Tuesday, 10 July 2018

More musical chairs


It was only at the end of April that I was reporting the appointment of the new Housing & Planning Minister, Dominic Raab, and yet here we are, not yet half way through July, noting his departure for pastures new to become Brexit Secretary [surely a thankless task in the current circumstances!] in place of David Davis, following Davis’s dramatic resignation late on Sunday night.

Dominic Raab’s replacement at MHCLG is Kit Malthouse (whom I confess I had not heard of until now). He is a comparative new boy, having been elected to parliament as recently as 2015 as the member for North-west Hampshire. He has recently been serving as a junior minister in the Department of Work and Pensions.

Prior to becoming an MP, Malthouse had been one of Boris Johnson’s appointed Deputy Mayors, where he was responsible for the development of business and enterprise in Greater London. He had also been a councillor in the City of Westminster, rising to Deputy Leader as well as holding the finance brief in the council’s cabinet.

As for his professional background – yes, he was one of the living dead; he became a chartered accountant.

So what does Malthouse know about housing and planning? Your guess is as good as mine. And maybe it doesn’t matter, as MHCLG’s civil servants will just get on with what they’ve always done, no matter who their ministers are. With a ministerial revolving door like this, it hardly matters who actually holds the various ministerial briefs in the office, or whether they know anything about the subjects for which they have nominal ministerial responsibility.

© MARTIN H GOODALL

Monday, 9 July 2018

Further guidance on Class Q


Readers may recall that I drew attention on Tuesday, 3 April (“Class Q revisited”) to changes to Part 3 (Class Q) of the Second Schedule to the GPDO (residential conversion of agricultural buildings) that were made by the latest amendment order, with effect from 6 April 2018.

These changes included the amendment of the definition of development permitted by Class Q which still seem to have passed some people by. The objective of this amendment seems to have been to reinforce those provisions in Class Q that were intended to make it clear that where the residential conversion of an agricultural building involves building operations, the prior approval application must include those building operations.

The drafting of Class Q in the 2015 GPDO differed from the corresponding provisions in Class MB in the 1995 Order, and was obviously intended to make it clear that a prior approval application should embrace both the change of use under Class Q(a) and the building operations under what was then Class Q(b).[

I originally drew attention in a blog post on Tuesday, 21 November 2017 (“Prior approval application under Class Q(a) only”) to a continuing misunderstanding of the 2015 Order that seemed to be widespread, and was even shared by some Planning Inspectors. But quite clearly there was a significant number of readers who were not prepared to accept that applications could no longer be made under Class Q(a) alone, unless no building operations would be required (or, even more unlikely, unless the building operations would fall outside Class Q(b) altogether and would therefore be the subject of a separate planning application).

Since April of this year, there are two alternative prior approval applications – Class Q(a) for change of use only, or Class Q(b) which now embraces both the change of use and associated building operations. Prior approval applications under Class Q should no longer be made under both Class Q(a) and Class Q(b), because this would now involve pointless duplication. Where an application under both Q(a) and Q(b) was required in the past, only a prior approval application under Class Q(b) is now required.

I also explained in my blog post on 3 April the other amendments to Class Q which make it clear that an application under Class Q(b) (but not Q(a)) must be made where building operations relying on permitted development rights will be required. In these circumstances, making an application under Class Q(a) is no longer an option.

This is confirmed by a further revision of Paragraph 105 of the online PPG on 15 June, in light of the changes brought about by the 2018 amendment order in April of this year. The beginning of this paragraph now explains that the permitted development right under Class Q allows either the change of use (a), or the change of use together with reasonably necessary building operations (b) [emphasis supplied].

I won’t re-rehearse the arguments I have put forward earlier in support of my interpretation of the revised wording in Class Q, but it seems that this latest revision to ministerial planning practice guidance does say more or less the same thing.

While we are looking at the PPG, Paragraph 106 (which explains that the PD rights under Class Q are precluded where works to erect, extend or alter a building for the purposes of agriculture under agricultural permitted development rights have been carried out on the established agricultural unit since 20 March 2013) has been corrected by deleting the words: “or the installation of additional or replacement plant or machinery". The intention of the legislation, which paragraph 106 seeks to explain, is to preclude PD under Class Q where permitted development has been carried out since 20 March 2013 under either Class A(a) or Class B(a) in Part 6 of the Second Schedule the GPDO.

The inclusion in previous versions of paragraph 106 of a reference to the installation of additional or replacement plant or machinery was a mistake, because those items fall within the PD allowed by Part 6, Class B(b), which (unlike Classes A(a) and B(a)) is not precluded.

As one reader observed - “and this is meant to represent a simplification of the planning system ?(!!!)

© MARTIN H GOODALL

Friday, 29 June 2018

Planning appeals inquiries review


DHCLG has embarked on a review of the use and operation of the planning appeal inquiries procedure, claiming to make it quicker and better [pause here for collective groan]. The review will examine the process in its entirety and is expected to make recommendations that DHCLG hopes will significantly reduce the time taken to conclude planning inquiries, while maintaining the quality of decisions. [Well, it might, or it might not.]

The review will examine the rules and processes of the entire process involving inquiries, particularly focusing on major housing schemes, which for obvious reasons the government is very anxious to speed up. The role of the various players (developers, LPAs and objectors, etc.) in influencing the progress of the appeal process will be part of this. Whilst the avowed objective of the review is simply to examine whether the inquiry procedure can be made more ‘efficient’ and therefore quicker, so as to improve the handling by PINS of appeal processes generally, there is inevitably a potential threat that an attempt may be made to restrict the ability of parties to put their cases as fully and fairly before the inspector as they might wish. Issues of procedural fairness could arise.

The Review is intended to involve all parties in the inquiry processes, including appellants, local planning authorities, third parties including statutory consultees, lawyers, Planning Inspectors, and other PINS staff. It is intended to focus on the role of inquiries in major housing applications, with wider application to all inquiries. Comparisons may be made with other appeal and review processes.

In particular, ministers intend that the review should consider the circumstances in which the public inquiry procedure is favoured by appellants and whether a different procedure may be more appropriate [a further attempt to restrict the availability of the inquiry procedure?], the purpose of the inquiry procedure and whether current practice fulfils this purpose, the rules and procedures governing inquiries, the custom and practice during inquiries (including making recommendations for improvements, in particular what it would take to halve the total time currently taken from start to finish) and, finally, the specific implications for the Planning Inspectorate and appellants of any recommendations to change the inquiries procedure, including implications for other appeal procedures.

The review is being led by Bridget Rosewell OBE, and will report to the Secretary of State by the end of this year. It has not yet been made clear how participants will be involved in the review, but interested parties should begin thinking how to respond to the review. Early representations by planning professionals and others would no doubt be advisable, in view of the fact that the report is expected to be in the hands of the Secretary of State in barely six months from now.

UPDATE [9.7.18]: I am grateful to Tony Thompson MRTPI, MRICS, Head of the Planning Appeal Inquiries Review Team at MHCLG for some further information on this review.

In terms of engagement, as a first step, they plan to issue a call for evidence later this month and would welcome responses from all those who are interested, particularly from those who have first-hand experience of the inquiry process.

Any planning professionals who would like to be added to the list of those informed when the call for evidence is issued, should contact MHCLG to register their interest. The call for evidence is in any event likely to be widely publicised in the professional press, and so even if you do not request personal notification when the call for evidence is issued, everyone will have an opportunity to contribute their views. As Tony Thompson says, views based on practical professional experience of the appeal process will be of particular value to the review team.

© MARTIN H GOODALL

Tuesday, 12 June 2018

Unless otherwise agreed


Paragraph W (12) in Part 3 of the Second Schedule to the GPDO provides that the development permitted under Part 3 must be carried out in accordance with the details approved by the LPA. Where prior approval is not required (or where the 56-day period has expired without the applicant having been notified of the LPA’s determination of the prior approval application) the development must be carried out in accordance with the details provided in the prior approval application. In both cases, the requirement for the development to comply with these details applies “unless the local planning authority and the developer agree otherwise in writing”.

The question has arisen as to what formalities, if any, are required in order to obtain the LPA’s agreement to any variation. The reference to such agreement simply being “in writing” seems to me to indicate that a formal application, such as a fresh prior approval application or a planning application (for example under section 73) is not required. However, some LPAs seem to have taken a different view.

My own view is reinforced by a parallel provision in Part 16 (relating to telecoms development). Paragraph A.3(8) in Part 16 provides that the development must, except to the extent that the local planning authority otherwise agree in writing, be carried out in accordance with the details approved in the prior approval, and in any other case, in accordance with the details submitted with the application. Paragraph A.3(9) then goes on to explain that “The agreement in writing referred to in sub-paragraph (8) requires no special form of writing, and in particular there is no requirement on the developer to submit a new application for prior approval in the case of minor amendments to the details submitted with the application for prior approval”.

Now, I appreciate that Inspectors have resisted attempts to import the provisions of one Part of the Second Schedule into another Part by analogy, but if no formality is required in seeking agreement to minor variations under Part 16, then I see no reason why any formality should be required in seeking similar agreement under Part 3.

If the GPDO had been properly drafted, the wording I have quoted from paragraph A.3(9) in Part 16 should also have appeared in paragraph W(12) in Part 3, and this is not the only example of a failure to ensure uniformity in the provisions in different Parts of the Second Schedule to the GPDO. The opportunity should be taken to correct such anomalies in the drafting of the Order. In the meantime, it is to be hoped that common sense will prevail, and that LPAs will not be difficult about accepting informal requests for the variation of approved or submitted details. The only requirement is that the actual agreement between the LPA and the developer should be “in writing”.

© MARTIN H GOODALL

Friday, 4 May 2018

Implied conditions – Court of Appeal backs High Court


On Wednesday 1 November 2017, I drew attention to the case of Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin). The case concerned a permission granted under section 73 which, in allowing a relaxation of one of the conditions in the original planning permission, had failed to reimpose one of the restrictions that had been contained in the original planning permission. It is well settled law that a permission under section 73 takes effect as a fresh permission, so that where this occurs any conditions that were not reimposed fall away.

The problem for Lambeth in this case was that, although in the section 73 permission they had referred in the description of the development to variation of the condition so as to allow a wider range of non-food retail uses, they had not included a condition in this new permission that expressly ruled out the retail sale of food. The landowner sought an LDC under section 192 that it would now be lawful to sell an unrestricted range of retail goods (including food). The LPA refused to grant the LDC, arguing that the section 73 permission was not intended to have this unrestricted effect, but an appeal was allowed against that refusal. The LPA sought to challenge this appeal decision in the High Court, but their claim was dismissed as noted in my previous blog post on this topic. The council then took the case on to the Court of Appeal, which gave judgment on 20 April - [2018] EWCA Civ 844.

Lambeth, in attempting to establish that the relevant restriction still applied, could not challenge the well-established legal effect of section 73, and were therefore driven back on seeking to interpret the section 73 permission more restrictively than appeared on its face.

I don’t propose to go into this case in any detail. Briefly, the council’s arguments were that the section 73 decision notice itself should be interpreted in a restrictive manner and, second, that a condition preserving the restrictive effect of the original planning permission could be implied in the permission. The LPA’s argument was that the section 73 permission should be interpreted as if it contained the missing condition, to the effect that “the use shall be carried on in accordance with the conditions attached to the 2010 permission as stated to have been varied by this permission.” My interest in this case lies solely in this argument over implied conditions.

It has always been my view that the obiter remarks of Lord Carnwath JSC in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 do not allow the implication of an entirely new condition in a planning permission which had been entirely omitted from that permission, as opposed to the implication of a term in a condition which the permission already contains so as to give effect to the true intention of that condition. This argument was put to the Court of Appeal by Christopher Lockhart-Mummery QC in Lambeth. The Court accepted this submission, and agreed with the judge at first instance that a new condition cannot be implied as the LPA had argued.

This judgment is therefore further confirmation (if it were needed) that the effect of what was in any event an obiter observation in Trump International is limited to ‘correcting’ an existing condition, so as to give proper effect to its intention. The obvious example is a condition requiring approval of certain matters by the LPA which does not in terms require that, upon such approval being given, the development must then be carried out in accordance with those approved details. Clearly, in light of Trump International, a term can be implied in this condition requiring compliance with these approved details. Without such an implied term, the condition would not achieve its intended purpose.

© MARTIN H GOODALL.

Monday, 30 April 2018

Musical chairs


Following Amber Rudd’s resignation as Home Secretary yesterday evening, Sajid Javid has been appointed as her successor. The resulting vacancy at MHCLG has been filled by James Brokenshire, who returns to the cabinet after a short period out of office due to ill health. He had previously been Northern Ireland Secretary. Now aged 50, James Brokenshire has been in the Commons since 2005. He is a solicitor, who (before he ceased to practice on pursuing his political career) specialised in company and corporate law. So far as I am aware, he has had no experience relating to housing or planning.

Whatever one may think about his suitability for the post to which he has now been appointed, I am sure we all very much hope that he has now put behind him the health problem that forced his resignation at the beginning of the year, and wish him a full and permanent return to good health.

James Brokenshire says he is honoured to have been asked by the Prime Minister to serve as Secretary of State at the Ministry of Housing Communities & Local Government, and has stressed his determination to pursue the Ministry’s tasks, especially the building of new homes. No doubt his performance, and that of the Ministry will be judged primarily by the extent to which the government’s house-building targets are achieved (or by what margin those targets turn out to have been missed by 2020).

The reshuffle of cabinet posts does not appear to have led to any changes in the ranks of ministers below cabinet level, and so it remains to be seen whether any changes will be made in the MHCLG ministerial team. So, at least for the time being, it looks as if Dominic Raab will remain in post as the Housing & Planning Minister, having been in his current post only since January. He too is a qualified solicitor, but practised as a solicitor for only a short time before pursuing a diplomatic career, with a particular interest in human rights. He entered parliament in 2010.

The latest change in the leadership of the Ministry is very unlikely to bring about any change in the policies and projects on which MHCLG is already embarked, so what we have just seen is simply a game of musical chairs, the only difference being that the game started with Amber Rudd giving up her seat at the cabinet table, rather than being left out after the music stopped.

© MARTIN H GOODALL

Thursday, 19 April 2018

Going behind a prior approval


If an LPA in determining a prior approval application under a relevant part of the Second Schedule to the GPDO decides either that their prior approval will not be required or grants such prior approval, can the authority later resile from that decision on the basis that the development does not in practice qualify as PD, or (alternatively) can a third party successfully challenge the LPA’s decision on the same ground?

I have been meaning to return to this topic ever since the judgment of the High Court in R (Marshall) v E Dorset DC [2018] EWHC 226 (Admin), in which judgment was given on 13 February.

In a blog post on Monday, 16 January 2017 (Can an LPA override a prior approval?), I drew attention to the little-known judgment in R. v. Sevenoaks DC, Ex p Palley [1994] E.G. 148 (C.S.), which appeared to suggest that when an LPA gives its prior approval (or decides that its prior approval is not required), it is inherent in that determination that the authority necessarily accepts that the proposed development does qualify as PD, so that the council cannot thereafter resile from that position.

Until my attention had been drawn to Ex p Palley, it had been my view that if the proposed development does not in fact comply with the criteria for permitted development under the relevant Class in (for example) Part 3 or Part 6 of the Second Schedule to the GPDO, either because a requisite pre-existing use did not qualify under that Class of PD, or because the proposed development is not within the limitations, restrictions or conditions that apply to the relevant Class of PD, then an application for prior approval, even if the approval is given (or if the application is simply not determined within the 56-day or 28-day period – whichever is applicable) cannot make the proposed development lawful, and so it cannot be carried out as PD.

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 specified matters that require prior approval. It follows (I had originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD.

During the course of discussion in comments that were posted in response to the revised view that I expressed in light of Ex p Palley, a correspondent raised with me the effect of the Court of Appeal’s decision in Keenan v Woking BC and SSCLG [2017] EWCA Civ 438. At the time, I felt that Keenan did not affect the position, because it simply seemed to me to confirm that if the development does not qualify as PD, the 56-day rule [or the 28-day rule in that case] will not operate so as to allow the proposed development to go ahead in the absence of the prior approval application having been determined within the statutory time limit. There had previously been several appeal decisions to the same effect, and I stressed this point in my book, A Practical Guide to Permitted Changes of Use (see page 201 in the Second Edition, and for good measure, I repeated it at the bottom of page 210).

However, it seems that the effect of the decision in Keenan is of slightly wider effect than that (at least so far as PD under Part 6 is concerned), and Mrs Justice Lang’s judgment in Marshall has prompted me to look more carefully at Keenan.

In Marshall, Lang J drew attention to the disqualification in paragraph A.1 of Part 6, whereby development is not permitted by Class A if it would consist of, or include, the erection or construction of, or the carrying out of any works to, a building, structure or an excavation used or to be used for the accommodation of livestock or for the storage of slurry or sewage sludge where the building, structure or excavation is, or would be, within 400 metres of the curtilage of a protected building, but in this case the proposed building was within 400 metres of several dwellings (including the Claimant’s home) which were “protected buildings” as defined. Furthermore, paragraph A.2 makes it a condition of permitted development under Part 6 that where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development are not used for the accommodation of livestock (except in certain defined circumstances).

Notwithstanding this, the LPA issued a decision notice in response to the developer’s prior approval application under Part 6, which stated that “The development, therefore, constitutes permitted development in accordance with the provisions of Part 6 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and is subject to the standard conditions.” In dealing with this point, Lang J followed the judgment of the Court of Appeal in Keenan, and in particular the words of Lindblom LJ that, in order to be lawful, the development proposed had to fall squarely within the description of “permitted development” in the relevant Class.

In particular, Lindblom LJ observed in Keenan that the GPDO did not impose on the LPA a duty to decide whether or not the development in question was, in fact, permitted development under Class A of Part 6, albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the LPA to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not, of course, with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.

As Lang J put it in Marshall (referring to Keenan), the ‘prior approval’ conditions do not even come into play unless the proposed development falls “squarely within the description of Permitted development” in the relevant Class, and she emphasised that Keenan also decided that the LPA, when deciding a prior approval application under the terms of the GPDO [at least under Part 6, but see below], is not empowered, either expressly or implicitly, to decide whether or not the proposed development comes within the description of the relevant Class in the GPDO.

This confirms the view which I had originally expressed myself as to the effect of the legislation. Clearly, therefore, in the context of Part 6, Ex parte Palley can have no application.

Whilst I accept the logic of both the Keenan and Marshall judgments, I still have a niggling doubt at the back of my mind, which those two judgments do not entirely resolve. Both of these cases involved agricultural development under Part 6, and I fully accept Lindblom LJ’s views, quoted by Lang J in her judgment in Marshall, so far as Part 6 applications are concerned. However, the actual legislative wording of Part 3 does seem to imply that in the case of prior approval applications under that Part of the Second Schedule to the GPDO, the LPA when deciding a prior approval application under the terms of Part 3 is empowered, either expressly or impliedly, to decide whether or not the proposed development comes within the description of the relevant Class in Part 3.

In relation to Part 3, paragraph W. –(1) provides that the following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required. Under paragraph W. -(3), the LPA may refuse a prior approval 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 this Part as being applicable to the development in question.

I think I would have to concede that paragraph W. –(3) empowers the LPA only to refuse the prior approval application if the development does not qualify as PD but, arguably, this might reasonably be taken to imply that if the LPA either grants its prior approval or determines that its prior approval of the specified matters is not required, then the authority may be taken to have accepted that the development does qualify as PD, and in those circumstances Ex p Palley (as discussed in the earlier blog post to which I have drawn attention above) would come into play.

Ex p Palley was, of course, decided some years before the House of Lords’ decision in R v East Sussex CC ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, in which it was held that the clear terms of the modern legislation (sections 191 and 192 of the 1990 Act in their currently amended form) provide the only means of confirming the lawfulness of an existing or proposed use or development. Such a determination cannot be construed from the outcome of other procedures, nor can a finding of lawfulness be made or implied informally. However, that is a rather different point from the one raised here. We are dealing here with a planning permission granted by Art. 3(1) of the GPDO, subject only to prior approval of certain matters by the LPA (or their determination that their prior approval is not required), rather than with an informal opinion or implied certificate as to the lawfulness of the proposed development in connection with which prior approval has been granted.

In principle, the qualification of a proposed development as PD would appear to be an issue that is entirely separate from the grant of prior approval (and this was the view I initially expressed). However, it appears on closer examination (particularly bearing in mind the wording of paragraph W -(3)) that the prior approval could reasonably be taken, for the reason advanced above, to involve a determination by the LPA that the restrictions, limitations and conditions applicable to that Class of PD in Part 3 are met, and that the proposed development accordingly qualifies as PD.

It is in light of this factor that the judgment in Ex p. Palley may become relevant where prior approval has been given under Part 3, because the determination by the LPA is arguably a judgment by them (in accordance with paragraph W. –(3)) of a matter of fact and degree that can only be challenged on Wednesbury grounds by way of an application for judicial review. The point of the judgment in Ex p. Palley is that, because (having regard to the wording of paragraph W -(3)) the LPA may be taken to have considered and determined whether the development does in fact qualify as PD, this issue is not merely “a matter of precedent fact".

I cannot guarantee that this argument would necessarily be accepted if it were to come before the High Court or the Court of Appeal, but in view of the fact that this argument rests on a legislative provision in Part 3 (which is absent from Part 6), rather than relying on a reference to ministerial practice guidance, as was the case in Keenan, it would appear that a Part 3 case might well be distinguishable from the judgments in Keenan and in Marshall (concerned as they were with the differently worded provisions of Part 6). I suspect we shall just have to sit back and wait for someone to take a punt on this point.

© MARTIN H GOODALL