Wednesday, 17 May 2017

Parking permits prohibited by 106 agreements

On 31 March 2016, I reported on the High Court judgment in R (Khodari) v. Kensington and Chelsea RLBC [2015] EWHC 4084, where it was held (following an earlier judgment Westminster City Council v. SSCLG [2013] EWHC 690 (Admin)) that a covenant in a section 106 agreement that purported to prohibit tenants of a residential development from applying to the council for residents’ parking permits was outside the scope of that section, so that matters of this nature cannot be governed or controlled by this means.

Mr and Mrs Khodari were challenging two different planning permissions for alternative redevelopment schemes affecting the block of flats where they live. They succeeded in one case (because of the section 106 point) but failed in the other, where there was no section 106 agreement. Both parties cross-appealed to the Court of Appeal, with the LPA seeking to overturn the quashing of one permission, while Mr and Mrs Khodari sought to reverse the High Court’s refusal to quash the other permission.

In a decision on 11 May ([2017] EWCA Civ 333), the Court of Appeal dismissed Mr and Mrs Khodari’s challenge to the ‘non-section 106’ permission, but the appeal by the LPA [“RBKC”] against the quashing of the permission that had been dependent on the section 106 agreement was allowed, so that this planning permission has also been allowed to stand.

It is the latter appeal that is of real interest in the legal context. The requirements in the 106 that were in contention were (a) a covenant not to apply for parking permits for the three additional residential units authorised by the planning permission, nor knowingly to permit any owner or occupier of the permit free units to do so; and to surrender any permit issued in respect of those units; (b) to notify prospective owners or occupiers of the additional units that they would not be entitled to apply for parking permits and (c) to include a covenant in any lease of the additional units preventing the lessee from applying for a parking permit and entitling RBKC to enforce that obligation as a third party. In addition, there was an obligation to pay a one-off “monitoring fee” of £500 on execution of the agreement.

Lewison LJ (with whom the other two Lord Justices agreed without comment) did not disagree either with the judgment in the Westminster case or with the judgment at first instance in the present case, so far as section 106 itself is concerned, and held that the judge at first instance was right to reject reliance on section 106 to validate the obligations dealing with parking permits. Those obligations were not capable of being planning obligations under this section.

However, the planning agreement in this case had been made not only under section 106 of the 1990 Act, but also under section 111 of the Local Government Act 1972, section 16 of the Greater London Council (General Powers) Act 1974, section 2 of the Local Government Act 2000 “and all other powers so enabling”. Lewison LJ therefore went on to consider section16 of the Greater London Council (General Powers) Act 1974, on which the judge at first instance had not commented (because this section had not been drawn to his attention).

This section provides that :

(1) Every undertaking given to a local authority by the owner of any legal estate in land and every agreement made between a local authority and any such owner being an undertaking or agreement—

(a) given or made under seal in connection with the land; and

(b) expressed to be given or made in pursuance of this section;

shall be enforceable not only against the owner joining in the undertaking or agreement but also against the successors in title of any owner so joining and any person claiming through or under them.

In Lewison LJ’s judgment, if the obligations about parking permits fell within section 16 they would be legally valid. The requirement of section 16 is that the agreement must be made “in connection with the land”. Thus it is not a requirement of section 16 that the agreement regulates the use of the land itself. The phrase “in connection with” is one of wide meaning. There was, in his judgment, a “connection” between use of the three additional units for residential purposes and the potential for the grant of additional parking permits, not least because a qualification for a parking permit is residence within the borough. Accordingly, he considered that there was a sufficient connection between the requirements imposed by the deed and the proposed development.

There was, however, also the question of the “monitoring fee”. In this case, the monitoring fee was held to be lawful. Whilst the covenant against applying for parking permits fell outside the scope of section 106, the obligation to pay the monitoring fee, which was ancillary to those obligations, could not survive as a free-standing obligation under section 106. There could be no question of its being enforced against successors in title of the original parties to the deed. In a sense, therefore, section 106 was irrelevant here. However, since section 106(1)(d) expressly authorises an obligation to pay money, the obligation to pay the monitoring fee fell within the literal scope of the section. But because there was no need to enforce it against successors in title to the original parties, its validity depended simply on RBKC’s power to contract for its payment. As the LPA submitted, the original parties to the deed were bound by it as a matter of contract. RBKC’s power to enter into such a contract was validated either by section 111 of the Local Government Act 1972 (“a local authority shall have power to do any thing ……… which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”) or by section 1(1) of the Localism Act 2011 (“a local authority has power to do anything that individuals generally may do”).

There are several points to be derived from this judgment. The first and most important point is that the validity and enforceability of a planning agreement depends entirely on the powers under which it is made. The agreement in this case was only saved by the fact that it was not solely dependent on section 106, but was also made under section 16 of the Greater London Council (General Powers) Act 1974 (which enabled the prohibition against applying for parking permits to be made) and section 111 of the Local Government Act 1972 (which saved the monitoring charge from being held to be ultra vires).

It is clear from this judgment that, outside Greater London, a covenant cannot be inserted in a planning obligation that seeks to prevent residents from applying for residents’ parking permits, but this can be done within Greater London if (but only if) the agreement is also made under section 16 of the Greater London Council (General Powers) Act 1974.

Secondly, a monitoring charge or other charges (including liability to pay the council’s costs of preparing the agreement) can be included in the agreement, subject to Regulation 122 of the Community Infrastructure Regulations 2010 not being infringed; but reliance would have to be placed on other legislation, such as section 111 of the 1972 Act or perhaps section 1(1) of the Localism Act 2011, and the agreement should be expressed to be made under one or other of these sections.

Counsel for RKBC told the Court of Appeal that this leaves local authorities outside Greater London without the ability to permit the creation of new residential units on terms that no residents’ parking permits will be issued in relation to those units. Leaving aside the possibility that such powers might perhaps exist under other statutes in some cases, Lewison LJ observed in his judgment that in R (AS Property Investments Ltd) v Hounslow LBC [2008] EWHC 1631 (Admin), where a developer was unwilling to enter into a planning obligation preventing the grant of parking permits to residents of new flats, the solution was found by the exclusion of each new flat from the schedule of streets in the statutory instrument that created the Controlled Parking Zone. That alone would preclude the residents, not being within the CPZ, from applying for parking permits within the CPZ. Sullivan J upheld that solution.


Monday, 8 May 2017

More protection for pubs (?)

[Revised and corrected 10.5.17] In response to widespread concerns about the loss of pubs to redevelopment, even where pubs were trading profitably and remained a much appreciated local asset, a provision was incorporated in the recent Neighbourhood Planning Act which seeks to provide additional protection for existing pubs. But I have added a question mark to the title of this piece, because this legislation may not in practice give effective protection to the vast majority of pubs.

Section 15 of the Act was introduced by the government at a late stage in the Bill’s passage in response to a House of Lords amendment that had sought to amend the Use Classes Order by making a drinking establishment (“public house, wine‐bar or other drinking establishment”) a sui generis use, thereby abolishing Use Class A4. This amendment also purported to require the amendment of the GPDO, before the Bill was enacted (!), so as to remove permitted development rights for the change of use or demolition of drinking establishments.

The substituted clause (now section 15 of the Act) does not call for the amendment of the Use Classes Order, and so Use Class A4 is to be preserved, but (although it was wider in scope than the provision that has been enacted) the Lords amendment would not have achieved its purpose, because the vast majority of pubs were already serving food as an integral part of their business when the catering use classes were reorganised in April 2005, and all of these establishments, even though they could still be described as ‘pubs’, fell into the new A3 use class by reason that they were supplying food and drink and did not therefore fall within the new Use Class A4, which is confined to those establishments that serve only drink, with no more than a very limited amount of food (if any).

In any event (as explained below), quite a few of the premises that may originally have fallen into the new Class A4 in 2005 will already have changed their use from A4 to A3 by starting to serve food since then under what was formerly Class AA in Part 3 of the Second Schedule to the 1995 GPDO (now Class B in the 2015 Order).

As noted above, following the re-organisation of the catering use classes in 2005 (by cutting down the scope of Class A3, and introducing Classes A4 and A5), Use Class A3 still includes “the sale of food and drink”. Thus the current version of Use Class A3 embraces a range of uses in which the sale of drink for consumption on the premises may be a substantial part of the business.

Paragraph 12 of Circular 03/2005 pointed out that it is the primary purpose of the use which must be considered, but a use will still fall within Class A3 if the primary use is clearly “use for the sale of food and drink for consumption on the premises”; it is not simply a question of whether the sale of food or the sale of drink comprises more than 50% of the business. A primary/ancillary relationship between uses is not dependent on the proportion or ratio of one use to the other, either in terms of turnover, or in terms of the floorspace devoted to the respective elements of these uses, but is solely dependent on their functional relationship. (See Main v. SSE (1998) P&CR 300; [1999] JPL 195.)

The sale of food for consumption on the premises is likely to be ancillary to the sale of drink only if it is functionally dependent on the sale of drink. If it represents a substantial part of the business which is not dependent on the sale of drink as such (which it may well do in many licensed premises nowadays) it is likely to be an independent element of the use in its own right, even if it represents less than 50% of the total turnover of the business. In the absence of the UCO, this might well have been regarded as a ‘mixed use’, but bearing in mind that the definition in Class A3 refers to the sale of both food and drink, any business consisting of a substantial element of both types of sale, without one necessarily being functionally dependent on the other (i.e. without any primary/ancillary relationship between the two uses), would nevertheless appear to come within the current version of Use Class A3.

In my view, therefore, the amended wording of Class A3 introduced in 2005 is still wide enough to cover many public houses and wine bars where the service of food is a substantial part of the business, in circumstances in which it cannot realistically be said to be purely ancillary to the sale of drink. Such premises would therefore appear to come within Class A3 rather than A4.

For these reasons, I would disagree with the suggestion, formerly printed in paragraph 12 of Circular 03/2005, that in the case of premises which incorporate a restaurant use as well as a pub or bar use, it is necessary to determine whether the existing primary use of the premises is as a restaurant (A3), or as a drinking establishment (A4), or a mixed use. The paragraph went on to state that this would depend on such matters as “whether customers come primarily to eat, or drink, or both - it is the main purpose of that use that is to be considered”. However, this would appear to be a misinterpretation of the correct legal position, in light of the wording of Use Class A3 and the clear legal authority in Main v SSE.

Thus it would seem that Use Class A4 covers only a very narrow (and, in practice, now very rare) category of drinking establishments, where only a very limited quantity of hot food (if any) is served. Furthermore, such an A4 use may already have changed to Class A3, which (until 6 April 2015) was not subject to any restriction or condition (unless imposed in a planning permission or an Article 4 Direction), simply by starting to serve a significant quantity of food on the premises. As mentioned above, if the nature of the sale of food for consumption on the premises is such that it cannot realistically be said to be purely ancillary to the sale of drink, the overall operation may well be a use which in practice now falls within Use Class A3, rather than A4. It also follows that the post-2005 wording of Class A3 means that a use that involves the service of both food and drink cannot be a mixed ‘A3/A4’ use (and therefore sui generis), but will fall wholly within Class A3.

Bearing these points in mind, the protection intended to be afforded to pubs by section 15 of the Neighbourhood Planning Act, and by the amendment to the GPDO that has been made in accordance with that section, will in practice prove to be extremely limited (because it applies only to the very small number of premises that do still fall within Use Class A4).

What the latest amendment to the GPDO actually provides is that the permitted development right under Class A in Part 3 of the Second Schedule to the GPDO to change the use of various catering premises to use as a shop within Use Class A1 or an office within Use Class A2 will now apply only to Use Classes A3 and A5, but will no longer apply to premises falling within Use Class A4. This will protect a small number of pubs, but will not protect the vast majority of them, which actually fall within Use Class A3.

Similarly, the permitted development right under Part 3, Class B to change the use of a pub or take-away to use as a café or restaurant within Use Class A3 will now apply only to Use Class A5, but will no longer apply to premises falling within Use Class A4.

As a result of removing Use Class A4 from these provisions, the slightly complicated procedure as to notifications relating to listing or nomination as an asset of community value, have now been deleted from Classes A and B of Part 3. A pub that actually comes within Use Class A3 has never been subject to these restrictions in any event, although the other protections (such as they are) that apply to ACVs would still apply to such premises where those premises have been nominated or listed as an ACV.

There are, however, transitional provisions that preserve the existing PD rights under Part 3 Class A or B and under Part 4 Class C or D, where notification of proposed permitted development has been given in respect of a change of use of A4 premises (seeking information from the LPA as to any nomination of the building as an ACV). Where notification of the proposed development has been given, and the 56-day notification period [not to be confused with the 56-period relating to a prior approval application] has already expired before 23 May 2017, then the change of use permitted by these classes in Parts 3 and 4 can still be relied upon.

In addition to the changes explained above, the latest amendment to the GPDO introduces a new class of permitted development under Part 3. This is Class AA, which permits development consisting of a change of use of a building and any land within its curtilage from a use falling within Use Class A4 (drinking establishments) to a mixed use falling within Class A4 and Class A3 (restaurants and cafes). The resulting use is referred to as “drinking establishments with expanded food provision”. The converse change of use is also permitted by Class AA, from use “as a drinking establishment with expanded food provision” to a use falling within Class A4. No limitations, restrictions or conditions are placed on these changes of use under the terms of Class AA.

I can only assume that this is intended to address the potential problem identified above regarding the relationship between Use Classes A4 and A3. But it smacks of an attempt to shut the stable door long after the horse has bolted. This provision in the GPDO cannot reverse the position where pubs are already in use under Class A3, rather than A4. However, in future, bearing in mind that a change of use from A4 to A3 will no longer be permitted development under Part 3 Class B, the small number of pubs that are still with Class A4 can introduce or expand the service of hot food without falling foul of the new prohibition on a change of use from A4 to A3.

The drafting of Class AA appears to me to be extremely awkward, and refers quite unnecessarily to a mixed use embracing both Class A4 with Class A3. It would have avoided possible legal difficulties that may well arise from this wording if Class AA had simply provided that a drinking establishment within Class A4 can in future introduce or expand the service of hot food without this being taken to be a material change of use, so that (notwithstanding the introduction or expansion in the service of hot food) the use of the premises would remain solely within Use Class A4.

As a general rule, a mixed use is sui generis, although there are one or two statutory exceptions (e.g. Article 3(4) of the UCO, which allows for a use falling within both Use Classes B1 and B2 to be treated as a single class provided the extent of the B2 use is not substantially increased as a result). However, in the absence of any amendment of the UCO, there does not appear to be anything to prevent the change of use permitted by Class AA(a) in the GPDO from falling out of the UCO altogether, and being regarded as a sui generis use, notwithstanding the reference in Class AA itself to a change of use to “a use falling within Class A4 (drinking establishments) with a use falling within Class A3 (restaurants and cafes)”. The alternative interpretation (for the reasons stated above) would be that the use would in fact fall wholly within Use Class A3. This bit of drafting really hasn’t been properly thought through.

This change does, however, remove the ratchet effect of Class B, which does not in itself permit a change of use from Class A3 to A4, although the wording of Class AA(b) does suggest that it applies only to the reversal of the change of use permitted by Class AA(a), so that it would not appear (or is not intended) to permit a change of use of premises which serve both food and drink but which, for the reasons explained above, fall wholly within Use Class A3, to be changed to Use Class A4, i.e. to use solely as a drinking establishment. In practice, however, very few businesses (if any) are likely to want to make such a change from A3 purely to A4, because the effect of the reference in Class A3 to the sale of food and drink allows a licensed restaurant or café which sells drinks as a separate element of its business (but which, having regard to the overall nature of the business, falls within Class A3 rather than A4) to expand the ‘drinks’ side of the business substantially while remaining within Class A3, provided that the nature of the sale of food for consumption on the premises is not such as to be merely ancillary to the sale of drink.

Here too, there is a transitional provision. Where an Article 4 direction is in force immediately before 23 May 2017 which removes PD rights for the change of use of a building from Use Class A4 to Class A3, the Article 4 Direction will not have the effect of removing the change of use permitted by the new Class AA [see above] until 23 November 2018. [This is presumably in order to avoid compensation claims arising in relation to the removal by the Article 4 Direction of this new PD right.]

There are also consequential changes to PD rights for demolition under Part 11, but by the time I began to get my head round this bit, I was rapidly losing the will to live. Suffice it to say that these too apply only to the very limited number of buildings that fall within Use Class A4.

As I have sought to explain, the effect of these changes to the GPDO is extremely limited and, in practice, they will afford protection to only the very small number of premises that do actually fall within Use Class A4. For the reasons set out above, the vast majority of pubs and similar premises will continue to fall entirely outside the scope of this intended protection from changes of use or demolition. No amount of tinkering with the GPDO and/or the Use Classes Order will change this.

If it is intended to afford effective protection to pubs, separate legislation would be required that specifically provides that no development (as defined by section 55 in the 1990 Act) of any licensed premises in which drink is sold for consumption on the premises may be carried out without express planning permission, notwithstanding the provisions of the Use Classes Order or of the GPDO. This could involve the abrogation of certain existing use rights currently enjoyed by these premises, and so provision would need to be made for compensation where (within a specified period after this legislative amendment takes effect – probably one year) planning permission for development that could otherwise have been carried out as of right is refused. Frankly, I don’t believe the present government has any serious intention of affording effective protection to pubs from redevelopment (including changes of use), and so we are very unlikely to see legislation of the sort I have just described.

[UPDATE (10.5.17) : I have revised the text of this blog post following a very helpful note from Richard Lemon MRTPI, Director (Planning) at CBRE Ltd in London, who queried what I had written regarding possible continuance of the wider use rights under the pre-2005 version of Use Class A3 in light of paragraph 22 of Circular 3/2005. After I had prepared this revised version of my article, I also received a comment on the same lines from “Dinny S”, which I will publish with other comments below.

Richard made the point that the heading to the section comprising paragraphs 20 to 23 in Circular 3/2005 was “Unimplemented permissions”, and that paragraph 24 stated that, after the amended UCO came into effect, uses [under previously implemented planning permissions] that previously fell into the former A3 use class would then fall into one of the new classes: A3, A4 or A5. I have now had the chance to trawl through various texts, and whilst I have not found any judicial authority specifically on this point, I have identified an apparent consensus as to the effect of the UCO (and amendments to it) which differs from my previous understanding of the position.

To put it briefly, the starting point is the rule that once a planning permission for change of use has been implemented it is ‘spent’ (Cynon Valley BC -v- SSW (1987) 53 P&CR 68). It is well settled law that the initial use could only be for the purposes expressly described by the permission (e.g. as a restaurant) (see Wilson v. West Sussex CC [1963] 2 Q.B. 764). But then (in the case of a planning permission implemented before 21 April 2005), by virtue of section 55(2)(f), the use could later have been changed to any other use within the broad A3 use class that existed prior to April 2005. If such a change of use had been made, it would have been lawful and, following the change in the UCO in April 2005, the actual use will then have fallen into the appropriate use class applying after that date – A3, A4 or A5. However, I now accept that whilst the use might lawfully have been changed to a pub or to a hot-food take-away before 21 April 2005, if no such change of use had been made before that date, the lawful use of the premises would thereafter have been restricted to the new, narrower A3 use class.

This does not alter the general thrust of my article, which (taking on board the point discussed above) is that most pubs would have been within the new A3 use class from the outset in April 2005, if they were then selling both food and drink for consumption on the premises, or that they have subsequently changed use from A4 to A3 under what was formerly Class AA in Part 3 of the Second Schedule to the 1995 GPDO (now Class B in the 2015 Order) by starting to serve food since April 2005.]


Thursday, 4 May 2017


I usually resist the temptation to comment on topics outside the scope of town and country planning, but recent events have prompted me to pen this little verse:

T’resa, T’resa, (Quite a teaser!),
How does your Brexit go?
With empty threats and hopeless bets,
And a “car crash” waiting to go.

“Coalition of chaos” seems to be a favourite buzz-phrase at the moment, and it does seem to sum up our present government and governing party, and their UKIP fellow-travellers.

I am no fan of Jeremy Corbyn but if you listen to what he has actually been saying, it is both reasonable and sensible, and represents a rather more realistic approach to the forthcoming negotiations with the EU than the pointless posturing and grandstanding of May & Co. Unsurprisingly, our European friends (and they really are our friends) have been utterly bemused by the antics of our current government.

This General Election should be about much more than Brexit, but one cannot avoid the fact that Brexit will be a major concern for voters. If and to the extent that this election is about who would be best able to reach a successful conclusion in our EU negotiations, so as to safeguard this country’s vital economic interests, I wouldn’t even put Theresa May and her colleagues on the short-list!


Wednesday, 3 May 2017

Neighbourhood Planning Act 2017

As most readers will be aware by now, the Neighbourhood Planning Bill received royal assent immediately before parliament was prorogued last week. Only sections 1 to 7 are concerned with neighbourhood planning, and these provisions will not come into effect for the time being. Sections 8 to 13 deal with local development documents, and these too will have to await implementation until some time after the General Election.

The three sections that are of wider interest are sections 14, 15 and 17, together with Schedule 3. (The remainder of the Act – from section 18 onwards is all about compulsory purchase.)

Section 14 will introduce restrictions on the imposition of planning conditions, but will not come into effect until a commencement order is made. Schedule 3 to the Act will make consequential changes to existing legislation in respect of planning conditions. I have previously commented on this part of the Bill, and will revert to its provisions in a later blog post, when it takes effect.

Section 15 requires the Secretary of State to amend the GPDO “as soon as reasonably practicable after the coming into force of this section” to restrict permitted development rights currently applying to pubs and wine bars, etc., but only if they actually fall within Use Class A4. As I have pointed out before, many of these “drinking establishments” actually fall within Use Class A3 rather than A4, due to the service of food being a significant part of their business.

This section came into immediate effect on the passing of the Act, and DeCLoG has wasted no time in making the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2017 (SI 2017 No.619) on 28 April, which will come into force on 23 May. (I confess to having raised an eyebrow when I saw that this amendment order had been laid before parliament on 28 April, the day after prorogation (albeit before the dissolution of parliament today). I will comment on these provisions in a separate blog post shortly.

Section 17 has also come into immediate effect. It extends the scope of the planning register that must be maintained by LPAs. Again, I have already commented on this in a previous blog post, and I will come back to it later.

And that’s it really. Those concerned with the preparation of Neighbourhood Plans and Local Plans will want to get to grips with the sections of the Act dealing with these topics. Similarly, compulsory purchase specialists will need to get their heads around Part 2 of the Act. But this Act is hardly revolutionary in its effects, and is just another example of the endless tinkering with planning legislation in which successive governments have dabbled for far too many years.

In the meantime, the 1990 Planning Acts, together with the numerous subsequent amendments that have been made to them, remain unconsolidated, so that we now have some pretty nonsensical section numbering in the principal Act. However, I suspect the government will be occupied by far more pressing concerns in the next few years, and so I don’t hold out much hope for a consolidating Act any time soon.


Tuesday, 2 May 2017

House-painting not within the scope of section 215

It is an unbreakable law of the universe that whenever I go on holiday some interesting planning law issues suddenly pop up while I am away. The past fortnight has been no exception. Having got back to my desk, I am going to start with the latest episode in the Saga of the Stripey House. (I will look at one or two other new topics over the next week or two.)

As I have explained in previous blog posts on this bout of lengthy legal warfare, I have no intention of taking sides, but am interested in the legal issues that it throws up. If you refer back to the blog post I wrote on Monday 15 August 2016, you will see there my report on the issue that eventually came before the High Court last week, and prompted a fresh round of news stories, most of which entirely missed the point of these particular proceedings.

The LPA (Kensington & Chelsea – “RBKC”) had served a section 215 Notice on the owner of this property after the owner, Mrs Zipporah Lisle-Mainwaring, had painted the whole of the road frontage of the house in vertical red and white stripes. The Council required 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 HH Judge Johnson on 12 July 2016. It was this decision that was the subject of last week’s further appeal to the High Court.- R (Lisle-Mainwaring) v. Isleworth Crown Court and RBKC [2017] EWHC 904 (Admin).

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. The amenity of an area would not normally be adversely affected by the external decoration of a building, but the Crown Court judge had been influenced by the fact that this was a house in a conservation area, and painting the house in red-and-white vertical stripes was, he said, unsightly. His honour had therefore held that the notice had been properly served under section 215 and should be upheld.

It was the appellant’s submission, both before the Crown Court and in the High Court, 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.

HH Judge Johnson had been persuaded by the LPA that "amenity" is a broad concept, not defined by the section. He had therefore held that 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 (citing Berg v. Salford City Council [2013] EWHC 2599 (Admin)). The "condition of land", his honour had determined, refers to the current state of the land, and a section 215 notice could therefore be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. Something that affects visual amenity, his honour held, is enough to justify issuing a section 215 notice.

The Crown Court appears to have been influenced by the fact that the subject property is in a conservation area. Painting the outside of a building would not in the ordinary way adversely affect amenity. However, his honour had observed that 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, he had held, was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly and, in his honour’s judgment, section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

Notwithstanding these findings, Gilbart J allowed Mrs Lisle-Mainwaring’s appeal in the High Court last week.

At the heart of this case is the issue of statutory interpretation. Gilbart J took as his starting point the words of Lord Scarman in Pioneer Aggregates,when he said:

“ ............If the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.

Gilbart J pointed out that the interpretation of Section 215 is not referable to, or affected by, the fact that a building in issue falls within a Conservation Area. On the other hand, the nature of the surrounding area may be relevant to its application, as consideration of the effects of amenity inevitably involves considering the effect of the condition of the land on its surroundings (bearing in mind that land includes a building - see s 336(1) of the 1990 Act). In that context, in Gilbart J’s judgment it is impermissible for a Magistrates’ or Crown Court sitting on an appeal to take account of the terms of planning policies or of the reason for the designation of a Conservation Area. A Magistrates’ Court or a Crown Court is not the appropriate forum to consider and determine the interpretation or application of planning policies. Had such planning merits been relevant, one would have expected the appellate route in the legislation to have been to the Secretary of State or his Inspectors, as it is in the case of refusal of planning permission. The concern of the Magistrates’ Court or of the Crown Court is to look solely at the facts.

Turning to section 215 itself, Gilbart J pointed out that the origins of this section go right back to the 1947 Act, when this provision was limited to cases where the amenity of the Council’s area, or of an adjoining area, was seriously injured by the condition of any garden, vacant site, or other open land in their area. The definition is now more broadly drawn, but is still limited to cases where the condition of the land (or building) adversely affects the character of the area.

What is meant by “condition of the land?” In his lordship’s judgment, one must be careful to avoid a catch-all definition that exceeds the proper bounds of the power. The purpose of section 215 is to deal with land or buildings whose condition, in the usual sense of that word, is such as to cause an adverse effect on amenity. The section is not designed to deal with questions of aesthetics or taste, nor to exercise a control over development which affects the choice of exterior finish. His lordship did not read the judgment in Berg v Salford City Council (relied on in the Crown Court) as supporting the argument that a local planning authority has the right to use section 215 to deal with a choice of finish which it dislikes.

One issue that has arisen in a number of cases of statutory interpretation is the relevance (or otherwise) of the heading or side note on the statute. (In the case of section 215, the heading to Chapter II of this Part of the Act reads: “Land adversely affecting amenity of neighbourhood”, and the heading to section 215 itself reads: “Power to require proper maintenance of land”.) The House of Lords has issued definitive guidance on the use of such material in R v Montila [2004] UKHL 50. In the words of Lord Hope of Craighead:

The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and sidenotes are included on the face of the Bill throughout its passage through the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book. .............

The headings and sidenotes are as much part of the contextual scene as these materials, and there is no logical reason why they should be treated differently. That the law has moved in this direction should occasion no surprise. .......... The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used.

Gilbart J therefore considered the heading to section 215 in this context. It could not be doubted that “proper maintenance of land” is directed to the maintenance of the land, or in the case of a building, of its fabric. In his judgment, given that assistance, it was hard to see how one could criticise a building owner for a want of maintenance on the basis that s/he had chosen a colour scheme which was thought unattractive.

What affected the amenity of the area in this case, and was found to do so by the Crown Court, was the choice of colour scheme. This was, and was only, a matter of aesthetics. Parliament had not sought to prevent landowners, including those in Conservation Areas, from painting their houses in any colour or colours they wish (save where an Article 4 direction has been made).

In Gilbart J’s judgement, to allow an LPA to use section 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation would fall outside the intention and spirit of the Planning Code. An LPA has the power to limit permitted development rights or to discontinue lawful uses, but not without payment of compensation. Here, RBKC had ample steps available to it under the Planning Code which would have protected amenity, and would have exposed it to minimal cost. Under section 102 it could have issued a notice requiring the repainting of the building. Were such a notice upheld, the level of compensation would be the diminution of the interest in the land (section 115 of the 1990 Act). On the basis of RBKC’s own case, that diminution in value must have been effectively Nil. There would at worst be a claim for the cost of the repainting (section 115(3)).

Gilbart J was therefore of the view that it is an improper use of section 215 to use it to alter a lawful painting scheme, when there is no suggestion that there is any want of maintenance or repair in the land. It followed that the Notice and the decision of the Crown Court had to be quashed.


Thursday, 6 April 2017

Latest changes to the GPDO

In a piece that I posted on Friday 29 July last year (“Enlarged part of the dwellinghouse”) in which I commented on the judgment of the High Court in Hilton v SSCLG [2016] EWHC 1861 (Admin), I suggested in an addendum that if any ambiguity may possibly arise from the use of the phrase “the enlarged part of the dwellinghouse” in Part 1, Class A, of the Second Schedule to the GPDO, this could readily be resolved by a simple amendment to the GPDO, rather than resorting to the Court of Appeal in an effort to reverse the High Court decision in Hilton.

As briefly noted in a couple of recent comments on that piece, DeCLoG has indeed taken the opportunity to deal with the issue by way of an amendment to the GPDO. This amendment, together with certain amendments to Part 4 of the Second Schedule to the GPDO, was included in the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2017 [SI 2017 No. 391], which was made on 14 March, laid before Parliament on 15 March and comes into force today (6 April).

The amendments to Part 1, Class A now make it clear that the limit on the maximum dimension of a domestic extension under this Class applies to the total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined). This total must not exceed the limits set out in sub-paragraphs (e) to (j). This is what I (and no doubt others) had always understood to be the intention of the legislation, but this amendment puts the matter beyond doubt.

The limitation that applies to Article 2(3) land (land within a Conservation Area, an Area of Outstanding Natural Beauty, a National Park, a World Heritage Site or the Broads), i.e. a domestic extension at the side of a house, or a single storey extension at the rear of the house, is similarly clarified. In these two cases, the total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) must not exceed the limits set out in sub-paragraphs (b) and (c).

The opportunity has also been taken to change paragraph A.3(c), so that it now provides that where the enlarged part of the dwellinghouse has more than a single storey, or forms an upper storey on an existing enlargement of the original dwellinghouse, the roof pitch of the enlarged part must, so far as practicable, be the same as the roof pitch of the original dwellinghouse.

In order to enable the LPA to ensure compliance with these limits on the size of extensions, there is an additional requirement as to the information to be supplied when making a prior approval application for a larger domestic extension. This must now include (in accordance with paragraph A.4(2)(a)) information in respect of the total enlargement (being the enlarged part together with the existing enlargement to which it will be joined). Similarly, the plan provided in accordance with paragraph A.4(2)(b) must show not only the extension in respect of which the prior approval application is made, but also any existing enlargement of the original dwellinghouse to which the enlarged part will be joined; and the LPA, in notifying adjoining owners or occupiers of the application under paragraph A.4(5)(a), must describe the development by setting out all the information provided to the authority by the developer under paragraph A.4(2)(a), and this would include the information as to the total size of the existing and proposed extensions to the property compared with the size of the original dwellinghouse.

The changes made by this amendment order to Part 1, Class A, are not retrospective in their effect. So they do not apply to development where a prior approval application in respect of a larger domestic extension was made to the LPA before 6 April 2017; nor do they affect building operations which began before 6 April 2017, provided the development is completed by 6 April 2020.

Changes to PD for Schools

As regards Part 4, Class C, which (up to now) has permitted the use of a building and any land within its curtilage as a state-funded school for a single academic year, this is now extended to use for up to two academic years, but this permitted development right may still only be used once in relation to a particular site. The site must revert to its previous lawful use at the end of the second academic year or when it is no longer required for use as a state-funded school, whichever is earlier.

Where, on or before 6 April 2017, a building is or has been used as a state-funded school under a permission granted by Class C of Part 4, the permitted development right granted by Class C, as amended by this 2017 amendment order, applies to such a building as if the reference to “two academic years” were a reference to “a further academic year”. So the previous one-year use, where it has been implemented, is automatically extended to two years. In addition, a new class of permitted development has now been added to Part 4. This is Class CA, which permits the provision of a temporary state-funded school on previously vacant commercial land. The permission is for the provision of temporary school buildings on vacant commercial land and the use of that land as a state-funded school for up to three academic years. [“Vacant commercial land” means any land on which all buildings have been demolished; and which was last used for a purpose falling within Use Class B1 (business), C1 (hotels), C2 (residential institutions), C2A (secure residential institutions) or D2 (assembly and leisure), or as a school.]

Development is not permitted by Class CA if the new buildings provided would cover more than 50% of the total area of the site, or if the total floor space of the new buildings provided would exceed 2,500 square metres; nor is development under this class permitted if the land was last used more than 10 years before the date on which the developer applies for prior approval under paragraph CA.2(1)(b) [see below]. Development is also precluded where the site is, or forms part of a site of special scientific interest, a safety hazard area, or a military explosives storage area. [For the definition of these terms, see my book - A Practical Guide to Permitted Changes of Use.]

Development under Class CA cannot be carried out where any land adjacent to the site is used for a purpose within Part C of the Schedule to the Use Classes Order (residential purposes), if any part of any temporary building provided is within 5 metres of the boundary of the curtilage of that residential land. The reference to “Part C of the Schedule” is to all or any of the use classes in that part of the Schedule to the UCO, namely C1 (hotels, guest houses, etc.), C2 (residential institutions, including care homes, hospitals, nursing homes, and residential schools, colleges or training centres), C2A (secure residential institutions, such as prisons and detention centres, other secure accommodation and military barracks), C3 (dwellinghouses), and C4 (houses in multiple occupation). The height of any new building provided must not exceed 7 metres.

The permitted development under Class CA is subject to the condition that the site must be approved for use as a state-funded school by the relevant Minister. There is also a requirement for the developer, before beginning the development, to make a prior approval application to the LPA in respect of:

(i) transport and highways impacts of the development,
(ii) noise impacts of the development,
(iii) contamination risks of the site,
(iv) flooding risks on the site, and
(v) the siting and design of the development.

As with other permitted development where a prior approval application is required, the provisions of sub-paragraphs (2) to (13) of paragraph W of Part 3 of Schedule 2 to the GPDO apply in relation to that application, subject to some minor modifications of the wording. Development under Class CA must begin within a period of 3 years starting with the prior approval date and, as noted above, the permission is granted for a maximum of three academic years, but it may be used only once in relation to a particular site. In contrast with the position under Class M of Part 7, any building erected as permitted development under Class CA must be removed from the land at the end of the third academic year or, if earlier, when it is no longer required for use as a state-funded school, and the land must be restored to its condition before the development took place, or to such other condition as may be agreed in writing between the local planning authority and the developer.

Amendments have also been made to Class M of Part 7 (relating to the erection, extension or alteration of a school). These amendments to Part 7 apply to all school buildings built or extended under Part 7, Class M. The limits in respect of the cumulative gross floor space of any buildings erected, extended or altered have been changed. These were (i) 25% of the gross floor space of the original school, college, university or hospital buildings; or (ii)100 square metres, whichever is the lesser. The latter has been replaced by a limit of 250 square metres in the case of a school, and 100 square metres in all other cases. The limit still applies to the lesser of these two alternatives.

Paragraph M.1(b) precluded development that would be within 5 metres of a boundary of the curtilage of the premises, but this limitation now applies only to a college, university or hospital building. Paragraph M.1(ba) now provides that development is precluded in the case of a school, where any land adjacent to the site is used for a purpose within Part C of the Schedule to the Use Classes Order (residential purposes), if any part of the proposed development is within 5 metres of the boundary of the curtilage of that residential land. [See above for the reference to “Part C” of the schedule to the UCO.]

The development permitted by Part 7, Class M, is precluded where a building has changed use by virtue of Class S of Part 3. This exclusion of permitted development under Class M of Part 7 now extends also to a building which was erected by virtue of Class CA of Part 4, but this exclusion does not apply to a building erected under Class C of Part 4 (see paragraph O in Part 7).


Wednesday, 29 March 2017

Preclusive conditions – Court of Appeal judgment

Followers of this blog, and readers of my first book (“A Practical Guide to Permitted Changes of Use”) will be aware of my considerable interest in this topic. An appropriately worded condition in a planning permission can preclude the operation of the General Permitted Development Order. The operation of section 55(2)(f) of the 1990 Act (and Article 3(1) of the Use Classes Order) can be similarly precluded by such a condition. But difficulties have arisen where the wording of an allegedly preclusive condition does not refer expressly to the GPDO and/or to section 55(2)(f) and the UCO.

I commented on this issue at some length on 30 August 2016, when I blogged on the first instance decision in Dunnett Investments Limited v. SSCLG [2016] EWHC 534 (Admin), in which judgment was handed down on 11 March last year. I won’t repeat what I wrote there, but readers may wish to refresh their memory by looking at that blog post.

One particular aspect of the case that caused me concern was that this judgment seemed to continue an unfortunate trend in conflating the arguments relating to two separate statutory provisions (section 55(2)(f) of the 1990 Act, on the one hand and, on the other hand, Article 3(4) of the GPDO which precludes permitted development contrary to a condition in a planning permission).

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither of these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the Classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. Contrary to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

It is understandable that a preclusive condition need not necessarily refer expressly to section 55(2) (f) or to Article 3(1) of the UCO. This would appear to be confirmed by those judicial authorities that have dealt with this issue, such as City of London Corporation v SSE (1971) 23 P. & C. R. 169, and also Rugby Football Union v SSETR [2001] EWHC 927 and R (Royal London Mutual Insurance Society Limited) v SSCLG [2013] EWHC 3597 (Admin)). But a planning permission (such as that granted by Article 3(1) of the GPDO) should not in my view be precluded except by clear words, and I would still call in aid the observations, in particular, of Farquharson LJ and of Sir David Nicholls in this regard in Dunoon Developments v. SSE (1993) 65 P&CR 101.

However, I am sorry to say that today’s decision by the Court of Appeal in Dunnett Investments Ltd. v. SSCLG [2017] EWCA Civ 192 has gone the other way, and the first instance judgment in that case has been upheld. It is clear that the Court of Appeal, like the judge at first instance, placed considerable reliance on the decision of the Supreme Court in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, which encourages the concept of ‘implied’ conditions (contrary to the previously accepted position, per Widgery LJ, in Trustees of Walton on Thames Charities v Walton and Weybridge DC[1970] 21 PMCR 411 at 497).

The wording of the condition in Dunnett Investments was :

The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.

The view of the Court of Appeal was summed up in this passage from the judgment of Hickinbottom LJ:

“Looking first at the words used, I do not consider the construction of the condition either difficult or unclear. Read straightforwardly and as a whole, as Patterson J found (notably at [43]-[44]), the natural and ordinary meaning of the words used is that the condition allows planning permission for other uses but restricted to that obtained upon application from the Council as local planning authority, and excludes planning permission granted by the Secretary of State by means of the GPDO. In particular, with due respect to Mr Katkowski’s submissions to the contrary, in my view, “express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”

In his view, the interpretation he favoured did not require the reading in, or reading out, of any words. On the other hand, the construction pressed by Mr Katkowski would take away all substance from the condition, leaving it entirely empty; the first part (“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987…”) merely reiterating the scope of the grant, no more than emphasised by the second part (“…and for no other purpose whatsoever…”), whilst the third part or tail (“… without express planning consent from the Local Planning Authority first being obtained”) would be empty because it would include all means of granting planning permission whether by the planning authority or the Secretary of State. The condition would thus have no discernible purpose. It is a tenet of construction, falling within the umbrella of “sensible” interpretation as championed in Trump International, that it must have been the intention that a condition has some content and purpose. In context, this condition could not sensibly have been merely emphatic, which is all it would be if Mr Katkowski’s submission were correct.

Hickinbottom LJ added that the context in which the condition must be construed included the planning history of the Site – which, importantly, showed that the Council was anxious to maintain close control over the planning use to which the Site was put – and, more importantly still, the reason for the condition as set out in its own paragraph 2. That confirmed that it was imposed to enable the Council to maintain control over the use of the Site, by considering the merits of any proposal, in the light of its “particular character and location”. In other words, as Patterson J put it at first instance, “the sensitivity of the area to potentially unsympathetic uses was protected”. That was inconsistent with reliance by an applicant upon rights under either the GPDO or the UCO. Again, his lordship did not see any force in the submission that this clear reason is undermined by the reason expressed in the 1982 permission for the use then permitted, namely “to enable the [Council] to exercise proper control over the development and because the site is in an area where new industrial development would not normally be permitted”. The 1982 use was highly restricted, and the reason explained why a very narrow industrial use was being permitted. In his view, it did not undermine the clear words of the reason given for the more relaxed, but nevertheless considerably restricted, use permitted in 1995.

For all those reasons, Hickinbottom LJ was quite satisfied that the condition did properly exclude the operation of the GPDO; and that Patterson J was correct to reject the appellant’s argument to the contrary. Patten LJ agreed, and the appeal was accordingly dismissed.