Friday, 7 March 2014
Those of us working at the planning coal face will be well aware that the government’s on-line planning guidance finally went live yesterday (replacing the ‘beta’ version), and rejoices in the name of “National Planning Practice Guidance” (NPPG), not to be confused with the “National Planning Policy Framework” (NPPF). The two documents need to be read together (assuming you can actually find your way around the on-line version of the NPPG!).
There is a long 13-page table of withdrawn circulars and other publications, which have been cancelled with effect from 6 March 2014. The list is far too lengthy to summarise here, but a quick glance down the list indicates that among the withdrawn circulars are some old favourites, including some which, in my professional opinion, it was folly to scrap. These include Circular 11/95 - The Use of Conditions in Planning Permissions (1995) - an absolutely vital source of guidance on this topic, Circular 10/97 - Enforcing planning control: legislative provisions and procedural requirements and annexes (1997) - another absolutely crucial guide to policy and procedure in this area of planning law, as well as the accompanying Enforcing Planning Control: Good Practice Guidance for Local Planning Authorities (1997), also Annex E to PPG7 on Agricultural PD (1997) – not perhaps so important, but it was still a useful guide to that topic, Circular 03/09 - Costs Awards in Appeals and other Planning Proceedings (2009) - another document that had proved to be of great help in dealing with costs in planning appeals, as well as Planning and other appeals, and the award of costs (2013). We must also mourn the passing of Letter to Chief Planning Officers (2012): Liberalising the regime for flying flags (a personal favourite), and so the list goes on. Many other documents and useful ‘letters to chief planning officers’ have bitten the dust, including Protected Trees: a guide to tree preservation procedures (2012) and Main changes to the tree preservation order system in England from 6 April 2012 (2012).
This is where I get really annoyed. The 11 sections of the new guidance are no substitute for the procedural advice and guidance in the replaced circulars. To take an example, Part 6 of the document (“Use of Planning Conditions”) is hopelessly inadequate as a replacement of Circular 11/95. It does not even begin to answer many of the points that will inevitably arise in practice, and will leave the many users of the planning system, not to mention LPAs and the Planning Inspectorate, without any guidance as to how such issues should be resolved. This will lead to doubt and uncertainty on this important topic; the outcome of appeals (for example against the refusal of section 73 applications) will become increasingly unpredictable, and the number of legal challenges to appeal decisions is likely to increase.
In the same way, Part 10 of the document “Ensuring effective enforcement” hardly scratches the surface of important areas of enforcement practice and procedure that were covered by Circular 10/97. Try, for example to find in the NPPG any material that would replace Annex 8 of the circular. I tried searching “Gabbitas”, a crucial case on the evidential requirements in respect of a section 191 application, which had been helpfully explained in paragraph 8.15 of the circular. Result: Nothing. So I tried searching “balance of probability”, and amongst a lot of irrelevant references to flood prevention(!) found a paragraph that simply said: “ Article 35 of the Town and Country Planning (Development Management Procedure) Order 2010 (as amended), specifies the contents of an application and how it must be submitted................An application needs to describe precisely what is being applied for (not simply the use class) and the land to which the application relates. Without sufficient or precise information, a local planning authority may be justified in refusing a certificate. This does not preclude another application being submitted later on, if more information can be produced.”. Hopeless! OK; as a very experienced planning professional, I really don’t need to be told how to make an LDC application, but there are a good many planning officers who have a completely erroneous idea of the need for ‘corroborative’ evidence. Paragraph 8.15 put them right on this, but I have been able to find nothing similar to guide them in the NPPG. Nonetheless, the High Court judgment in F W Gabbitas v. SSE is still of binding authority on this issue, and woe betide the LPA that gets it wrong in a case with which I am dealing.
The shiny new “National Planning Practice Guidance” is precisely the opposite of what the government purportedly intended, yet they have brought this about by the sheer folly of their blinkered determination to “reform” the planning system by removing the very ministerial guidance that has underpinned the operation of the planning system for the past 65 years. Far from “making it simpler, clearer and easier for people to use”, this change will have precisely the opposite effect. Those of us who are thoroughly familiar with the planning system are well aware of the way the system works, but pity the poor layman who has only the NPPG to go on!
I have no intention of discarding my copies of circulars such as 11/95 and 10/97, among other very useful summaries of practice and procedure, and I intend to go on referring to them in applications and appeals, even though they have been cancelled. The principles that they explained continue to be relevant and applicable, and so it seems entirely proper to refer to them as a reliable guide to the correct approach to be taken to the many issues that crop up in the course of dealing with planning cases.
I predict that the government (perhaps a future government, but that may be no more than 14 months away) will be forced to revisit this practice guidance and to beef it up substantially, by restoring much of the detail that has been so wantonly discarded. Meanwhile, be prepared for a bumpy ride while LPAs and Planning Inspectors attempt to grapple with the wholly inadequate procedural guidance that they are now to be expected to rely on.
© MARTIN H GOODALL
Wednesday, 5 March 2014
The Supreme Court has recently handed down an important decision on the tort of Nuisance (Coventry v. Lawrence  UKSC 13) (26 February 2014). The case is of interest in the planning context, because the claim related to the use of a stadium built under a planning permission that had been granted in 1975. The permission authorised the construction of the stadium and permitted its use for “speedway racing and associated facilities” for a period of ten years (and this permission was renewed permanently in 1985, although subject to a condition making its use personal to the applicant).
The scope of the use of the stadium was in fact significantly extended, in breach of planning control, to include stock car and banger racing from 1984, but these additional uses became immune from enforcement under the 10-year rule, and a Certificate of Lawfulness of Existing Use or Development (a “CLEUD”) was issued by the LPA in 1995. A further CLEUD was issued in 1997 confirming that, for a period of ten years, there had been 20 stock car and banger racing events at the stadium each year, so that this use had become lawful. Furthermore, greyhound racing had been going on at the stadium since 1992.
In addition to this, at the rear of the stadium there is a motocross track, constructed and used under a personal planning permission for motocross events, granted in May 1992 for a year, and renewed from time to time thereafter, subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during those events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the track to a specified number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the track.
The stadium subsequently came into different ownership, and the trial judge had found that, between 1975 and 2009, the stadium had been used for speedway racing between 16 and 35 times per year, except for six years between 1990 and 2000 when it was not used at all for speedway racing. As for stock car racing, the judge found that it had occurred at the stadium between 16 and 27 times a year between 1985 and 2009 (although there was no stock car racing in 1991 or 1992). The judge also found that the track had been used for motocross to the full extent permitted by the relevant planning permission. In 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings.
The claimants (the appellants in this appeal) lived in a bungalow about 560 metres from the stadium, which they bought in 2006 from the previous owners, who had lived there since 1984. The claimants first complained to the local council about noise from the stadium and the track about three months after moving in, as well as complaining to the owner and operators of the stadium. Noise abatement notices in respect of this statutory nuisance were served by the council, and were eventually complied with by the completion of noise attenuation measures in 2009. A more general complaint of private nuisance was also pursued by the claimants, resulting in the present proceedings, which were commenced early in 2008, but seem to have taken rather a long time to come to trial.
The trial judge found that a nuisance had been committed, and granted an injunction to restrain and control the activities that were causing the nuisance. The Court of Appeal overturned this judgment, finding that what had occurred did not amount to a nuisance at common law, but the Supreme Court has now overturned the Court of Appeal’s decision and restored the decision of the judge at first instance, including the injunction that he had granted.
This was a unanimous decision of a strongly constituted 5-judge court. In five closely reasoned judgments, Lords Neuberger, Mance, Clarke, Sumption and Carnwath delivered what can only be described as a veritable tour de force in comprehensively reviewing the law of Nuisance. In doing so, they effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. This case will undoubtedly be seen as the locus classicus on the tort of Nuisance for many years to come.
It would be impossible to do justice to this decision in a single blog post, so I propose to concentrate solely on the relationship that planning law bears to the law of Nuisance, as confirmed by this decision. This was discussed in detail by both Lord Neuberger and Lord Carnwath, and I will try briefly to summarise the relevant observations of the latter on this topic. He identified this as the most difficult problem raised by the present appeal.
The issue has attracted particular attention over the last 20 years, since the judgment of the High Court in Gillingham BC v Medway (Chatham) Dock Co Ltd  QB 343), and it has been considered by the Court of Appeal in two cases before the present action (Wheeler v J J Saunders Ltd  Ch 19 and Watson v Croft Promosport  3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd  AC 655). In the Gillingham Docks case, planning permission had been granted to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24-hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents.
The council subsequently had a change of heart, and brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. (Modifying the planning permission to achieve the same effect would have involved the payment of compensation.) The judge rejected the claim. Although he accepted that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance, an LPA can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of making various activities, which prior to the change would have been an actionable nuisance, immune from any such claim. The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, the judge thought, be realistic to attempt to limit the amount of trade at the port.
That judgment was considered by the Court of Appeal, some three years later, in Wheeler v J J Saunders Ltd  Ch 19. In 1988 and 1989, a company had obtained planning permission to construct two buildings on an existing pig farm to house some 800 pigs. One of these buildings was only 11 metres from a holiday cottage owned by the claimants in that case. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling. The claimant succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. It was held by the Court of Appeal that the reasoning in Gillingham Docks had no application to the facts of the Wheeler case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it.
In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf  AC 655. A claim for nuisance was brought by local residents based on interference with television signals due to the construction of a tower (One Canada Square, which has become a well-known feature of the London skyline) as part of the Canary Wharf development. This development had been carried out under planning permission granted by the London Docklands Development Corporation. The House of Lords was unanimous in rejecting the nuisance claim so far as it related to TV reception. The case turned largely on other authorities, but it was also accepted that the situation at Canary Wharf was very similar to that in the Gillingham Docks case, where the character of the neighbourhood had been substantially changed by the development that had been authorised in the area, including the construction of One Canada Square.
More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the level of activities, its use was relatively limited until 1994 (involving no more than 10 meetings a year between 1982 and 1994), and this appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the LPA in July 1995.
In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into a Section 106 agreement to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and it prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held.
Planning permission was granted by the inspector on this basis. He accepted that “the Development Plan policies weigh heavily against the project” and that the noise had at times “been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled”; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind “the very wide planning use rights which the site now enjoys”, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit.
Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. The judge at first instance, having noted the level of activity and the noise that it could generate, held that the character of the locality had been “essentially rural”, and that the circuit “could be, and was, run in a way that was consistent with its essentially rural nature”. He held that there was an actionable nuisance.
The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance, but whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could the planning permissions be regarded as “strategic” in their effect.
Having reviewed these cases, Lord Carnwath commented that they suggest that a planning permission may be relevant in two distinct ways – first, it may provide evidence of the relative importance of the permitted activity as part of the pattern of uses in the area and, secondly, where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.
Lord Carnwath respectfully disagreed with reservations that had been expressed by Lord Neuberger as to the potential utility of planning officers’ reports as evidence of the reasoning of the planning authority itself. Judged by his own experience in practice and on the bench over some 40 years, he had found that a planning officer’s report, at least in cases where the officer’s recommendation is followed, is likely to be a very good indication of the council’s consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the council’s thinking. That was illustrated by some of the planning reports in this case. In any event, in so far as the focus is on the evidence before the planning authority, rather than the decision itself, the planning officer’s report is likely to offer the most comprehensive summary of the relevant material.
On the issue of the relative importance of public and private interests in such cases, Lord Carnwath thought there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation (see Wheeler – cited above). The public interest comes into play in a limited sense, in evaluating the pattern of uses “necessary… for the benefit of the inhabitants of the town and of the public at large”, against which the acceptability of the defendant’s activity is to be judged. Otherwise its relevance generally in Lord Carnwath’s view should be in the context of remedies rather than liability.
He accepted ,however, that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged. He read Staughton LJ’s use of the word “strategic” as equivalent to Peter Gibson LJ’s reference to “a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted”.
For this reason, in Lord Carnwath’s view (differing respectfully from Lord Neuberger on this point), the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and in the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders nor in Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and, for the reasons he had noted in his judgment, neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests.
Apart from such strategic cases, Lord Carnwath suggested that a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authority’s view, with the benefit of its expert advisers, of the acceptable limits.
Lord Carnwath pointed out that Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. This did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control what had previously been the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of what was acceptable, and by the Court of Appeal in framing the limits of their injunction.
Where the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting-point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, Lord Carnwath would put the onus on him to show compliance (see by analogy Manchester Corporation v Farnworth  AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.
The present case, Lord Carnwath observed, is illustrative of the opposite case, where the conditions attached to the planning permissions were of little help to the judge. It was perhaps unfortunate that the LPA did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The Lawful Development Certificate limited as to the hours that were lawful, but it was unclear how if at all these hours could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence the court was shown of compliance was in a planning report of December 2001.
In the circumstances, Lord Carnwath held that the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendant’s activity.
Earlier in this article, I wrote that in this case the Supreme Court effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. Other aspects of the law on this topic, which have not been discussed in this article (such as the acquisition of a prescriptive right to commit what would otherwise be a nuisance, the defence of ‘coming to a nuisance’, whether the defendant’s own activities should be taken into account in assessing the character of the area, and whether damages would be a sufficient remedy rather than an injunction) have indeed been substantially upset by this decision. However, so far as the effect of planning permission on an allegation of nuisance is concerned, this decision largely confirms the position that had been established by the cases that were discussed in Lord Carnwath’s judgment, but his further remarks on this topic represent a helpful commentary on the subject, and it is for that reason that I have reported them at some length.
It is to be hoped that, following this authoritative and definitive Supreme Court decision, it will not be necessary to revisit the principles governing the relationship between the grant of planning permission and the commission of the tort of nuisance for a good many years to come.
© MARTIN H GOODALL
Thursday, 27 February 2014
In an adjournment debate on National Parks in the House of Commons on Monday 24 February, a number of MPs expressed their concern about the proposed permitted development for barn conversions, on which the government consulted last year, and for which an amendment order to the GPDO is expected within the next few weeks. Members also expressed concern about such developments in AONBs.
In replying to the debate, the planning minister, Nick Boles said that, having set out the broad case for introducing a permitted development right in the country that would make it easier to convert agricultural buildings into homes, it is now entirely legitimate to ask whether it would be appropriate to extend that right to national parks and areas of outstanding natural beauty or, in planning jargon, Article 1(5) land [which, incidentally, also includes Conservation Areas, the Broads and World Heritage Sites].
Boles told the House that De-CloG has undertaken “a genuine consultation” on the issue, and he pointed to the fact that in other areas where the government has introduced an extended permitted development right, they had listened to the concerns raised and modified the original proposals. He said that his department has listened to the very powerful and very persuasive arguments made, and they are genuinely taking them fully into account in reaching their final conclusion on how this permitted development right should work.
In conclusion, the minister hoped that he had explained that the intention behind the proposed permitted development right is to bring forward more housing on land that is already developed, and to make maximum use of the buildings that our ancestors saw fit to build, so that we do not have to put up any more buildings on green fields than is necessary to meet our housing and other needs. The government recognises, however, that national parks and areas of outstanding natural beauty are designated for a reason and have a special status. The government would think hard about this and listen to the arguments put to them about the appropriateness of this measure in those areas. Although the minister could not anticipate the Government’s final position, he re-assured the House that the Government have heard the arguments loud and clear.
This seems to be a fairly clear hint that the PD rights for barn conversions (and the conversion of other agricultural buildings) to residential use may well be excluded in National Parks and AONBs, and possibly also in rural Conservation Areas and other sites covered by Article 1(5) of the GPDO. On the other hand, it seems clear that the government is still intent on proceeding with these permitted development proposals, and so we should know within a few weeks exactly what form this new permitted development right will take.
I have repeatedly advised readers who have sought further information on this topic to contain their excitement until the precise terms of the GPDO amendment are known. This adjournment debate gave a broad hint that those hoping to convert agricultural barns in National Parks and AONBs, and possibly also in Conservation Areas, may be disappointed.
© MARTIN H GOODALL
Tuesday, 25 February 2014
Planning professionals whose practice includes dealing with residential property in Greater London will be aware of section 25 of the Greater London Council (General Powers) Act 1973 (as amended), which provides that for the purposes of what is now section 55(1) of the 1990 Act, the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part of them that is used for that purpose. 'Use as temporary sleeping accommodation’ means use as sleeping accommodation which is occupied by the same person for less than 90 consecutive nights and which is provided (with or without other services) either for payment or by reason of the employment of the occupant.
The provision applies whether or not the relationship of landlord and tenant is created by this arrangement. So if used in this way, a residential property is no longer a single private dwelling within Use Class C3, but is a sui generis use. This has two consequences. First, it cannot be claimed in this case that the property should still be treated for planning purposes as a single dwelling, because the 1973 Act takes it out of that category. Secondly, it follows that a breach of planning control comprising this change of use is subject to the 10-year rule, rather than the 4-year rule.
The operation of this legislation was reviewed by the Court of Appeal in Fairstate Limited v. FSS  EWCA Civ 283. The question at issue in this case (as Ward LJ put it in his judgment) was “what if any breach of planning control occurs where the use to which a London flat was put changed over three stages – (1) for more than ten years as temporary sleeping accommodation which made that unauthorised use lawful, but (2) with a change for about five months to longer-term residential occupation, and finally (3) reverting back for the next four years to temporary sleeping accommodation.”
It was common ground between the parties in that case that, at stage (1), use of the flat for temporary sleeping accommodation was a material change of use that had become a lawful use by virtue of section 191(2) of the 1990 Act. Nevertheless, it was held by the Court of Appeal that the change from stage (2) to stage (3) (from permanent back to temporary sleeping accommodation) was a further breach of planning control in respect of which enforcement action could be taken.
Now, according to a report in yesterday’s Evening Standard, ministers are proposing to scrap this provision, so as to allow short-term lets in Greater London (for example “for a few days while the owners go on holiday”). The demand for short-term accommodation during the 2012 Olympics has been cited as the sort of thing that ministers think ought to be catered for. The suggestion is being canvassed by Kris Hopkins, the recently appointed junior minister in De-CLoG who is responsible for housing.
The whole point of this 1973 legislation was to protect much-needed housing accommodation for permanent residents in the capital, and we are all well aware of the huge unmet demand for such accommodation. If a significant proportion of the available housing stock were to be used for holiday accommodation or other short-term lets, which may well prove more lucrative to property owners, this will only exacerbate an already dire shortage of suitable accommodation for workers in London.
No firm proposals have yet been put forward, and it remains to be seen if the government will press ahead with this idea. What do Mayor Bojo and his advisers think about it? I am sure that Shelter and others concerned with housing provision will have plenty to say on the subject. If the government does want to relax the rules in Greater London to some extent, the new rules would no doubt have to be carefully framed to avoid the loss of permanent residential accommodation in the capital. The limited type of temporary letting that Kris Hopkins was talking about might be an acceptable concession, but anything that would result in the permanent loss of residential accommodation should be avoided.
Offhand, I don’t know whether this was simply a kite-flying exercise on the part of Kris Hopkins, or the beginning of a consultation exercise, but if you own residential property in Greater London, don’t get too excited about these ideas for the time being – it may take some time before any definite proposals are formulated, if indeed the idea goes forward at all.
© MARTIN H GOODALL
Tuesday, 18 February 2014
My recent piece on the flooding crisis elicited the following contribution from David P of Sussex. I don’t necessarily agree with all he says, but I thought that it deserved an airing.
David P writes: -“Your blog post on this topic is most interesting. But have you considered that it is not so much the lack of money or people that is the problem, but more likely the allocation of them? Too many chiefs and not enough Indians? Good and capable people in the wrong jobs? I would suggest as an old farmer who has made his living from the land, that everyone in the EA employ wants an office job - nice and warm, better wages and higher status, so they try to climb up the ladder. Now I would suggest that for every person in an office job there should be 100 manual workers, four of whom should be supervisors or gang masters if you prefer. That’s where it goes wrong in every organisation and it brings them to the point that if it is a business it becomes top heavy and unviable, or if it is a public authority we all have to pay too much for the implementation of the service it provides and the service deteriorates to below an acceptable standard. We need hands on the ground, not in the air when it comes to flooding.
“By the way it’s not only the United Kingdom that has this problem; it’s worldwide in the west, particularly Europe. So I dare to say that, for the benefit of the community running properly, too much education can be a bad thing and a bit more manual graft and guts might just get things in proportion. Only the very best brains should have access to the ladder. A mini ‘cultural revolution’? A few less Lord Smiths and a few more Mr Smiths with old fashioned wheelbarrows and shovels? Perhaps the invention of paper has had some questionable benefits - by allowing more people than is necessary to spend their lives in centrally heated offices and achieving very little.”
My thanks to David P for this contribution.
I have some sympathy with the view that we need more people in the field and fewer in the office. I have long felt that many organisations in the public sector (especially in local government, where I worked for some years in the earlier part of my career) are ‘over-managed’ and under-staffed.
There may be a need to re-balance the EA, and I wonder whether it might be advisable to revive the National Rivers Authority as a separate organisation, putting under it the sewerage and drainage functions currently carried out by the privatised water companies, so that the whole problem of land drainage is put under a single roof, in an organisation that can concentrate exclusively on tackling this issue in all its aspects. I also wonder whether this authority ought to be given powers to direct refusal where development is proposed on flood plains.
This is perhaps the answer to those critics who questioned the relevance to town and country planning of my piece on the flooding crisis. The answer, I suggest, is that it has a great deal to do with planning, and the need to ensure that new properties are not vulnerable to flooding is clearly going to be of increasing importance in the future.
© MARTIN H GOODALL (with acknowledgements to David P)
Friday, 14 February 2014
Last week, in a written ministerial statement to the Commons on Thursday 6 February, Planning Minister Nick Boles fired a warning shot across the bows of councils seeking to resist or frustrate office to residential conversions as PD under the new rules introduced last May.
A number of points about which there had previously been some uncertainty were clarified. First, it is clear that the government did envisage multiple conversions in large office buildings; Boles mentioned the potential of some buildings to provide more than 100 homes. A number of such schemes have already achieved prior approval.
Boles criticised the disproportionate use of Article 4 Directions by some councils. He made it clear that the Secretary of State, whilst he no longer has to approve Article 4 Directions, is still prepared to use his reserve power to cancel Directions that are not justified, and several such Directions are currently under review in De-CLoG, and may either be cut down in their geographical scope or cancelled altogether. At the time of Boles’ statement, 8 authorities had made directions preventing office to home conversions under the GPDO. Islington and Broxbourne were singled out as authorities that had applied these directions disproportionately.
De-CLoG is also aware that some LPAs are still unclear on the correct intention of the detailed provisions in the GPDO amendment, and do not appear to have correctly applied the intended tests to determine applications for prior approval, or have sought to levy developer contributions where they are not appropriate (on matters unrelated to the prior approval process). To ensure the permitted development rights are utilised fairly across England, De-CLoG intends to update their planning practice guidance to councils to provide greater clarity on these points. Unjustified financial levies should not be applied in an attempt to frustrate the creation of new homes, Boles said.
The government is clearly determined to ensure that the PD rights for office to residential conversion granted last May are not frustrated by a small minority of councils who are trying to undermine these changes. This can be taken as a clear steer to the Planning Inspectorate as to the way in which any unjustified refusal of prior approval should be dealt with on appeal. Clearly any refusal based on criteria other than the three narrowly defined topics listed in the GPDO are liable to be overturned. I drew attention a short time ago to a decision in Camden which cited every conceivable objection under the sun. It seems very unlikely that Camden stands much chance of defending that refusal on appeal, and an award of costs against the council looks almost inevitable.
Boles’ Commons statement serves not only as a warning to LPAs who may have been seeking to prevent or frustrate office to residential conversions, but should encourage developers to take a robust stance in appealing any refusal of prior approval, especially if it cites spurious reasons for refusal. There would seem to be no legal basis on which affordable housing provision or contributions can be demanded, or any other financial contributions from developers under section 106. There may, on the other hand, be a potential liability to pay CIL (although I don’t pretend to be an expert on that topic). So far as I can see, no conditions can lawfully be imposed on a prior approval of such development, bearing in mind that (subject only to the prior approval process) such developments are Permitted Development, so that the only applicable conditions can be those actually imposed by the GPDO itself.
© MARTIN H GOODALL
Thursday, 13 February 2014
One of the drawbacks of judicial review, as anyone who has ever been involved with the process will be very well aware, is that when a decision is quashed by the court the decision under challenge is not reversed; it is simply set aside, leaving the decision-maker to retake the decision. The decision-maker in redetermining the matter can very easily reach the same decision again, provided that they do so in a way that avoids the legal error that led to the original decision being quashed. There are several examples of which I am aware where there have been successive quashing orders of a retaken decision; but the public body or authority involved will nearly always get their own way in the end. Thus a successful action seeking to judicially review an unlawful action or decision all too often proves to be a pyrrhic victory.
The court cannot substitute its own judgment for that of the LPA or other body whose decision is under challenge, because the court simply does not have before it all the relevant facts that would need to be taken into account and weighed up in retaking the decision, nor does it have the necessary expertise to exercise a technical (as distinct from legal) judgment. But in planning cases, at least, it would be entirely possible to introduce amending legislation (whether primary legislation or, possibly, a simple rule change) to provide that when planning permissions and perhaps certain other planning-related decisions by LPAs are quashed, jurisdiction would then pass to the Secretary of State (in practice, the Planning Inspectorate on his behalf) to redetermine the application as if it had been made to him in the first instance. This might or might not involve a public inquiry, depending on the circumstances of the case. A mandatory order requiring the issue of an enforcement notice (admittedly very rare in practice) might also be transferred to the Secretary of State for implementation.
I am not aware of this suggestion ever having been put forward before, although I would not be at all surprised to learn that something of this sort may have been canvassed at some time in the past. However, I do not expect that it is an idea that government (of any political persuasion) is likely to take up, unless there is a groundswell of opinion resulting from dissatisfaction at the outcome of the current judicial review process in planning cases.
© MARTIN H GOODALL