Friday, 24 November 2017

A BRIGHT FUTURE


Some readers of this blog may still have the fond illusion that I am a one-man band, ploughing my lonely furrow somewhere out there in the sticks, but that would be a long way from the truth. I am very proud that I have now been a member of KEYSTONE LAW’s planning law team for more than 8 years, and I look forward to being associated with this very successful and dynamic firm for a good few years to come. I have explained on several occasions that this blog is not (and was never intended to be) a marketing tool, but I can’t resist blowing a toot on my trumpet occasionally for the best law firm in which I have ever worked, in what is now a very long career.

Some of you may not be aware how large and successful a firm KEYSTONE LAW is. Our six-strong planning law team is part of the firm’s property law group, which contains over 70 lawyers. Overall, the firm now has more than 250 lawyers (mainly solicitors, but also some barristers, including two in our planning law team) practising throughout England & Wales (with office hubs in London, Bristol, Leeds and Newcastle), as well as Northern Ireland, the Isle of Man and Guernsey. The firm’s associated Australian practice, Keypoint Law, has offices in Sydney, Melbourne and Canberra.

After winning numerous industry awards, KEYSTONE LAW has entered The Lawyer Top 100 law firms this year, with reported annual revenue of more than £25 million. The firm became an ‘ABS’ in 2013, enabling private equity firm Root Capital to invest over £3 million in the firm in 2014, following which the practice has subsequently achieved annual revenue growth of more than 20%.

Now the firm is set to become a listed company, with an initial public offering which should raise around £15 million on a projected placing price of 160p. This puts the total capital value of KEYSTONE LAW at around £50 million. The shares will commence trading on Monday, 27 November. KEYSTONE LAW has a very strong central management team, who will remain very firmly in the saddle. James Knight, founder and Managing Director of the firm will become Chief Executive of the listed plc.

I see that some nay-sayers commenting in the Law Society’s Gazette have muttered darkly about law firms burdening themselves with debt, but city commentators point out that the financial restructuring enabled by this flotation is expected to result in the listed company being debt-free following completion of this re-capitalisation.

Unlike some large law firms one hears about, KEYSTONE LAW is a very happy ship, not least because the firm’s lawyers reap a very fair reward as a proportion of the costs they generate. There is a real ‘family’ feeling within the firm, and a refreshing absence of office politics. And the superb admin back-up from which we all benefit allows Keystone lawyers to get on with what we really enjoy, and do best - practising the law.

© MARTIN H GOODALL

Tuesday, 21 November 2017

Prior approval applications under Class Q(a) only


My attention has been drawn to an appeal decision in East Staffordshire [3170228], issued on 3 July 2017, which allowed a prior approval appeal under Class Q(a) only (for the residential conversion of an agricultural building), where it was clear that works under Class Q(b) would also be required. The view was expressed in that decision letter that an application under Class Q(b) could be made at a later date.

The Inspector wrote:

6. The Council’s reason for refusal and evidence focuses on those matters addressed under Class Q(b) in terms of the scale and nature of the works that would be required to convert the building to residential use. However, Class Q.2(2) of the GPDO indicates that an application can be made for the change of use of the building and curtilage only. It is clear from the appellant’s application form and supporting evidence that the application which constitutes this appeal was made on this basis. The appellant has also made it clear that it was always the intention to address matters under Class Q(b) with a separate application.

7. It is evident from the current condition of the building that a further application would be required. However, the GPDO does not state that where building operations are clearly intended or required that a Class Q(a) only application cannot be made. The approach of applying for Class Q(a) only is permissible under the regulations of the GPDO and the appellant can seek approval for the change of use without dealing with building operations. I have therefore considered the appeal on this basis.


I am led to believe that there may have been one or two other appeal decisions to the same effect, but the decision letters I have seen so far do not seem to be on precisely the same point, and so at the time of writing I have only the East Staffs (Uttoxeter) decision to go on.

It has been pointed out to me that my summary of the provisions of Class Q (and of paragraph W) in my first book, A Practical Guide to Permitted Changes of Use (on page 110 in the Second Edition), does not accord with this approach on the part of this inspector (and possibly others?). Nevertheless, having reviewed the legislation, I maintain my stated view on this issue.

The reason for this is that paragraph W.(2)(a) provides in clear terms that the application must be accompanied by a written description of the proposed development, which, in relation to development proposed under Class C, M, N or Q of Part 3 must include any building or other operations. So it is only in relation to those developments where no building operations will in practice be required that a prior approval application may be made under Class Q(a) alone. In light of the wording of paragraph W(2)(a), I really don’t think there can be any scope for making an application solely under Class Q(a) in a case where building operations under Class Q(b) will also be required in order to convert the building for residential use, and an LPA would be fully justified in rejecting a prior approval application made under Class Q(a) alone as invalid in these circumstances (by reference to paragraph W(2)).

If any readers can provide other examples of this Q(a)/Q(b) issue having been considered in other appeals, I would be grateful to have them drawn to my attention, particularly if they contain any explanation or justification for departing from the provision I have quoted from paragraph W(2)(a).

In the meantime, I should record my gratitude to a correspondent for drawing my attention to the East Staffordshire decision, together with other recent appeal decisions on Class Q. I have not named my source, as I have not ascertained whether they would be willing to ‘go public’ in this instance.

UPDATE (22 November): I am grateful to another correspondent for drawing to my attention an appeal decision in North Devon [3146607], issued on 16 July 2016. In his decision letter, the Inspector wrote:

8. Class Q.2 of the GPDO sets out that an application can only be made for: both the change of use and the conversion works; or the change of use only. The application that constitutes this appeal was made for the latter and I am to deal with the appeal on this basis as the GPDO does not state that where building operations are clearly intended that a Class Q(a) only application cannot be made. Therefore, applicants can seek prior approval for the change of use in advance of dealing with the building operations.

I can see why some people (including some inspectors) read the conditions in paragraph Q.2 as if they allow an application to be made under Q(a) alone, even where building operations will be required under Class Q(b). If one goes back to look at the former Class MB in the 2014 amendment order, one finds the same wording, but two inconsistent appeal decisions in Cornwall (one of which asserted that, where building operations would be required, a Class MB(a) application could not be made without a simultaneous application under Class MB(b), and the other accepted that it could) led the government to add the provision in paragraph W(2)(a) in the 2015 Order to which I have drawn attention, which had not previously appeared in paragraph N of the 1995 Order.

Paragraph W(2)(a) was clearly added in the 2015 Order so as to resolve the doubt arising from the wording in Class MB that had led to the two inconsistent decisions on this issue in Cornwall. In the two more recent appeal decisions to which attention has now been drawn [3170228 and 3146607], the Inspectors have both concentrated on the wording of the conditions in paragraph Q.2 regarding prior approval applications, without having paid any attention to paragraph W(2)(a).

I really think that PINS should amend their advice to Inspectors in order to draw attention to paragraph W(2)(a), but if it is the case that PINS are in fact advising inspectors that Class Q(a) applications can be dealt with without an application also being made under Class Q(b) (where building operations will clearly be required in order to convert the building for residential use) then someone in DeCLoG needs to put them right on this, and explain why it was that paragraph W(2)(a) was added to the 2015 GPDO.

© MARTIN H GOODALL

Monday, 20 November 2017

Another successful book launch



Photo © Kelly Duncan (Keystone Law)

Like my first book, my new book, “The Essential Guide to the Use of land and Buildings under the Planning Acts” has outsold the original print order and the first reprint, so that we had temporarily run out of copies by the time of our launch seminar in London last Friday. However, anyone who is still awaiting their copy of the book should get it very soon. The book is now on its third printing, and is continuing to sell well. I have had very positive feedback from readers, one or two of whom told me that the book had proved useful to them within days after they received their copy!

The launch seminar that Bath Publishing held at the RIBA in London on 17 November, in association with Keystone Law, was also a great success, with another large audience (but as is so typical of the English, seats were left vacant at the front, while everyone crowded into the seats further back in the hall! – see photo).

I spoke on Lawful Uses (and LDCs), while William Upton of 6 Pump Court gave an extremely interesting talk on Unlawful Uses (including enforcement). My colleague, Ben Garbett then explained a number of judgments handed down in the past year affecting permitted changes of use, and we had two very lively Q&A sessions, which led to an interesting discussion of a number of controversial issues in these areas of planning law.

Clearly there are continuing queries relating to Class Q (residential conversion of agricultural buildings), notably in relation to structural issues. Hopefully, there will be some further clarification, either from the government or from the courts in the not too distant future. I shall certainly cover any developments on this topic in this blog.

Another area of doubt is the precise way in which the time limits under Class P (residential conversion of a warehouse or other storage building) and Class PA (residential conversion of a light industrial building) will work in practice. The deadline for completing conversions under Class P – 15 April 2018 - is fast approaching.

© MARTIN H GOODALL

Wednesday, 1 November 2017

Implied conditions and the definition of ‘sport’


In recent weeks, my attention has necessarily been focused on final preparation of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) for publication, and I have not had time to blog on various developments in planning law that have occurred recently.

There are a couple of judgments which came too late for the book but, fortunately, both of them only serve to confirm the law as stated in the text (much to my relief!).

The first of these was the judgment of the High Court in Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin), on 3 October. This related to a condition that, it was claimed, should be implied in a planning permission. The case concerned a permission granted under section 73 (which, although it relates to the removal or modification of conditions in a previous planning permission, takes effect as an entirely new planning permission). The previous permission had been restricted by condition to non-food sales, but the conditions in the section 73 permission did not refer to any such restriction. The LPA refused an LDC for unrestricted A1 use, but this decision was overturned on appeal by an inspector, who granted the LDC sought by the developer. It was this appeal decision that the LPA sought to challenge.

The judgment reviewed the previous decisions mentioned below, but the court rejected the LPA’s contention that a condition preventing the sale of food could be implied in this case. To put it as shortly as possible, the decision of the Supreme Court in Trump International Golf Club Scotland Ltd. v Scottish Ministers [2015] UKSC 74 indicates that a term can be implied in a condition that has actually been attached to the permission, so as to give proper effect to the intention of that condition, but this does not over-ride the well-established principle that a condition that is entirely absent from a permission cannot be implied in that permission. Thus in I’m Your Man Limited v SSE 77 P & CR 251, a ‘temporary’ permission (so described in the description of the development authorised by the permission) could not be interpreted so as to imply a condition in that permission that the use should cease at the end of the period mentioned in the description of the development. In the Lambeth case Mrs Justice Lang drew attention to the subsequent approval of that judgment by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin) and by the Planning Court in Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin). Both of these cases concerned substantive limitations on the permission granted, not merely temporal ones.

The second recent case was the judgment of the European Court of Justice in English Bridge Union Limited v HMRC (Case C 90/16), which was handed down on 26 October. This finally determined a question that has been the subject of repeated litigation over the past few years, namely whether Bridge can be classified as a ‘sport’ for tax purposes. This judgment confirms that, in order to be a ‘sport’, the activity in question must have some element of physical exertion. I mention this judgment because it is analogous to the question of whether various card and board games can be regarded for planning purposes as coming within Use Class D2(e) (“use ……… for other indoor ……….. sports or recreations”). The decision of the ECJ (contrary to the Opinion of the Advocate-General published in June) is in line with the related English cases - English Bridge Union) v Sport England [2015] EWHC 1347 (Admin) and R (English Bridge Union) v Sport England [2015] EWHC 2875 (Admin).

Whilst the English Bridge Union litigation was concerned with the eligibility of Bridge for grants from Sport England, and its treatment for the purposes of tax and VAT, all these judgments (including now the final judgment of the ECJ) are entirely consistent with the conclusion reached in earlier cases relating to Use Class D2, such as Millington v SSETR (1999) 78 P. & C.R. 373; (1999) J.P.L. 644 (subsequently approved by the Court of Appeal – [2000] J.P.L. 297) and Rugby Football Union v SSETR [2001] EWHC 927 (Admin) (subsequently upheld in the Court of Appeal – [2002] EWCA Civ 1169). A leisure activity will only fall within Use Class D2(e) if it involves some physical effort or exertion. Absent this essential physical element, other ‘recreations’ (even if they are competitive in nature) do not fall within Class D2(e).

© MARTIN H GOODALL

Monday, 23 October 2017

Use of Land book goes to press


In the past few weeks I have been racing for the finishing line, in getting the text of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) ready for press. I am pleased to say that, with the considerable help of my publisher’s Editor, Helen Lacey, the book was finally sent off to the printers today, and should be ready for distribution in a couple of weeks’ time.

I published a list of chapter headings here in September. It would take up too much space to list the entire contents of the book, but just to give you an indication of the scope of the book’s coverage of the subject, I am printing below an extract from the Table of Contents for just two chapters that deal with Dwellinghouses and with Houses in Multiple Occupation.

CHAPTER 13
DWELLINGHOUSES

13.1 Use Class C3

13.2 The definition of a “dwellinghouse”
13.3 The original 1987 version of Class C3
13.4 The 2010 version of Class C3
13.5 The definition of a “single household” under Class C3(a)
13.6 Small care homes (Class C3(b))
13.7 Other households (Class C3(c))
13.8 The definition of a “single household” under Class C3(b) and C3(c)
13.9 The 6-person limit under Class C3(b) and C3(c)
13.10 House-shares
13.11 Holiday lets
13.12 Short-term lets and time-shares in Greater London
13.13 Subdivision of a dwellinghouse
13.14 Amalgamation of two or more dwellings
13.15 Ancillary and incidental domestic uses
13.15.1 Working from home
13.15.2 ‘Live/work units’
13.15.3 Guest rooms and ‘Bed & Breakfast’
13.15.4 ‘Granny annexes’
13.15.5 Incidental or ancillary use of outbuildings
13.15.6 Extending the domestic curtilage
13.15.7 Hobbies and similar activities
13.15.8 Stationing of a caravan on land for residential use
13.15.9 Caravans within the curtilage of a dwellinghouse
13.15.10 Storage of a touring caravan
13.15.11 Storage of other domestic items
13.16 Changes of use to and from Class C3

CHAPTER 14
HOUSES IN MULTIPLE OCCUPATION

14.1 Use Class C4

14.2 A brief overview of Class C4
14.3 Buildings excluded from the definition of an HMO
14.4 The definition of “a house in multiple occupation”
14.4.1 The standard test
14.4.2 The ‘self-contained flat’ test
14.4.3 The ‘converted building’ test
14.4.4 An ‘HMO declaration’
14.4.5 Persons treated as occupying premises as their only or main residence
14.5 Changes of use to and from Class C4

The actual text of the book (excluding the Tables and Index) comes to some 340 pages, which is 20 pages more than the Second Edition of my other book, A Practical Guide to Permitted Changes and Use, for the same price. So it’s a real bargain, and I very much hope that readers will agree that it lives up to its name as the essential guide to this subject. I can’t pretend that the book is as comprehensive as the Land Use Gazeteer, but at around 20% of the price of that massive work, it is a good deal more affordable.

Buyers who order the book by 31 October will receive both the print edition and the digital edition of the book for the single price of £50.

And don’t forget our seminar in London on 17 November, which is booking up fast. Again, you will benefit from the ‘early bird’ discount if you book no later than 31 October. So don’t delay; you have only a week left to benefit from these bargain prices.

© MARTIN H GOODALL

Friday, 6 October 2017

LAND USE ISSUES IN PRACTICE – the seminar


In addition to publishing my new book, “ The Essential Guide to the Use of Land and Buildings under the Planning Acts”, BATH PUBLISHING are also organising a seminar on The Use of Land and Buildings: Current Legal Issues, in conjunction with Keystone Law, which will held at the RIBA at 66 Portland Place, London W1B 1AD on Friday 17 November.

This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £140 +VAT if you book before 31 October (saving £25 on the full price). This includes a copy of both the print and digital editions of my new book (worth £75), which will be given to all delegates to the event. (The price for the book alone is £50 for the print edition and the same for the digital edition, or £75 for the two together.)

The seminar will cover some of the major issues that affect the use of land and buildings and material changes of use, including unlawful uses. There will also be an update on permitted changes of use, covering legislative amendments and judgments within the past 12 months. Ample time will be allowed for questions, which will be discussed by our expert panel.

You can read more about the programme and venue at:

https://bathpublishing.com/planning

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

Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button on the the seminar icon on the left-hand side of this page.

© MARTIN H GOODALL

Friday, 29 September 2017

Can PD rights represent a fall-back position?


There have been disputes for a number of years as to whether permitted development rights, such as those for the residential conversion of agricultural buildings under Class Q in Part 3 of the Second Schedule to the GPDO, can be called in aid as a fall-back position where a planning application is submitted for other development on the same site. On 8 September, the Court of Appeal upheld a judgment of the High Court that such PD rights can properly be taken into account as a fall-back position where some alternative form of development is then proposed.

The case in question is Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314, in which the leading judgment was given by Lindblom LJ. The LPA had granted planning permission in this case for the demolition of an existing agricultural barn and of a bungalow on the application site and to construct four detached dwellings, with garages and gardens. In recommending the LPA’s committee to grant planning permission, the planning officer had advised them that, in practical terms, the permitted development rights under Class Q meant that the existing agricultural barn could be converted into three residential units up to a limit of 450 sq m. Furthermore, the existing bungalow within the site could be replaced in accordance with an adopted policy in the Local Plan with a new residential building, provided that it was not materially larger than the existing building. He advised that, taken together, these factors could, in effect, give rise to the site being occupied by a total of four residential units (albeit of a different form and type to that proposed by this application). This, the officer observed, provided a realistic fallback position in terms of how the site could be developed.

The claimant sought to challenge the grant of planning permission on several grounds. He alleged that the planning officer (and hence the council) had misinterpreted the provisions of Class Q; they had wrongly accepted that there was a real prospect of the fallback development being implemented; and they had also misunderstood or misapplied the “presumption in favour of sustainable development” (as defined by paragraph 14 of the NPPF).

Part of this argument turned on the interpretation of the 450 sq m floorspace limit (which, the claimant argued, applied to the entirety of the building in question, and was not confined to the actual floorspace that is actually converted). This argument was rejected both at first instance and by the Court of Appeal. The argument was that an interpretation of the relevant provisions that confined the floorspace limit to the floor area actually converted would render sub-paragraph Q.1(b) of Class Q redundant, because sub-paragraph Q.1(h) already limits the residential floor space resulting from the change of use under Class Q to a maximum of 450 square metres. I confess that I was originally confused myself by the relationship between paragraph Q.1(b) and paragraph Q.1(h), but I then explained the distinction between these two provisions in the Second Edition of A Practical Guide to Permitted Changes of Use (in paragraph 9.6 on page 103).

At first instance, Garnham J. accepted that the council was entitled to conclude that there was a “realistic” fallback. The evidence had established that there had been prior discussions between the council and the planning consultant acting for the site owners. It was crystal clear from that contact that the owners were intending, one way or another, to develop the site. Alternative proposals had been advanced seeking the council’s likely reaction to planning applications. It was in the judge’s view wholly unrealistic to imagine that were all such proposals to be turned down the owner of the site would not take advantage of the permitted development provided for by Class Q to the fullest extent possible. It was not a precondition to the Council’s consideration of the fall back option that the owner had made an application indicating an intention to take advantage of Class Q. There was no requirement that there be a formulated proposal to that effect [my emphasis]. The officer was entitled to have regard to the planning history which was within his knowledge, and the obvious preference of the owners to make the most valuable use it could of the site.

The claimant sought to criticise this approach by reference to Samuel Smith Old Brewery (Tadcaster) v SSCLG [2009] J.P.L. 1326 (at paragraph 21) and R. v SSE, ex p. P.F. Ahern (London) Ltd [1998] Env. L.R. 189 (at p.196). However, Lindblom LJ could not accept that argument. In his view, the officer did not misunderstand any principle of law relating to a fallback development. His advice to the members was sound.

[I would simply add the observation that a prior approval application is not a necessary pre-requisite to establishing a fall-back position, because planning permission is granted in any event by Article 3(1) of the GPDO. In granting prior approval an LPA is not even approving the permitted development as such, but only those matters that specifically require their attention. On the other hand, a prior approval application would clearly be positive evidence of an intention to develop, and would certainly put the fall-back position beyond doubt. In this case, however, there was other evidence that entitled the LPA to conclude that there was a realistic prospect that the PD rights would be exercised if planning permission was not granted for the alternative development that was now proposed, and so a fall-back position had clearly been established.]

The remaining issue was the presumption in favour of “sustainable development”, as interpreted by paragraph 14 of the NPPF. The decision of the Court of Appeal in Barwood Strategic Land LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 provides the answer (and supersedes all previous judgments on this issue). The “presumption in favour of sustainable development” did not apply to the proposal in this case, and the council’s officer did not advise the committee that it did. The instant case was clearly and materially different from Barwood, and the officer’s report had correctly advised on the application of the NPPF as a material consideration in the determination of this application.

The Court of Appeal unanimously upheld Garnham J’s judgment at first instance and dismissed the claimant’s appeal.

© MARTIN H GOODALL