Monday, 15 August 2016

Section 215 Notice - House painting


Readers may have seen the case of the red-and-white striped house in London reported in the papers. A section 215 notice was served in respect of the painting of the house, requiring it to be repainted plain white. This was appealed to the magistrates court under section 217, who upheld the notice. A further appeal from there to the Crown Court was dismissed by Judge Johnson on 12 July - Lisle-Mainwaring v Kensington and Chelsea RLBC.

The appellant contended that section 215, which is normally used to require the tidying up of rubbish and detritus on unkempt open land, could not be used for this purpose. However, there are certainly cases where the section has been used in situations where it is alleged that the amenity of the area is adversely affected by the condition of a building. The amenity of an area would not normally be adversely affected by the external decoration of a building, but this was a house in a conservation area, and painting the house in red-and-white vertical stripes was unsightly. The judge therefore held that the notice had been properly served under section 215 and should be upheld.

The case arose out of a long-running battle with neighbours over planning permission. In March 2015, the appellant (apparently to spite her neighbours) ordered her contractor to repaint the front of her property with red-and-white stripes. The neighbours complained to the LPA, who responded to these complaints by issuing a section 215 notice which required the appellant to "to remedy the condition of the land" by repainting the house white.

It was the appellant’s submission that a section 215 notice can be used only to require the repair of a property in disrepair which is adversely affecting the amenity of the area. She contended that amenity is adversely affected only in a case that raises issues of repair and maintenance. Therefore, she argued, mere painting of the building did not affect "the condition of land" within section 215.

In dismissing the appeal Judge Johnson held that "amenity" is a broad concept, not defined by the section. It is a question of judgement on the part of the LPA, taking a broad view of the condition of the site, the impact that this has on the surrounding area and also having regard to the scope of the council’s powers under section 215. (See Berg v. Salford City Council [2013] EWHC 2599 (Admin).) The "condition of land" refers to the current state of the land, and a section 215 notice can be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. (See also Allsop v Derbyshire Dales DC [2012] EWHC 3562 (Admin).) Something that affects visual amenity is enough to justify issuing a section 215 notice.

Painting the outside of a building would not in the ordinary way adversely affect amenity. However, one of the key features of the conservation area in which the subject property was situated was its visual integrity, with only a limited range of neutral colours on painted buildings. Painting the property in garish stripes was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly, and section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

The appellant was ordered to repaint the property white within 28 days of this judgment.

© MARTIN H GOODALL

Friday, 12 August 2016

Amalgamating two or more dwellings (5)


My colleague Ben Garbett has summed up the combined effect of the Richmond and Kensington & Chelsea judgments in this way:

(1) The effect of the loss of housing of a certain type must not be disregarded when judging materiality for the purpose of section 55(1) (Richmond);

(2) The absence of a specific Development Plan policy does not mean that such material considerations inevitably carry no weight (Kensington & Chelsea).

I was perhaps guilty of over-simplifying the position in glossing over the second point in my comments on the Kensington & Chelsea judgment earlier this week. Ben correctly queries my conclusion that the outcome may depend on the state of Development Plan policies in the LPA area. It is entirely possible, he points out, that the underlying housing shortage in the area in question could make the loss of housing units through amalgamation material for the purposes of the rule in Richmond, even where there is no relevant Development Plan policy that addresses this issue. On reflection, I agree with him. This is the implication (or one of the implications) of the Kensington & Chelsea judgment.

However, this makes the uncertainty resulting from what I have called ‘the rule in Richmond’ even more of a problem for property owners and developers, and for their professional advisers. The amalgamation of as few as two existing dwellings might be a material change of use requiring planning permission, if it turns out that in the LPA area in question there is an identifiable housing shortage which would be exacerbated by amalgamations of this sort, even if this has not been formally identified and stated in an adopted planning policy. On the other hand, upon objective investigation, this might not be so after all. Whether or not the amalgamation (even of just two dwellings) is a material change of use, and whether it would therefore be lawful or unlawful without planning permission, might be entirely dependent on the outcome of this imponderable question. How is the property owner or developer to ascertain the answer without expert local knowledge of the housing situation in that area? It would appear that in practice it is likely to depend in the first place on the opinion of the LPA itself (even in the absence of an appropriate Development Plan policy) or, on appeal, the judgment of an Inspector. This can hardly be what parliament intended in enacting section 55 of the 1990 Act.

My objection is to the legal uncertainty that arises from the rule in Richmond. I am not confident that the position would necessarily be resolved even if the Court of Appeal were to rule on this issue as I suggested in my previous article. I would have no problem with the proposition that the use as a single dwellinghouse of any building previously used as two or more separate dwellings should be treated as a material change in the use of the building. But this would require an amendment of section 55(3) of the 1990 Act, rather than the less than certain intervention of the courts. Parliament passed the Town and Country Planning Act 1990, including section 55 in its current form, and if it is felt that the loss of residential units through amalgamation is a problem (particularly in some of the Inner London Boroughs), then it is parliament who should amend the Act to resolve this issue and bring certainty to the law.

© MARTIN H GOODALL

Tuesday, 9 August 2016

Amalgamating two or more dwellings (4)


When I penned my piece on this issue last Friday, I mentioned that I had been unable to ascertain the outcome of the High Court challenge to the appeal decision in Kensington and Chelsea (colloquially known as the Stanhope Gardens case). Thanks to the good offices of a correspondent, I have now seen a transcript of the judgment in that case, which was handed down on 16 June - R (Kensington and Chelsea RBC) v SSCLG [2016] EWHC 1785 (Admin). This would certainly seem to move the law on from the Richmond case.

The LPA’s position in the section 195 appeal which was under challenge was as follows : “The Council now takes the view that any amalgamation which includes the loss of a unit will be development which requires planning permission. This reflects increasing housing targets and the impact that amalgamation is having upon progress on achieving these. Therefore, the Council is of the opinion that the amalgamation of two residential units into one constitutes a material change of use, since it would remove a housing unit from the site and also from the Borough's overall housing stock. Regardless of the size of the units being lost, proposals of this nature would generate material considerations that should be assessed as part of a full planning application.” (The Council had previously operated for some time on the assumption that the net loss of five or more dwellings amounts to development requiring planning permission, and less than that does not amount to development.)

As reported in my previous blog post, in relation to the appeals against the refusal of both an LDC and planning permission, the Inspector agreed with the Owners that the proposed change of use did not conflict with any of the relevant local policies, and so he concluded that the proposal accorded with the Development Plan.

The Inspector accurately summarised the Council's position that, in this particular case, the proposed amalgamation of the flats would not have any effect on the character of the use of the land, other than by the loss of one residential unit, but that the scale upon which amalgamations are taking place in the Borough is having a material effect on a matter of public interest, namely a significant reduction in the number of dwellings in the housing stock. In his decision letter, the Inspector recorded the Council's reliance upon the decision in the Richmond case, in which the High Court quashed an earlier Inspector's decision that a conversion from seven flats to one dwelling did not amount to a material change of use, because that Inspector had disregarded the effect of the loss of a particular type of accommodation from within the LPA’s area.

The Inspector went on to say that the policy factor in this case, given that there was no policy conflict, was a material consideration of no weight. Given that the council accepted that no harm would be caused to the character of the building or to the surrounding area the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use which would constitute development as defined in section 55 of the Act. Planning permission was not therefore required for the proposed use. However, in that paragraph of his decision letter, the Inspector did accept that "the scale of amalgamation in the Borough may be having a material effect on the number of dwellings in the housing stock."

It was clear that the Inspector expressly disregarded the policy consideration on the sole basis that the need argument was not expressed in and supported by local planning policy. It was conceded by the Secretary of State that this amounted to an error of law because of a breach of a principle derived from Richmond that whether a planning policy addresses a planning consequence of the loss of an existing use is relevant to, but not determinative of, an issue as to whether the loss of an existing use would have significant planning consequences, even where there would be no amenity or environmental impact. This, according to Richmond, will be relevant to an assessment of whether a change from that use would represent a material change of use. However, the Richmond case did not decide that the need for housing, or any other planning consideration relevant to a determination of whether a material change of use would be involved, must be supported by a planning policy. It may be, or it may not be.

The judge held that in this case, the LPA was entitled to rely upon their analysis of the effect of conversions upon housing supply as a factor supporting the view that the proposal should be treated as a material change of use and subject to planning control. The Inspector was therefore obliged to consider whether that factor was significant for the specific purpose of deciding whether the proposal fell within the scope of planning control under section 55(1). He was not entitled to decide that question simply by saying that the consideration raised by the Council was unsupported by any planning policy.

The defendants (the Secretary of State and both owners) relied on an argument that the loss of one residential unit at this time would not have a material adverse effect on the efforts towards meeting London Plan housing targets, but the judge had no hesitation in rejecting this argument. On the material before the court, he could not be satisfied that the Inspector would necessarily have granted the LDC if he had not fallen into the legal error which had been identified.

It did not follow from such a conclusion on the planning merits of the proposed amalgamation that the housing need concerns raised by the Council were not significant for the threshold purpose of deciding whether planning control even applied. Self-evidently, said the judge, the two questions are not the same and must not be confused by decision makers. The questions need not be answered in the same way. A decision that a planning consideration is not significant for the purposes of section 55(1) means that it does not even merit assessment under section 70(1) in the exercise of planning control. For these reasons the decision to allow the appeal under section 195 and the grant of the LDC under section 192 had to be quashed and the appeal must be re-determined by the Secretary of State.

I have certain reservations about this judgment, on two grounds. First, as in the Richmond case, I am uncomfortable with the proposition that whether or not a conversion of the kind involved in these cases is or is not a material change of use may depend on the precise wording of planning polices in the LPA area in question. The materiality of such a change ought not, in principle (or indeed in practice), to depend on variable planning policies. What if those policies are not up-to-date? What weight is then to be given to them in determining this issue? To answer that it will be ‘a matter of fact and degree’ in each case does not seem to me to be an adequate answer to this conundrum.

A property owner should be able (with professional advice, if necessary) to know whether a particular adaptation or change of a property is or is not development within the definition in section 55, without having to resort to a detailed examination of adopted planning policies and of the comparative weight to be given to them in light of the date of their formal adoption. Otherwise we could have (and probably do now have) a situation where the amalgamation of two or more dwellings in some LPA areas is not a material change of use for the purposes of section 55, because there is no adopted planning policy in that area that seeks to resist the loss of residential units in this way, whereas in others (notably in various inner London boroughs) where adopted policies seek to resist the loss of residential units through amalgamation, the very same change could be a material change if use, if the Richmond and Kensington & Chelsea cases are followed.

The plain fact is that both the pre-existing uses and the single resulting use would both fall squarely within Use Class C3, so that section 55(2)(f) should in principle apply. Moreover, whilst section 55(3)(a) declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used, parliament did not see fit to legislate to the converse effect. They would surely have done so if they had intended that the amalgamation of two or more dwellings should also be a material change of use constituting development in accordance with section 55. It is not for the courts to change the law in this way; their function is to interpret the law as it stands.

We now have two High Court decisions on this issue. Maybe it is time for the position to be reviewed by the Court of Appeal. I don’t know whether either the Secretary of State or the two flat owners are up for an appeal against this latest judgment, but this is clearly an issue of some importance, and it would clearly be in the public interest to sort it out once and for all. The present uncertainty, due to the variability of planning polices from one area to another, is frankly unacceptable.

© MARTIN H GOODALL

Friday, 5 August 2016

Amalgamating two or more dwellings (3)


In successive weeks in February (on the 12th and 18th), I posted two articles on this topic, drawing attention to two contrasting (but not in fact inconsistent) appeal decisions that addressed this issue. I have just seen news of another appeal decision which appears unfortunately to be inconsistent with the two previous appeal decisions.

Just to remind you, the starting point in considering this question is the judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84. Section 55(3)(a) of the 1990 Act declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used; but, there is no corresponding provision in the 1990 Act dealing with the converse situation, where two or more separate dwellings are combined to form a single dwelling.

The Richmond case may appear at first sight to fill this legislative gap, but a careful consideration of that judgment shows that it is certainly not authority for the proposition that the amalgamation of two or more dwellings will necessarily amount to development. It is only in the event that such an amalgamation results in a significant change in the character and impact of the use in planning terms that this might amount to a material change of use.

Richmond established that this need not be confined simply to the physical or environmental impact of the change, but may also include other factors, such as the loss of a certain type of accommodation or facility that the previous planning units provided. The Richmond case was concerned with the conversion of a property from 7 flats into a single dwellinghouse. It was held that a judgement has to be made as to whether the amalgamation of the planning units has ‘as a matter of fact and degree’ resulted in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

The important point is that Richmond involved the loss of no fewer than 6 separate residential units, and it was held that the inspector had been wrong to ignore this point in considering the material character and impact of the resulting change of use, because of its effect in relation to planning policies seeking to resist the loss of small residential units. However, in the absence of that factor the amalgamation of two or more dwellings should not be taken to amount to a material change of use.

The first of the two appeals on which I reported in February involved a six-storey house in the City of Westminster that had been divided some time ago into 4 flats. The amalgamation of the four flats to restore the building to use as a single dwelling would involve the loss of several units of accommodation that the previous planning units provided. The inspector therefore considered, in accordance with Richmond, whether the amalgamation of the planning units would ‘as a matter of fact and degree’ result in such a change in the character and impact of the use as to constitute a material change of use in planning terms, and determined that it would.

The second appeal to which I referred in February (in Kensington & Chelsea)involved the amalgamation of 2 self contained flats to form one self contained residential unit. The appeal site was a mid-terraced property that was originally two houses, which had been amalgamated into one dwelling in 1949 and the building was subsequently converted into flats. The proposal involved the amalgamation of the flat at ground floor level and the flat above it on the first floor so as to create a single residential unit. In this case too, the council sought to rely on Richmond. The Inspector judged this change against the council’s housing polices, but noted that the proposed amalgamation of the two flats would result in the loss of only one residential unit. This did not in fact amount to a breach of the relevant planning policies, and so given that there was no policy conflict, the policy on which the council sought to rely was a material consideration of no weight. Given that the Council accepted that no harm would be caused to the character of the building or to the surrounding area, the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use that would constitute development as defined in Section 55 of the Act.

The logic of the first of these two appeal decisions. in light of the Richmond judgment, is understandable, but the second decision showed that the amalgamation of only 2 residential units is going to be of less significance in policy terms than the amalgamation of a larger number of existing flats or houses, and is therefore rather less likely to be material in planning terms. I was under the impression that the council in this second case (Kensington & Chelsea) had challenged this appeal decision in the High Court, but I have been unable to trace the judgment.

I ended by observing that, ultimately, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account. And so we come to the most recent appeal decision, of which I have so far seen only a brief report, and not the decision letter itself. This was another case in London, involving the amalgamation of 2 flats to form a single dwelling. It is not clear from the brief report I have seen whether the Inspector felt that policy considerations were of particular importance in this case, but he seems to have opined that the amalgamation of two units into one might have significant consequences in reducing the overall housing stock [by just one unit?!]. His dismissal of the appeal therefore seems to have been based not so much on an effect that the development would have in policy terms that had been clearly identified, but simply on the basis that this was an issue that should be the subject of public consultation through the medium of a full planning application, which would consider the planning merits of the proposal.

If the admittedly brief account of this appeal decision that I have seen is an accurate reflection of the Inspector’s reasoning, then this decision does seem to be founded on rather shaky legal ground. It is clear from the Richmond judgment itself that, in order to amount to a material change of use, the amalgamation of two or more properties to form a single dwelling must have a more than marginal effect on the character and impact of the use in planning terms.

If it has no material effect in terms or its physical and environmental impact, then I would suggest that the effect that it might have in policy terms would have to be really significant. It would therefore seem that the amalgamation of only two dwellings to form a single unit would be very unlikely, other than in the most exceptional circumstances, to have such a significant effect in policy terms as to represent a change in the character and impact of the use sufficient in itself to amount to a material change of use.

The amalgamation of a larger number of units to form a single dwelling might very well have that significance, as was the case in Richmond itself (7 dwellings combined into one, involving the loss of 6 units) and in the Westminster appeal (4 dwellings combined into one, involving the loss of 3 units), although even these cases were dependent on a clear policy background. Absent such strong policy considerations, the impact of such amalgamations in planning policy terms might not be sufficient to amount to a material change of use.

© MARTIN H GOODALL

Friday, 29 July 2016

“Enlarged part of the dwellinghouse”


Part 1, Class A of the Second Schedule to the GPDO permits the enlargement, improvement or other alteration of a dwellinghouse, but paragraph A.1(e) provides that development is not permitted if the enlarged part of the dwellinghouse would extend beyond a wall which forms the principal elevation of the original dwellinghouse, or fronts a highway and forms a side elevation of the original dwellinghouse.

Subject to paragraph A.1(g),[see below], paragraph A.1(f) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would have a single storey and would extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or would exceed 4 metres in height.

Paragraph A.1(g) (which allows larger extensions until 30th May 2019) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would have a single storey, and would extend beyond the rear wall of the original dwellinghouse by more than 8 metres in the case of a detached dwellinghouse, or 6 metres in the case of any other dwellinghouse, or would exceed 4 metres in height.

Similarly, in other cases, paragraph A.1(h) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would have more than a single storey and would extend beyond the rear wall of the original dwellinghouse by more than 3 metres, or would be within 7 metres of any boundary of the curtilage of the dwellinghouse opposite the rear wall of the dwellinghouse.

Paragraph A.1(i) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres.

Finally Paragraph A.1(j) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would exceed 4 metres in height, or would have more than a single storey, or have a width greater than half the width of the original dwellinghouse.

In the same way, paragraph A.2(b) provides that, in the case of a dwellinghouse in a conservation area, and area of outstanding natural beauty, a National Park, the Broads or a World Heritage Site, development is not permitted by Class A if the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and paragraph A.2(b) provides that, in those same areas, development is not permitted by Class A if the enlarged part of the dwellinghouse would have more than a single storey and extend beyond the rear wall of the original dwellinghouse.

In all these cases, therefore, it is necessary to determine what is meant by “the enlarged part of the dwellinghouse”, and it is also necessary in this context to understand what is meant by the original dwellinghouse.. These were the questions that the High Court had to consider in Hilton v SSCLG (CO/309/2016) in which judgment was given on 16 June.

The Hilton case arose from a planning appeal in the London Borough of Bexley [3129892] against the refusal of prior approval for a householder proposal for a larger home extension. The proposed single storey rear extension would project some 2.3 m beyond the existing rear wall of this previously extended semi-detached house. As the proposed extension, together with the existing extension, would project some 5.1m to the rear of the main rear wall of the original dwelling, the overall enlargement of the house would not exceed 6.0m. On this basis, and because the maximum height of the new extension would be around 2.8m, the appellant submitted that it would be permitted development.

The basis of the dispute between the Claimant and the LPA was that the Council maintained that even though the additional extension now proposed would have only a single storey, the enlarged part of the house would include more than a single storey, whereas the appellant contended that the enlarged part [i.e. the currently proposed extension] would have a single storey. (There was no dispute that the existing extension includes both two-storey and single-storey elements.)

In dismissing the appeal, the Inspector referred to Kensington and Chelsea RBC v SSCLG [2015] EWHC 2458 (Admin), which had examined the question of whether existing extensions are part of the enlargement of a building, and where it was held that the ‘enlarged part of the dwellinghouse’ does not include the ‘original’ building, but does include previous enlargements. The inspector therefore concluded that the proposed extension would, taken together with the existing extension, not be a single-storey enlargement to the dwellinghouse. It would not, therefore, be permitted development under the terms of Part 1 Class A.1 (g)(i) of the GPDO. Furthermore, as the enlarged part of the house would exceed 4 m in height on account of part of the existing extension having two storeys, the proposal would not be permitted development under the terms of Part 1 Class A.1 (g) (ii) of the GPDO.

Unfortunately, the transcript of the Hilton judgment is still not available, but I understand from a statement issued by Landmark Chambers that the court held that the Inspector was wrong, and that the "enlarged part" of a dwellinghouse for the purposes of Class A included only that which was currently being proposed under Class A. We shall have to await the transcript to see how the Deputy Judge distinguished the Kensington and Chelsea judgment in reaching this decision.

Another point that also remains unexplained until we have the chance to read the transcript is that this judgment is clearly at variance with DeCLoG’s Technical Guidance on “Permitted Development Rights for Householders”. This states (under “General Issues”) that :

[1] “Original”** means a building as it existed on 1 July 1948 where it was built before that date, and as it was built if built after that date, and

[2] “Enlarged part of the house” is the part(s) of a dwellinghouse comprising any enlargements of the original house, whether built under permitted development rights or following any application for planning permission, and whether the enlargement is undertaken on a single occasion or added incrementally. [In other words, the enlarged part of the dwellinghouse, so the Secretary of State says, includes cumulative extensions, in addition to the further extension currently under consideration.]

[** This is in contrast to the interpretation of “Existing” which means (according to the Technical Note) a building as it existed immediately before the permitted development (for example a house extension) is undertaken. The existing house will include previous development to the house, whether undertaken as permitted development or as development resulting from a planning permission from the local authority.]

In relation to paragraph A.1(g), the Technical Note states that from 30 May 2013 until 30 May 2019 a single-storey extension can be larger than allowed under paragraph (f) but it must not extend beyond the rear of the original house by more than 8 metres if a detached house, or by more than 6 metres in any other case. These larger extensions are subject to a prior approval procedure, whereas single-storey extensions that do not extend beyond the rear of the original house by more than 4 metres if a detached house, or by more than 3 metres in any other case, (as set out in paragraph (f) above) are not subject to a neighbour consultation scheme.

Permission to appeal to the Court of Appeal was refused by the Deputy Judge, but I do not know yet whether that application has been renewed before the Court of Appeal.

I will return to this topic in light of the transcript of the judgment when it becomes available, and in light of any further proceedings in the event of the case being taken further.

ADDENDUM: Since I posted this item on Friday, a further thought has occurred to me. It seems to me that to concentrate on the phrase “the enlarged part of the dwellinghouse” may be missing the point. Surely the wording of this provision in the GPDO by reference to the “the rear wall of the original dwellinghouse” must be the key to assessing whether or not a proposed extension is or is not permitted development under Part 1, Class A.

It matters not whether or not any previous extensions have been built or what size they were. I quoted the definition of “original” in De-CLoG’s Technical Guidance note, but the meaning of the this word is in fact defined in the GPDO itself, in Article 2(1). So this is a statutory definition. The measurement that needs to be made in order to determine whether a currently proposed extension is or is not permitted development depends entirely on how far it extends from the rear wall of the house as it existed on 1 July 1948 or, if built after that date, as first built.

Unless I have missed something (which may be revealed by the transcript of the judgment in Hilton) this would seem to be the answer to the dispute that arose in that case. If any ambiguity may possibly arise from the use of the phrase “the enlarged part of the dwellinghouse”, this could more readily be resolved by a simple amendment to the GPDO (which is due to be amended in any event in the near future), rather than resorting to the Court of Appeal in an effort to reverse the High Court decision in Hilton.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL