Monday, 18 July 2016

Junior ministerial appointments at De-CLoG

Over the weekend the government announced a tranche of junior ministerial appointments after last week’s cabinet appointments.

These include:

• Gavin Barwell MP, Minister of State for Housing, Planning and Minister for London at the Department for Communities and Local Government.

• Andrew Percy MP, Parliamentary Under Secretary of State at the Department for Communities and Local Government.

• Marcus Jones MP, Parliamentary Under Secretary of State at the Department for Communities and Local Government.

• Lord Bourne of Aberystwyth, Parliamentary Under Secretary of State at the Department for Communities and Local Government and the Wales Office.

I seem to have missed out Matt Hancock M.P., as he is on one list I have seen, but not on others.

De-CLoG has not yet posted up on its website the way in which jobs within the department will be parcelled out, but no doubt this will be forthcoming shortly.

Brandon Lewis, who was Housing and Planning Minister under both Eric Pickles and Greg Clark has moved to the Home Office.

UPDATE: Gavin Barwell has been named as the junior minister responsible for planning and housing.


Restrictive covenants again

I have previously written on two occasions about the ‘tripping hazard’ that restrictive covenants can sometimes present when development is proposed, even if the development in question has received planning permission or is permitted development under the GPDO. [For the previous articles, see Beware of restrictive covenants (Wednesday, 13 April 2011) and Restrictive Covenants (Monday, 30 January 2012)]

Another example has recently been provided by a case in the Upper Tribunal (Lands Chamber), which is more familiarly known by its old name as “the Lands Tribunal”. This was Re Hussain, 23 Bartlett Close [2016] UKUT 297 (LC) (4 July 2016).

The applicant wished to extend her two-storey house (which forms part of a self-build housing development) by the addition of a third storey. She obtained planning permission in 2008 and renewed that permission in 2013. The proposed development comprised a roof extension to provide two additional bedrooms to create a 5-bedroom family dwelling, plus the introduction of new rooflights within the roofspace and two Juliet balconies to the rear elevation of the property to serve the rear first floor bedroom. However, the applicant was prevented from implementing the planning permission by restrictive covenants that were imposed under the original conveyance of the property in 1989.

The purchasers of houses in this development had covenanted “with the Vendor and the [Bartlett Close Residents Association Limited] for the benefit of the estate and every part of it” to observe various terms and conditions, which included the following covenants:

(5) not to enlarge or extend the house or the property otherwise than with the prior written consent of the Association and of the owners of all parts of the estate which are contiguous with the property.
(7) not to alter in any way the external appearance of the house on the Property and not to place any external ornaments on the property without the consent in writing of the Association.”
(9) no hoarding shall be erected on the property nor shall any building erection fence wall or any part of the Property be used as an advertising station or for advertising purposes of any description except for the letting or selling of the property.

These covenants were common to all the conveyances of houses in Bartlett Close, and it was agreed by the parties that this formed a building scheme. [In other words, the covenants are mutually enforceable between neighbours.]

The applicant wished to modify covenants (5), (7) and, if necessary, (9) to allow her to implement the 2013 planning permission for the extension of No.23. She applied to the Tribunal under section 84(1) of the Law of Property Act 1925 on the ground that the covenants as originally drafted would impede the reasonable use of the land unless modified as proposed, by adding at the end of each of them the words “… except in accordance with the planning permission dated 17 September 2013 with reference PA/13/01748”, and also (or alternatively) that the proposed discharge or modification would not injure the persons entitled to the benefit of those restrictions.

In opposing the application, the residents’ association argued that the covenants secured a practical benefit of substantial value or advantage by allowing them to maintain the character and ethos of the estate under the building scheme. The architect for the scheme gave evidence about the principles behind the development. He explained the background of the scheme as a self-build housing project on derelict land purchased from the local authority. The objective was to create an intimate, high density housing development with a sense of community clustered around the focal point of St Saviour’s Church. He said that the estate had changed very little over the years and the overall pattern and integrity of the built form had remained to preserve the amenity of the residents. Those changes which had occurred comprised minor detailed elements such as the addition of porches above front doors. Three objectors who were part of the original team of self-builders who constructed it and who have lived there ever since also gave evidence to the Tribunal.

The Tribunal member noted that there is a visual unity to the buildings on the estate, which are constructed from similar materials with a common brick-type and colour and slate-covered pitched roofs. In his opinion, the design concept was skilfully achieved and the estate retains its essential design characteristics, notwithstanding some minor changes. He concluded that the restrictions, by impeding the applicant’s proposed development, do secure practical benefits of advantage to the objectors by protecting their outlook and amenity. The relevant question was whether those practical benefits were substantial [i.e. have substance]. Rather as in a planning appeal, the Tribunal’s decision on this issue was “a matter of judgment and degree”.

The Tribunal’s view was that the estate was carefully designed to maximise density whilst retaining a variety of form, height and building line; but it is a delicate balance to ensure that each house owner’s amenity and outlook is protected. In the Tribunal’s opinion the proposed extension to No.23 would jeopardise that balance in a way which would change the intimate relationship between No.23 and its neighbours into an overbearing one and it is a substantial benefit to the objectors to be able to prevent this. The estate enjoys a distinctive character and ethos which was established, and has been maintained, through the building scheme and which the residents’ association has been at pains to protect. The proposed extension of No.23 would be a material change to the physical character and form of this part of the estate and the restrictions are a practical benefit of substantial advantage to the residents’ association in maintaining that character for the benefit of the estate as whole.

The applicant had failed to satisfy the Tribunal that the grounds of the application were made out, and the application was therefore refused.

This is a further example of restrictive covenants being upheld in face of an application under section 84 of the 1925 Act, despite the grant of planning permission for the development which the applicant sought to carry out. Thus, even where an LPA is satisfied that a development is entirely acceptable in planning terms, it may still fall foul of restrictive covenants, and it cannot be assumed that the Lands Tribunal will necessarily be persuaded that such covenants should be relaxed in order to enable the consented development to be carried out.


Thursday, 14 July 2016

Changing the guard at De-CLoG

Greg Clark, who has been Secretary of State for Communities and Local Government since May 2015 has moved to be the new Secretary of State for Business, Energy and Industrial Strategy.

His replacement at De-CLoG is Sajid Javid, who was previously Business Secretary. So this is a straight jobs-swap between Clark and Javid.

We shan’t learn until tomorrow or Monday whether Brandon Lewis will stay as Housing and Planning Minister or whether he will also be moving to pastures new.

Theresa May has repeated twice in the past week that building more housing is a priority for her government, and so this will be the major policy objective on which De-CLoG will be expected to deliver. It remains to be seen whether there will be any dramatic new housing initiatives, or whether De-CLoG will simply redouble its previous efforts to promote housing in a variety of ways.

Clearly the residential conversion of offices, which has been facilitated by the permitted development rights included in the GPDO since 2013, will have a part to play in this, and it can be expected that De-CLoG will press on with their previously announced intention of extending Class O to enable the demolition and replacement of office buildings as permitted development (subject to an appropriately beefed-up prior approval process, for which the necessary statutory power was incorporated in the Housing and Planning Act).

Expect some bland announcement soon on all the wonderful things De-CLoG will be doing, but look out for further indications from Downing Street as to what our new PM expects the planning system to deliver.


Friday, 1 July 2016

Is Brexit inevitable?

Despite an occasional urge to blog on topics outside the scope of planning law and practice, I have always resisted such temptations – until now. However, I feel so strongly about the subject on which I am writing today that I will make this a one-off exception to my usual rule.

Few, if any, of the benefits that the charlatans running the Brexit campaign were promising to gullible voters would be forthcoming if we were to leave the EU. The money that would allegedly be ‘clawed back’ from Europe, would be a good deal less in net terms than some of the figures being bandied about by the Brexiteers, and is very unlikely to reach the NHS, or match the EU support currently paid to farmers, or to replace the structural funds currently paid by the EU to deprived areas. As for immigration, even if we were no longer to be in the EU, net in-migration is likely to be every bit as high as it is now, and the promised ‘control’ of our borders may prove to be illusory.

As for red-tape and EU bureaucracy, there is a widespread consensus that nearly all of the rules that have been made in compliance with EU law would in practice have to be retained in our legislation, because the interests that they protect would need to be protected whether or not we were an EU member. Even fishing quotas are unlikely to change. So all those people who rejoiced last Friday that “we’ve got our country back” had been badly misled, both in believing that we had somehow lost our independence in the first place and in thinking that we would in practice have any greater freedom of action as non-members of the EU than we have now.

Like quite a few other people I know, I feel so upset by the European referendum result, and its disastrous consequences for this country, that I cannot accept this outcome, and feel that we must find some way of reversing last Thursday’s decision. I believe strongly in parliamentary democracy. Referenda, on the other hand, do not represent genuine democracy and are far too prone to be swayed by demagoguery, as was all too apparent in the case of last week’s referendum. I do not accept for one moment that it is ‘undemocratic’ to seek to overturn the result of that referendum, so as to ensure our continued full membership of the EU. In the end, it must be parliament that decides. [And in case anyone believes that MPs are there simply to give effect to the wishes of their constituents, I suggest they should re-read Edmund Burke’s classic Address to the Electors of Bristol.]

I was interested to see that there are other lawyers who are thinking on the same lines as me. The first point that should be clearly understood is that the result of last week’s referendum is not binding in any way. It has no legal status, and does not oblige the government or parliament to give effect to its outcome. Secondly, eminent constitutional experts have pointed out that Article 50 of the Lisbon Treaty can only lawfully be invoked by an Act of Parliament. The royal prerogative that ministers exercise on behalf of the Crown, which includes (at least nominally) the power to make treaties and to declare war, does not extend to the formal procedure for leaving the EU, because our membership of the EU is enshrined in our primary legislation, and an amending Act would therefore be required to start the process leading to the UK’s departure from the EU.

The government was very wise not to seek to invoke Article 50 for the time being, and it is clearly very much in our interests to delay doing so for a number of reasons, not least to allow for the possibility of a change of mind that might avoid the Article 50 procedure having to be invoked at all. Michael Zander QC (Emeritus professor of law at the London School of Economics), in a letter to The Times, has suggested that if the mood of the country towards Brexit has changed by the time the government seeks to invoke Article 50 of the Lisbon Treaty, MPs would have “a constitutional right, even a duty”, to refuse to give the will of the people effect. I entirely concur with that view.

[I really don’t propose to permit myself any further digressions from planning law in this blog, and I shall similarly limit discussion in the comments section below. As the French say - Retournons √† nos moutons.]


Monday, 27 June 2016

Planning law after Brexit

After last Thursday’s referendum result, there is a great deal of head scratching going on, in an effort to understand the mind-boggling ramifications of the decision to leave the EU. As many of us were well aware, this is going to be far more complicated than the Brexiteers pretended, and the effects will include more than a few unintended consequences. The task of unravelling all these complexities is daunting, and I suspect may even prove to be impossible. Don’t be surprised if the government (of whatever composition or complexion) eventually decides that the only practical solution is for the UK to remain a full member of the European Union after all, and introduces legislation to abrogate the result of the referendum!

For the time being, we remain in the EU, and despite the political and economic turmoil that has ensued (again, as expected), there is no change yet either in the UK’s status as a member of the EU, nor in any of the legislative provisions that apply domestically, including those that give effect to European law and to directives from the European Commission. As both the Prime Minister and leading Conservative members of the ‘Leave’ campaign have made clear, the timing of any notice to invoke the Article 50 procedure that would lead in a few years to our eventual departure from the EU is entirely within the control of the British government, and there is every reason to delay the commencement of that process, notwithstanding the strongly expressed preference of some of our European partners that it should be fast-tracked.

I pointed out in an article a few months ago (Planning Law – the European dimension posted on Monday 7 March) that European law has only a marginal effect on our domestic planning laws, and is mainly focused on environmental issues. The environmental protection that this legislation gives to endangered species and their natural habitats is designed precisely in order to ensure that an appropriate level of environmental protection (especially for vulnerable species and their habitats) is maintained when considering development proposals. Our current subordinate legislation was drafted in compliance with the relevant European directives on these matters, but it is in any event based on sound and sensible principles, and I see no reason why we should wish to depart from those principles, whether or not the UK is a member of the EU. There is therefore no reason to repeal or amend the various statutory instruments that govern these matters, such as the Conservation of Habitats and Species Regulations 2010 and the Town and Country Planning (Environmental Impact Assessment)Regulations 2011 among others that are designed to ensure the appropriate protection of environmental interests.

As I have pointed out before, the European Convention on Human Rights, which is relevant in the context of planning law as it is in many other areas of our law and administrative procedures, has absolutely nothing to do with the EU or our membership of that organisation, and so this will continue to apply with full force and effect whether or not the UK is a member of the EU. The repeal or amendment of the Human Rights Act 1998 would therefore be neither necessary nor appropriate in connection with the UK’s departure from the EU. This is a separate issue that our right-wing Tory government seems to want to pursue, although government lawyers are finding it very difficult to come up with any viable alternative. There is, frankly, no reason at all to interfere in any way with the existing legislation or to seek to resile from our long-established adherence to the Convention, and to the principles that it enshrines.

There are other less tangible effects which last Thursday’s unexpected and unwelcome referendum result is likely to have in the coming months. The political turmoil that has ensued, and in particular the Tory leadership contest that is now to take place, will prolong the legislative and administrative paralysis that has afflicted several government departments since the referendum campaign began, leading to further uncertainty. I don’t propose to speculate as to the effect on house prices or on house-building, but there must now be a question mark over certain major infrastructure projects, such as the nuclear power station at Hinkley Point, the third runway at Heathrow and HS2. While mentioning infrastructure, there will clearly be no more European funding going to deprived areas such as the Welsh valleys or the North-east. Demands (or promises from the Brexiteers, which they are already denying) that Whitehall should fill the gap may prove to be a forlorn hope. It is ironic that it was these areas, which have benefited the most from European grant funding and would have continued to do so, that voted the most strongly in favour of leaving the EU. [It rather lends weight to one referendum poster I saw proclaiming “Vote Leave”, to which someone had added “ – if you’re stupid”.]

My main concern at the moment is to know whether De-CLoG will continue to make progress on its project to introduce further amendments to the GPDO, and in particular the amendment of Class O in Part 3 of the Second Schedule so as to permit the demolition and replacement of office buildings. They got the amendment to the 1990 Act in May which they needed to enable them to make the appropriate provisions in an amending statutory instrument, and so it would now be only political uncertainty or indecision in light of the Tory Party leadership contest that might prevent or delay this. Until last Friday, I had assumed that we would see this further amendment to the GPDO in September, coming into effect on 6 October. But now we shall just have to wait and see what happens.

We do indeed live in ‘interesting’ times.

[UPDATE 29.6.16: It has been announced today that the election of the new Tory leader (who will thereby become Prime Minister) will be completed by 2nd September. All ministerial posts will then be at the disposal of the new PM, and so a cabinet reshuffle can be expected over that first weekend in September. This is bound to affect the timing of any further amendments to the GPDO, unless De-CLoG rushes to make the intended amendment order by the end of August. An early General Election is also then a possibility, which could further delay any changes to subordinate legislation that have not been made by 2 September. So if the GPDO is not amended before the end of August, it is impossible to say when it might happen, if at all.]

[UPDATE 30.6.16: The deadline for completion of the Tory party leadership contest has been put back one week to 9 September, which means that any cabinet reshuffle will therefore be dealyed for one further week. Meanwhile a decision on a third runway at Heathrow has been put off until after that date (which could mean postponement to the end of the year, or maybe forever). Electricité de France say they are still committed to making a final decision by September on financing Hinkley Point C, but that does not necessarily mean a decision to go ahead with it. Meanwhile De-CLoG has confirmed that it intends to press on with various planning reforms, including the introduction of the Neighbourhood Planning and Infrastructure Bill in parliament. However, there must still be a question mark over the timing of these further planning changes, which may well be affected by the election of a new Tory leader, and if a General Election were to follow in the Autumn all bets would then be off.]


Friday, 17 June 2016

Comments and queries

Unfortunately, the note on the top bar explaining how Comments are dealt with in this blog disappeared when I tried to amend it a few weeks ago, and I still haven’t had time to sort this out.

In the meantime, in view of the number of comments and queries still being received, I thought I had better explain again how these are dealt with.

First, no comment appears in the blog until it has first been ‘moderated’. This ensures that spam and other rubbish is excluded. Pressures on my time usually lead to a delay of between two to three days and a week before a comment is published, and occasionally a lot longer.

Secondly, my practice is only to publish those comments and queries that are likely to be of some interest to other readers of the blog. The comments facility is not (and never has been) a means of obtaining free advice on individual planning problems.

Thus queries that are focused solely on a particular problem encountered by a reader, and on which they are trying to find advice, is likely to be deleted without being published. On the other hand, if an identified problem is a common one, then I may decide to publish it with my response, simply to illustrate the point that has been raised. However, this is always strictly on the basis that my comments in response to the question are not to be treated as legal advice, and that no responsibility can be accepted either by me or by Keystone Law for any loss or damage resulting from reliance being placed on such comments.

If a reader wishes to obtain specific advice on a planning problem they have encountered, the comments facility on the blog is not the appropriate means of doing so. The ‘Blogger’ software does not allow me to ascertain the enquirer’s email address, and so I could not respond personally in any event.

The way to seek specific advice is to send me an email at Keystone Law []. However, I must make it clear that I (or one of my colleagues in our planning law team) will only be able to give advice on the basis of full instructions on a fee-paying basis. We cannot offer free advice, nor can we “just give a few moments’ advice on the telephone”. We can only deal with substantive matters on the basis of a full professional retainer. We simply haven’t got time to deal with ‘quick’ queries.

If you wish to make use of our professional services, we shall need your full contact details (full name, home address [or business address where you are instructing us on behalf of a company], telephone numbers, etc.) and we shall also need to see emailed copies of all the relevant documents and/or correspondence that will be required in order to enable us to assess the matter.

Due to my own commitments, it will not usually be possible for me to deal personally with any resulting instructions, but readers of this blog may rest assured that all my colleagues in our planning law team are as knowledgeable and experienced in planning law as I am. (We have no juniors or trainees in the team, and so all instructions are dealt with at a senior level).

Our hourly charging rate is £310 (plus VAT). We have set this charging rate “because we’re worth it” (as one well-known advertising slogan puts it), and it does enable us to keep our workload under some sort of control by ensuring that the kind of instructions we get are substantial matters which really do need our legal input. In practice, our fees for the simplest advice are unlikely to be less than £1,500 (plus VAT), subject to a consideration of the relevant background facts by the member of our planning law team who would be handling the matter. Dealing with various formal procedures in addition to this advice (e.g. corresponding with the local planning authority or dealing with an application or appeal) would, of course, be significantly more expensive. However, before commencing work on the matter, we always agree the fee budget with our client and the scope of what is included within that sum.

Upon our receiving sufficient details of the matter to enable us to assess an appropriate fee budget, we will send you an engagement letter confirming the fee budget and setting out our standard terms of business. Your liability to pay fees for our services will commence upon our receiving a signed copy of that letter back from you.

I hope this note is helpful in clarifying the basis on which comments and queries are handled in this blog, and in explaining how readers who wish to obtain our professional advice can do so.


Friday, 3 June 2016

Residential conversion of offices in London – the Mayor wades in.

As readers are well aware, the permitted development right granted by Class O of Part 3 in the Second Schedule to the GPDO, which allows the residential conversion of office buildings (subject to prior approval) has been bitterly opposed by several London Boroughs. An attempted legal challenge to this provision got short shrift in the High Court, and LPAs were driven back on the expedient of making Article 4 directions in those areas that were not specifically exempted by the GPDO itself. However, if an LPA wishes to avoid potentially substantial compensation claims, it must give not less than 12 months’ notice of the Article 4 Direction.

The protected areas (which are not confined to London, although most of them are to be found in the capital) will cease to be protected in 2019. LPAs in those areas therefore have almost three years in which to get Article 4 Directions in place, although as the London Borough of Islington discovered, blanket Article 4 directions are liable to be struck down by the Secretary of State, using his default powers under that article. Any such directions will therefore have to be selective, and must be justifiable on objective criteria. Any direction that is too wide in its application is liable to suffer the Secretary of State’ s veto.

However, the new Mayor of London (Sadiq Khan) issued a press release today announcing that he will put new measures in place to help protect and expand office space for small businesses, start-ups and entrepreneurs in London. Sadiq Khan made the announcement following the publication of new City Hall figures which show that since 2013, over 1.47 million square metres of office space could have already been converted into residential units in London using the Government’s permitted development rights, “which allow uncontrolled office-to-residential developments”. This means space for nearly 94,000 jobs in London could be lost through this process (the press release says).

When it comes to specifics, it is clear that the Mayor has very little power to prevent the operation of Class O. Amending the London Plan “so that there is stronger protection for small businesses and start-up workspace” will not in fact prevent residential conversions under Class O, nor will it enable LPAs in London to refuse prior approval of these conversions. The statement simply says, rather weakly, that the Mayor will “work with the Government on changes to permitted development rights”. I rather doubt whether he will get a very sympathetic hearing from De-CloG ministers.

Sadiq Khan is quoted as saying: "These new figures lay bare the impact that the Government’s misguided policies are having on space for business in London. Of course we need new homes, but this does not need to be at the expense of the space we need for the businesses that provide our jobs and drive our prosperity. Space which is genuinely surplus to commercial needs should be identified authoritatively and its release carefully managed so that it does not undermine local business.” (One can almost hear the collective yawn from Marsham Street.)

What Khan would like to do (although, as I have pointed out above, it will not in practice prevent the exercise of PD rights under the GPDO) is to change the London Plan “in order to protect viable business space and to create new start-up spaces in housing developments”. He asserts that there needs to be more control over where office space can be converted to residential use. Well, dream on, Sadiq.

I am sorry to be so ‘down’ on London’s newly elected Mayor, especially since if I lived in London I would undoubtedly have voted for him (and I rejoiced at his replacement of the ghastly Boris, and the defeat of a very divisive and equally right-wing candidate who had been put up to replace him). But politicians of all hues must learn not to promise what it is not within their power to deliver.

It seems to me that local politicians are, in any event, all too often a long way behind the curve in recognising changing needs and demands for various types of accommodation, and this now applies to office space in the same way as it has done for some years to industrial land, not to mention retail premises. Time and again we still see local plans that seek to protect employment land, for which there is no longer any need or demand, and which seek to ‘protect the vitality and viability’ of shopping areas which have been dying on their feet for years, as a result of changing patterns of retail activity combined with developing technology.

Studies have clearly shown a steadily reducing demand for office space, due to different patterns of working, again driven by technology – a trend that will only accelerate. The offices that Sadiq Khan and other local politicians are so keen to protect simply aren’t going to be needed in the future. Policies that seek to resist the redevelopment of industrial land and office premises, and changes of use away from retail in designated shopping areas, will only serve to create empty and increasingly derelict sites, when those sites could be making a positive economic contribution if redeveloped for other purposes.

Whether this was in the government’s thinking in using the GPDO as the vehicle for liberalising the planning regime to facilitate changes of use in a way that would prevent local planning authorities from resisting or obstructing such changes is not clear, but the significantly expanded PD rights for changes of use in Part 3 undoubtedly have the beneficial effect of accelerating the desirable elimination of office space which, if not immediately redundant, would have been likely to become so in the fairly near future.

Far from seeking to resist the changes of use permitted by Part 3 of the Second Schedule to the GPDO, local authority planners and their elected members should welcome this trend, and the contribution which the amended GPDO is making to bringing about these necessary and desirable changes.