Monday, 20 November 2017

Another successful book launch



Photo © Kelly Duncan (Keystone Law)

Like my first book, my new book, “The Essential Guide to the Use of land and Buildings under the Planning Acts” has outsold the original print order and the first reprint, so that we had temporarily run out of copies by the time of our launch seminar in London last Friday. However, anyone who is still awaiting their copy of the book should get it very soon. The book is now on its third printing, and is continuing to sell well. I have had very positive feedback from readers, one or two of whom told me that the book had proved useful to them within days after they received their copy!

The launch seminar that Bath Publishing held at the RIBA in London on 17 November, in association with Keystone Law, was also a great success, with another large audience (but as is so typical of the English, seats were left vacant at the front, while everyone crowded into the seats further back in the hall! – see photo).

I spoke on Lawful Uses (and LDCs), while William Upton of 6 Pump Court gave an extremely interesting talk on Unlawful Uses (including enforcement). My colleague, Ben Garbett then explained a number of judgments handed down in the past year affecting permitted changes of use, and we had two very lively Q&A sessions, which led to an interesting discussion of a number of controversial issues in these areas of planning law.

Clearly there are continuing queries relating to Class Q (residential conversion of agricultural buildings), notably in relation to structural issues. Hopefully, there will be some further clarification, either from the government or from the courts in the not too distant future. I shall certainly cover any developments on this topic in this blog.

Another area of doubt is the precise way in which the time limits under Class P (residential conversion of a warehouse or other storage building) and Class PA (residential conversion of a light industrial building) will work in practice. The deadline for completing conversions under Class P – 15 April 2018 - is fast approaching.

© MARTIN H GOODALL

Wednesday, 1 November 2017

Implied conditions and the definition of ‘sport’


In recent weeks, my attention has necessarily been focused on final preparation of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) for publication, and I have not had time to blog on various developments in planning law that have occurred recently.

There are a couple of judgments which came too late for the book but, fortunately, both of them only serve to confirm the law as stated in the text (much to my relief!).

The first of these was the judgment of the High Court in Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin), on 3 October. This related to a condition that, it was claimed, should be implied in a planning permission. The case concerned a permission granted under section 73 (which, although it relates to the removal or modification of conditions in a previous planning permission, takes effect as an entirely new planning permission). The previous permission had been restricted by condition to non-food sales, but the conditions in the section 73 permission did not refer to any such restriction. The LPA refused an LDC for unrestricted A1 use, but this decision was overturned on appeal by an inspector, who granted the LDC sought by the developer. It was this appeal decision that the LPA sought to challenge.

The judgment reviewed the previous decisions mentioned below, but the court rejected the LPA’s contention that a condition preventing the sale of food could be implied in this case. To put it as shortly as possible, the decision of the Supreme Court in Trump International Golf Club Scotland Ltd. v Scottish Ministers [2015] UKSC 74 indicates that a term can be implied in a condition that has actually been attached to the permission, so as to give proper effect to the intention of that condition, but this does not over-ride the well-established principle that a condition that is entirely absent from a permission cannot be implied in that permission. Thus in I’m Your Man Limited v SSE 77 P & CR 251, a ‘temporary’ permission (so described in the description of the development authorised by the permission) could not be interpreted so as to imply a condition in that permission that the use should cease at the end of the period mentioned in the description of the development. In the Lambeth case Mrs Justice Lang drew attention to the subsequent approval of that judgment by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin) and by the Planning Court in Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin). Both of these cases concerned substantive limitations on the permission granted, not merely temporal ones.

The second recent case was the judgment of the European Court of Justice in English Bridge Union Limited v HMRC (Case C 90/16), which was handed down on 26 October. This finally determined a question that has been the subject of repeated litigation over the past few years, namely whether Bridge can be classified as a ‘sport’ for tax purposes. This judgment confirms that, in order to be a ‘sport’, the activity in question must have some element of physical exertion. I mention this judgment because it is analogous to the question of whether various card and board games can be regarded for planning purposes as coming within Use Class D2(e) (“use ……… for other indoor ……….. sports or recreations”). The decision of the ECJ (contrary to the Opinion of the Advocate-General published in June) is in line with the related English cases - English Bridge Union) v Sport England [2015] EWHC 1347 (Admin) and R (English Bridge Union) v Sport England [2015] EWHC 2875 (Admin).

Whilst the English Bridge Union litigation was concerned with the eligibility of Bridge for grants from Sport England, and its treatment for the purposes of tax and VAT, all these judgments (including now the final judgment of the ECJ) are entirely consistent with the conclusion reached in earlier cases relating to Use Class D2, such as Millington v SSETR (1999) 78 P. & C.R. 373; (1999) J.P.L. 644 (subsequently approved by the Court of Appeal – [2000] J.P.L. 297) and Rugby Football Union v SSETR [2001] EWHC 927 (Admin) (subsequently upheld in the Court of Appeal – [2002] EWCA Civ 1169). A leisure activity will only fall within Use Class D2(e) if it involves some physical effort or exertion. Absent this essential physical element, other ‘recreations’ (even if they are competitive in nature) do not fall within Class D2(e).

© MARTIN H GOODALL

Monday, 23 October 2017

Use of Land book goes to press


In the past few weeks I have been racing for the finishing line, in getting the text of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) ready for press. I am pleased to say that, with the considerable help of my publisher’s Editor, Helen Lacey, the book was finally sent off to the printers today, and should be ready for distribution in a couple of weeks’ time.

I published a list of chapter headings here in September. It would take up too much space to list the entire contents of the book, but just to give you an indication of the scope of the book’s coverage of the subject, I am printing below an extract from the Table of Contents for just two chapters that deal with Dwellinghouses and with Houses in Multiple Occupation.

CHAPTER 13
DWELLINGHOUSES

13.1 Use Class C3

13.2 The definition of a “dwellinghouse”
13.3 The original 1987 version of Class C3
13.4 The 2010 version of Class C3
13.5 The definition of a “single household” under Class C3(a)
13.6 Small care homes (Class C3(b))
13.7 Other households (Class C3(c))
13.8 The definition of a “single household” under Class C3(b) and C3(c)
13.9 The 6-person limit under Class C3(b) and C3(c)
13.10 House-shares
13.11 Holiday lets
13.12 Short-term lets and time-shares in Greater London
13.13 Subdivision of a dwellinghouse
13.14 Amalgamation of two or more dwellings
13.15 Ancillary and incidental domestic uses
13.15.1 Working from home
13.15.2 ‘Live/work units’
13.15.3 Guest rooms and ‘Bed & Breakfast’
13.15.4 ‘Granny annexes’
13.15.5 Incidental or ancillary use of outbuildings
13.15.6 Extending the domestic curtilage
13.15.7 Hobbies and similar activities
13.15.8 Stationing of a caravan on land for residential use
13.15.9 Caravans within the curtilage of a dwellinghouse
13.15.10 Storage of a touring caravan
13.15.11 Storage of other domestic items
13.16 Changes of use to and from Class C3

CHAPTER 14
HOUSES IN MULTIPLE OCCUPATION

14.1 Use Class C4

14.2 A brief overview of Class C4
14.3 Buildings excluded from the definition of an HMO
14.4 The definition of “a house in multiple occupation”
14.4.1 The standard test
14.4.2 The ‘self-contained flat’ test
14.4.3 The ‘converted building’ test
14.4.4 An ‘HMO declaration’
14.4.5 Persons treated as occupying premises as their only or main residence
14.5 Changes of use to and from Class C4

The actual text of the book (excluding the Tables and Index) comes to some 340 pages, which is 20 pages more than the Second Edition of my other book, A Practical Guide to Permitted Changes and Use, for the same price. So it’s a real bargain, and I very much hope that readers will agree that it lives up to its name as the essential guide to this subject. I can’t pretend that the book is as comprehensive as the Land Use Gazeteer, but at around 20% of the price of that massive work, it is a good deal more affordable.

Buyers who order the book by 31 October will receive both the print edition and the digital edition of the book for the single price of £50.

And don’t forget our seminar in London on 17 November, which is booking up fast. Again, you will benefit from the ‘early bird’ discount if you book no later than 31 October. So don’t delay; you have only a week left to benefit from these bargain prices.

© MARTIN H GOODALL

Friday, 6 October 2017

LAND USE ISSUES IN PRACTICE – the seminar


In addition to publishing my new book, “ The Essential Guide to the Use of Land and Buildings under the Planning Acts”, BATH PUBLISHING are also organising a seminar on The Use of Land and Buildings: Current Legal Issues, in conjunction with Keystone Law, which will held at the RIBA at 66 Portland Place, London W1B 1AD on Friday 17 November.

This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £140 +VAT if you book before 31 October (saving £25 on the full price). This includes a copy of both the print and digital editions of my new book (worth £75), which will be given to all delegates to the event. (The price for the book alone is £50 for the print edition and the same for the digital edition, or £75 for the two together.)

The seminar will cover some of the major issues that affect the use of land and buildings and material changes of use, including unlawful uses. There will also be an update on permitted changes of use, covering legislative amendments and judgments within the past 12 months. Ample time will be allowed for questions, which will be discussed by our expert panel.

You can read more about the programme and venue at:

https://bathpublishing.com/planning

Professional delegates will be able to claim 2½ hours’ CPD for this event.

Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button on the the seminar icon on the left-hand side of this page.

© MARTIN H GOODALL

Friday, 29 September 2017

Can PD rights represent a fall-back position?


There have been disputes for a number of years as to whether permitted development rights, such as those for the residential conversion of agricultural buildings under Class Q in Part 3 of the Second Schedule to the GPDO, can be called in aid as a fall-back position where a planning application is submitted for other development on the same site. On 8 September, the Court of Appeal upheld a judgment of the High Court that such PD rights can properly be taken into account as a fall-back position where some alternative form of development is then proposed.

The case in question is Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314, in which the leading judgment was given by Lindblom LJ. The LPA had granted planning permission in this case for the demolition of an existing agricultural barn and of a bungalow on the application site and to construct four detached dwellings, with garages and gardens. In recommending the LPA’s committee to grant planning permission, the planning officer had advised them that, in practical terms, the permitted development rights under Class Q meant that the existing agricultural barn could be converted into three residential units up to a limit of 450 sq m. Furthermore, the existing bungalow within the site could be replaced in accordance with an adopted policy in the Local Plan with a new residential building, provided that it was not materially larger than the existing building. He advised that, taken together, these factors could, in effect, give rise to the site being occupied by a total of four residential units (albeit of a different form and type to that proposed by this application). This, the officer observed, provided a realistic fallback position in terms of how the site could be developed.

The claimant sought to challenge the grant of planning permission on several grounds. He alleged that the planning officer (and hence the council) had misinterpreted the provisions of Class Q; they had wrongly accepted that there was a real prospect of the fallback development being implemented; and they had also misunderstood or misapplied the “presumption in favour of sustainable development” (as defined by paragraph 14 of the NPPF).

Part of this argument turned on the interpretation of the 450 sq m floorspace limit (which, the claimant argued, applied to the entirety of the building in question, and was not confined to the actual floorspace that is actually converted). This argument was rejected both at first instance and by the Court of Appeal. The argument was that an interpretation of the relevant provisions that confined the floorspace limit to the floor area actually converted would render sub-paragraph Q.1(b) of Class Q redundant, because sub-paragraph Q.1(h) already limits the residential floor space resulting from the change of use under Class Q to a maximum of 450 square metres. I confess that I was originally confused myself by the relationship between paragraph Q.1(b) and paragraph Q.1(h), but I then explained the distinction between these two provisions in the Second Edition of A Practical Guide to Permitted Changes of Use (in paragraph 9.6 on page 103).

At first instance, Garnham J. accepted that the council was entitled to conclude that there was a “realistic” fallback. The evidence had established that there had been prior discussions between the council and the planning consultant acting for the site owners. It was crystal clear from that contact that the owners were intending, one way or another, to develop the site. Alternative proposals had been advanced seeking the council’s likely reaction to planning applications. It was in the judge’s view wholly unrealistic to imagine that were all such proposals to be turned down the owner of the site would not take advantage of the permitted development provided for by Class Q to the fullest extent possible. It was not a precondition to the Council’s consideration of the fall back option that the owner had made an application indicating an intention to take advantage of Class Q. There was no requirement that there be a formulated proposal to that effect [my emphasis]. The officer was entitled to have regard to the planning history which was within his knowledge, and the obvious preference of the owners to make the most valuable use it could of the site.

The claimant sought to criticise this approach by reference to Samuel Smith Old Brewery (Tadcaster) v SSCLG [2009] J.P.L. 1326 (at paragraph 21) and R. v SSE, ex p. P.F. Ahern (London) Ltd [1998] Env. L.R. 189 (at p.196). However, Lindblom LJ could not accept that argument. In his view, the officer did not misunderstand any principle of law relating to a fallback development. His advice to the members was sound.

[I would simply add the observation that a prior approval application is not a necessary pre-requisite to establishing a fall-back position, because planning permission is granted in any event by Article 3(1) of the GPDO. In granting prior approval an LPA is not even approving the permitted development as such, but only those matters that specifically require their attention. On the other hand, a prior approval application would clearly be positive evidence of an intention to develop, and would certainly put the fall-back position beyond doubt. In this case, however, there was other evidence that entitled the LPA to conclude that there was a realistic prospect that the PD rights would be exercised if planning permission was not granted for the alternative development that was now proposed, and so a fall-back position had clearly been established.]

The remaining issue was the presumption in favour of “sustainable development”, as interpreted by paragraph 14 of the NPPF. The decision of the Court of Appeal in Barwood Strategic Land LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 provides the answer (and supersedes all previous judgments on this issue). The “presumption in favour of sustainable development” did not apply to the proposal in this case, and the council’s officer did not advise the committee that it did. The instant case was clearly and materially different from Barwood, and the officer’s report had correctly advised on the application of the NPPF as a material consideration in the determination of this application.

The Court of Appeal unanimously upheld Garnham J’s judgment at first instance and dismissed the claimant’s appeal.

© MARTIN H GOODALL

Monday, 11 September 2017

The Stripey House – the end of the saga?


Apart from noting the litigation relating to the painting of the ‘stripey house’ in Kensington & Chelsea (which involved a section 215 Notice, later quashed by the High Court in April of this year – see House-painting not within the scope of section 215, posted here on Tuesday, 2 May 2017), I have not attempted to follow in any detail the long and convoluted battle between Mrs Lisle-Mainwaring and her neighbours, who had recruited the assistance of the LPA in their struggle to thwart her plans to redevelop the site. It was this that had led to the painting of the house with red and white vertical stripes by way, in effect, of protest against the neighbours’ unrelenting campaign.

I did, however, report the quashing of Mrs Lisle-Mainwaring’s intended development plans in the High Court last November (Stripey house – another twist in the tale, posted here on Wednesday, 2 November 2016). That decision has now been overturned by the Court of Appeal. I do not yet have a note of the neutral citation number of the Court of Appeal’s decision, but the court was clear in their decision to restore the Inspector’s original appeal decision allowing Mrs Lisle-Mainwaring’s appeal against the refusal of planning permission by RBKC for demolition of the house (which had actually been in use as an office) and its replacement by a new dwelling, with the now obligatory double basement without which one simply couldn’t bear to live in London nowadays.

The office use had ceased, and the Inspector had found that there was no realistic prospect of the building being returned to office use. There was therefore no sustainable policy objection to the proposed development. Lindblom LJ, in allowing the appeal, held that the Inspector was entitled to reach such a conclusion, and that his decision was not legally flawed (contrary to the view expressed by the High Court).

The Court of Appeal’s judgment does not impinge in any way on the other High Court decision in which it had been held that the paint scheme applied to a house cannot properly be the subject of a section 215 notice, and so that decision stands. In practice, however, the days of the stripey house are now numbered, because it will disappear on being demolished to make way for its replacement.

Dare we hope that this finally puts an end to this long and convoluted legal saga?

© MARTIN H GOODALL

Friday, 8 September 2017

THE USE OF LAND AND BUILDINGS - the Essential Guide


I am sure that readers have noticed that there has been a longer interval than ever before since I last published a post on this blog, on Wednesday 19 July. The sole reason for this was that I was very fully engaged in completing my next book – The Essential Guide to THE USE OF LAND AND BUILDINGS under the Planning Acts. The book is expected to be published early in November.

My publishers, Bath Publishing describe the new book as the definitive handbook on this subject. It explains the legal rules governing the use of land and buildings as well as material changes of use. The text first sets out the rules that apply to the use of land generally and to material changes of use. It then explains the provisions of the Use Classes Order in detail. Chapters are also included on Permitted Changes of Use, Unlawful Uses and Lawful Use Certificates, including how to apply for a certificate as well as the procedure for appealing against the refusal of an LUC application. The book brings all this together in a convenient and accessible work of reference that will prove invaluable for everyone who needs to know the rules that govern the use of land and buildings and changes of use.

Bearing in mind that my previous book already covers the subject of permitted changes of use very fully, the chapter on this topic in the new book is a fairly brief summary, and so the new book should be seen as a companion volume to that earlier book.

The scope of the book can be appreciated by a glance through the list of chapter headings:

1. General introduction
2. The planning unit and the concept of ‘curtilage’
3. Changes of use - an overview
4. Change of use or operational development?
5. Changes of use prescribed or excluded by statute
6. Restrictions on uses or on changes of use
7. Legal effect of various changes affecting a use
8. The Use Classes Order - an overview
9. Shops and retail services
10. Catering uses
11. Business and industrial uses
12. Non-domestic residential accommodation
13. Dwellinghouses
14. Houses in multiple occupation
15. Non-residential institutions
16. Assembly and leisure uses
17. Agriculture, horticulture and forestry
18. Permitted changes of use
19. Unlawful uses
20. Lawful use certificates
21. LDC appeals

You have probably noticed already the link in the left-hand margin of this page showing the front cover of the new book. This enables readers of this blog to pre-order the book, and to avail themselves of an excellent bargain. The cover price is only £50 (the same price as the Second Edition of A Practical Guide to Permitted Changes of Use), and for this price you will get not only the new book itself, but a copy of the digital edition of the new book as well. But don’t delay. This bargain will only be available until the publication date; after that, it will cost £50 for the book and another £50 if you also want the digital edition.

We are organising another seminar in connection with the publication of the new book, which will be held in London at the RIBA on Friday 17 November. I’ll publish details of the seminar shortly.

© MARTIN H GOODALL