Friday, 20 January 2017

Reasons for granting planning permission (2)

Very shortly after I had published my post on Reasons for granting planning permission on 10 January, I saw a report of the High Court judgment in Shasha v. Westminster City Council [2016] EWHC 3283 (Admin), in which judgment was given on 19 December last year.

The Deputy Judge confirmed that a local planning authority is not under any statutory obligation to give reasons, or to give any summary of their reasons, for the grant of planning permission (as they once were), whereas they are required to give their reasons for refusing permission and for any conditions imposed on a planning permission that they may grant. In such circumstances, the Court of Appeal has found that there is no general obligation at common law requiring reasons to be provided for the grant of planning permission: see R v Aylesbury Vale DC ex p Chaplin (1998) 76 P&CR 207.

The Deputy Judge went on, however, to draw attention to several potential exceptions to this general rule, where there may be circumstances in which reasons need to be provided as a matter of fairness: see e.g. R v Mendip DC ex p. Fabre (2000) 80 P&CR 500 (pages 509 to 513), and Oakley v S Cambs DC [2016] EWHC 570 (Admin) (at [35]-[41]). This may mean, as Lang J stated in R (Hawksworth Securities PLC) v Peterborough City Council [2016] EWHC 1870 (Admin) (at [80]), that a requirement to give reasons may only arise "exceptionally" to meet the requirements of fairness. Article 6 of the European Convention on Human Rights may also require reasons to be provided to a person whose civil rights are determined by the grant of permission.

However, counsel for the claimant advanced a different point, which seems to have been widely overlooked until now. This submission was that there was an obligation here to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 [SI 2014 No. 2095]. These regulations were made under sections 40 and 43(2) of the Local Audit and Accountability Act 2014.

Regulation 7 [Recording of decisions] provides that the decision-making officer must produce a written record of any decision if it would otherwise have been taken by the relevant local government body [which includes councils that are local planning authorities], or by a committee or sub-committee of that body, or a joint committee in which that body participates, but it has been delegated to an officer of that body either under a specific express authorisation, or under a general authorisation to officers to take such decisions, and the effect of the decision is to grant a permission or licence, or affect the rights of an individual, or award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.

The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain information as to the date the decision was taken, a record of the decision taken along with reasons for the decision, and details of alternative options (if any) considered and rejected. Where the decision falls under a specific express authorisation, the record of the delegated decision must include the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.

If there is already a statutory requirement [under other legislation] to produce a written record of the date the decision was taken and a record of the decision taken along with reasons for the decision, then the duty of the decision-making officer under the 2014 Regulations is satisfied, without the need also to record in those circumstances details of alternative options (if any) considered and rejected.

Regulation 8 provides that the written record referred to in Reg. 7, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public at all reasonable hours at the offices of the authority, and also on its website (if it has one), and by such other means that the authority considers appropriate. On request and on receipt of payment of postage, copying or other necessary charge for transmission, the authority must provide to the person who has made the request and paid the appropriate charges a copy of the written record and a copy of any background papers. The original written record must be retained by the council and be made available for inspection by the public for six years from the date of the decision. Any background papers must be retained by the council and made available for inspection by the public for four years from the date of the decision.

In the present case, the decision to grant planning permission had been delegated under a general authorisation to officers to take such decisions and its effect was to grant a permission. Accordingly, the claimant submitted, the decision fell within regulation 7(2)(b)(i) and it followed that the decision-making officer was required to produce a written record of the decision taken along with the reasons for it by virtue of regulation 7(3)(b).

The Council attempted to resist this, and to argue that there was no duty to give reasons for the grant of planning permission under that regulation. They submitted that, as Lord Scarman put it in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at p141, "Parliament has provided a comprehensive code of planning control" and that it would be "beyond anomalous" if there was a requirement to give reasons for the grant of permission only under delegated powers when the requirement in all cases to provide merely summary reasons for the grant of planning permission had been revoked. Counsel also submitted that, even if there was any duty to give reasons under regulation 7, it would be satisfied (given regulation 7(4)) by a notice provided in accordance with Article 35 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 containing the reasons for any conditions imposed.

However, the Deputy Judge was in no doubt that Regulation 7 is applicable to a decision taken under delegated powers to grant planning permission. There is no basis for holding that a decision to grant planning permission is not a decision the effect of which "is to…..grant permission" (to which regulation 7(2)(b)(i) applies).

The Deputy Judge observed that it is true that planning legislation provides a comprehensive code of planning control; but that legislation does not by itself provide a comprehensive code that governs by whom and how planning decisions are to be taken by local authorities. Those matters are also governed by the primary legislation applicable to the discharge of their functions by local authorities including, in particular, (in England) Parts V, VA and VI of, and Schedule 12 to, the Local Government Act 1972 and Part 1A of the Local Government Act 2000, and subordinate legislation made under those Acts, and in this case also the Local Audit and Accountability Act 2014.

The suggestion that imposing a requirement to give reasons for the decision to grant planning permission under delegated powers with effect from 6 August 2014 under the 2014 Regulations sits ill with the earlier removal on 25 June 2013 of the requirement in all cases to give summary reasons for the grant of planning permission provides no reason to construe regulation 7 of the 2014 Regulations other than in accordance with its terms. The Explanatory Memorandum to the order which had removed this requirement generally - the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 - explained the change on the basis that officer reports typically provided more detail on the logic and reasoning behind a particular decision to grant planning permission than the decision notice, and that the requirement to provide summary reasons for that decision added little to the transparency and quality of the decision making process but that it did add to the burdens on local planning authorities.

It is at least consistent with the explanation for that change that reasons should nonetheless be required to be provided for delegated decisions. Whereas officer reports are almost invariably produced when decisions are taken by members of planning authorities, an equivalent document or one with the content that regulation 7(3) requires need not be produced when an officer takes a decision to grant planning permission. But, whether or not that provides an explanation for regulation 7 of the 2014 Regulations, and whether or not the requirement it imposes may be thought anomalous given the removal of the requirement to give summary reasons in all cases, the Deputy Judge held that there is no basis for reading the words "other than a planning permission" into regulation 7(2)(b)(i), where they do not appear, or to exclude decisions to grant planning permission from those falling within Regulation 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions.

For these reasons, the Deputy Judge held that there was an obligation on the decision-making officer in this case to produce a record of the decision to grant planning permission and the reasons for it as soon as practicable after the decision-making officer made the decision. In this case that did not happen.

Where members of an authority take a decision, it is a reasonable inference, in the absence of contrary evidence, that they accepted the reasoning in any officer's report to them, at all events where they follow the officer's recommendation: see Palmer v Herts CC [2016] EWCA Civ 1061(per Lewison LJ at [7]). In the Deputy Judge’s view, the same inference in the like circumstances is reasonable when one officer takes a decision having received a report from another officer containing a recommendation.

The Deputy Judge went on to consider the standard of reasons required from an officer acting under delegated powers for a decision to grant planning permission, and the admissibility of evidence about the reasons for a decision when there is an obligation to have provided them, but I don’t propose to discuss those aspects of the judgment in this article.

Turning to the actual decision to grant planning permission, the claim succeeded on all of the four grounds that were pleaded, but the Council sought to argue that it was highly likely that the outcome for the Claimants would not have been substantially different if the conduct which had been found to be unlawful had not occurred, so that the Court ought not to grant the relief sought. However, the Deputy Judge disagreed, and for the reasons given in the judgment, this claim for judicial review succeeded.

Just to add a couple of brief comments, there can be no doubt as to the applicability of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 to planning permissions granted by officers under delegated powers, and local planning authorities will have to take on board the requirement to comply with this rule. When I worked in local government (a good many years ago now), it always concerned me that no proper record was kept of decisions taken by officers under delegated powers. I felt that some sort of minute ought to be kept to record the decision. The 2014 Regulations now confirm this requirement.

In practice, some LPAs do already deal with delegated decisions in much the same way as they do in respect of planning applications that are being reported to committee. Bristol City Council, to take just one example, produces a full “delegated report” for each such application which deals thoroughly with the issues considered and the reasons for the decision. Bristol’s delegated reports almost certainly comply with Regulation 7, even though they have been compiled since long before the 2014 Regulations were made. I am not usually in the habit of praising BCC, but this is an example of good practice that other authorities would do well to follow, although Regulation 7 actually requires rather less detail than Bristol habitually includes in its delegated reports.

If LPAs do not ensure that minutes are kept of decisions to grant planning permission taken by officers under delegated powers, including the reasons for granting permission, they may well face legal challenges like this one in Westminster. In practice, it is to be hoped that any LPAs that do not yet comply with Reg. 7 of the 2014 Regulations will take steps to do so, in order to avoid such difficulties arising in future.

ADDENDUM (23.1.17): On reflection, I don’t think the effects of this judgment are likely to be so dramatic as they may have seemed at first sight. In Shaha, the permission was quashed because the LPA had gone wrong in the way they handled the application (and the objections to it). I don’t believe that failure to state the reasons in a properly minuted record of the decision would by itself have led to quashing. That would simply be a ‘technical’ legal infringement which would not have vitiated the decision and would not have prejudiced the claimant.

So I don’t expect to see a string of challenges based solely on failure to record the reasons for the grant of planning permission under delegated powers.


Monday, 16 January 2017

Can an LPA override a prior approval ?

My colleagues and I in Keystone Law’s planning law team are currently wrestling with a point that has arisen in two separate cases that have come across our desks recently, and which has also been raised by a correspondent in this blog.

The question can be briefly summarised, but the answer is not quite so simple. The question is this - Where prior approval has been sought and given in respect of the specified matters under the relevant Class of permitted development in Part 3 of the Second Schedule to the GPDO, is it open to the LPA (after having given that prior approval) to assert subsequently that the proposed development is not in fact permitted development by reason of its not meeting the qualifying criteria for that Class of development?

A short time ago, I set out my preliminary view on this point in a response to a comment posted under my recent blog post on the ‘convertibility’ of agricultural buildings in light of the judgment in Hibbitt v. SSCLG . It is an issue that several local planning authorities seem to have latched onto following that judgment. However, a discussion with my colleague Ben Garbett has convinced me that the legal position may not be so straightforward as it originally seemed to be.

There is no doubt as to the position where the legal status of the land or building has changed since the prior approval was given, for example by reason of the subsequent listing of the building under section 1 of the Listed Buildings Act, or designation of the area in which the site is located as a conservation area. The decision of the Court of Appeal in R (Orange Personal Communications Services Ltd) v Islington LBC [2006] EWCA Civ 157 made it clear that once prior approval has been given, this has the effect of ‘crystalising’ the planning permission granted by Article 3(1) of the GPDO, so that any subsequent change in the status of the land cannot affect the right to carry out the permitted development, even if that development does not commence until after the status of the land has changed by reason of a designation that would otherwise disqualify it from permitted development.

However, my initial view was that the Orange case does not assist a developer where the alleged disqualification of the site from PD does not arise from a subsequent change in its status or designation, but was an existing factor that would have disqualified the site from PD even before the prior approval application was determined. I originally took the view that a grant of prior approval cannot be relied upon in these circumstances, because if the site does not in fact qualify for permitted development then a purported prior approval by the LPA of those matters specified for prior approval cannot overcome that disqualification.

The basis for my earlier opinion was that the actual planning permission for the development is granted by Article 3(1) of the GPDO and it is this permission that is dependent on the qualifications in the GPDO being met. The LPA is not itself granting planning permission, nor in giving its prior approval is it approving the development as such; it is merely approving the submitted details in respect of those matters that specifically require prior approval. It follows (or so I originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD. However, I have now come round to the view that that there may be other factors to consider.

It seems clear that in relation to Part 3 (and also to Parts 6 and 16) of the Second Schedule to the GPDO, planning practice guidance, as well as certain judicial dicta, both indicate that there is at least an implied requirement that the LPA, in dealing with a prior approval application, should also consider whether the proposed development does in fact qualify as permitted development, or whether it is disqualified or precluded for any reason. I will discuss this below, but if this proposition is correct, the argument is that after it gives its prior approval it is not then open to the LPA to claim that the proposed development does not in fact qualify as PD, so as to prevent the development being carried out.

Even the wording of the relevant statutory provisions seems to support this alternative view. So, for example, in Part 3, paragraph W(3) provides that the local planning authority may refuse an application where, in the opinion of the authority, the proposed development does not comply with, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question.

There is a clear implication in paragraph W(3) that the LPA will consider not only the specific matters requiring prior approval but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It is therefore arguable that in giving its prior approval in respect of the prescribed matters, the LPA thereby also accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. Ergo, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I am sure I am not alone in finding the government’s online Planning Practice Guidance next to impossible to navigate, which renders it practically useless. So far as I have been able to ascertain, current practice guidance does not advise LPAs as to how they should consider and determine prior approval applications, and so in researching this issue I was driven back on previous ministerial policy guidance (now withdrawn) that dealt with this type of development. For example, paragraph E.14 in Annex E to the former PPG7 (which was not finally cancelled until the publication of the online PPG in March 2014) advised in relation to prior notification applications under Part 6 that in determining whether their prior approval would be required to the siting or design of the proposed development, local planning authorities should also use the determination procedure to verify that the intended development does benefit from permitted development rights. As I have indicated, I have been unable to ascertain whether this advice has been carried over to the online PPG, but it seems to me that the principles expounded in Annex E to PPG7 are still applicable (notwithstanding that they no longer have the ministerial imprimatur). If so, then this is a further example of the implication mentioned above that the LPA’s prior approval (or a determination that their prior approval will not be required) necessarily involves acceptance that the development does qualify as permitted development.

Off-hand, I can’t recall whether there was a circular on prior approvals under Part 3 before the great bonfire of ministerial guidance conducted by Eric Pickles, and I no longer have the 13-page list of cancelled circulars that was issued when the online PPG was launched in March 2014. If any reader is aware of any past or present ministerial guidance on the determination of prior approval applications (other than that in Annex E of PPG7 mentioned above), I would be grateful to have my attention drawn to it.

Further support for the proposition put forward above is to be derived from the judgment of May J in R. v. Sevenoaks DC ex p Palley [1994] E.G. 148 (C.S.).

This was a case that concerned development that was allegedly permitted agricultural development under Part 6. The LPA had confirmed that their prior approval of siting and design would not be required (and so, it was argued, had accepted as matter of law and of fact that the development in question qualified as permitted development). However, a neighbour successfully applied to the High Court to quash that determination on the grounds that the development did not in fact qualify as PD under Part 6. The case turned on whether the site qualified as “agricultural land”, but the Court first had to consider whether this question was a matter of precedent fact or whether it was a question for consideration by the LPA in determining whether their prior approval would be required.

The parties agreed that the question whether the relevant land is “agricultural land” [and so whether it qualifies for PD under Part 6] has to be considered before the development is carried out. Counsel for the LPA submitted that the same question did not strictly have to be answered at the time a determination was made by the LPA. In May J’s judgment, however, it was clear that the question does have to be asked and answered at the time of determination. If there is a material delay between the determination and the works the question may have to be considered again and may not in any particular case have the same answer. [This implied that a subsequent change of circumstances might disqualify the development as PD, but this judgment was long before the Court of Appeal decision in Orange.]

The definition of “agricultural land” includes that the land is “in use for agriculture” and that it is so used “for the purposes of a trade or business.” Counsel for the neighbouring objector submitted that these are matters of precedent fact such that the Court can make a factual determination on the evidence and is not limited to reviewing the LPA’s factual determinations on Wednesbury grounds.

He referred first to a passage in R. v. Home Secretary ex p. Khawaja [1984] A.C. 74 at 97, in the speech of Lord Fraser of Tullybelton, who had opined (in agreement with Lord Bridge and Lord Scarman) that whether a person was an illegal immigrant was “a precedent fact which has to be established”. It was not enough that the immigration officer reasonably believed him to be an illegal entrant if the evidence did not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief. [The House of Lords nevertheless recognised that this decision was at variance with a train of decisions culminating in R. v. Home Secretary ex p. Zamir [1980] A.C. 930 to the contrary effect, namely that that the function of the court was only to see whether there were reasonable grounds for the decision of the immigration officer.]

May J therefore turned to R v. SSE ex p. Davies (1991) P. & C. R. 487, where the Court of Appeal held that the question whether a person had an interest in land within section 88 of the Town and Country Planning Act 1971 was a question going to the jurisdiction of the Secretary of State to hear an appeal. The Court was therefore entitled to determine the question itself and was not limited to reviewing the decision of the Secretary of State on grounds of perversity or unreasonableness. Neill LJ said (at 492): “It seems to me that, in such circumstances, where the decison impugned involves a question as to the jurisdiction of the decision maker, and where the primary facts are contained in documents and do not involve any questions of credibility or policy, the Court should look at the matter afresh and make up its own mind.”

Reference was also made to R v. Oldham MBC ex p. Garlick [1993] A.C. 509, a case which turned on whether an applicant for housing (on grounds of homelessness) did or did not have the mental capacity to make that application. Lord Griffiths said (at page 520) that it was understandable to regard this as a question of fact to be decided by the Court. But if the relevant Act only imposed a duty on the housing authority in respect of applicants of sufficient mental capacity to act upon the offer of accommodation, then it seemed to him that Parliament must have intended the housing authority to evaluate the capacity of the applicant. It followed that the authority’s finding could only be challenged on judicial review if it could be shown to be Wednesbury unreasonable.

In R. v. South Hams DC ex p. Gibb (The Times June 8th 1994), the Court of Appeal had to consider whether applicants were gypsies within the meaning of the Caravan Sites Act 1968. Neill LJ held that the possibility of applying the Khawaja principle in a case such as that before the Court had been rendered impossible, certainly in the Court of Appeal, by the House of Lords decision in ex p. Garlick. Neill LJ was satisfied that Parliament must have intended that, if as a matter of law local authorities had applied the right test, the question whether particular persons or groups of persons were, as a matter of fact, gypsies was pre-eminently a matter for the authorities concerned.

In any matter which a public authority has to decide, there will always be initial facts to be established. It was, in May J’s view, clear that the mere fact that a particular fact or group of facts is logically the first consideration does not constitute it as a “precedent fact”. The passage relied upon by counsel for the neighbouring objector in ex p. Davies referring to primary facts contained in documents and not involving any questions of credibility or policy suggested that the Court was unlikely to look afresh at matters which require detailed investigation and factual judgment. The passage quoted above from ex p. Garlick said that the Court must look at the intention of Parliament, and that where very immediate investigations are needed to make the system work, the likely conclusion is that they can only be carried out by the authorities concerned. In his judgment, that applied to the instant case. A question whether land is in use for agriculture and so used for the purposes of a trade or business is not likely to be a straightforward paper enquiry. It may require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people. In his judgment, it was plain that the legislative intention was that these matters should be considered (subject to any question of perversity) by the planning authority alone.

In the event, May J found that the LPA’s determination that the site in question was agricultural land was legally flawed (due to only the most perfunctory consideration having been given to the site’s actual status), and it was for this reason that their determination was quashed. It is clear, however, that absent this legal flaw, it was for the LPA to determine, as a matter of fact and degree, whether the land in question was “agricultural land” so as to qualify for PD under Part 6, as part of their determination as to whether their prior approval would be be required in repect of the siting and design of the proposed development. As noted above, this would have reflected the ministerial guidance in Annex E of PPG7 [or the equivalent guidance that would have been applicable in 1992] to which I have drawn attention above.

It would therefore appear from the judgment in ex p. Palley, following the judicial authorities cited in that judgment, that the question as to whether proposed development qualifies as PD (in those cases where the LPA has to determine whether their prior approval will be required, and if so whether or not it will be given) is not “a matter of precedent fact”, but is a matter of fact and degree to be determined by the LPA as part of their determination of the prior approval application. In particular, in the case of permitted changes of use under Part 3, the provisions of paragraph W(3) clearly envisage this approach.

Arguably, therefore, where a prior approval has been given, the LPA must be taken to have confirmed that the proposed development complies with the conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, so that it duly qualifies as PD. It will not thereafter be open to the LPA to argue that the development does not in fact qualify as PD for any reason. The only exception to this would be deliberate deceit on the part of the applicant, whereby they had misled the authority as to the true factual position, in which case (in accordance with the Connor principle, as applied in the planning context by the Supreme Court in Welwyn Hatfield) the applicant’s deceit would prevent them in those circumstances from relying on the benefit of the planning permission granted by Article 3(1) of the GPDO.


Tuesday, 10 January 2017

Reasons for granting planning permission

Planning professionals among my readers will no doubt recall that some years ago a requirement was introduced in the planning legislation for LPAs to give written reasons for the grant of planning permission, in the same way as reasons are required for the imposition of each condition attached to the permission, and similarly reasons for refusal are stated in a notice of refusal.

The requirement to state the reasons for granting permission gave rise to challenges to the grant of planning permission in a number of cases, and this statutory requirement was eventually dropped, so that there is no longer a statutory requirement for the LPA to state its reasons for granting planning permission.

The decision of the Court of Appeal in R (CPRE Kent) v Dover DC [2016] EWCA Civ 936, in which judgment was given on 14 September 2016, therefore came as something of a surprise. It was alleged in the grounds of appeal that the Committee had failed to give legally adequate reasons for the grant of permission. However, the underlying claim was that it was impossible to understand from the minutes of the committee meeting at which it had been resolved to grant planning permission why one of the principal issues that were in contention had been determined in that way.

The point at issue is not an easy one. Notwithstanding certain judicial statements to the contrary (including those of the Court of Appeal in this case), I would still maintain that there is no legal duty on an LPA and, in particular on the person or persons taking the decision on behalf of the authority (a committee or sub-committee or an officer acting under delegated powers) to state their reasons for reaching their decision to grant planning permission (although they are under an obligation to state the reasons for a refusal of planning permission and also for imposing conditions on a planning permission). This is in contrast to the duty of the Secretary of State, or of an inspector determining a planning appeal on his behalf, to explain in sufficiently clear terms the reasoning on which their appeal decision is based.

On the other hand, all actions and decisions of a public body or authority (or a failure to act or to take a decision) are potentially subject to the supervisory jurisdiction of the courts by way of an application for judicial review, which may lead to the court making a quashing order, a mandatory order or a prohibitory order or, in some cases, granting a declaration. In such a case, the adequacy of the authority’s reasoning in reaching that decision may well be called in question, and compliance with the well-known Wednesbury principles may be an issue to be considered. To this extent, the authority’s reasons for reaching its decision will inevitably be called in question. But it is the adequacy of the decision-making process itself from a legal and procedural point of view that will be in question, rather than whether the reasons for the decision were explicitly stated, either adequately or at all.

Where there is a committee report which clearly explains the reasons for the recommendation of the council’s officers, and the relevant committee accepts that recommendation, for example to grant planning permission, the committee report itself has often been accepted by the courts as a sufficient explanation of the reasons that led councillors to determine the application in that way, and there is really no need for the committee minutes to expand on that. However, difficulties do potentially arise in a case where a decision made by councillors differs from that which their officers recommended. In such a case, it may not be clear why the committee came to a different conclusion, and it is in that type of case that there may well be a legal challenge based on the apparent perversity of the decision. It may also be alleged that the committee took into account immaterial considerations or failed to take account of considerations that should have been material to their decision. Misinterpretation of, or a failure to apply, relevant planning polices might also be a factor. In all these cases, it may be important to the authority’s defence of its decision to be able to show lawful and proper reasons for the committee’s decision, and (bearing in mind that the committee report may be of only limited, if any, assistance in these circumstances) the best defence would be a clearly written minute that explains the reasoning of the councillors in debating the matter in committee. It was the absence of sufficiently clear minutes that ultimately led the Court of Appeal to quash the planning permission in the Dover case.

This may perhaps seem like legal hair-splitting on my part, because irrespective of whether there is a legal duty on the part of a public body or authority to state explicitly in its Minutes the reasons for decisions being reached, a failure to do so may make it difficult to defend those decisions in the event of legal challenge, especially where the decision departed significantly from the recommendation in a relevant committee report.

So far as R (CPRE Kent) v Dover DC is concerned, I therefore find myself in disagreement with the Court of Appeal’s conclusion that the Committee failed to give legally adequate reasons for their decision to grant planning permission, but I do nevertheless agree that the Committee’s reasons for reaching that decision were in fact legally inadequate (which is not quite the same thing), so that the grant of planning permission in this case had to be quashed.

That being the case, this judgment was effectively dependent on its facts, and it would be unsafe to cite the judgment as authority for the proposition that reasons must be explicitly stated for the grant of planning permission. It is particularly misleading to cite in this context Lord Brown’s speech in South Bucks v Porter (No 2) [2004] 1 WLR 1953, which was concerned with the quality of reasons given by the Secretary of State’s inspector on a planning appeal.

The observations of Lang J in R (Hawksworth Securities) v. Peterborough City Council [2016] EWHC 1870 (Admin) (also cited in the Dover case) appear to me to be more apposite to the position where the grant of planning permission by an LPA is in question. However, the alleged need for reasons actually to be stated even in these circumstances is, as I have suggested above, a red herring.

Nevertheless, as the Court of Appeal recognised in the Dover case, a difficulty can clearly arise in those cases where a Planning Committee does not accept their officers’ recommendation but departs from it. Reference was made in this context to the judgment of Hickinbottom J in R (Mevagissey Parish Council) v. Cornwall Council. [2013] EWHC 3684 (Admin). Like the Dover case, this concerned an application for a housing development in an AONB. However, even in that case, we find the judge opining that in coming to a different conclusion from that of the officers (which they were perfectly entitled to do) the committee could not do so "without, in their summary reasons, indicating that they had correctly identified, understood and applied the relevant policies and explaining, if only briefly, why they had come to the conclusion they had, and thus why they considered the officer’s conclusion wrong".

I fully accept that in defending a decision that is under challenge in the courts, the authority may be called upon to satisfy the court on these points, and a written summary of the elected members’ reasons for reaching that decision duly recorded in the Minutes of the committee meeting would clearly be the most efficacious way of doing so. But such a written record is not in itself a legal requirement.

As the Court of Appeal made clear, this judgment should not be read as imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions, far removed from the approach outlined by Lang J in Hawksworth. The case does, however, illustrate a practical need to minute the reasons leading to a grant of planning permission against officers’ recommendations.

UPDATE: Since this blog post was published, I have become aware of the judgment in Shasha v. Westminster City Council. This confirmed the general rule that an LPA is not obliged to give reasons for granting planing permission, but identified a requirement to do so in the case of planning permission granted under delegated powers, by virtue of regulation 7 of the Openness of Local Government Bodies Regulations 2014. I propose to blog on this judgment shortly.


Saturday, 31 December 2016

An Interesting New Year

In wishing readers a Happy New Year, I am well aware that after 2016’s double disaster of the European Referendum and then the election of President Trump, the New Year promises at best to be an uncertain one.

I honestly believe that our country currently has the most incompetent government since Lord North’s administration managed to lose the American colonies in the 1770s. When the PM tells us that “Brexit means Brexit”, and then clarifies this by pronouncing that what she wants is “A Red, White and Blue Brexit”, this can only be translated in plain English as “I’m sorry; I haven’t a clue.” This is hardly surprising, when managing Brexit is in the hands of the Three Stooges (Boris the Clown, ‘Dangerous’ Davis and Dr Liability Fox MD, all of whom appear to be equally clueless).

Unfortunately, we have an equally incompetent Loyal Opposition, which seems incapable of opposing anything, let alone calling the government to account for its manifest errors and omissions.

Anyway, enough of politics; this year is also likely to be interesting on the legal front. Very early in the New Year we shall have the Supreme Court’s decision on the procedure required to invoke Article 50 of the Lisbon Treaty. Although this case is solely focused on this question (and is not concerned with the referendum result, or with how Brexit is to be managed once Article 50 has been activated), it is a case of immense juridical importance, because it goes to the heart of the constitutional relationship between Parliament and the Executive.

Montesquieu was probably wrong when he wrote about the separation of powers. There has always been an element of common membership and interaction between Parliament, the Executive and the Judiciary, although the independence of the judiciary remains of paramount importance, and has been reinforced in recent years by a change in the person and functions of the Lord Chancellor, and the creation of the Supreme Court to take over the judicial function formerly exercised by the House of Lords.

Another fundamental constitutional principle, which continues to be of the greatest importance to the protection of our liberties, is the sovereignty of Parliament over the Executive. It is this essential principle which lies at the heart of the case on which the Supreme Court is currently deliberating.

No-one who has ever studied Constitutional and Administrative Law will have been the least bit surprised by the judgment of the High Court in this case (handed down by the most strongly constituted Divisional Court that I can ever remember). I find it hard to believe that the government stands any chance whatever of overturning that decision in the Supreme Court, and the only remaining question is whether it will be an 11-0 decision in favour of the Respondents (which seems most likely), or whether there could possibly be just one, or maybe two, dissenting judgments.

I am bound to say that David Pannick had four centuries of overwhelming judicial authorities on his side, by contrast with which the Attorney General’s case seemed largely to consist of bluff and bluster. On the other hand, it seems to me that the respective cases for the Scottish and Northern Irish governments, whilst persuasively argued, stand much less chance of being accepted by the court, because the law would not appear to be on their side so far as their constitutional relationship with the UK government is concerned. I have a great deal of sympathy with both of these regional governments; they have a strong moral case in favour of a separate settlement with the EU for their own countries. But it will have to be argued in the political arena, rather than through the courts.

One final point before we get back to Planning Law. I mentioned above the crucial importance of the independence of our judiciary; it is an essential component of the Rule of Law in this country. It is therefore immensely damaging when ill-informed newspaper editors print scurrilous allegations that senior judges are “Enemies of the People”, and question their integrity and their personal character. As I have observed above, the decision of the Divisional Court was inevitable; it flowed naturally from the law that the Court had to apply. There is no question of the judges having allowed their personal opinions, political affiliations or leanings or any other extraneous factors to influence their judgment; they were under a duty to apply the law as it exists to the facts before them, and they did so fearlessly and fairly. I am in no doubt that what the Daily Mail subsequently printed was a gross contempt of court, and the Editor and others concerned in writing and publishing this scurrilous material can count themselves lucky that they were not hauled before the Court and committed to prison until they had purged their contempt, by making a grovelling apology in person to the Court and printing an unqualified retraction of their statements. There must certainly be no repetition of this conduct in the wake of the Supreme Court judgment. In the event, however, that it were to be repeated, the journalists concerned should be swiftly proceeded against for any such contempt of court.

After the expected excitement of the Supreme Court judgment on Article 50 in January, there are two other cases that may well prove interesting. In February, the High Court is expected to hear the case of East Herts DC v. SSCLG. If judgment is reserved, we may expect to get the result by early March. This is a challenge by the LPA to ministerial advice in the online PPG that ‘sustainability of location’ should not be taken into account in determining a prior approval application under Class Q in Part 3 of the Second Schedule to the GPDO. The legal people at East Herts got rather hot under the collar when I suggested in a blog post a few months ago that they appeared to be ‘spoiling for a fight’ on this issue, but this case seems to suggest that this is precisely the exercise on which they were embarked. However, I have to say that if I were a gambling man, my money would be on the Secretary of State to win this one.

Then in mid-March, the Court Appeal is due to hear the appeal in Dunnett Investments v. SSCLG. This concerns preclusive conditions in planning permissions which may, or may not, have the effect of preventing either changes of use within the same use class (under section 55(2)(f)) or permitted development under the GPDO (or both). There is no doubt as to the preclusive effect of a condition that contains a clear reference to one or other of these statutory provisions; the difficulty arises where the condition is prohibitively worded, but without clearly referring either to section 55(2)(f) [or Art. 3(1) of the UCO] or to the GPDO.

I won’t rehearse the issue in any more detail here; I blogged on it a few months ago in light of the High Court decision in Dunnett Investments, and I have also discussed this case in detail in Appendix A to the Second Edition of A Practical Guide to Permitted Changes of Use (see paragraph A.5). I don’t know how counsel intends to argue his case before the Court of Appeal, but one point that appears to me to be relevant (and possibly determinative) is the distinction to be made between the legal effect of section 55(2)(f), compared with the legal effect of Art. 3(1) of the GPDO. Previous judgments, including the first instance judgment in Dunnett Investments, seem to have conflated the effect of allegedly preclusive conditions in relation to these two separate and rather different statutory provisions.

In light of later judgments, the proposition put forward in the judgment in Carpet Décor may have been too sweeping in embracing both section 55(2)(f) as well as the GPDO. However, it seems to me that the proposition accepted by the court in Royal London Mutual Insurance should be construed only as precluding the operation of section 55(2)(f), but not as such to precluding the operation of the GPDO in accordance with Art. 3(4) of that Order. In my view, the Court of Appeal decision in Dunoon Developments remains the leading authority, so far as the GPDO is concerned.

I imagine that a reserved judgment in Dunnett Investments can be expected before (or perhaps just after) Easter. No doubt other judgments will be forthcoming on a number of planning topics during the next twelve months. The flow of cases never stops.

Meanwhile, the Neighbourhood Planning Bill will continue its passage through parliament, and can be expected to receive royal assent this spring (and certainly before the current parliamentary session ends in May). Early amendment to the DMPO can then be expected to give effect to the government’s intention to bring the use of conditions in planning permissions under more effective legal control.

It remains to be seen what further amendments may be made to subordinate legislation. Further amendment of Part 3, Class O in the GPDO cannot be ruled out, although I remain sceptical about this (as previously explained). The possible consolidation of the Use Classes Order was canvassed when the UCO was further amended during 2015. It is certainly overdue for consolidation in view of the many amendments it has undergone in the past 30 years. I have a more than passing interest in this, as the writing project on which I am currently engaged deals extensively with the UCO, and we naturally do not want to go to press later this year, only to find that the UCO is then extensively overhauled.

Further primary legislation is also in prospect. A planning bill (whatever its title) seems to have become an annual event in recent years, and one wishes that ministers would resist the temptation of endlessly tinkering with the planning legislation. The Planning Acts are also arguably overdue for consolidation, having suffered a plethora of amendments since 1990, starting as early as 1991 when the ink was hardly dry on the principal Act. We shall just have to wait and see, although with so much else going on in government, it would be understandable if consolidation of the primary legislation remains on the back burner for the time being.

So, Happy New Year (even, dare we hope, a prosperous one). We’ll just have to keep our heads down and keep on with the work in hand, despite whatever nonsense the politicians and the press are getting up to.


Tuesday, 20 December 2016

Reforming the use of planning conditions

One really good piece of news in the Neighbourhood Planning Bill is that ministerial guidance on the use of planning conditions, which has been so widely ignored by local planning authorities for many years, is at last to be given statutory force.

While the Bill is continuing on its passage through parliament (currently awaiting Second Reading in the House of Lords on 17 January, having already completed its passage through the Commons), the government is wasting no time in preparing the subordinate legislation that will be put in place as soon as possible after the Neighbourhood Planning Bill comes into force following Royal Assent, probably in the Spring. The government has consulted on these proposals and has published their response to the consultation with commendable speed.

The first major subject of the consultation is the issue of pre-commencement conditions. Whilst the government recognises the importance and value of certain pre-commencement conditions in ensuring that necessary safeguards are put in place for important matters, including heritage and the natural environment, they remain determined to ensure that the principles in their Planning Practice Guidance (formerly set out in Circular 11/95) are observed by LPAs, and this will include agreeing proposed conditions with an applicant before a decision is taken, and as early in the planning application process as possible.

The Government remains of the view set out in the consultation paper that it should be the responsibility of the LPA to choose the most appropriate time to seek agreement of the applicant to any pre-commencement conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. Nonetheless, the government agrees that there should be a default period to avoid undue delay in the process where there is no response from the applicant. They therefore propose a default period of 10 working days (although there will be an option for LPAs to agree a longer timescale with the applicant).

The intention is that the default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and has sought the agreement of the applicant. The default period would then elapse 10 working days (two weeks) later, unless a longer period had been agreed between the LPA and the applicant.

The alternative of introducing a dispute resolution procedure (such as a fast-track mechanism for appeals) would only add a further formal step to the process which would be likely to cause delays, and could actually discourage effective discussions between applicants and local authorities, who might simply wait to use the mediation route as an alternative to meaningful engagement early in the process.

The government expects that the new approach will reduce the workloads of authorities following the issue of a planning permission, by reducing the number of pre-commencement conditions that then have to be discharged.

The second main issue dealt with in the consultation document is the proposed prohibition of conditions that infringe the principles laid down in the ministerial guidance on the use of conditions. Planning officers predictably asserted in response to the consultation document that the guidance is already sufficient without further provision being made in legislation, but experience over many years has shown that in practice this guidance is widely ignored. The government believes (and I entirely agree) that it is necessary to ensure that conditions applied by local planning authorities meet the six policy tests in the NPPF. The government has therefore confirmed its intention to do this through secondary legislation, expressly prohibiting each of the following types of condition:

1: Conditions which unreasonably impact on the deliverability of a development - e.g. disproportionate financial burden;
2: Conditions which reserve outline application details [i.e. details that should have been specified as reserved matters at the outline permission stage];
3: Conditions which require the development to be carried out in its entirety;
4: Conditions which duplicate a requirement for compliance with other regulatory requirements - e.g. the Building Regulations;
5: Conditions requiring land to be given up; and
6: Positively worded conditions requiring payment of money or other consideration

The second of these prohibitions will not restrict the ability of local authorities to impose conditions on outline applications requiring the submission of details of reserved matters for approval at a later date. What it is aimed at is conditions attached to a full permission or to consent to details (i.e. the approval of matters that should have been reserved by an outline permission) which require the subsequent approval of further details. The latter type of condition should be entirely unnecessary.

However, what the government’s proposals do not appear to address is the unnecessary requirement in many conditions for certain details to be approved before the commencement of development, when the condition could simply require that certain matters be approved at a later stage in the development; it could indeed to be adequate that the approval of a few matters should simply be required “prior to the first occupation of any part [or of the relevant phase] of the development.

With regard to the prohibition of conditions requiring the completion of a development in its entirety, there is no reason why a developer should be under a legal obligation to carry out the whole of a development that has been approved. LPAs already have the ability to serve completion notices, to encourage the completion of partially-built development. The Government has therefore confirmed its intention to prohibit this type of condition.

As regards conditions that duplicate other regulatory requirements (in particular the Building Regulations), this is an issue on which many of us feel strongly. There is no excuse for trying to drag into the development management process matters that are properly the subject of compliance with the Building Regulations or other legislation. The government, however, does seem to have conceded (inadvisedly, in my view) that a condition might legitimately impose a requirement over and above the minimum standards stipulated by the Building Regulations. The answer, surely, if there are circumstances where a higher standard of construction is required, is to vary the Building Regulations themselves. There has been an unfortunate tendency in recent years to attempt to regulate through the planning system matters that should not properly feature in the development control process. The government really ought to set its face firmly against this trend.

Responses to the consultation exercise included a number of other conditions which it was suggested should be prohibited. These included:

- Conditions which duplicate or split conditions across different regulatory regimes;
- Conditions which restrict hours/methods of working on a building site;
- Conditions which require a completion date;
- Conditions which require material samples to be agreed up front before development can commence;
- Conditions which require pre-approved drawings to be duplicated and re-submitted for approval; and
- Conditions attached to temporary permissions, when the development has a short lifespan.

Some of these suggested prohibitions fall within the conditions that the government intends to prohibit in regulations, including conditions added upon the approval of reserved matters, conditions that duplicate other regimes and conditions requiring a completion date, all of which are covered by the government’s proposed prohibitions mentioned above.

There is perhaps just one other type of condition that requires specific prohibition. This relates to conditions attached to a prior approval under a relevant part of the Second Schedule to the GPDO (particularly Part 3) if it purports to deal with issues that go outside the scope of the specific matters requiring approval under the relevant Class of permitted development. Section 100ZA (which will be added to the 1990 Act by the Neighbourhood Planning Bill) makes it clear that the permissions referred to include development permitted by a development order, and so this provision will include conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended accordingly. However, the subordinate legislation ought specifically to prohibit such conditions, in order to reinforce the provision in paragraph W(13) in the GPDO that the conditions must be “reasonably related to the subject matter of the prior approval”.


Monday, 12 December 2016

Demolition and replacement of offices still on PD agenda

I have previously expressed some scepticism as to delivery of the government’s avowed intention (dating originally from 2014) to add the demolition and replacement of office buildings to Class O in Part 3 of the Second Schedule to the GPDO.

I referred a few weeks ago to a footnote in an obscure press release that came out during the Tory party conference in October, where this proposal was repeated; but the fact remains that the proposal, if it were to be pursued, would be fraught with all sorts of practical difficulties, and would require the consideration of a whole raft of additional matters in any prior approval application relating to such development. In the circumstances, it seems to me that little, if any, advantage would be gained by this means as compared with a straightforward application for planning permission.

Notwithstanding my scepticism, the government’s intention to pursue this proposal has been repeated in their response to the report of the House of Lords Select Committee on the Built Environment, published in November 2016 [CM 9347], which contains this passage in paragraph 198:

We are to extent [sic] permitted development rights even further, to allow for demolition of offices and replacement with housing on a like-for-like basis. This could provide around 4,000 new homes by the end of 2021.”

This comment was added, perhaps rather irrelevantly, to the government’s response to an observation by the House of Lords committee (quoted in paragraph 194) that “the Government should also consider strengthening the priority given to brownfield development, including considering the reintroduction of a ‘brownfield first’ policy at national level.”

The 4,000 figure was originally quoted in the October press release referred to earlier, although on what evidence (if any) is unclear. It looks very much like an unsubstantiated guess of the “think of a figure and double it” variety.

At our very successful seminar at the RIBA in November, launching the Second Edition of A Practical Guide to Permitted Changes of Use, Arita Morris, Director of Child Graddon Lewis, architects & designers, delivered an interesting paper on the practicalities of office conversions under Class O, which made it clear that many office conversions require planning permission for physical alterations and extensions in any event, bearing in mind that such operational development is excluded from the development permitted by Class O, so that the only physical alterations that can be carried out to the building without a separate planning permission are internal works not affecting the external appearance of the building, and which do not therefore constitute development by virtue of section 55(2)(a) of the 1990 Act.

In the past 30 years or so, it has been the practice to erect ‘deeper’ office buildings, which do not easily lend themselves to residential conversion, due to the lack of natural daylighting towards the centre of the building. It is presumably these more recent office buildings that would potentially be candidates for demolition and replacement if Class O were to be extended to allow this. There would nevertheless remain a question mark over the commercial viability of such a scheme, and the practicalities of this type of development might, as I have suggested, make a planning application a simpler way of dealing with a development of this sort.

So I am not expecting a further extension of permitted development rights under Class O any time soon. We shall have to see what 2017 brings, but don’t hold your breath.


Tuesday, 6 December 2016

Basement excavation may not be permitted development

I have been extremely busy for the past few weeks, and so there has been an inevitable hiatus in posting items on this blog. The blog is concerned with the whole range of legal issues affecting town and country planning, but today I find myself returning once again to the issue of permitted development under the GPDO, this time under Part 1 of the Second Schedule to the Order.

Basement developments (especially in London) have been the subject of controversy for a number of years. As a general rule, it has been assumed that many such developments are permitted development (as discussed below), although some LPAs have made Article 4 Directions, so that in those areas a planning application will be required for basement extensions.

The legal background is theoretically straightforward, but it is in the detail that difficulties have arisen. Section 55(2)(a) of the 1990 Act is often cited as authority for the proposition that building operations which affect only the interior of a building or which do not materially affect the external appearance of the building are not to be taken to involve development of the land. As originally enacted, the predecessor of this section would have had the effect of exempting from the definition of development building operations to provide additional living space by forming or extending a basement under an existing house. However, section 55(2)(a) does not exempt works begun after December 5, 1968 involving the provision of additional space in the building underground. So digging a basement does constitute ‘development’ for the purposes of section 55.

The necessary planning permission for basement works is provided in most cases by Part 1, Class A of the Second Schedule to the GPDO. This permits the enlargement, improvement or other alteration of a dwellinghouse and, in principle, none of the exclusions or limitations in that Class would prevent the excavation or enlargement of a basement as permitted development. However, an interesting judgment was delivered in the High Court on 2 December in the case of Eatherley v. Camden LBC [2016] EWHC 3108 (Admin), which indicates that there may be practical limitations on such developments.

This was an application for the judicial review of a Lawful Development Certificate issued by Camden LBC, whereby they had confirmed that it would be lawful to carry out proposed works comprising the excavation of a basement beneath the footprint of the existing dwellinghouse. The proposed depth of the basement was approximately 2.85m, with the width (side to side of the house) a maximum of 4.5m and length (front to back of house) a maximum of 7.5m. A single internal staircase was proposed to link the existing ground floor with the proposed basement.

One issue that the council had considered was whether the engineering activities associated with basement construction were within Class A. Local residents had claimed that the proposals involved excavation works which, as a matter of fact and degree, constituted “an engineering operation” which did not benefit from any permitted development right under Class A. The council’s officers had concluded that the basement works would, by necessity, involve temporary engineering works associated with protecting the structural stability of the house and neighbouring building. However it was considered that these works would be entirely part of the basement works to the house, and that they would not constitute a “separate activity of substance” which would not be ancillary to the activity that benefitted from permitted development rights.

However, this issue was the basis of the legal challenge to council’s decision in the High Court, namely (1) that the proposed development included a substantial engineering operation which was not within the permitted development right relied upon in the LDC, (2) that the Council misdirected itself in concluding that the engineering works proposed were not a separate activity of substance, and (3) that the interpretation of the Class A permitted development right as including the engineering works proposed in this case frustrated the legislative purpose of section 59 of the 1990 Act [the enabling power under which the GPDO was made] and of the GPDO itself, and was therefore ultra vires. In the event, only the second of these submissions was accepted by the Court, although this was sufficient in itself to require the quashing of the LDC.

I haven’t got time to summarise Cranston J’s very interesting and instructive discussion of the background to these permitted development rights, but it is well worth reading in its entirety. In Cranston J’s view, the crucial issue was the meaning of the plain words of the planning permission granted by Article 3(1) of the GPDO for the Classes of development described as permitted development in Schedule 2. In relation to Part 1, Class A the issue revolves around the meaning of “the enlargement, improvement or other alteration of a dwellinghouse”.

The difficulty with a basement development, his lordship observed, is the absence of any boundaries to the permission. Yet there must be a point where the excavation, underpinning and support for a basement for a dwellinghouse becomes an activity different in character from the enlargement, improvement and alteration of that dwellinghouse. For that reason, engineering operations for the basement are at some point different in character to those involved in the preparation of foundations for a house.

The answer, drawn from the legal authorities, is whether, as a matter of fact and degree, the single process of making the basement amounts to different activities, each of substance, so that the one is not merely ancillary to the other. The principal authority relied on was : West Bowers Farm Products v. Essex CC (1985) 50 P & CR 368, as applied in Wycombe DC v. SSE [1995] JPL 223 and this was the law that Cranston J applied.

The first of these cases was concerned with agricultural PD under Part 6. The proposal in that case was for an irrigation reservoir on a farm of some 18 acres in extent and 6.5 metres in depth. The construction of the reservoir necessitated the extraction of large quantities of sand and gravel, which were to be sold. The Court of Appeal (upholding the judgment at first instance) held that if the development involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission. In that case, the Court was in no doubt that the construction of the reservoir would involve two activities, each of substance. The extraction of so much gravel would not merely be ancillary to the carrying out of the engineering operations under Part 6. This was a question of fact and degree.

In the Wycombe case, the front garden of a dwellinghouse in an elevated position above the adjoining road was almost totally excavated, leaving a hard standing for vehicles level with the road - 6.8 metres wide, 4.5 metres deep and 2 metres in height at the rear. The Secretary of State decided on appeal that there was no breach of planning control because what was done was permitted under Part 1, Class F. However, the High Court held that the Secretary of State had not determined what was incidental to the provision of a hard surface. He had referred to the “sole purpose of the excavations” and went on to find that “the removal of the necessary quantity of earth to achieve that aim took place as an integral part of the operation”. However, the Secretary of State was fatally in error in omitting to consider the correct test, and in applying tests which were not appropriate.

In the present case, Cranston J held that in the context of an original “two up two down” terrace house in suburban London, the development of a new basement, when there is nothing underneath at present, could well amount, as a question of fact and degree, to two activities, each of substance. There is the enlargement, improvement and alteration aspect, but there is potentially also an engineering aspect of excavating a space and supporting the house and its neighbours. That is the position, even though the latter is necessary to achieve the developer’s aim; indeed is indivisible from it. If there is this separate aspect in the development, it requires planning permission. The Class A right grants planning permission for one of the two activities of the development but not for the engineering aspect.

The officer’s report, advising the Council to grant the certificate, accepted that the basement works would, “by necessity”, involve temporary engineering works associated with protecting the structural stability of the host and neighbouring buildings. However, it added, these would be “entirely part of the basement works”, and did not constitute a separate activity of substance which would not be ancillary to the activity that benefitted from permitted development rights. In Cranston J’s judgment, the planning committee asked itself the wrong question with its focus on the works being “entirely part” of the overall development, which would “by necessity” involve engineering works. It concluded that because this was the case it followed that the works did not constitute a separate activity of substance.

That is not the approach laid down in the authorities. The Council’s conclusion that the engineering works were not a separate activity of substance followed from a misdirection. It should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance. The Council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.

In other words, if the planning committee had asked itself the right question, it would have needed to assess the additional planning impacts of the engineering works to decide whether they amounted to a separate activity of substance. It would have been in a somewhat difficult position in undertaking that task without any description of the engineering works required in support of the application, although it may have been able to draw on its own experience of the common and predictable ramifications of this type of basement development with this type of terrace house in this area. The issue was one of planning judgment, but since the planning committee misdirected itself as to the issue, it never got as far as properly exercising that judgment.

The LDC was therefore quashed on this ground.