Friday, 20 December 2019

CA upholds judgment on the qualifying ‘purpose’ of PD under the GPDO

Earlier this year, on 18 February, I drew attention to Westminster City Council v SSCHLG [2019] EWHC 176 (Admin), in which judgment had been given by Ouseley J on 5 February. This case has now reached the Court of Appeal (New World Pay Phones Ltd v Westminster City Council [2019] EWCA Civ 2250). On 18 December, the Court of Appeal unanimously upheld the judgment at first instance.

You might suppose that, with the almost universal use nowadays of mobile phones, the demand for public call boxes would be greatly reduced, and yet prior approval applications to install new or replacement telephone kiosks have burgeoned over the last few years. The key to this is that these applications are nearly always accompanied by a parallel application for advertisement consent to allow illuminated advertising on the whole of the back panel of the new kiosk. This, Westminster suggested, betrayed the true purpose of these proposed structures. The Council thought it unlikely that the new kiosks would be used by the public to make telephone calls; and the applications were in substance an attempt to exploit PD rights so as to circumvent normal planning controls that properly apply to such development.

Following February’s judgment, MHCLG moved with unaccustomed alacrity to plug this loophole. With effect from 25 May 2019, the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 removed from the PD rights granted by Part 16 of the Second Schedule to the GPDO development consisting of the installation, alteration or replacement of a public call box, and for good measure the Advertisement Control Regs were also amended to exclude from Schedule 3 of those regs deemed consent for [unilluminated] advertisements displayed on the glazed surface of a telephone kiosk.

[In light of this, you may be wondering why New World Pay Phones bothered to take their case on to the Court of Appeal. The answer lies in the transitional provisions in the May 2019 amendment regulations. Where a prior approval event occurred before 25 May 2019, the PD right under Part 16, Class A continues to have effect in relation to a public call box as if the amendments made by these Regulations had not been made. So if New World Pay Phones could get the High Court judgement overturned, the Inspector’s original appeal decision would thereby have been restored. It was that appeal decision that was the “prior approval event” in this case, and so the permitted development could still have gone ahead.]

As I pointed out in February, the significance of this case is not confined to telecoms developments under Part 16. The “purpose” of the proposed development is what really matters, and whether or not this actual purpose falls within the qualifying purpose or purposes specified by the relevant Class in the appropriate part of Schedule 2 to the GPDO. As I noted in February, it seemed to me from the arguments put forward on behalf of the developer, and also the Secretary of State, that it would be possible to reach a different conclusion on the issue of “purpose” in relation to Part 16, Class A. This was not to say that the Court of Appeal would necessarily reach a different conclusion, and it seemed to me that it was entirely possible that the first instance decision would be upheld, but the case would clearly turn on the interpretation of “purpose” in the context of the Second Schedule to the GPDO.

As Hickinbottom LJ put it in his judgment, the “use” of a building or land is an important planning concept, as is the related concept of “purpose”, i.e. the use for which the building or land is intended. By section 75(2) and (3) of the 1990 Act, where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and, if no purpose is specified, then the permission is construed as including permission to use the building for the purpose for which it is designed. “Purpose” in this context is not subjective – it does not depend upon what is in the mind of the developer – it is the use for which the development, looked at objectively, is intended.

As Ouseley J observed in his judgment at first instance, “A development falls outside the scope of Class A Part 16 of it is not ‘for the purpose’ of the operator’s network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO. …….. A development which is partly ‘for the purpose’ of the operator's network, and partly for some other purpose, is not a development ‘for the purpose’ of the operator’s network, precisely because it is for something else as well. The dual purpose development must be judged as a whole.”

The essential points to be derived from the judgment of Hickinbottom LJ in the Court of Appeal may be briefly summarised as follows:

(1) To fall within a specified class of PD, development not only has to comply with the class description, but also has to satisfy a series of conditions and limitations unique to that particular class. If it does not do so, then it is not permitted under the GPDO; and planning permission can only be obtained on the basis of a full application.

(2) To take the advantage of being permitted development, the proposed development must fall entirely within the scope of the GPDO. Mixed use development cannot take advantage of that benefit – because, if it were to be able to do so, the GPDO could and would be used for permitting development for something outside its scope, i.e. the part of the development that does not fall with a permitted development class.

(3) The true construction of the GPDO means that, as a general proposition, to be “permitted development”, the whole of any development must fall within the scope of a class in Schedule 2 of the GPDO, by falling within the relevant definition and satisfying any express restrictions as to “exceptions, conditions and limitations”; and therefore a mixed use or dual purpose development, where one use or purpose is outside the scope of the class, cannot generally be permitted development.

It was beyond dispute that the proposed telephone kiosk in this case did not have merely the single purpose to enclose electronic communications apparatus, but that it also had an advertising purpose. It therefore very clearly fell outside the scope of the GPDO. For those reasons, in Hickinbottom LJ’s view, Ouseley J was right to conclude that the proposed development fell outside the scope of the GPDO, and was right to quash the prior approval on that ground.


Monday, 9 December 2019


This Thursday’s General Election will be positively the last chance to prevent a disastrous Brexit at the hands of Boris Johnson and his Brextremist friends. The Tory election slogan (“Get Brexit done”) is as mendacious as all Johnson’s other lies and obfuscations. If Johnson wins an overall majority, so that he can rush his Brexit Bill through parliament with only the most perfunctory debate (thereby avoiding all the serious defects of his vaunted ‘deal’ becoming obvious before it passes into law), then the country will be faced with a disastrously hard Brexit, and the likelihood that the UK will still crash out of the EU at the end of 2020, with no agreement having been reached as to our longer-term relationship with the EU, in terms of trade, security, scientific cooperation and the many other important benefits that the UK derives from its current membership of the EU.

Contrary to Johnson’s assertion, his deal is not “oven-ready”. It will not ‘get Brexit done’. It will be only the overture to long and difficult negotiations with the EU, which could drag on for years, not to mention even more difficult horse-trading with other nations with whom the UK currently has advantageous trade terms, as a result of Europe-wide trade deals that the EU has made with those countries on behalf of all its member states. It is naïve to believe that these agreements can simply be rolled over on substantially the same terms as we currently enjoy. As a much smaller trading entity than the EU, the UK’s bargaining position would be substantially weakened, and the terms that might be negotiated will be nothing like so good as those that we currently enjoy with those other countries. After three years clocking up a prodigious number of air-miles, Mrs May’s trade minister (Dr Liability Fox) had only succeeded in agreeing to buy oranges from Israel and cuckoo clocks from Switzerland, plus some miscellaneous items from Iceland and the Faroe Islands. Johnson’s motley crew are unlikely to do any better (especially when it comes to negotiating with the USA).

And does anyone seriously believe the Tory Party’s death-bed repentance, after nine years of unnecessary austerity (which, contrary to their assertions, has still not been brought to an end), which has prompted them suddenly to promise that they will reverse at least some of the cuts that they have savagely imposed on public services throughout their years in office?

People are understandably fed up with Brexit, but they would be tragically mistaken if they think that voting Tory will “get Brexit done”. What people really want is to “get Brexit over with”, which is not the same thing at all. This can easily be achieved, simply by cancelling Brexit altogether. No more long and difficult debates; no more tricky and risky international negotiations. As soon as we pull the plug on Brexit, that’s the end of all our problems. The reaction to the Lib Dems’ proposal to cancel Brexit without letting the voters have a final say on the matter shows that people do want a chance to vote on the matter one last time in light of all that has transpired in the past three and a half years; so there clearly needs to be a referendum on the terms of Johnson’s deal, with the alternative of simply staying in the EU on present terms.

It has therefore become vital at this General Election to prevent Boris Johnson from getting a parliamentary majority. The problem is that our ‘first past the post’ electoral system can all too often result in a candidate being elected on a minority of the votes cast in their constituency. Labour and Lib Dem votes might add up between them to 60% in that constituency, but the Tory candidate could still win with just 40% of the votes cast. Unfortunately, Labour and the Lib Dems have refused in most cases to cooperate with each other to prevent this happening, and so it is left to individual voters to do the job for them. If you want to prevent a Tory MP being elected in your constituency by default, then old party loyalties must be laid aside and you should vote for the one candidate in your constituency who, with the benefit of the combined anti-Tory votes, could defeat the Tory candidate. This is the only means that is now left to us to prevent a disastrous Brexit, from which this country might never recover.

Once again, the Tories have wheeled out their old trick of threatening the electorate with an invented bogey-man. This time, it’s Jeremy Corbyn; last time it was a “coalition of chaos” with the SNP as well, but what we got instead was Theresa May’s very own coalition of chaos, with the DUP. This old Tory trick of waving a white sheet about and talking darkly of ghosts and ghoulies and things that go bump in the night won’t wash any more. As the doyen of psephologists, Professor Sir John Curtice, observed recently, the chances of Jeremy Corbyn gaining a working majority in this election are as close to zero as it is possible to get. So blood-curdling prophesies of economic disaster under a left-wing Labour government can be entirely discounted. If we can avoid a majority Tory Brexiteer government, then what we shall get is another hung parliament. (Cue more Tory weeping and wailing and gnashing of teeth – but only because it will frustrate their knavish tricks, and prevent them once again from forcing a hard Brexit on the country). In a parliament where no party can command a majority, the compromise of a second referendum then becomes the only practical way forward, and it is one that this next parliament should seize on as the best way of “getting Brexit over with”.

Friday the 13th (in the cold, clear light of dawn) : So that’s it, then. Boris Johnson now has his majority, and the country is doomed. Goodbye, Great Britain; welcome to Little England – an insignificant little offshore island, with no influence in the world and a slowly declining economy, left only with its dreams of past glories.

But the Tories and other Brexit supporters had better not get too carried away with any sense of triumph. Reality, in the form of ongoing Brexit negotiations and other difficult trade talks, will impose itself all too soon, and electors in the Midlands and the North of the country, who elected Tory MPs for the very first time in some cases, will be expecting Johnson’s government to deliver on their generous election promises. Those electors will punish the Tories at the ballot box for any delay in rolling back austerity and spending generously to provide new hospitals, properly funded schools and much improved public transport and other public services.


Monday, 2 December 2019

Curtilage revisited (yet again)

One of the nightmares a lawyer has is that he or she has overlooked some relevant judicial authority – a judgment that has somehow escaped their notice, and which could potentially undermine some cleverly constructed argument that they have carefully devised. The same dilemma faces legal authors (including bloggers), and so in our seminar last month, I had a sudden frisson of doubt about the vexed issue of “curtilage”, the definition of which has repeatedly troubled the courts over the years.

What prompted my sudden anxiety was the citation by Alistair Mills, in his excellent survey of recent case law, of the judgment in Challenge Fencing Ltd v SSHCLG [2019] EWHC 553 Admin. This was a judgment that was handed down in March 2019, but which I had somehow missed until Alistair Mills drew attention to it in our seminar.

It turns out that this judgment does not change the accepted view of how “curtilage” is to be defined, but it did prompt me to revisit the issue of “curtilage” in light of the various judicial authorities on the subject that go back over the past 70 years or so. It is, I would suggest, a good idea to carry out this exercise occasionally, rather than repeating time and again the same old summary that one has been accustomed to trotting out whenever the subject arises.

One point that immediately became apparent to me from a re-reading of the cases is that very little attention seems to have been paid over the years to what I have always regarded as the locus classicus on this topic, the judgment in Sinclair Lockhart’s Trustees v Central Land Board (1950) 1 P.& C.R. 195. So far as I am aware, this judgment has never been over-ruled or distinguished, and so it remains good law.

The essential point that I derive from that case is that, in order to be within the curtilage of a building, the land in question must not only have a close spatial relationship with the building (a point to which the courts have repeatedly returned) but it must also share a functional relationship with the building. To quote the relevant passage in the judgment:

“The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.”

Although the Sinclair Lockhart judgment was not referred to in R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin), it is clear from the characteristically thorough and carefully reasoned judgment of Sullivan J (as he then was) that he certainly had in mind the need for a functional relationship between the alleged curtilage building and the principal building, as well as a spatial relationship. This was a strand of thought that ran through the entire judgment (which has to be read in its entirety to understand the stress laid on this point). It may be briefly illustrated by this passage:

…..In 1984 Mill Barn and the Old Granary were not being used for purposes that were ancillary to the use of the farmhouse as a dwelling house; they were being used for the purposes of the general farming enterprise which was being carried on at Jews Farm. They, and the agricultural buildings to the west, were being used for agricultural purposes. They were not being used, for example, to garage the farmer's car, to store his domestic items, as a children's playroom, staff quarters etc cetera.

In Egerton, Sullivan J held that, both in relation to their spatial relationship with the listed farmhouse (being separated from it by a wall) and in the lack of any functional (domestic) relationship with the farmhouse, the nearby barns were not within the curtilage of the farmhouse, and so they were not listed buildings. It is clear, therefore, that for one building to be within the curtilage of another building, their relationship must be both functional and spatial.

So far as the spatial relationship is concerned, a number of points have been established by the various judicial authorities over the years. In Dyer v Dorset County Council [1989] 1 Q.B. 346, the court referred to the definition of the word “curtilage” in the OED:

“a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings”

The reference in the dictionary definition to the curtilage being “small” was held to be irrelevant by the Court of Appeal in Skerritts of Nottingham Ltd v SSETR (No.2) [2000] 2 P.L.R. 102; [2000] J.P.L. 1025, but Dyer is still authority for the proposition that (irrespective of its size) land forming the curtilage of a building must be ‘attached’ to a dwellinghouse (and not be separated from it by any intervening land) and must form one enclosure with it, a point affirmed by the High Court in Burford v SSCLG [2017] EWHC 1493 (Admin). (Practical examples of the application of this rule were provided by Collins v SSE [1989] P.L.R. 30 and McAlpine v SSE [1994] E.G.C.S. 189. )

One aspect of the decided cases with which I take issue is the repeated references to the judgment of the Court of Appeal in A-G (ex rel. Sutcliffe) v Calderdale BC (1982) 46 P. & C. R. 399, where it had been held that there were three factors to be considered when identifying the curtilage of a (listed) building. These were: (1) the physical ‘layout’ of the listed building and the structure, (2) their ownership, past and present, and (3) their use or function, past and present.

Stephenson LJ had said in that case:

“Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage. So when the terrace was built, and the mill was worked by those who occupied the cottages, and the millowner owned the cottages, it would have been hard, if not impossible, to decide that the cottages were outside the curtilage of the mill.”

It seems to me, however, that reliance should no longer be placed on that judgment. First, the buildings in that case may not (at the relevant time) have been in one and the same planning unit. The well-known rule in Burdle established that the unit of occupation is the appropriate planning unit to consider, until or unless a smaller unit is identified which is in separate use, both physically and functionally. That alone suggests that by the time that the mill building in Calderdale came to be listed, the adjoining terrace of millworkers cottages cannot have been within the same planning unit as the mill itself. Although the cottages were clearly built and were originally (and perhaps still) owned by the millowner, they were separately occupied, whether by millworkers or others. Even if they constituted ‘tied accommodation’, they clearly constituted separate units of occupation, and (even though they may have been attached, at least at one end of the terrace, to the mill building), they were in separate use, both physically and also functionally, as dwellings.

Even if they continued to be occupied by millworkers as tied accommodation, the terrace could not now be regarded as ‘ancillary’ to the mill building, bearing in mind the House of Lords decision in Westminster City Council v British Waterways Board [1985] A.C. 676; [1984] 3 All E.R. 737 that a use in one planning unit cannot be ancillary to an activity carried on in a different planning unit, even an adjoining one.

So far as physical attachment to another building is concerned, it is clear from section 1(5) of the Listed Buildings Act that any structure fixed to a listed building forms part of the listed building. However, the House of Lords in Debenhams plc v Westminster LBC [1987] A.C. 396 insisted that a structure fixed to a listed building would itself be listed only if it was subordinate or ancillary to the building that was actually listed. An obvious example (cited in Debenhams) is a terrace of houses; the listing of just one of the houses in the terrace clearly does not apply to the houses on either side if these are in separate ownership or occupation, even though they are structures that are ‘fixed to a listed building’. I would submit that this applies equally to the situation in the Calderdale case, and that the terrace of millworkers cottages cannot, for the reasons explained above, be regarded as having been included in the listing of the mill building (in the absence of their having been specifically included in the listing description).

For the reasons explained above, I would respectfully disagree with Lieven J’s formulation in Challenge Fencing of the tests that are to be applied in assessing whether or not a building or an area of land falls within the curtilage of a particular building (as summarised in paragraph 18 of her judgment), at least in so far as they depend, to a degree, on Stephenson LJ’s observations in the Calderdale case.

The definition of what constitutes “curtilage” is (and, in the absence of any general legislative definition, must remain) a matter for the courts. However, I entirely agree that the actual identification in a particular case of the extent of the curtilage of a building is a question of fact and degree, and so this must be a matter solely for the decision-maker, subject to normal principles of public law. This, however, depends on the correct application of the definition of “curtilage” (as established by the judicial authorities referred to above).

Reference was made in Challenge Fencing to the judgment in Sumption v Greenwich LBC [2007] EWHC 2776 (Admin). That case established that the identification of the curtilage must be determined in relation to the factual position at the relevant time (for example, as at the date of first listing in the case of a listed building, or as at the date of the application in the case of an LDC application); it also established that the extent of the curtilage can very easily be changed from time to time, subject of course to any addition to the curtilage being incorporated in the same planning unit as the building within whose curtilage it is claimed to have been included, and also to its use at that time being lawful in planning terms.

So I would formulate the relevant indicators as follows:

(1) The identification of the curtilage of the building in question is a matter of fact and degree, to be determined by the decision-maker.

(2) The determination is to be made by reference to the relevant point of time in the particular case (e.g. the date of first listing in the case of a listed building, or the date of the application in the case of an LDC application).

(3) In order to be within the curtilage of Building A, the relevant land and/or other building(s) must, at the relevant time, have been within one and the same planning unit as Building A.
(a) This question is to be determined in accordance with the rule in Burdle, i.e. What was the unit of occupation at the relevant time?
(b) At that time, were the alleged curtilage land and/or other buildings in the same use as Building A, without having been divided off from it, or were they in separate use, both physically and functionally?
(c) Past or present ownership (as distinct from occupation) is unlikely to be of assistance in relation to this question, which will depend on the actual occupation and use of the various parts at the relevant point in time in that particular case.
(d) The historic layout or use of the land and buildings is unlikely to be of any assistance in answering this question; it is actual occupation and use at the relevant time that will be the determining factors.

The following questions will only fall to be answered if it has been determined in answer to Question 3 that the alleged curtilage land or buildings were at the relevant time in one and the same planning unit as Building A.

(4) At that time, were the alleged curtilage land and/or building(s) used for the comfortable enjoyment of Building A? Did they serve the purpose of Building A in some necessary or useful way? (For example, if Building A is/was a dwelling, were the other building(s) and/or land also in use for domestic purposes in connection with the use and occupation of Building A as a dwelling?)

(5) Were the alleged curtilage land and/or building(s) attached (in spatial terms) to Building A, and did the land and/or building(s) form one enclosure with Building A? If not, were the relevant land and/or buildings divided from Building A by a wall, fence or other means of enclosure or were the relevant land and/or buildings separated from Building A by any intervening land (e.g. uncultivated ground, rough grass, pasture, etc.)?

(6) In a case where Building A was, or became at that time, a listed building, was any building within the alleged curtilage physically attached to Building A? If so, was it subordinate or ancillary to Building A? (The relative sizes of Building A and any attached building may be a factor in answering this question, as well as the relative functional relationship of the respective conjoined buildings.)

(7) Finally, whilst the claimed curtilage need not necessarily be ‘small’, is its size and alleged necessary or useful function in relation to Building A proportionate to the size and function of Building A?

It will be seen from these proposed questions that the three factors listed by Stephenson LJ in the Calderdale case really don’t come into the equation (at least, not in the form in which they were stated in that judgment).

There are, of course other judgments on this issue that have not been cited above, such as Methuen Campbell v Walters 1979 1 QB 525.and Lowe v FSS [2003] EWHC 537 (Admin), but they don’t really add anything to the authorities already cited.


Wednesday, 27 November 2019

Another continuity case under section 171B(2)

There has been some comment on last month’s judgment in Islington LBC v SSHCLG [2019] EWHC 2691 (Admin). However, the judgment does no more than to confirm existing and well understood law on the need for the continuity of a residential use throughout a four-year period if an unauthorised change of use to residential use is to become immune from enforcement under section 171B(2). The position regarding the need for continuous use was very clearly established in the judgments in Swale and in Thurrock. Void periods, unless they are of very short duration, will re-set the clock to zero, and this includes voids associated with redecoration or refurbishment for the purpose of re-letting. The resumption of residential use after such a void period will be seen as a fresh breach of planning control, which cannot benefit from any earlier period of residential use in calculating the 4-year period for the purposes of section 171B(2).

Where the Inspector went wrong in this case was in allowing himself to be persuaded that the earlier judgment in Gravesham gave rise to the possibility that residential occupation need not be continuous. I have never derived such an implication from that judgment, and I find it difficult to understand how one could claim support from that case for such a proposition. All that Gravesham did was to establish a pre-qualifying requirement that, before a change of use to residential use can commence, the premises in question must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood; that is to say as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence.

There is admittedly a potential anomaly that arises from the rule in Gravesham, as applied by Impey, (both cases that had been called in aid by the developer in the Islington case). This is the proposition, which was clearly accepted by the Supreme Court in Welwyn Hatfield ("the Beesley case"), based on Gravehsam and Impey, that a change of use to residential use does not depend on actual residential occupation; the change of use takes place at the point at which the construction or adaptation of the premises is completed, so that the premises are then ready for imminent residential occupation.

One is therefore faced with the position (which is not perhaps entirely logical) that a breach of planning control could well take place even if actual residential occupation has not commenced, but that any time between this unauthorised change of use taking place and actual residential occupation commencing cannot be counted towards the 4-year period for the purpose of calculating the time when this breach of planning control (i.e. the change of use) will become immune from enforcement under section 171B(2).

Although Gravesham and Impey, and also Welwyn Hatfield, were called in aid by both the developer and by the Secretary of State in the Islington case in attempting to defend the Inspector’s decision, the potential anomaly I have mentioned above did not arise in this case, which was a straightforward example of a residential use being subsequently interrupted by a void period during which the flat in question was thoroughly refurbished (in fact it was described as having been ‘gutted’, so as to render it completely uninhabitable while those works were in progress). The judgment in Panton and Farmer has no application in this situation; it applies only after immunity has first been achieved. There are numerous examples of void periods having been held to ‘stop the clock’ for the purposes of the 4-year period, so that the clock is then re-set to zero if a residential use is subsequently resumed. Mrs Justice Lang’s judgment in favour of the LPA, quashing the Inspector’s decision, in which he had allowed the developer’s appeal against the LPA’s enforcement notice, seems to me to have been inevitable in these circumstances, and should occasion no surprise whatsoever.

Where the courts might perhaps find themselves in some difficulty in the future, would be a case where works were completed so as to bring about a change of use, as established in Welwyn Hatfield, followed by a period of (say) a couple of months, or perhaps even longer, before actual residential occupation of the premises commences (during which the property was on the market but had not been sold or let), followed by a period of continuous and uninterrupted residential occupation falling short of four years, but which when aggregated with the period when the property was fully ready for occupation but had not yet been occupied does add up to four years. The court would then have the interesting task of reconciling Thurrock and Swale on the one hand with Welwyn Hatfield on the other.


Monday, 25 November 2019

THIRD EDITION is launched

Last week Bath Publishing and Keystone Law held another very successful event to launch the THIRD EDITION of A Practical Guide to Permitted Changes of Use. This took the form of a seminar, held at the Institution of Civil Engineers in Great George Street, Westminster. We had so many bookings that we had to hold the seminar twice, once in the morning and then again in the afternoon. Even this was not enough to accommodate everyone who wanted to attend, and we could probably have filled the lecture theatre for a third time, if we had had the energy to repeat the seminar all over again.

The seminar was ably chaired once again by Brian Waters, the eminent architect and town planner and Chair of the National Planning Forum, who is also the editor and publisher of “Planning in London”. In addition to my presentation on the scope of Building Operations permitted by Class Q (residential conversion of agricultural buildings), Alistair Mills from Landmark Chambers, who is another Bath Publishing author, gave an entertaining account of recent case law, which was warmly appreciated by the audience.

The liveliest part of the event was the panel discussion, beginning with a brief survey of potential amendments to the PD rights for changes of use under Part 3 (especially under Class O – residential conversion of offices, which has become increasingly controversial), and continuing seamlessly into a wide-ranging Question and Answer session on Part 3 generally. Alistair Mills willingly participated as a member of the panel at short notice, and we were joined in the morning by my colleague Oliver Goodwin from Keystone Law’s planning law team, and in the afternoon by my colleagues David Evans and Andrew Darwin. The proceedings, both in the morning seminar and in the afternoon, went with a swing and I have never encountered such an enthusiastic and thoroughly engaged audience.

Those of you who now have your copy of the book will have seen that it is a substantial hardback volume, which is significantly larger than either of the two previous editions. Quite apart from the fact that those earlier editions are now thoroughly out-of-date (and so should no longer be relied upon), the Third Edition is even more of a ‘must have’ guide to all the rules and procedures that have to be complied with in achieving prior approval for developments under the permitted development rights in Part 3 of the Second Schedule to the GPDO. For what you get, the price of this book is an absolute bargain.

This reminds me to tell you that, if you have not yet bought the book, you have a last chance to avail yourself of the generous launch offer that Bath Publishing is making, which will give you not only the book itself, but also a free copy of the digital edition, all for just £60 + VAT. But hurry, this offer only lasts for a few more days - until 30th November. After that date the book will be available for £60 on its own, or you can then buy it as a print / digital bundle for £90 + VAT. So if you get your order in this week, you can save yourself over £30 on the print/digital bundle.


Wednesday, 6 November 2019

Section 73 – Limits to the variation of conditions

The Court of Appeal issued a helpful judgment on 5 November which confirms the correct approach in exercising the power to vary the conditions attached to a planning permission. This was the case of Finney v Welsh Ministers [2019] EWCA Civ 1868. Section 73 of the 1990 Act provides a power to grant planning permission for development without complying with conditions subject to which a previous planning permission was granted. In practice, this allows certain conditions to be removed altogether or to be relaxed or varied. However, the Court of Appeal’s judgment in Finney makes it clear that there is a limit to how far the variation of a condition under section 73 may lawfully go.

The planning permission in question in Finney authorised the installation of two wind turbines with a tip height of up to 100m, and associated infrastructure. This permission was granted subject to 22 conditions. One of these provided that the development was to be carried out in accordance with the approved plans and documents, which showed a wind turbine with a tip height of 100 metres.

The developer subsequently applied under section 73 for the "removal or variation" of that condition to enable a taller turbine type to be erected. A submitted drawing showed a variation of the proposed development so as to permit tip heights for the turbines of up to 125 metres. It is important to note, however, that this variation would have taken the development outside the scope of the development described in the operative wording of the planning permission.

The LPA refused the section 73 application, and the developer appealed to Welsh Ministers (in practice the Planning Inspectorate) against that refusal. Having considered a number of planning issues raised in the appeal, the Inspector allowed the appeal so that the development could be carried out subject to a revised condition that would permit tip heights for the turbines of up to 125 metres. (This also involved varying the operative wording of the permission, so as to remove the words in the description of the development that referred to a tip height of up to 100m for the wind turbines.)

There could be no challenge to the inspector’s planning judgment, but a third party objector (Professor Finney) sought a quashing order in the High Court on the ground that the Inspector had no power to allow the appeal and to grant planning permission for development that was not covered by the description of the development in the body of the original planning permission. The only power, it was argued, was to vary the conditions attached to that development as described in the original permission. The High Court rejected this challenge, noting that the point had not been raised before the inspector. Professor Finney then appealed against that judgment to the Court of Appeal.

In considering the legal issue that this case raised, the Court of Appeal drew attention to a passage from the recent Supreme Court judgment in Lambeth LBC v SSHCLG [2019] UKSC 33, where Lord Carnwath had said: “A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.” Furthermore, it is well-settled law that a condition on a planning permission will not be valid if it alters the extent or the nature of the development permitted: Cadogan v SSE (1992) 65 P & CR 410.

Counsel for Prof Finney had stressed in argument the distinction between the “operative part” or grant of the planning permission on the one hand, and the conditions to which the operative part or grant is subject. The distinction between these two parts of a planning permission is reflected in other provisions of the 1990 Act. This distinction between the operative part or grant, on the one hand, and conditions on the other had been drawn in other cases decided under the Act, for example Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin) (when Hickinbottom J observed: “… the grant identifies what can be done—what is permitted—so far as use of land is concerned; whereas conditions identify what cannot be done—what is forbidden.”).

The question in the appeal in Finney, therefore, was whether, on an application under section 73, it is open to the LPA (or, on appeal, Welsh Ministers) to alter the description of the development contained in the operative part of the planning permission. Similar challenges on this ground had been upheld in previous cases, such as R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7.

Although R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) was decided the other way, this was on the basis that the precise extent of the description of the consented development in that case (an extensive multi-purpose leisure development that included a “multi-screen cinema”) did not prevent a variation of one of the conditions that had specified a 12-screen cinema with a capacity of 2,000, by substituting under section 73 an increase in the number of screens to 13, with a capacity of 2,400. (The important point was that the operative words of the planning permission itself in that case had referred only to a “multi-screen cinema”, without specifying the number of screens or the seating capacity of the cinemas in the description of the development authorised by the permission.)

Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. On receipt of such an application, section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development. That coincides with Lord Carnwath’s description of the section as permitting “the same development” subject to different conditions. It is notable, the Court of Appeal observed, that if the planning authority considers that the conditions should not be altered, it may not grant permission with an altered description but subject to the same conditions; on the contrary it is required by section 73(2)(b) to refuse the application. That requirement emphasises the underlying philosophy of section 73 (2) that it is only the conditions that matter.

The Court of Appeal therefore allowed this appeal, and quashed the Inspector’s decision because it was beyond her powers.


Monday, 21 October 2019

Brexit grinds on

For several weeks past, I have had my head down getting the Third Edition of A Practical Guide to Permitted Changes of Use ready to go to press. I am pleased to say that the book should be going to the printers this week, and so I can now turn back to other matters.

As I have mentioned before, there doesn’t seem to be much going on on the planning front at the moment, and so I don’t feel I need any excuse to return to the subject of Brexit after an interval of several weeks. I have refrained from further comment until now, as I wanted to see how things would pan out in light of the negotiations with the EU that were concluded last week, ahead of the purely arbitrary deadline of Hallowe’en that was bequeathed to the Johnson regime by Theresa May.

There seems to be widespread misunderstanding and confusion, even among some journalists (who really should know better), as to what has been happening, and what is likely to happen next. So I think it would be worth spending a few moments to explain exactly where we are at the moment.

The majority view of parliament for some time now has been that the UK should not leave the EU without an agreement. It was in order to prevent this eventuality that the European Union (Withdrawal) (No. 2) Act 2019, popularly known as ‘the Benn Act,’ was passed on 9 September. This required the Prime Minister, no later than 19 October, to seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union by sending to the President of the European Council a letter in the form set out in the Schedule to the Act requesting an extension of that period to 11.00pm on 31 January 2020 in order to debate and pass a Bill to implement the agreement between the UK and the EU under Article 50, unless by that time both the Commons and the Lords had passed a resolution approving a draft agreement reached before that date or, alternatively, a resolution that the UK should leave the EU without any agreement being concluded.

Last Thursday, amid much back-slapping and bonhomie, the PM concluded a draft withdrawal agreement with the EU, as confirmed at the EU summit on that day, and he then tabled alternative motions in the Commons and the Lords for debate on Saturday in order to comply with the Benn Act - one to approve the draft agreement, and the other (as an alternative) approving leaving the EU without an agreement. The debate on these two motions had to be held on Saturday because the government was right up against the deadline imposed by the Act. A cross-party amendment, proposed by Sir Oliver Letwin and others, changed the first of these motions, to state that the House had considered the matter but would withhold their approval unless and until implementing legislation is passed. This amendment was passed (by 322 votes to 306). The main question, as amended, was then put and was agreed to without dissent. In light of this, the government did not move the second motion (which would have approved leaving the EU without an agreement.) Note that the main motion (to approve the draft agreement) was not withdrawn; it was passed, in its amended form. It was only the alternative motion (for a ‘No Deal Brexit’) that was ‘pulled’.

Following these votes, the government indicated its intention to table the original motion again (or a motion substantially to the same effect) on Monday. This was done in a somewhat unusual manner, in the form a Point of Order raised by the Leader of the House (Jacob Rees-Mogg). He did not seek to make an Emergency Business Statement on Saturday afternoon, as might have been expected. This led to a number of further Points of Order being raised by Members, including the suggestion that an attempt by the government to re-run the debate on their original motion would be in breach of the rules of the House. The Speaker indicated that he would take advice from the Clerks (and presumably, if thought necessary, legal advice) before ruling on this and the other Points of Order at the start of public business on Monday. However, the Speaker reminded the House that the proposed motion on Monday could only be debated if would be orderly to do so. The Government is not the arbiter of what is orderly; it is solely for the Speaker to rule on that.

Meanwhile, on Saturday evening, the PM complied with the letter (although perhaps not with the spirit) of the Benn Act, by sending to the President of the European Commission a photocopy of the letter set out in the Schedule to the Act. That letter was not personally signed, but it nevertheless concluded – “Yours sincerely, …………Prime Minister of the United Kingdom of Great Britain and Northern Ireland”, and it is clear that this is being treated by the Commission as a formal request from the PM for a delay under Article 50. What may perhaps be legally questionable is the covering letter from the UK’s ambassador to the EU, stating that this letter was being sent only because it was a legal requirement of the Benn Act, and a longer personally signed letter from the PM effectively seeking to negative the effect of the letter that he had been legally required to write.

Today, immediately following Defence Questions, the Speaker made his ruling on the Points of Order that had been raised by MPs on Saturday afternoon. The issue was whether the fresh motion under section 13(1)(b) of the 2018 Act was the same in substance as the motion that had been before the House on its previous working day, barely 48 hours earlier. It clearly was substantially the same, and Erskine May is very clear that this is unacceptable, and has been for more than 400 years. The Speaker had considered whether there had been any change of circumstances, but there had been none in the period of barely 48 hours since the House had previously voted on the matter. The Prime Minister’s letter of Saturday evening did not represent a change of circumstances, but was simply part of a process. The Speaker therefore ruled that the motion on Monday’s Order Paper was repetitive and disorderly.

Later this afternoon (and arguably more than 48 hours late), the Leader of the House finally made an Emergency Business Statement. This indicated that the government intends to rush what will undoubtedly be a very complex Bill through all its Commons stages in just three days (starting with Second Reading on Tuesday, and concluding on Thursday), following a formal First Reading today. A Programme Motion was due to be laid later today and will be debated tomorrow. It is completely unacceptable that the government should attempt to ram such an important Bill through the Commons in such an unreasonably short time. This will be the next issue over which battle is joined between parliament and the Executive. As the for the Queen’s Speech, the debate on that will certainly not be resumed this week, which as an opposition MP observed, points up the fact that the Queen’s Speech was a meaningless sham, and a pointless political gesture on the part of the government.

Unfortunately, this is a subject to which I shall be bound to return. But to those who say that they just want to get it over with, I would point out that the quickest and easiest way of achieving that would be simply to abandon Brexit and to retain full membership of the EU. This would bring an immediate end to all the debate and argument, and we can then at last get back to discussing other important matters. The mantra that we should “just get it done” and make a “clean break”, on the other hand, would have precisely the opposite effect. It would be the start of years of even more difficult negotiations, not only with the EU but with numerous other countries about terms of trade and many other matters, and endless debate and disputes about this for years to come. No deal, however carefully negotiated, will ever give us such advantageous terms as we currently enjoy as a member of the EU.

UPDATE: Tuesday evening (22 October): As I expected, the European Union (Withdrawal Agreement) Bill [the “WAB”] received its Second Reading earlier this evening. However, it is important to understand that (notwithstanding claims to the contrary from the government benches), this did NOT amount to approval of the deal for the purposes of the Benn Act. That Act requires such approval to be in the form of a resolution in a specific form of words. The motion to read the WAB for a second time did not fulfill that requirement. The provisions of the Benn Act therefore continue to be fully effective, and a delay to Brexit beyond 31 October must therefore be pursued. The second reading of a Bill would not in any event represent assent to the Bill and all its contents. Any Bill is potentially liable to be amended during its passage through parliament, and so it is only after the Bill has completed all its stages and has received Royal Assent that it can be regarded as having been approved. (I will return to the question of compliance with the Benn Act below).

As I also expected, the programme motion that was voted on immediately after Second Reading was defeated, because a majority of MPs clearly felt that allowing only two more days to complete all the remaining stages of the Bill would have been wholly inadequate. The PM announced that the Bill would now be paused, but this was simply an inevitable acceptance of the procedural effect of this defeat. The effect of the programme motion having been defeated is to prevent further progress on the Bill until agreement can be reached (through the usual channels) on the further progress of the Bill. As the Leader of the House made clear, the Bill cannot proceed further without this. Simply introducing another programme motion immediately would be unlikely to meet with the approval of the House. So (at least for the remainder of this week) the Bill is ‘in limbo’, and so the business before the House on Wednesday and Thursday will, after all, be the conclusion of the Queen’s Speech debate. In the meantime, the Opposition has very sensibly offered to discuss the timetable for the Bill with ministers, so that an agreed programme motion can then be put before the Commons, and further progress can then be made on the Bill.

Returning to the requirements of the Benn Act, what section 1(4) requires is that the Prime Minister must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ……….. to 11.00pm on 31 January 2020. Very reluctantly, he sent a letter to that effect on 19 October, in compliance with the Act. But he announced his intention of phoning various European leaders this evening to persuade them not to agree a delay in response to that letter. The manner in which the letter was sent on Saturday, together with two letters that tended to contradict it was, as I observed at the time, legally questionable, but actively to lobby members of the EU’s Council of Ministers to refuse this request appears to me to represent a clear breach of the Act, and I am sure that the attention of the Scottish Court of Session will be drawn to this by the petitioners in the proceedings that are currently before the Court.

Some of the Tory Brexidiots have loudly proclaimed that “the law of the land” is that Brexit Day is 31st October, and (they claim) even a delay under Article 50 agreed by the EU cannot change that. What they are referring to is a definition of “exit day” in the definition clause (section 20) of the European Union (Withdrawal) Act 2018, which stated that this term meant 29 March 2019 at 11.00 p.m. Section 20(4), however, enables a Minister [by making a regulation] to amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom. This ensures that “exit day” can be adjusted to coincide with any revised date that may be agreed with the EU. The date has already been amended twice, first by the European Union (Withdrawal) Act 2018 (Exit Day)(Amendment) Regulations 2019 only two days before the original exit date of 29 March, changing the date to 12 April 2019, and then again only a week or two later by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019, changing the date to 31 October 2019. The EU has been requested, in accordance with the Benn Act, to extend the date to 31 January 2020, and if they do so (as is quite likely, despite the contrary wishes of the PM), then it will be necessary to amend section 20 of the 2018 Act again to bring UK legislation into line with this new date. Brexidiots may not like this, but that is what will have to be done, even if it is not done until very shortly before 31 October. [30.10.19: And indeed the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 3) Regulations 2019 were made and were simultaneously laid before parliament at 2.30 p.m. today. They change "Exit Day" to 31 January 2020.]

UPDATE: 30 October: The wrigglings and writhings of this hopeless government became ever more bizarre last week. The sensible thing to do, having got a reasonable majority for the WAB on Second Reading, but having had their wholly unreasonable programme motion rejected (which sought to ram the remaining stages of the Bill through the Commons in only two days), would then have been to come back with a much more reasonable programme motion, giving a more sensible allocation of parliamentary time to the Bill. Such a motion would undoubtedly have been passed, and consideration of the Bill could then have continued. It was already clear by that time that the EU would almost certainly give the UK the necessary extension to allow this legislation to be considered, as they did earlier this week, and so there was no urgency in attempting to rush this legislation through the Commons with minimal scrutiny. Instead, the government chose to call a General Election, which (at the fourth attempt yesterday) they have finally achieved. The reaction of Brenda from Bristol to this news has yet to be ascertained. The probable outcome of this election is utterly unpredictable, although another hung parliament is a distinct possibility. We shall just have to wait and see. At least the parliamentary brawling will be suspended for six weeks; electioneering politicians are easier to ignore. Just make sure you go out and vote on 12 December.