Wednesday, 1 July 2015

ANDREW HIGNETT JOINS KEYSTONE LAW


Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning and environment lawyer, Andrew Hignett, has joined KEYSTONE LAW. This further strengthens our well-established planning law team, and now gives us coverage of major infrastructure projects, particularly in the ports sector, in addition to the other specialisations we already cover. It brings the number of planning lawyers in the firm to five, all of whom have substantial experience in planning law at a senior level.

Andrew’s key skills are founded in planning and environmental law, and he principally advises ports and other organisations in the sector on marine-related development, particularly in relation to port infrastructure projects. As well as project work, Andrew advises on regulatory and harbour management issues, including the promotion of Harbour Revision Orders.

He has considerable practical experience on the impact of nature conservation law in both the UK and Europe. Andrew also has experience of the judicial review of development consents, including planning permissions, marine licences, and harbour revision orders.

Andrew is a member of the UK Environmental Law Association and is actively involved in the work of the British Ports Association. He also writes and lectures on issues of concern to the ports industry.

© MARTIN H GOODALL

Monday, 8 June 2015

The 56-day rule – some additional points


A couple of readers have written to me to draw attention to Article 7 of the GPDO. This is a new provision that did not appear in the 1995 Order.

There was no provision in the 1995 Order for any extension of time in respect of the determination of a prior approval application. However, Article 7 (after restating the basic rule that prior approval applications must be determined within 56 days) now allows the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing (which could comprise an exchange of emails).

There is, of course, no obligation on the applicant to agree to such an extension of time, but if they do not do so a prudent authority might then refuse the application fairly promptly in order to avoid the 56-day rule coming into operation, thereby enabling the development to go ahead in any event. It is clear that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. A nil response from the applicant to the LPA’s a request for more time would not prevent time from continuing to run for the purposes of the 56-day rule. There would need to be some written evidence that both parties had agreed to extend time.

One correspondent queried whether sub-paragraphs (a), (b) and (c) in Article 7 do in fact enable time to be extended (or whether sub-paragraph (a) in fact rules this out), but there is no doubt that any one of sub-paragraphs (a) or (b) or (c) may apply; there is a comma after sub-paragraph (a), so it is clear that each is an alternative to the others.

Reverting to appeals against non-determination of a prior approval application, after further representations from the LPA, the Planning Inspectorate subsequently changed their minds in the case I mentioned in my last post, and accepted the appeal, on the basis that the case raised other issues besides the question of non-determination within the 56-day period. In the absence of such additional issues, though, it would appear that it is unnecessary (and in fact impossible) to appeal against the non-determination of a prior approval application. The right to proceed with the development arises automatically. However, if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, it may in such circumstances be advisable to make an application for a Lawful Development Certificate under section 192 of the 1990 Act, as I mentioned previously.

© MARTIN H GOODALL

Wednesday, 3 June 2015

The 56-day Rule - Some further thoughts


Since I wrote my previous posts on this topic on 9 and 13 February and 11 March, I have taken the opportunity to look in more detail at the requirement as to the timing of the LPA’s notification of their determination of a prior approval application.

On the basis of the practical examples that I quoted in those posts, the consensus would appear to be that notification of the LPA’s determination of the prior application must not only be given by the authority within the 56-day period, but must also be received by the applicant within that period, and a proper construction of paragraph W(11), read as a whole, would seem to support this.

In paragraph W(11) of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”, although sub-paragraph (c) merely refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Sub-paragraph (c) relates to both of these two alternative notifications under sub-paragraph (a) or (b), and (by implication) to the third possibility that the notice served by the authority may be to inform the applicant that prior approval is refused. It therefore seems clear from the context that sub-paragraph (c) must also be taken to refer to the receipt by the applicant of such a notice, so sub-paragraph (c) should in practice be read as - “the expiry of 56 days following the date on which the application was received by the local planning authority without the receipt by the applicant from the local planning authority of a written notice as to whether prior approval is given or refused”.

Whilst on this topic, I am grateful to a correspondent for drawing to my attention the position regarding an appeal under section 78 against non-determination of a prior approval application, where the failure of the LPA to determine the application or to notify the applicant of that determination within the 56-day period is the sole determining factor in the appeal.

In such a case, the Planning Inspectorate seems recently to have taken the view that no appeal is required (or can be made) in such a case. I have been shown a letter from the Planning Inspectorate, written in May of this year in response to an appeal which had been made against non-determination of a prior approval application in Gloucestershire, in which they stated that, because it would appear that the LPA did not determine the application within the required 56 day period, the applicant can proceed with the development in these circumstances, and no right of appeal applies. The LPA had the power to refuse the application on the basis that the development was not appropriate for the prior approval process but there was no indication in this case that they did so. In the circumstances, the Inspectorate stated that the appeal appeared to be invalid and no further action would be taken on it. A copy of this letter was sent to the LPA who were asked to note its contents.

This would appear to dispose of the need to appeal against non-determination. If the applicant is correct in their assertion that they have the right to carry out the permitted development, then the expiry of the 56-day period would in principle enable the development to proceed, but if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, or if there is a dispute with the LPA as to the qualification of the site for change of use under the relevant Class in Part 3 (or where the LPA is otherwise challenging the right to carry out the proposed development), caution may suggest that the correctness of the applicant’s assertion as to the lawfulness of the proposed development should be tested by means of an application under section 192, before going ahead with the development.

It may be helpful to readers who are making an LDC application to be reminded of the judgment in F W Gabbitas v SSE and Newham LBC [1985] JPL 630, where it was held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but the legal principles that it set out continue to apply.

© MARTIN H GOODALL

Thursday, 28 May 2015

Savings for old provisions in the GPDO


When I wrote the other day about Article 8 of the GPDO 2015, I mentioned the possibility that there may be some general rule of statutory interpretation which would preserve the effect of the repealed legislation, but I had not had time to look this up.

I am grateful to Fraser Kerr for reminding me of section 16 of the Interpretation Act 1978. Although we are dealing here with a statutory instrument rather than an Act of Parliament, under section 23 (1) the provisions of this Act apply (unless the contrary intention appears) to subordinate legislation made after the commencement of this Act as they apply to Acts of Parliament. Section 16(1) provides that where an Act repeals an enactment, the repeal does not (unless the contrary appears) affect the previous operation of the enactments repealed or anything done or suffered under that enactment.

This is enough, I think, to protect the effect of a prior approval already granted before 15 April 2015, and this provision should also suffice to enable any pending prior approval applications and/or appeals against their refusal to be determined after 15 April, whereupon any prior approval so granted could be acted upon, even though the prior approval application was made under the provisions of the 1995 Order. It would also appear that the relevant provisions (including any limitations, conditions or restrictions) applying to the permitted development in question would be those under the 1995 Order, rather than the 2015 Order, although I am not absolutely certain about this last point.

In other cases, where no prior approval application had been made before 15 April, or in any cases where no prior approval was required (and where development had not commended before 15 April), the permitted development will now be entirely governed by the provisions of the 2015 Order.

So far so good, but I don’t think this answers the second problem which I posed in my last post, namely whether dwelling units (or floorspace) converted under a relevant class in the 1995 Order (e.g. under Class MB) should be counted towards the numerical limit (or cumulative floorspace limit) in the corresponding Class in the 2015 Order (Class Q in the example given). I am not convinced that the Interpretation Act has that effect. In this connection, I also looked at section 18 of the Interpretation Act, but I am not convinced that this section has the effect of enabling the provisions of the former classes of development in Part 3 of the 1995 Order to be read as if they were equally applicable to the corresponding new Classes in Part 3 of the 2015 Order. But I am open to persuasion on this point.

This last issue is perhaps more important, from a practical point of view, than the first point I raised. I am assuming for the time being that I am right in thinking that the numerical and floorspace limits in respect of development carried out under the 1995 Order do not affect development subsequently carried out under the corresponding provisions of the 2015 Order, but (as before) I would welcome any comments from readers on this point.

[P.S. I wrote this piece before I had seen Tom Bright’s comment, which has now been published under the previous post. I will take a look at the other point he raises, regarding Article 4 Directions, and come back on this subject in a future post.]

© MARTIN H GOODALL

Thursday, 21 May 2015

GPDO 2015 - a problem?


Like most planning professionals, I imagine, I have had my nose buried in the new GPDO since it was published, in an effort to check all the changes (some of them quite subtle) that have been made to this legislation by the new Order. (This, incidentally, explains the relative paucity of posts on this blog in the past few weeks.)

As a result of a question someone asked me (and which I still haven’t answered), I have hit upon a possible problem of statutory interpretation arising from the new GPDO.

Article 8 of the GPDO 2015 revokes all the statutory instruments listed in Schedule 4, including the 1995 Order, and the amendment orders of 2013, 2014 and the most recent amending order of March 2015. One would naturally expect, however, to find a savings provision in the new Order, and Article 8 does indeed contain such a provision. However, the saving in Article 8(2) is solely for the purposes of development specified in Article 6(2) of the March 2015 amendment order, namely in respect only of a temporary change of use, under Class C or Class D of Part 4, of premises used within Use Class A4 (drinking establishments), and certain demolition under what had been Part 31 in the 1995 Order (now replaced by Part 11 in the 2015 Order). There is nothing else to preserve the effect of any of the provisions of the 1995 Order.

Have I missed some obvious general rule, contained elsewhere in the planning legislation? Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way? If not, then it seems to me that the repeal of the 1995 Order and all its amending orders could have two consequences, one which would clearly disadvantage developers and one which could be of benefit to them.

It seems to me that (at least in theory) unless development has actually begun, any planning permission granted by Article 3 of the 1995 Order was revoked with effect from 15 April 2015, even if prior approval had been granted in respect of that development before that date. (Bear in mind that the prior approval is not a planning permission, and does not have the effect of a planning permission; it simply fulfils a condition without which the development could not proceed. The planning permission was actually granted by Article 3.) So does anyone who had intended to carry out development under the 1995 GPDO now have to start again, even if the LPA had notified the developer of their prior approval? If one views each of the 1995 Order (now repealed) and the 2015 Order (effective from 15 April) as being entirely self-contained and mutually exclusive, which in the absence of any relevant saving provision in the 2015 Order would appear to be the case, then this would appear to be the position (as I say, at least in theory) in which a developer could find themselves.

On the other hand, if we take (say) the 3-dwelling limit in the former Class MB and the same limit in the new Class Q (or the floorspace limit under each of those provisions), then arguably any development carried out under Class MB (i.e. commenced before 15 April 2015, even if it has not yet been completed) would not count towards the limits now imposed by Class Q. There is no mention anywhere in the new GPDO, as far as I know (and I really have been through it over and over again with a fine-tooth comb while writing my book on the subject) of development previously carried out under Class MB in the 1995 Order. So, arguably, one could have used up the 3-dwelling limit under Class MB (or the floorspace limit under that class) and still be able to develop another three dwellings under Class Q ! [I appreciate that the ability of the LPA to refuse prior approval because “the location or siting of the building makes it otherwise impractical or undesirable” for the proposed residential conversion might possibly be used as an excuse by an LPA, or even by PINS, to block extra dwellings over and above the three already built under former Class MB, but it is the underlying principle with which I am currently concerned.]

I put these points to my colleagues in Keystone Law’s planning law team, and we all agreed that the apparent result of this legislative change which I have postulated above cannot have been intended by ministers. So far as concerns the apparent revocation of any permission granted by the 1995 Order (even where prior approval has been given in respect of the relevant issues with which it was concerned), the consensus we have reached in the team is that the new GPDO must be construed in accordance with Human Rights legislation, in a way which is compatible with the landowner's rights under Article 1 of the First Protocol, so far as it is possible to do so, and that the permission granted by Article 3 of the 1995 GPDO should not be regarded as having been revoked where prior approval in respect of such a development has been given, bearing in mind the 3-year time limit for commencement under the 1995 Order. We have collectively taken the view that a commonsense approach is required to this issue. Nonetheless, the strict legal position remains uncertain.

We have similarly taken the view that a prior approval application made under the terms of the 1995 Order which has not yet been determined should be treated as an application under the corresponding provision in the 2015 Order and should be processed and determined in accordance with the new rules, with the 56-day rule continuing to run from the day after receipt of the prior approval application by the LPA. This again, however, is a matter of common sense rather than legal interpretation. Planning inspectors in determining planning appeals have certainly taken this approach in recent weeks.

However, as regards the limits on development that were imposed (for example) by Class MB in the 1995 Order, as compared with the same limits imposed by Class Q in the 2015 Order, we take a different view. We have come to the conclusion that it would theoretically be possible to create up to six dwellings within a single agricultural unit – three under Part 3, Class MB in the Second Schedule to the 1995 Order, and another three under Part 3, Class Q in the Second Schedule to the 2015 Order (subject to prior approval under the terms of Class Q). [If my my supposition as to the loss of these permitted development rights if they had not been implemented before the 1995 Order was repealed is in fact correct, these residential conversions would have to have been started before 15 April 2015 in accordance with a prior approval or approvals under Class MB.]

Incidentally, I trust that readers have caught up with the change made in the amending Order made shortly before the consolidating Order itself, which resolved the previous doubt as to whether the 3-dwelling limit applied to all dwellings previously created on the same agricultural unit or only those created as permitted development under the GPDO. That amendment, now carried into the substantive Order, confirmed that it is only dwellings created as permitted development under Class MB of the 1995 Order (and now under Class Q of the 2015 Order) that count towards the 3-dwelling limit.

I would be very grateful if readers could direct my attention to any legislative or judicial authority on the issues I have raised above, and I shall be pleased to publish these as comments on this post.

Meanwhile the text of my book (working title – “A Practical Guide to Permitted Changes of Use”) has now been completed, and we are now moving on to the editing stage and preparation for publication. It is still too early to give details of the book’s publication, and in particular the date when it is likely to become available, but I naturally hope it will be as soon as possible.

© MARTIN H GOODALL

Monday, 11 May 2015

Goodbye, Uncle Eric!


The government has announced that Greg Clark [WHO???] has been appointed Secretary of State for Communities & Local Government in place of Eric Pickles. At the time of writing, I am not aware as to what role, if any, Eric Pickles may play in the government in the future. This may emerge in the course of the next few days. Maybe he will be put out to grass, although elevation to the House of Lords might not be an option if the PM wants to avoid a by-election in an Essex constituency where UKIP could no doubt be expected to mount a strong challenge.

Pickles has been possibly the longest serving head of this department and, in his rather plodding way, he has faithfully stuck to his brief, starting after the last election with the Localism Bill, which sought to put into effect the half-baked ideas that the Tories had dreamt up in opposition as a sop to the NIMBYs. However, the Wicked Uncle who resided (and still resides) at 11, Downing Street strangled the infant at birth, and Uncle Eric was then obliged to publish the National Planning Policy Framework, for which he clearly had no real enthusiasm, but he did what he was told, and it was eventually published in March 2012, encouraging much more development than the NIMBYs would have liked, or had been led to expect when the coalition government first took office.

Responding again to the diktats of the Treasury, Uncle Eric’s department then set about the further liberalisation of the planning regime, by amending the GPDO in three tranches (in May 2013, April 2014 and April 2015) to allow residential conversions of a variety of commercial premises and of farm buildings, as well as other changes of use that would otherwise have required planning permission. This met with strenuous opposition from some local planning authorities, but was forced through anyway, and has been backed up by some robust appeal decisions, which have swept aside objections to these developments. Recent amendment of the Use Classes Order has further liberalised the uses to which commercial premises can be put in future.

I will take a look at the new De-CLoG ministerial team in a future post. As I indicated before the election, the pace of change in planning law and practice may slow down somewhat now, especially since the government’s primary focus for the time being will be on other areas. However, there are some controversial infrastructure projects in the pipeline, including HS2 and the demand for additional airport capacity in the South-east (either at Heathrow or at Gatwick). There will no doubt be some unhappiness on the Tory back-benches if the government continues to push ahead with these schemes.

© MARTIN H GOODALL

Monday, 27 April 2015

What’ll the Romans ever do for us?


I had intended to write a piece under this title, reviewing the proposals in the various party manifestos that are relevant to town and country planning, but they are all so vague that it is pointless to waste time on them. There are various proposals for more house-building, including the possibility of ‘garden cities’, plus further encouragement to develop brownfield sites, but on the past performance of all three main parties over the past 20 years one has to treat these proposals with a considerable degree of scepticism, especially as none of the parties seems to have any idea of how they are going to deliver these extra houses in practice, having conspicuously failed to do so in the past.

Proposals relating specifically to planning reform are rather thin on the ground, and we may be in for a rather quieter time in that regard compared with the stream of significant changes made by the coalition government in recent years. But if the civil servants in De-CLoG are not going to be kept busy with preparing new legislation, they may turn their minds to a consolidation of the primary planning legislation. This was last consolidated in 1990, and so we are perhaps overdue for a further consolidating Act. I won’t personally welcome this, as it would mean that we would have to re-learn all the section numbers with which we have become so familiar over the past 25 years, but I would have to agree that it would make administrative sense.

The final factor which dissuaded me from writing a review of the election manifesto proposals is the extreme uncertainty as to the outcome of the election. I have a strong feeling that all the party manifestos will be just so much waste paper on May 8, and quite a few of the bright ideas put forward by various parties will have to be jettisoned in the course of the intense negotiations that are likely to follow an inconclusive election result.

Incidentally, it has become increasingly obvious that journalists commenting on the likely scenario after 7 May are pretty clueless as the constitutional law and practice that will govern the course of events in the aftermath of the election. The first thing to bear in mind is that all the members of the present coalition government are still in post, and this will remain the position on the morning of 8 May (even if some of those ministers no longer have parliamentary seats). I dare say ministers are not spending much time at their desks right now, being too busy campaigning around the country, but they will still be receiving their red boxes, and the business of government is still being carried on.

There is no rule or constitutional convention that requires a Prime Minister to ‘concede defeat’ and resign after losing an election. If the outcome of the election does not give any single party a Commons majority, it is in fact more sensible for the PM (and the rest of his government) to remain in post until it becomes clear whether a new administration can be formed, led by one party or another. Each of the two main party leaders (Cameron and Miliband) will no doubt urgently explore the possibilities in talks with other parties, and if Cameron, as the incumbent PM, thinks he can carry on, then he is free to meet the new House of Commons and to put forward his programme, and see whether the Commons will support him or not.

One thing that has become clear is that in these circumstances, when it is likely to remain very unclear as to which party could in fact form a viable government, the Queen has no intention of becoming embroiled in what is likely to be a messy political situation. HM is therefore unlikely to open the new parliament in person – it can be done by a commission, in the same way as Royal Assent to Bills and the Prorogation of Parliament. There would be no Queen’s Speech, and Cameron (if he decides to adopt this course of action) would simply have to set out his programme in the Commons. Sooner or later, he would be obliged to table a motion of confidence, and if the government loses that vote, the provisions of the Fixed Parliaments Act will kick in.

On the other hand, it may become clear on 8 May that the game is up for the Tories, and that Cameron stands no chance of commanding any sort of Commons majority, no matter what way the cards are cut. In that case (while Cameron remains in post at least as a caretaker) it will be up to Miliband to see if he can come to some arrangement with other parties (however informal it may be) which would allow a Labour or Labour-led government to function with the support of a majority of MPs in the Commons. If or when he signals that he has reached a position where he believes this is possible, Cameron would then resign, and Miliband would be invited by HM to form a government. I don’t propose to speculate as to how that government might be composed and, in particular, whether any members of one or more other parties might or might not be invited to join it. In any event, the viability of this government would probably have to be tested, sooner or later, by a confidence vote in the Commons, and if it is lost then (as I mentioned earlier) the provisions of the Fixed Parliaments Act would come into play.

There has been some wild talk in recent days about the ‘legitimacy’ of a government formed by a party which does not have the largest number of MPs in the Commons, but this is complete nonsense. It has always been the position that any party leader who appears to be in a position to command a Commons majority (whatever its make-up) may be called upon to form a government. Loose talk about whether a government does or does not have a ‘mandate’ is also just hot air. All that matters is that the government, whatever its political composition, and whatever the composition of its various supporters in the Commons, is able to carry on the government of the country with the support of the House. Teresa May’s assertion that such a scenario would be the worst constitutional crisis since the Abdication has been greeted with the derision that it deserved.

To be coldly objective, it seems extremely unlikely that David Cameron will be able to cobble together a Commons majority after May 7, whereas it appears that there could quite possibly be a comfortable Centre-Left majority for a government led by Ed Miliband, always provided that some of the perhaps rather rash statements made by him, by Nick Clegg and by the Scottish Nationalists as to whether or not they would be prepared to reach some sort of understanding with various other parties can be put aside, and that they can find a way of co-operating with each other to carry on the government of the country.

© MARTIN H GOODALL