic social and economic connections were set to one side in this exercise. (The judge did not therefore accept the Secretary of State’s submission that the Inspector merely formed a planning judgment that the historic social and economic factors were of insufficient weight, as there was no assessment of the weight to be accorded to them in the Inspector’s decision-making process. In her view, the Inspector’s approach to the other heritage assets also confirmed that he treated the physical and visual connection as determinative.)
Thus the Inspector had adopted a narrow interpretation of setting which was inconsistent with the broad meaning given to setting in the relevant policies and guidance which were before him. Whilst a physical or visual connection between a heritage asset and its setting will often exist, it is not essential or determinative. The term setting is not defined in purely visual terms in the NPPF which refers to the “surroundings in which a heritage asset is experienced”. The word “experienced” has a broad meaning, which is capable of extending beyond the purely visual (as confirmed by the policy and practice guidance that had been referred to).
Mrs Justice Lang therefore agreed with the submission of the claimant and Historic England that the Inspector had adopted an artificially narrow approach to the issue of “setting” which treated visual connections as essential and determinative. In adopting this approach, the Inspector made an error of law, and his appeal decision was accordingly quashed.
This case is clearly important in establishing the wide scope of the term “setting” where it is used in section 66 of the Listed Buildings Act, and in the various advice on this issue published by ministers and by Historic England.
© MARTIN H GOODALL
Tuesday, 13 June 2017
I am grateful to Nathan Dickinson for drawing to my attention a problem that seems to have arisen over the interpretation by certain LPAs of the rules relating to the qualification of agricultural buildings for residential conversion under Class Q in Part 3 of the Second Schedule to the GPDO. I explained the rules in Chapter 9 of my book, “A Practical Guide to Permitted Changes of Use” (which can still be ordered by clicking on the link on the left-hand side of this page.).
Paragraph Q.1(a) puts this in the negative. Development is not permitted by Class Q if the site [i.e the building and an area no larger than its footprint] was not used solely for an agricultural use as part of an established agricultural unit on 20th March 2013, or (in the case of a building which was in use before that date but had ceased to be used for agriculture by that date) when it was last in use.
I really don’t think there can be much doubt as to what this means. The building must have been in agricultural use on, or at some date before, 20 March 2013, but it still qualifies if it is no longer used for agricultural purposes, provided it has not been used for any other purpose since ceasing to be used for agriculture. Thus a redundant or disused agricultural building does qualify for conversion under Class Q, but this permitted development right is lost if the building has been put to some other use since it ceased to be used for agriculture.
I can therefore find no justification whatsoever for the bizarre interpretation that Breckland DC (to name just one LPA) has sought to put on Class Q. They have entirely ignored the words of paragraph Q.1(a) and have seized instead on the operative words of Class Q(a), namely “Development consisting of - (a) a change of use of a building and any land within its curtilage from a use as an agricultural building [their emphasis] to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order……..” Thus, they claim, the building has to be in current agricultural use, and they demand that the applicant should demonstrate that this is for a trade or business purpose.
I understand that the Council bases this interpretation on the definition of “agricultural building” in paragraph X, viz: “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business”. This, they seem to assume, means that to be an agricultural building as specified in Class Q(a) the building must now be used for agriculture (and it is not disputed that this necessarily requires that this use is or was commercial, and would not include a use that only amounted to hobby farming). However, if present and continued agricultural use were to be a necessary qualifying criterion, it would render the words of paragraph Q.1(a) entirely otiose. The inclusion in that paragraph of a reference to a building which was in use before 20 March 2013 but had ceased to be used for agriculture by that date was clearly intended to show that the building qualifies if it was last in use for agriculture, but has since been disused.
Clearly, if anyone gets a nonsense decision from any LPA which purports to find that the building in question is disqualified from residential conversion under Class Q because it is not currently in agricultural use, even though it was last used for an agricultural trade or business and was so used on or before 20th March 2013, they should have no hesitation in appealing to the Planning Inspectorate against this decision under section 78, and coupling this appeal with application for an award of costs, bearing in mind that an LPA will be held to have behaved unreasonably if its refusal of planning permission (or in this case prior approval) is based on a misunderstanding or misinterpretation of the law.
© MARTIN H GOODALL
Tuesday, 30 May 2017
Like most people, I shall be heartily pleased when we’ve got the General Election behind us. But it seems that the little verse I wrote a few weeks ago (“Doggerel” – 4th May) has been borne out sooner than I expected. Theresa May has certainly been giving a graphic demonstration of what her spin doctors should have called “wrong and feeble government”. U-turns, and wobbly decision-making seem to be her specialities, but a screeching U-turn on a policy commitment when the ink was hardly dry on the manifesto in which it was printed is a wholly new innovation in British politics!
What really concerns me is that this is the person who (if she is still PM after 8 June) will be directing our negotiations with the EU over Brexit. She seems to have no idea of what negotiation actually involves, nor any realistic understanding of the relative strengths and weaknesses on both sides (a fundamental prerequisite for anyone entering into any form of negotiation). Maybe she should read Donald Trump’s book on the Art of the Deal (!)
Meanwhile, if you read what Jeremy Corbyn has been saying (rather than taking any notice of the increasingly desperate attempts at character assassination by the Tory press), he comes across as being both reasonable and sensible, and might prove to be a far more sound and sensible negotiator than the Maybot.
For the most unfortunate of reasons, security has clearly been seen as an issue in the past week, but I could not help smiling when that old political war-horse, Michael Fallon, went off the deep end at any suggestion that our foreign policy and foreign military adventures might possibly have increased the risk of terrorism, only to have it pointed out to him that the words that had been quoted to him which he was so self-righteously condemning came from a speech by the current Foreign Secretary, Boris Johnson. He seemed even more discombobulated when it was also pointed out to him that a former head of MI5 had made a very similar observation. Several other party leaders have also made this point within the past few days. So it is rather silly to condemn Corbyn for making the same sensible observation in a foreign policy speech late last week. There is, in fact, no reason to suppose that a Labour-led government would be any less strong in guarding against terrorism than this or any other government. As Corbyn pointed out, on this issue governments do what they have to do.
One encouraging sign is that the Great British Public doesn’t seem to be swallowing the facile campaign message being pushed for all it’s worth by Lynton Crosby. The May campaign (which has largely excluded the Conservative Party, except in a most marginal role) seems to consist of little more than a handful of monotonously repeated empty slogans. It is not surprising that by comparison the Labour manifesto appears to have much more substance, and offers what voters actually want, although both parties are in denial over the need to fund their policy commitments from general taxation, which is going to have to go up whichever party wins. Let’s face it, 20p in the pound is a ridiculously low rate of taxation even by Tory standards, and is unsustainable if we want even half-decent public services in the future. It is only fair that the rich should pay higher taxes, but it is unrealistic to suppose that this alone would be sufficient to fund even Tory spending plans. We are all going to have to pay a higher standard rate of income tax, and possibly higher NI contributions as well.
Well, in just over a week, all this electioneering will be over, and we can return to worrying about just how grisly the Brexit negotiations could be, and about the dire economic consequences of Brexit. I wonder whether a point may be reached when the government of the day may decide that the sensible thing to do would be to withdraw from the Article 50 process, and abandon Brexit altogether.
So back to Town and Country Planning, then, and bashing my brains over the Use Classes Order and its fascinating ramifications.
© MARTIN H GOODALL
Wednesday, 17 May 2017
On 31 March 2016, I reported on the High Court judgment in R (Khodari) v. Kensington and Chelsea RLBC  EWHC 4084, where it was held (following an earlier judgment Westminster City Council v. SSCLG  EWHC 690 (Admin)) that a covenant in a section 106 agreement that purported to prohibit tenants of a residential development from applying to the council for residents’ parking permits was outside the scope of that section, so that matters of this nature cannot be governed or controlled by this means.
Mr and Mrs Khodari were challenging two different planning permissions for alternative redevelopment schemes affecting the block of flats where they live. They succeeded in one case (because of the section 106 point) but failed in the other, where there was no section 106 agreement. Both parties cross-appealed to the Court of Appeal, with the LPA seeking to overturn the quashing of one permission, while Mr and Mrs Khodari sought to reverse the High Court’s refusal to quash the other permission.
In a decision on 11 May ( EWCA Civ 333), the Court of Appeal dismissed Mr and Mrs Khodari’s challenge to the ‘non-section 106’ permission, but the appeal by the LPA [“RBKC”] against the quashing of the permission that had been dependent on the section 106 agreement was allowed, so that this planning permission has also been allowed to stand.
It is the latter appeal that is of real interest in the legal context. The requirements in the 106 that were in contention were (a) a covenant not to apply for parking permits for the three additional residential units authorised by the planning permission, nor knowingly to permit any owner or occupier of the permit free units to do so; and to surrender any permit issued in respect of those units; (b) to notify prospective owners or occupiers of the additional units that they would not be entitled to apply for parking permits and (c) to include a covenant in any lease of the additional units preventing the lessee from applying for a parking permit and entitling RBKC to enforce that obligation as a third party. In addition, there was an obligation to pay a one-off “monitoring fee” of £500 on execution of the agreement.
Lewison LJ (with whom the other two Lord Justices agreed without comment) did not disagree either with the judgment in the Westminster case or with the judgment at first instance in the present case, so far as section 106 itself is concerned, and held that the judge at first instance was right to reject reliance on section 106 to validate the obligations dealing with parking permits. Those obligations were not capable of being planning obligations under this section.
However, the planning agreement in this case had been made not only under section 106 of the 1990 Act, but also under section 111 of the Local Government Act 1972, section 16 of the Greater London Council (General Powers) Act 1974, section 2 of the Local Government Act 2000 “and all other powers so enabling”. Lewison LJ therefore went on to consider section16 of the Greater London Council (General Powers) Act 1974, on which the judge at first instance had not commented (because this section had not been drawn to his attention).
This section provides that :
“(1) Every undertaking given to a local authority by the owner of any legal estate in land and every agreement made between a local authority and any such owner being an undertaking or agreement—
(a) given or made under seal in connection with the land; and
(b) expressed to be given or made in pursuance of this section;
shall be enforceable not only against the owner joining in the undertaking or agreement but also against the successors in title of any owner so joining and any person claiming through or under them.”
In Lewison LJ’s judgment, if the obligations about parking permits fell within section 16 they would be legally valid. The requirement of section 16 is that the agreement must be made “in connection with the land”. Thus it is not a requirement of section 16 that the agreement regulates the use of the land itself. The phrase “in connection with” is one of wide meaning. There was, in his judgment, a “connection” between use of the three additional units for residential purposes and the potential for the grant of additional parking permits, not least because a qualification for a parking permit is residence within the borough. Accordingly, he considered that there was a sufficient connection between the requirements imposed by the deed and the proposed development.
There was, however, also the question of the “monitoring fee”. In this case, the monitoring fee was held to be lawful. Whilst the covenant against applying for parking permits fell outside the scope of section 106, the obligation to pay the monitoring fee, which was ancillary to those obligations, could not survive as a free-standing obligation under section 106. There could be no question of its being enforced against successors in title of the original parties to the deed. In a sense, therefore, section 106 was irrelevant here. However, since section 106(1)(d) expressly authorises an obligation to pay money, the obligation to pay the monitoring fee fell within the literal scope of the section. But because there was no need to enforce it against successors in title to the original parties, its validity depended simply on RBKC’s power to contract for its payment. As the LPA submitted, the original parties to the deed were bound by it as a matter of contract. RBKC’s power to enter into such a contract was validated either by section 111 of the Local Government Act 1972 (“a local authority shall have power to do any thing ……… which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”) or by section 1(1) of the Localism Act 2011 (“a local authority has power to do anything that individuals generally may do”).
There are several points to be derived from this judgment. The first and most important point is that the validity and enforceability of a planning agreement depends entirely on the powers under which it is made. The agreement in this case was only saved by the fact that it was not solely dependent on section 106, but was also made under section 16 of the Greater London Council (General Powers) Act 1974 (which enabled the prohibition against applying for parking permits to be made) and section 111 of the Local Government Act 1972 (which saved the monitoring charge from being held to be ultra vires).
It is clear from this judgment that, outside Greater London, a covenant cannot be inserted in a planning obligation that seeks to prevent residents from applying for residents’ parking permits, but this can be done within Greater London if (but only if) the agreement is also made under section 16 of the Greater London Council (General Powers) Act 1974.
Secondly, a monitoring charge or other charges (including liability to pay the council’s costs of preparing the agreement) can be included in the agreement, subject to Regulation 122 of the Community Infrastructure Regulations 2010 not being infringed; but reliance would have to be placed on other legislation, such as section 111 of the 1972 Act or perhaps section 1(1) of the Localism Act 2011, and the agreement should be expressed to be made under one or other of these sections.
Counsel for RKBC told the Court of Appeal that this leaves local authorities outside Greater London without the ability to permit the creation of new residential units on terms that no residents’ parking permits will be issued in relation to those units. Leaving aside the possibility that such powers might perhaps exist under other statutes in some cases, Lewison LJ observed in his judgment that in R (AS Property Investments Ltd) v Hounslow LBC  EWHC 1631 (Admin), where a developer was unwilling to enter into a planning obligation preventing the grant of parking permits to residents of new flats, the solution was found by the exclusion of each new flat from the schedule of streets in the statutory instrument that created the Controlled Parking Zone. That alone would preclude the residents, not being within the CPZ, from applying for parking permits within the CPZ. Sullivan J upheld that solution.
© MARTIN H GOODALL