Tuesday, 21 October 2014

Agricultural dwellings - the operational need test


On Monday 2 April 2012 , I published a post entitled “Agricultural development after the NPPF” in which I suggested that there need not be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions.

I felt that without referring to the detailed guidance set out in Annex A of PPS7, it would be difficult in practice to give effect to the policy set out in paragraph 55 of the NPPF, which simply provides that isolated homes in the countryside should be avoided unless there are special circumstances such as (among other things) the essential need for a rural worker to live permanently at or near their place of work in the countryside. Unlike PPS7, the NPPF offers no guidance as to how “the essential need for a rural worker to live permanently at or near their place of work” is to be assessed in practice, whereas Annex A of PPS7 was notably prescriptive in setting out the criteria that would have to be met in order to prove that need.

I concluded that De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annex A of PPS7 in the form of a Circular. Failure to do so, I surmised, could lead to legal disputes which might otherwise be avoided.

I am grateful to a correspondent for drawing my attention to just such a dispute. This was an application for judicial review of a planning permission in the High Court in R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin). It was what can only be described as a ‘root and branch’ attack on the grant of planning permission in this case, which included a temporary permission for an agricultural dwelling. I propose, however, to confine myself to the challenge regarding the operational justification for an agricultural dwelling. This, as well as every one of the other grounds of challenge, was rejected by the court.

It was common ground between the parties that government guidance was a material planning consideration to be taken into account by the Committee in reaching a decision. The relevant guidance was contained in PPS7 prior to 27th March 2012 and paragraph 55 of NPPF thereafter. Under Annex A, paragraph 12(iii) of PPS7 the applicant had to provide clear evidence that the proposed enterprise has been planned on a sound financial basis, whereas Paragraph 55 of NPPF is merely expressed in the terms I have quoted above. Thus, the judge observed, the guidance in paragraph 55 of NPPF is significantly less onerous than it was in PPS7.

The judge accepted that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular he did not accept the claimant’s submission that the NPPF requires that the proposal is economically viable. As the LPA pointed out, this was a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there [although, in my own view, this seems to beg the question as to how that essential need is to be objectively assessed]. In the event, the judge agreed that the evidence was that there was a need for a rural worker to take care of the livestock once calf rearing commenced. In his view the Committee were entitled to accept that evidence. It was not an irrational decision.

His lordship equally agreed that the decision was not invalidated by the failure to provide the agricultural expert’s figures to the Committee. The figures were not available at the date of the meeting. It was not in dispute that the Committee were provided with an expert report and that a principal objector had the opportunity to address the meeting. In the course of his submissions the objector criticised the expert’s report, so the issue was before the Committee. The Committee were nevertheless entitled to reject that submission and plainly did so.

The learned judge held that, whilst it was no doubt open to the Committee to reject the planning application it could not in his view be said to be irrational to have granted it. It was open to them to hold that there was an essential need for a rural worker to live permanently at or near the livestock building. It was a matter for their judgment whether such a need could be satisfied by a short term let. A short term let is terminable after 6 months, which is far shorter than the 3 years for which the temporary permission was granted. In those circumstances the decision to grant the permission could not in his view be said to be irrational or unreasonable.

This judgment would tend to suggest that my supposition that an objective test substantially similar to the detailed test required by Annex A to PPS7 would still have to be applied in order to give effect to paragraph 55 of the NPPF may not be supported by the courts, in light of the much less prescriptive language used in that paragraph of the NPPF. I cannot believe that this is what ministers intended, but it would appear that their insistence on cutting the statement of ministerial planning policy to the bare bone may have come back to bite them.

© MARTIN H GOODALL

Monday, 6 October 2014

Government’s U-turn “to save the Green Belt”


You can tell there’s an election coming. Even though ministers and their advisers are well aware that there is an urgent need to release land, including Green Belt land, to meet the requirements for housing land, De-CLoG has issued a statement in which they once again trot out the old mantra that, once established, Green Belt boundaries should only be altered in exceptional cases.

Eric Pickles is quoted as saying: “Protecting our precious green belt must be paramount. Local people don’t want to lose their countryside to urban sprawl, or see the vital green lungs around their towns and cities lost to unnecessary development.” [Translation: “We know the NIMBYs are wrong really, but they might go and vote for UKIP, so at all costs we are going to say and do whatever it takes to get the Tory defectors back into fold, even though it makes a complete nonsense of our pledge to get more houses built. Getting ourselves re-elected has to come first.”]

Uncle Eric and his friends have suddenly re-discovered ‘Localism’ and are claiming that “Local Plans are now at the heart of the reformed, democratic planning system, so councils can decide where development should and shouldn’t go in consultation with local people.”.

Planning officers can naturally be expected to take a more objective view of these matters, because they have to work out a way of planning for the housing needs of their localities, but this had led them (unsurprisingly) to recommend to their authorities that some Green Belt land will have to be released in order to meet objectively assessed targets (even though these are no longer set by central government.) But to counter this, the government’s on-line guidance has been amended to read that assessing need is just the first stage in the preparation of a council’s local plan, and that in assessing the suitability of land to meet the identified need for housing over the plan period, they “should take account of any constraints such as Green Belt which indicate that development should be restricted and which may restrain the ability of an authority to meet its need”.

This makes it quite clear that having objectively assessed housing need in their area, LPAs should feel free to ignore it, if is politically inexpedient to release green field sites (and particularly some parts of the Green Belt) in order to allocate sufficient land to meet their housing need. If this advice is to be taken at face value, it would appear that the government is abandoning the requirement that LPAs must demonstrate that they have a five-year housing land supply, plus a 5% margin (six years’ supply in cases where council’s have failed to produce sufficient housing land in the past, in the form of committed schemes) if they can excuse themselves by pointing to constraints such as the Green Belt (or any other plausible excuses). It also seems to let them off the hook of having to co-operate with neighbouring authorities in the provision of housing land, even though the 2011 Act requires them to do.

This is bad news for house-builders, and it is bad news for first-time buyers. It also makes a nonsense of recent legislative and policy changes which were directed at securing the provision of adequate housing land. But then, as I said, we are now in the run-up to the General Election, and I did predict a major U-turn sooner or later in this pre-election period. This latest ministerial statement seems to herald that U-turn, and there will no doubt be more to come, as an increasingly panic-stricken Tory Party thrashes about trying to find something, anything, that might secure a few more votes and get them across the winning line next May.

© MARTIN H GOODALL

Friday, 3 October 2014

Control of demolition


The rules relating to demolition continue to cause confusion, particularly as regards the demolition (in whole or in part) of walls, gates and fences in conservation areas. The rules changed on 1 October 2013, and so (if one is dealing with an enforcement situation) it will depend on whether the demolition took place before or after 1 October 2013 as to which set of rules must be applied.

The demolition of buildings constitutes ‘building operations’ (see section 55(1A) of the 1990 Act) and therefore comes within the definition of ‘development’. However, by section 55(2)(g), some types of demolition are exempted from the definition of development where a Direction to that effect is made by the Secretary of State. The scope of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 was considerably cut down by the decision of the Court of Appeal in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334, so that after that judgment the only demolition that was still exempt from the definition of development under that Direction was the demolition of any building with a cubic content not exceeding 50 cu m, and the whole or part of any gate, fence, wall or other means of enclosure, but the latter exemption did not extend to the whole or part of any gate, fence, wall or other means of enclosure in a conservation area. The Town and Country Planning (Demolition – Description of Buildings) Direction 2014 (replacing the 1995 Direction) is intended to regularise the position, in line with the SAVE judgment.

Most types of demolition that are not exempt from the definition of development under the ministerial Direction are Permitted Development under Part 31 of the Second Schedule to the GPDO, Class A of which covers any building operation consisting of the demolition of a building (other than gates, fences, walls or other means of enclosure - the demolition of these is dealt with under Class B).

By Article 1(1)(a) of the GPDO, the word “building” includes part of a building, except in a few specified parts of the Second Schedule to the Order, including Part 31, Class A (which permits the demolition of most buildings). Thus the demolition of part only of a building is not permitted development under Part 31, Class A.

By Article 1(1)(b) the word “building”, although it does not include any gate, fence, wall or other means of enclosure for most purposes under the GPDO, does include gates, fences, walls or other means of enclosure for the purposes of Class B of Part 31. Thus the combined effect paragraphs (a) and (b) of Article 1(1) is that the demolition of part only of any gate, fence, wall or other means of enclosure (other than in a conservation area – see below) is permitted by Part 31, Class B, because it is a building for the purposes of Class B, and the definition of a building includes part of a building (bearing in mind that the exclusion of part only of a building applies only to Class A, not to Class B).

[If you think this is a piece of absolute gobbledygook, you should try reading the legislation itself, of which this is an attempted translation into more or less plain English!]

Development is not permitted by Class A where the building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the building stands, if it is practicable to secure safety or health by works of repair or works for affording temporary support.

The permitted development under Part A is subject to a requirement that the developer must before beginning demolition apply to the LPA for a determination as to whether their prior approval will be required to the method of demolition and any proposed restoration of the site. (The detailed requirements of this procedure are set out in the text of the GPDO.)

There are several points to note here. First, in common with all other permitted development that is subject to prior notification (or prior approval) requirements under the GPDO, commencement in advance of such notification (or approval, where required) cannot be retrospectively validated or ratified. Failure to give the required notice before commencing the work (or to obtain prior approval where required) renders the entire operation unlawful. It cannot then be permitted development and will be vulnerable to enforcement action. On the other hand, under Part 31, Class A, the developer is entitled to proceed with the demolition after the expiry of 28 days following the date on which the application was received by the LPA, if by that time they have not made any determination as to whether their prior approval is required or they have not notified the applicant of their determination. [I suggest that ‘or’ has to be construed as ‘and’ in this context – i.e. the LPA must notify the applicant within the 28-day period, failing which the demolition can proceed in any event.]

The LPA’s control over demolition under these provisions is strictly limited. They cannot prevent the demolition if it falls within Part 31, Class A (unless, of course, they have made an appropriate Article 4 Direction, or in the unlikely event that there is a condition attached to a relevant planning permission that is effective in removing this particular PD right); they can only approve or disapprove the method of demolition and any proposed restoration of the site. This largely duplicates the local authority’s role under the Building Act 1984, section 80 of which requires that six weeks’ notice be given to the local authority’s building control section before commencing the demolition of any building. Nonetheless it is necessary to comply with both of these requirements.

Bearing in mind the definition of “building operations” in section 55(1A), and the definition of “building” for the purposes of the 1990 Act in section 336(1), which includes any part of a building, it might appear that the demolition of part of a building, is thereby included in the definition of development and that, being excluded from the permitted development authorised by Part 31, Class A, the demolition of part only of a building (other than any gate, fence, wall or other means of enclosure) requires planning permission.

However, it was held in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481 (admittedly in a slightly different context) that demolition of only part of a building not amounting to demolition of the whole or substantially the whole of the building is to be regarded as an alteration of the building rather than as demolition. The practical effect of the Shimizu judgment is very limited, because partial demolition of a building, i.e. alteration of the building (assuming that it is not purely internal and/or that it does materially affect the external appearance of the building) also comes within the definition of “building operations” in section 55(1A). The effect of the judgment in Burroughs Day v. Bristol City Council [1996] 1 PLR 78 should, however, be borne in mind in determining whether or not such partial demolition (i.e. alteration) materially affects the external appearance of the building for the purposes of section 55(2)(a).

Whilst partial demolition of a building is excluded from permitted development under Class 31, Part A, it may (bearing in mind its classification by Shimizu as an alteration) be permitted development under some other part of the second schedule to the GPDO (e.g. Parts 1, 2, 6, 8 or 41, among others). Failing that, however, planning permission will be required.

The Shimizu judgment did not affect the need for Listed Building Consent for the partial demolition of a listed building, because this is required for any works to a listed building which would affect its character as such, but it did have the effect of removing the need for what used to be known as ‘Conservation Area Consent’ for the partial demolition of an unlisted building in a conservation area, although this now has to be considered in the light of further legislative changes in 2013 (as explained below).

Before discussing these changes, however, there is one point that requires further discussion. Nowhere in the legislation (either primary or subordinate) is “demolition” actually defined. We must therefore interpret the word according to its plain and ordinary meaning, subject to any relevant judicial authorities. One judicial authority that is clearly relevant in this context is the decision of the House of Lords in Shimizu.

The case was concerned with a listed building, and the decision of the House of Lords turned very much on precisely what was meant by a “listed building”. The definition of “demolition” fell to be considered in that context, but some of their Lordships’ observations on the meaning of “demolition” are of wider application. Lord Hope of Craighead pointed out that in the Court of Appeal Russell L.J. had said that the question whether a particular activity was “demolition” or “alteration” of a building was essentially a question of fact to be determined in the light of all the relevant circumstances. It was noted by Lord Hope that the discussion in the Court of Appeal was conducted throughout on the basis that the expression “building,” (except in so far as the context otherwise requires) includes “any part of a building”.

As Lord Hope put it, works of alteration to a building may take various forms, and the description which is to be applied to them will vary according to whether these works are to be seen in the context of their effect on the whole building or on the parts only of the building where the work is to be done. An architect who is asked to design a scheme to alter a building in order to modernise it or improve its accommodation may propose that parts of the existing structure should be removed. He may say that he needs to do this in order to replace that part with a different part or that he needs to do so in order to accommodate a new design which will not involve any replacement. He may describe what he proposes as the taking away or removal of that part, or he may say that that part needs to be demolished. But the various proposals which he makes and the words which he uses to describe them will all fall within the general description of works of alteration to the whole building [emphasis supplied]. The architect would no doubt resist the idea that he was proposing demolition of the building just because his scheme of alteration required the removal or demolition of parts of it in order to accommodate his scheme.

After examining the term “listed building”, Lord Hope then went on to consider the meaning of “demolition” in more detail. According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. Lord Hope agreed, therefore, with Millett L.J. (when this case was before the Court of Appeal) when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone. The problem which had led the majority in the Court of Appeal to hold that the works which were proposed to the chimneybreasts in this case amounted to works of demolition and not alteration arose when they applied these words to a part only of the listed building, i.e. to the chimney-breasts, not to the whole building.

Lord Hope did make a distinction in the case of what is popularly known as ‘façadism’, where the façade is left standing while clearing the remainder of the site for redevelopment. This would amount to the demolition of the building for all practical purposes. It would go far beyond what could reasonably be described as its alteration, as the works would be so extensive and so much would be pulled down and taken away, although the façade would be retained. It is, however, a question of fact for the decision of the relevant tribunal and so his lordship did not think that any more precise definition of this expression was required.

The House of Lords was referred by counsel to Lord Diplock's observations in Customs and Excise Commissioners v. Viva Gas Appliances Ltd [1983] 1 W.L.R. 1445 , where he said that the word “demolition” meant destroying the building as a whole. That case was concerned with a phrase in the description of an item in Group 8 of Schedule 4 to the Finance Act 1972 relating to value added tax, where there was no reference to “any part of a building.” What had to be construed was the meaning of “demolition” when it appeared in the phrase “in the course of the construction, alteration or demolition of any building.” Lord Hope preferred not to take Lord Diplock's observation out of its context, but the present writer would respectfully suggest that what Lord Diplock said in that case does lend weight to the distinction between “demolition” and “alteration”.

We come then to the special rules that apply to the demolition of unlisted buildings in a conservation area. [To avoid repeated references to ‘unlisted buildings’, I don’t propose to use this expression again below. The provisions that are about to be discussed do not apply to listed buildings, because Listed Building Consent is required under sections 7 and 8 of the Listed Buildings Act for both the demolition of and most (but not all) alterations to a listed building.]

Authorisation is required (under section 74 of the Listed Buildings Act) for the demolition of a building in a conservation area. With effect from 1 October 2013, it is Planning Permission that is now required, instead of the previous ‘Conservation Area Consent’ (which has been abolished), but the statutory provision under section 74 was in place before the House of Lords delivered their decision in Shimizu, yet clearly the provision in section 336 of the principal Act whereby the use of the word “building” includes any part of a building, did not prevent them from deciding that removing only part of a building does not amount to “demolition” but only to “alteration”.

The definition of a “building” for the purposes of section 74 of the Listed Buildings Act is the same as the definition in section 336(1) of the principal Act and includes any structure or erection and any part of a building as so defined, and so is wide enough to include gates, walls and fences within the conservation area (if they do not constitute part of a listed building). Thus the requirement for planning permission for demolition applies also to the demolition of the whole or substantially the whole of these structures in a conservation area, although (as noted above), following the Shimizu judgment, what used to be ‘Conservation Area Consent’ was not required for their partial demolition, because this was seen only as an alteration of the building or structure.

The question, however, now arises as to whether the further legislative changes that took effect on 1 October 2013 have had the effect of abrogating the rule in Shimizu, so far as concerns gates, fences, walls or other means of enclosure in a conservation area.

Prior to 1 October 2013, Class B of Part 31 authorised the demolition in whole or in part of any gate, fence, wall or other means or enclosure, whether inside or outside a conservation area, and this was not subject to any exclusions or conditions. Furthermore, no prior notification under Part 31 was required in this case. However, with effect from that date, by Article 2 of the Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013, Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (relating to the demolition of buildings) was amended by adding at the end of Class B:

Development not permitted: B.1 Development is not permitted by Class B where the demolition is “relevant demolition” for the purposes of section 196D of the Act (demolition of an unlisted etc building in a conservation area).” Section 196D(3) defines “relevant demolition” as the demolition of a building that is situated in a conservation area in England, but is not a listed building, an ecclesiastical building to which the ecclesiastical exemption applies, or a scheduled ancient monument.

However, various buildings may be exempted under section 75 by a direction made by the Secretary of State, and Paragraph 31 of Circular 01/2001 contains such a direction under that section which exempts various descriptions of building from the effect of section 74, including "any gate, wall, fence or means of enclosure which is less than one metre high where abutting on a highway (including a public footpath or bridleway), waterway or open space, or less than two metres high in any other case". I have checked the list of cancelled circulars appended to the government’s on-line planning procedure guidance, and Circular 01/2001 does not appear on that list, so this direction remains in force. Thus the demolition of structures that come within that category is not “relevant demolition” for the purposes of section 74, and does not therefore require planning permission. This preserves the previous position, whereby Conservation Area Consent was not required for the demolition of such structures (i.e. the same category of structures that may be erected as Permitted Development under Part 2, Class A).

As noted earlier, by virtue of the definition of a “building” in Article 1(1) of the GPDO (and also section 336(1) of the principal Act), the word “building” includes part of a building. (The exclusion of part of a building by Article 1(1)(a) of the GPDO, applies only to Class A of Part 31, not to Class B). So demolition of part only of a gate, fence, wall or other means of enclosure in a conservation area is “relevant demolition” for the purposes of Section 196D of the principal Act, and thus (by virtue of paragraph B.1) is not permitted development. But this does not dispose of the question as to what actually constitutes “demolition” (in the absence of any statutory definition of that word).

Subject to the exclusion from permitted development of the demolition on or after 1 October 2013 of the whole or part of any gate, fence, wall or other means or enclosure in a conservation area, Part 31, Class B continues to apply to the demolition in whole or in part of any other gate, fence, wall or other means or enclosure (i.e. other than in a conservation area), and this remains free of any exclusions or conditions. As noted, prior notification under Part 31 is not required in that case.

The key to the question I have posed lies in the lack of any statutory definition of “demolition”. Because of this, it seems to me that the decision of the House of Lords in Shimizu must continue to apply, so far as concerns the identification of the precise type of development that is involved in a particular case, i.e. as to whether it is “demolition” or is “alteration”.

If it is the latter, then Part 2, Class A of the Second Schedule to the GPDO applies, rather than Part 31. Class A of Part 2 permits not only the erection or construction of a gate, fence, wall or other means or enclosure, but also its maintenance, improvement or alteration. It seems to me that if a part of a wall is removed in order to insert new gates, the removal of that part of the wall (even though it may be described in purely colloquial terms as “partial demolition”) is in fact merely an alteration, as there remains a wall or other means of enclosure, now with new gates inserted in it, after the works are completed. Bearing in mind Lord Hope’s observations in Shimizu, and viewing the works as a whole, none of these works can realistically be described as “demolition”. They are clearly authorised in their entirety by Part 2 of the Second Schedule rather than any part of them having to rely on Part 31, Class B for their authorisation. It follows that, in this case, the provisions of paragraph B.1 in Part 31 do not apply, and it also follows that no “relevant demolition” for the purposes of Section 196D of the principal Act has taken place.

This would apply equally to other alterations to a wall, gate or fence in a conservation area, for example if it was simply lowered in height. In light of Shimizu, it is an alteration, rather than demolition, because there is still a gate, wall, fence or other means of enclosure in place after the works have been completed. This too, I would submit, is therefore development that is wholly authorised by Part 2 (subject to the conditions and limitations set out there). On the other hand, the entire demolition of a length of the wall without its being replaced (for example, by the insertion of gates) might perhaps be seen as demolition, rather than as the maintenance, improvement or alteration of the wall, and would therefore be governed by Part 31, Class B, and would be subject to the exclusion in paragraph B.1, and section 196D (if it is in a conservation area), although this is by no means certain. As always this is bound to be ‘a matter of fact and degree’, and so any judgment on this issue will inevitably be fact-dependent in any particular case. Planning officers should therefore proceed with caution when dealing with such cases, and not jump to the conclusion that unauthorised demolition has necessarily taken place.

If any readers can add to this discussion by reference either to the interpretation of the legislative provisions or by reference to the applicability of Shimizu or any other relevant judicial authority, I would welcome their comments. Meanwhile, I must go and lie down in a darkened room.

[UPDATE (9.10.14): I am grateful to two correspondents who have drawn my attention to the direction in Circular 01/2001 exempting the demolition of many walls, gates, fences, etc. from the effect of section 74. The text above has been now been amended to include a reference to this direction.]

© MARTIN H GOODALL

Thursday, 25 September 2014

DAVID EVANS JOINS KEYSTONE LAW


Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning lawyer, David Evans, joined KEYSTONE LAW yesterday. This brings the number of planning lawyers in the firm to four, all of whom have substantial experience in this area of the law, and further strengthens our well-established planning law team.

Before joining KEYSTONE LAW, David had been a partner in the firm of Geoffrey Searle Planning Solicitors, and has joined forces with us following Geoffrey Searle’s recent retirement, having worked with him for the past eight years.

David, who will be based in our London office, is an experienced planning lawyer with particular expertise of residential, mixed-use, office and leisure projects in London and the South East. David advises on a strategic and detailed basis on all types of planning applications and appeals; the negotiation of planning and highways agreements; managing court challenges and advising on blight and compulsory purchase issues. He has a proven track record in obtaining valuable planning permissions, securing costs awards, advising on environmental statements and resisting village green applications.

We are all looking forward to working with David, who brings valuable additional planning expertise to our team, and in fact his arrival is a very welcome relief, after a period when the pressure of work within the team has been relentless.

© MARTIN H GOODALL

Thursday, 11 September 2014

“Other indoor and outdoor sports or recreations”

- The scope of Use Class D2(e) in the Use Classes Order

I have recently been considering the precise scope of Use Class D2 (assembly and leisure). This use class contains several specific categories of use, and there is then a final ‘sweeping up’ item, which reads – “(e) [use as] a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms”.

This category covers a wide range of indoor sport-related or exercise uses, including both commercial and other gymnasia open to the public, health and fitness clubs, leisure centres, indoor sports facilities (such as squash courts or real tennis courts) and indoor training facilities for sports of all kinds, as well as outdoor sports and training facilities, but the exclusion from this class of those uses that involve motorised vehicles or firearms applies equally to both indoor or outdoor facilities, so that an indoor go-karting circuit or an indoor shooting gallery or rifle range, even if it is fully sound-proofed, will still be outside the scope of Class D2 and will therefore be a sui generis use (a use of its own kind).

In addition to all forms of sport (including those attended by spectators) as well as sports training facilities, the inclusion of ‘other indoor or outdoor........recreations’ might be thought to broaden the scope of Class D2(e) considerably, but these words must be read in the specific context of Class D2(e), which is clearly dealing with physical activities rather than hobbies, interests, or recreational activities of an artistic or creative nature. It cannot cover all those ways in which a person can enjoy recreation in a broad sense without becoming so broad as to render the rest of Class D2 otiose, or creating the possibility of uncontrolled changes of use.

So the words “other indoor or outdoor sports or recreations” should be seen as relating to that group of activities listed in Class D2(e), rather than to all those in Class D2 as a whole. The connotation and context of D2(e) is sport and physical recreation, the role of physical recreation being to cover those many situations where the physical activity would not be described as a sport. (See Rugby Football Union v SSETR [2001] EWHC 927. This judgment was subsequently upheld in the Court of Appeal - [2002] EWCA Civ 1169 - where the Court held that it is right to incorporate some physical effort to the phrase “recreation”, otherwise it would be so wide as to be ineffective as a planning tool.)

These judgments, both in the High Court and in the Court of Appeal, confirmed that the phrase “a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations” in Class D2(e) is to be construed ejusdem generis (i.e. the individual elements in the list are to be construed as being ‘of the same kind’ as each other). The Court of Appeal both in RFU and also in the earlier case of Millington (cited below) firmly rejected a wider dictionary definition of ‘recreation’, and insisted on the element of physical exercise or effort involved in a sport. The definition of ‘sport’ in the OED is “a game or competitive activity, especially an outdoor one, involving physical exertion, e.g. cricket, football, racing, hunting.” Thus the dictionary definition requires both a competitive element and physical exertion but, because the use specified in the Use Classes Order embraces not just sport but other forms of physical exercise, the courts have not insisted on a competitive element being present, provided that the use does involve some physical effort.

A subsidiary definition of “sport” also given in the OED is “amusement, diversion, fun”, but this can have no application in the context of Class D2(e) in view of the emphatic rejection of a similarly wide definition of ‘recreation’ by the Court of Appeal both in Millington and in RFU. On the other hand, the exclusion from Class D2(e) of indoor or outdoor sports or recreations which involve motorised vehicles or firearms would seem to confirm that motor sports and shooting would embrace a sufficient element of physical effort to come within Class D2(e) had they not been expressly excluded. This may perhaps assist in determining whether activities of a similar nature, not caught by that exclusion, come within Class D2(e).

It was also held in RFU that the presence or absence of spectators is immaterial to Class D2(e). A sports ground or stadium is within Class D2(e) because it is an area used for outdoor sport. It is not the presence of more or less passive spectators which brings it within the purpose of Class D2(e). They may enjoy watching sport. For them, in common sense language, watching sport may be one of their recreations, but they are not themselves engaged in physical recreation. A sports ground or stadium is not, for Class D2(e) purposes, an area used for outdoor recreation by the spectators.

Similarly, the audience at an open air pop concert is not participating in ‘other outdoor recreations’, nor are the performers, no matter how energetic their performance may be, because the performance or event is not in the nature of a sport. On the other hand, any fully enclosed building in which a pop concert or other musical performance is held is being used as a concert hall within Class D2(b). The building does not need to be adapted in any way for the purpose, other than as may be required by the terms of any public entertainment licence. [The court ruled in RFU that a sports stadium cannot be used as a 'concert hall' within Class D2(b), because it is not a ‘hall’ i.e. not a fully enclosed building.]

As indicated above, the judgment in the RFU case is in line with the earlier judgment of the High Court in Millington v SSETR (1999) 78 P. & C.R. 373, (1999) JPL 644 (subsequently approved by the Court of Appeal – [2000] JPL 297), where it was held that the test of whether a use of land is an area for outdoor sports or recreations is not determined by whether the activity may probably be described as recreational in nature. It is not sufficient that the area should be used for purposes which may be called recreational purposes, as opposed to commercial or educational purposes. Thus a house or garden open to the public is not an area used for, respectively, indoor or outdoor sports or recreations.

I do not have time to discuss other examples at the moment, but it does seem to me that a number of uses which appear to have been accepted as coming within Class D2(e) in the past do not in fact properly fall within Use Class D2, due to the lack of a sufficient element of physical exercise, effort or exertion being involved so as to bring them within the definition of “other indoor or outdoor sports or recreations”.

© MARTIN H GOODALL

Friday, 29 August 2014

“A Forward Looking Planning Manifesto”


It seems that the need for proper reform of the planning system, as distinct from the pointless political tinkering that we have encountered over the past 20 years or so, is becoming ever more widely recognised. London solicitors Addleshaw Goddard are the latest to add their voice to calls for a more fundamental approach to reform of the planning system.

Their recently published document – “A Forward Looking Planning Manifesto” is very much along the lines of what I and an increasing number of other planning professionals have been calling for – including an overall strategic plan at a national level (much more precise, and perhaps prescriptive, than the vague platitudes in the NPPF), as well as the need for strategic planning at the regional level (so wantonly abandoned by the present government) and a proper review of Green Belts. The need for proper strategic planning, which would include the setting of regional housing targets, is particularly urgent in view of the continuing failure of neighbouring planning authorities to co-operate meaningfully in developing their core strategies, particularly in relation to housing provision. As the authors say, this is necessary in order to counter "local political point scoring, skills deficits and NIMBY-ism".

However, a few of the ideas are, I suspect, too radical for any political party to countenance. For example, I find it hard to believe that the proposal to amalgamate the London Boroughs into just five massive super-boroughs will commend itself to the politicians. A similar proposal to create "metro-regional bodies" (enlarged regional or sub-regional authorities) may also prove controversial.

Addleshaw Goddard say that this manifesto has been informed by the views of "dozens of leading figures and industry experts, public sector figures and developers" which include not only private sector planning consultants but also planners in local government, as well as people in the development industry. This is further confirmation of the increasingly widespread view of those who actually have day- to-day dealings with the planning system that it cannot be allowed to stagger on in its present arthritic (or sclerotic) form. It seems that it is an idea whose time has come, and this will be a challenge for the incoming government in May 2015. It is timely that the political parties should be made aware of this now, so that they can take it on board in formulating their own manifestos for the next General Election.

© MARTIN H GOODALL

Thursday, 21 August 2014

The planning system – the need for a real overhaul


The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.

© MARTIN H GOODALL