Thursday, 29 April 2010

Take a look at the archive

You may find it worthwhile when looking for new posts on this blog to take a look at the growing archive of previously-published material which I have uploaded from my earlier blog.

There are (or will be) two types of archive on this blog. Current material will be archived monthly, and can be accessed from the sidebar on the left-hand side of the page. Recent posts are listed individually. Then, below that, you will be able to select archived posts from earlier months (from April 2010 onwards).

The second type of archived material consists of selected posts from the previous blog (which appeared on the RTPI’s ‘Planning Matters’ website between November 2005 and April 2009). I am editing and revising this material and will upload it in instalments over the next couple of months. This material can be accessed by clicking on the page icons on the top bar (e.g. “OCT 08 – APR 09”).

I have recently finished uploading selected posts dating from the last six months of the earlier blog, which were written between October 2008 and April 2009. This comprises 22 separate articles, covering a wide selection of topics. The next section to be added to the archive will cover another six months or so before that, and so on until the archive covers the whole of the three-and-a-half year period during which the previous blog was published.

Each of these separate archive sections will have its own list of contents. It will take a bit longer to organise an alphabetical index, and ideally I would also like to arrange both internal and external links as an aid to readers, but this all has to be fitted in around my professional work for clients, which naturally takes precedence.

So watch this space for further improvements in the following months.


Tuesday, 20 April 2010

REAL Reform of the Planning System

IN A DISTANT GALAXY, FAR, FAR AWAY......Following the recent General Election in May 2010, the newly elected Conlaberal government re-organised various ministries in Whitehall, setting up a new Department of Administrative Affairs which became responsible (among a large number of other things) for town and country planning, housing and local government.

The following is the text of a speech delivered shortly after the election by the Rt Hon James Hacker M.P., the newly appointed Secretary of State for Administrative Affairs.

Mr Chairman, Ladies and Gentlemen, it is a great honour for me to have been appointed to the important new ministerial office which has been created under our recently elected government to take over a wide range of administrative functions which had previously been scattered among various departments in Whitehall, and it is a very great pleasure to have the opportunity to make an important policy statement at your kind invitation, Mr Chairman, on the occasion of this, the Annual Dinner of the Great Muckslow Conlaberal Association, here in my own constituency.

As you know, I am never one to let the grass grow under my feet (especially if there is an opportunity to cover it with concrete!) (polite or possibly nervous laughter) and so I am taking this opportunity to make an important policy statement following the recent transfer to my newly created department of the responsibility for both Town & Country Planning (or ‘TCP’ as we call it in the department) and the Listing of Historic Buildings. As you know, these responsibilities have been passed around among various ministries in recent years, and many of us felt that TCP never really fitted with the other activities of the Ministry of Pensions, Incomes and Social Services (the P.I.S.S.), where it last resided.

I am going to set out for you here this evening, and for wider distribution later, my proposals for blowing away the cobwebs of the planning system. Some of these proposals will require legislation, but many of them are merely policy changes, which can be implemented immediately.

As you know, if you want to carry out development in this country you need planning permission, but I want to re-establish the principle which once applied to all cases where the citizen is required by statute to apply for a licence or permission to do something, namely that that licence or permission should always be given unless there are sound and clear-cut reasons for refusal. In other, words, there is always a presumption, indeed a strong presumption, in favour of the requisite permission being granted.

The reasoning behind this is very simple - without the legislative restriction imposed by parliament the citizen would be perfectly entitled to do with his property as he pleased. He should not therefore be deprived of his property rights without good reason, and so planning permission should always be granted unless to do so would cause demonstrable harm to interests of acknowledged importance. That was a principle which was recognised for many years, and it is not so very long ago since government policy guidance said precisely that.

This brings me to the role of the Development Plan in the planning process. Clearly, planning decisions cannot be taken in a vacuum and there must be some policy framework, both at national and at local level, to provide a basis on which planning decisions can be taken. However, the present system has become far too prescriptive and cumbersome. The replacement of County Structure Plans and Local Plans (or Unitary Development Plans) by Regional Spatial Strategies and Local Development Frameworks, far from making things better, has made the whole Development Plan system far more cumbersome and time-consuming. So much effort is wasted in the actual process and in assessing its ‘soundness’ that the actual objective of having a Development Plan at all seems to have been entirely forgotten. Away with all this nonsense, I say! We shall replace it with a simple system, comprising concise ministerial policy statements at the national and regional level. There will then be new County Development Plans which must be compliant with that ministerial policy (supplemented by Local Development Statements where necessary – in more densely developed urban areas). The new County Development Plans will be made by County Planning Authorities and approved by Ministers. We propose to devise a much simpler more streamlined process for the formulation and ministerial approval of these plans.

One factor which has particularly bedevilled the development control system in recent years is Section 38(6) of the 2004 Act (originally Section 54A of the 1990 Act, which was introduced as an ill-considered amendment to the Planning & Compensation Bill when it was going through Parliament in 1991). In my view, Section 70 of the 1990 Act provides a perfectly adequate basis for the determination of planning applications, namely that in dealing with such applications the local planning authority must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.

The requirement imposed by Section 38(6) that determinations under the planning legislation should be made in accordance with the development plan unless material considerations indicate otherwise has introduced unnecessary and wholly undesirable rigidity into the planning system, and has made the plan-making procedure an incredibly long drawn-out and painful process, because land-owners and developers see this as their only realistic chance to promote the development of their land, by securing the allocation of their sites for development in the plan.

One of the benefits of repealing Section 38(6) will be to relieve this pressure on the plan-making process, which (combined with the simplified form of Development Plan which we intend to introduce) should make the business of producing a Development Plan much quicker and cheaper, as well as making the planning system more flexible in its day-to-day operation and more responsive to changes in the market and in the economy generally.

My department will in future take a much closer and more proactive interest in Development Plans. We need to impose some discipline on the process so as to ensure that we no longer get plan documents that are thicker than telephone directories, and which attempt to prescribe in detail how and when the developer is to blow his nose.

My intention in ‘vetting’ development plans is ruthlessly to cut out policies and text which seek unnecessarily to re-write ministerial policy guidance already set out in PPSs and Circulars or, even worse, which seek to over-ride those nationally applied policies with a local policy that is inconsistent with them. I am also determined to cut out unduly detailed and prescriptive policies which involve themselves in the minutiae of development and design. Such details are a matter for judgment on their merits in each individual case and they do not need prescriptive policies to assist in their determination.

I also propose to sweep away all supplemental planning guidance and similar material produced by local planning authorities. I shall legislate to provide expressly that any such documents shall be entirely excluded from consideration in the determination of planning applications, and that (where any such continue to exist) they will not therefore be capable of being regarded as a material consideration.

I want to turn now to some of the main policy changes I propose in order to make the planning system fairer and less burdensome. First, I intend to widen considerably the scope of Permitted Development under the General Permitted Development Order, especially for householder developments. The previous government has already had one go at householder development (under Part 1 of the Second Schedule to the GPDO) and quite frankly they made a total mess of it. Far from being more liberal, the new provisions have simply replaced one set of restrictive and ambiguous rules with another. I don’t propose to go into the detail here, but what I have in mind is a much more liberal regime for householder developments and a set of rules which iron out the ambiguities and anomalies and which are easily understandable. I propose to take the same approach to the rest of the GPDO and to rewrite every part of the Second Schedule in a similar fashion.

The power of local planning authorities to remove permitted development rights by means of conditions attached to planning permissions will also be ended. In future, if there are genuine and compelling reasons for restricting permitted development in particular areas, planning authorities will have to use the procedures available under Article 4 of the GPDO, which are subject to ministerial review and confirmation if there are objections.

I also propose to revisit the Use Classes Order so as to produce rather broader classes, especially for commercial uses in town centres. For example, I propose to amalgamate the Category ‘A’ Use Classes in a single class, so that there would no longer be any restriction in changes of use to and from retail, office and catering uses in town centres. We really must leave it up to the market to decide what uses will be commercially viable in particular locations. I do not accept that we have to intervene in a misguided effort to protect primary retail frontages from other town centre uses. Nor should the planning system be used to restrict or control the development of food and drink or leisure uses in town centres. So far as the sale of alcohol is concerned, and the problems sometimes associated with it, that is a matter for licensing authorities; it is not the business of the planning system.

Again, I shall take steps to ensure that it will not be open to local planning authorities in future to restrict the scope of the UCO by conditions attached to planning permissions which seek to restrict changes of use within a particular Use Class. I am not prepared to allow the intentions of parliament in passing Section 55(2)(f) of the 1990 Act to be over-ridden in this way.

I also intend to make a number of important changes to ministerial policy advice. These include subjects such as Housing, Green Belts and development in the countryside. However, the time available this evening does not allow me to deal with these topics in any detail.

It has taken far too long for government to appreciate that we are facing a major housing crisis in this country and, having reluctantly recognised the problem, to grasp the nettle and seek practical solutions to it. It would be wrong to blame the planning system as the sole or even the main cause of this crisis, but it has undoubtedly been a factor in exacerbating the shortage of available housing. This has been compounded by the misguided and largely unsuccessful attempt to use the planning system to produce affordable housing in the absence of public provision.

I am pleased to say that this has been clearly recognised by the present government, and the Treasury has at last been forced to release the purse strings to enable local authorities once again to build social housing so as to tackle the rising tide of homelessness in this country. In practice this simply means that local authorities have now been freed to spend their own money received from the sale of council houses under the right-to-buy in order to replenish their stocks of social housing. The restrictions on the right-to-buy which we have now put in place should ensure that there will be no repetition of the disastrous depletion of the stock of social housing which occurred as a result of the original right-to-buy policy.

There will still be a need for a very large number of houses to be built in the private sector, and it is frankly unrealistic to expect that the numbers required can be built without resort to a significant number of ‘green field’ sites, especially in the south-east of England. All that has been achieved by restricting new build to ‘brown’ land is an overall reduction in house building, and the over-provision of small flats when there is an overwhelming need for family houses, with a decent amount of garden space where children can play. I shall use my supervisory powers over Development Plans to ensure that sufficient housing land is released to provide the homes we need, and I shall reinforce ministerial policy requiring local planning authorities to identify a 5-year land supply for housing (with a 2-year supply of sites ready for immediate development), failing which undesignated ‘wind-fall’ sites will have to be given planning permission (on appeal, if necessary) in order to ensure that house-building targets are met. We do need to predict future housing needs, and we do need to provide the land to meet those predictions. The so-called alternative of “plan, monitor and manage” simply did not deliver the housing the country so badly needs.

Turning to the countryside surrounding our towns, I propose a fundamental review of Green Belts. The original object of our Green Belts was to discourage urban sprawl into the open countryside around our larger towns and cities and to prevent the coalescence of two or more large neighbouring towns. I reaffirm that objective; but two undesirable elements have crept into our Green Belt policies over the years.

First, the Green Belts have been expanded to a far greater extent than was originally intended and to a far greater extent than is necessary to achieve their objective. For example, the Metropolitan Green Belt around London was intended to be about 12 to 15 miles deep. In some places it is now well over 30 miles deep. Our Green Belts now encompass huge areas of land that ought never to have been incorporated in them.

My department will therefore conduct a detailed review of Green Belt boundaries, with a view to reducing substantially the extent of their designated area. This review will proceed on the presumption that subsequent extensions of Green Belts that occurred after initial designation should be reversed unless there are very convincing reasons for those extensions, having regard to the primary objective of the Green Belts. I shall require local planning authorities as part of the Development Plan process to revise Green Belt boundaries in accordance with the conclusions of this departmental review.

In future, there will be a very strong presumption against further extensions of existing Green Belts. There should, on the other hand, be regular reviews of both the inner and outer boundaries of Green Belts to examine the desirability of removing further land from the Green Belt if changed circumstances require this. I shall be revising PPS2 to remove the current advice that Green Belt boundaries should be regarded as fixed for 20 years or more.

The second undesirable element that has crept into Green Belt policy is an entirely unnecessary and inappropriate rigidity in the treatment of development proposals, which seeks to resist all development in the Green Belt unless either it is deemed to be ‘appropriate’ development (such as certain ‘green’ leisure uses) or very special circumstances can be demonstrated. Rather than this somewhat inflexible approach, I propose instead to include guidance within a revised PPS2 which will indicate that within Green Belts development should not be permitted which would prejudice the objectives of the Green Belt and/or which would compromise its openness, but that in determining applications for development in the Green Belt local planning authorities should examine the contribution that the application site in question makes to the Green Belt (in other words, its ‘Green Belt value’). It would thus be the impact of the development on the Green Belt as a whole that would be the determining factor, rather than the ‘appropriateness’ of the development in the Green Belt (in land use terms) or any question of very special circumstances being required to justify the development. I want to emphasise that Green Belts are not and never have been intended to create wholly development-free zones in the countryside.

There are also significant restrictions on development in the open countryside beyond the Green Belt. However, just as there is no ‘blanket’ ban on development in Green Belts, nor is there any such absolute ban on development in other rural areas. Clearly, unrestricted development in the open countryside would be unacceptable, but the policy approach up to now has been unduly restrictive, and a more balanced approach to such development proposals is therefore required.

There has in the past been strong resistance to new housing in the countryside, with certain very limited exceptions. There is clearly a need to ensure that the rural landscape is not ruined by sporadic and inappropriately located development in the open countryside. Subject to that proviso, however, I see no objection in principle to allowing small housing developments located adjacent to or well-related to existing village development boundaries, especially where these are designed to meet specific local housing needs.

Equally, I see no objection to single dwellings (whether newly built or converted from existing buildings) elsewhere in the countryside, provided that they are located so as to minimise their impact on the landscape. The advice in PPS7 will be revised accordingly, and development plan policies will also have to be modified to admit of a more flexible approach to this issue. It follows from what I have said that there should also be a much more flexible approach with regard to agricultural occupancy conditions. The revised approach to new homes in the countryside should make such conditions largely unnecessary in future, and most existing occupancy conditions could then be removed, unless there are compelling and overriding reasons for their retention in particular local circumstances.

The need for diversification of the rural economy in the face of the continuing agricultural recession has not hitherto been adequately addressed by the planning system. A much more flexible approach is required to enable farmers to develop their land and buildings for alternative uses where it is no longer viable to farm all of the land, or where it is no longer practicable to utilise agricultural buildings for their original purpose. Leisure and tourism developments (including holiday accommodation and provision for seasonal camping and caravanning) and small-scale industrial and business uses should be much more readily allowed where such developments would not significantly affect the rural landscape. Small-scale residential developments within the ‘envelope’ of such farm complexes may also be acceptable. I propose to introduce clear advice to this effect in a revised PPS7.

Time does not permit me to deal this evening with the changes I propose to make to the advice set out in PPS4. Suffice it to say that I remain unconvinced as to the practicability or indeed the appropriateness of attempting to preserve the vitality and viability of town centres through the mechanisms of the planning system. This is a topic to which I shall return on a future occasion.

The final main topic I want to touch on this evening is the subject of conservation, as it applies to Listed Buildings and to Conservation Areas. We all greatly value our architectural heritage, but it is important that the owners and users of buildings protected by these formal designations should not be unduly fettered in their use of their property. A fair balance must be struck between preservation on the one hand and, on the other, appropriate change to ensure the continued beneficial use of such buildings. I absolutely reject any notion that we should preserve our historic towns and ancient buildings in aspic and prevent any change in the future.

Both the listing of buildings of architectural or historic importance and the designation of conservation areas are valuable means of ensuring the preservation of our cultural heritage in built form, but it is important that their value should not be undermined by over-use. I fear that we may have listed far too many buildings, especially in the Grade II category, and that there has also been over-use of conservation area designations or extensions covering areas of townscape that do not really deserve such designation. For that reason, I propose to embark on an immediate review of the list of historic buildings with a view to retaining on the list only those buildings that genuinely merit inclusion and whose retention is of real importance. As a result of this exercise, I would expect at least a third and possibly up to half of all Grade II listed buildings to be de-listed. Grade II* and Grade I listed buildings will also be included in the review, but de-listing is much less likely to occur in those cases, although regrading may be considered.

The listing of modern buildings can cause particular difficulties for their owners and occupiers, and can prevent or inhibit necessary alterations to meet changing needs. For this reason, I am not convinced that it is appropriate to list modern buildings, and I also doubt whether an objective judgment of their true architectural value can be made until they can be seen in their historical context at some distance in time after they were first built. For that reason, no buildings will be listed in future less than 50 years after their original construction, and I propose in the meantime to de-list those buildings currently on the list which are less than 50 years old, with the possible exception of any such which are now more than 40 years old and whose continued listing is clearly justified on architectural or historic grounds. This would avoid the de-listing of certain buildings only to have them re-listed a few years later.

I also propose to relax the controls over alterations to listed buildings. Many owners and occupiers of listed buildings are under the impression either that the prohibition on altering a listed building without consent applies only to the exterior, or that this protection applies only to those features expressly mentioned in the listing description. In relation to Grade II buildings only, I propose to change the law so as to bring it into line with public perceptions. In future, therefore, listed building consent will no longer be required for interior alterations to Grade II listed buildings unless such alterations would materially affect the basic structure of the building or would affect any internal feature which is specifically mentioned in the listing description. However, control over internal alterations will continue to apply to Grade II* and Grade I listed buildings as it does at present.

In order to assist owners of listed buildings to determine whether listed building consent may or may not be required in particular circumstances, I propose to introduce provisions similar to the existing procedures for lawful development certificates. The non-availability of such certificates in respect of works to listed buildings is an anomaly that has long been in need of reform.

The designation of conservation areas has hitherto been primarily in the hands of local planning authorities, and I fear that it is political pressure at the local level that has led to over-designation. I therefore propose that in future the designation of conservation areas will be solely a ministerial responsibility in the same way as the listing of historic buildings. As soon as the necessary legislative change is in place I shall embark on a complete review of conservation areas throughout the country, with a view to de-designating those areas or parts of areas that do not genuinely merit conservation area status on objective criteria.

These proposals are by no means the only changes to the planning system that my department intends to introduce, but they represent the most urgent reforms with which we intend to press forward. There are others, such a general liberalisation of the advertisement control regime, which is far too restrictive and presents substantial and quite unnecessary difficulties for the advertising industry.

There is one other very important reform which I should also mention. This relates to the Planning Acts themselves. Although successive governments have purported to ‘reform’ or ‘modernise’ planning legislation over the years, and there have also been several consolidating Acts, the overall effect has been the opposite of what was intended, and the legislative framework has become increasingly cumbersome as various accretions have accumulated, like barnacles growing on the hull of a ship. If I may pursue that nautical simile, the time has come to give the bottom a thorough scrape. We must go right back to first principles and completely re-write the primary legislation so as to remove anomalies and ambiguities and generally to simplify this complex body of legislation. I am not talking about tinkering with the detail – we must give this legislation a thorough overhaul. We must rewrite our planning legislation completely from scratch. I have already given instructions for this process to begin within my department, and Parliamentary Counsel to the Treasury will be instructed as soon as a full brief can be prepared.

The same applies to the huge raft of subordinate legislation that has been made under the Planning Acts. The drafting of the General Permitted Development Order, for example, is in dire need of complete revision. I have already indicated my intention of simplifying the rules on permitted development, but I intend that the new GPDO should also iron out all the anomalies and ambiguities in the existing Order with which planning practitioners are all too depressingly familiar. Equally, I see no reason for umpteen different versions of the Inquiries Procedure Rules. I intend to replace them with a single set of rules, with such minor variations as may be needed to cater for the special requirements of particular types of inquiry. The opportunity will also be taken to fill in one or two lacunae that have been identified in these rules regarding appearances by various parties at the inquiry and the documents they are required to serve before the inquiry.

Bearing in mind the disappointing results following previous promises of planning reform, those involved in planning and development might be forgiven for being a little cynical about the proposals I have announced, but I assure you, ladies and gentlemen, that this is no cosmetic exercise. This time we are going right back to first principles. It may involve the slaughtering a few sacred cows, and I can already hear the screams of agony from certain special interest groups, who have become accustomed to regard the planning system as a useful tool for resisting change. But such protests will not deter us from our intent to carry through these reforms, so as to produce a planning system that is truly responsive to the needs of society, and which will produce the development that we need, in the right place and at the right time, in order both to sustain our economic position and to provide decent homes for our citizens.

(We leave it to readers to guess whether this speech was greeted with loud and prolonged applause or with stunned silence.)


Lawful implementation

I am still getting instructions from people who are in dispute with planning authorities as to whether or not a planning permission has been lawfully implemented and, if not, whether the planning permission has lapsed. Clearly there are still a lot of planning officers out there who are not up to speed with the various judicial rulings on this issue.

I have written a lengthy paper on this subject which was the subject of a lecture I gave to the enforcement group of the Planning Inspectorate at their annual conference a couple of years ago, but it is far too long to reproduce here. To put it as briefly as possible, it works like this:

First as regards an outline permission, there is no getting round the rule that you must apply for approval of all reserved matters within the stipulated time limit (usually three years, but it can vary – read the permission). (See now the Court of Appeal decision in Rastrum Ltd v. SSCLG [2009] EWCA Civ 1340).

Assuming you have got over that hurdle or have a full permission, you need to carry out a material operation within the time limit stipulated in the planning permission (previously 5 years, now more usually 3 years, in the case of a full permission, or within 2 years after the approval of the last of the reserved matters in the case of an outline permission, but again it can vary – so look at the permission).

What causes potential problems is the issue of compliance with those conditions which require compliance, or appear to do so, on or before the commencement of development (often referred to as ‘conditions precedent’). This is where many planning authorities get it wrong. In practice, failure to comply with a so-called ‘condition precedent’ will rarely result in the entire development being unlawful, and in most cases there will be no question of the permission having lapsed (provided of course that a material operation was actually carried out). A commencement of development which might have been unlawful at the time will in many cases be retrospectively validated by subsequent events.

There are three leading authorities which confirm this – Whitley & Sons v. SSW, Hammerton v. LUL Ltd (as approved by the Court of Appeal in Prokopp v. LUL Ltd) and R (Hart Aggregates) v. Hartlepool BC. The principles to be derived from those three cases can be summarised in this way:

(1) If the condition merely required that something be done on or before the commencement of development (as distinct from expressly forbidding the commencement of development before compliance with the condition), then commencement was not unlawful on that ground.

(2) Even if the condition expressly forbade the commencement of development before compliance with that condition, commencement in breach of the condition would still not have been unlawful unless the condition ‘went to the heart of the permission’. In other words, the condition would have to relate to some fundamentally important aspect of the development (or of the way in which it was to be carried out), and not merely be concerned with the approval of some minor detail.

(3) If a condition meeting both of the above tests (a ‘true’ condition precedent) required further details (other than reserved matters) to be approved before the commencement of development, making a start before those matters were approved would still not render the commencement of development unlawful, provided that an application for such approval was made no later than the date on which the permission would otherwise have lapsed. It does not matter whether the approval of those details was obtained before or after those works commenced provided that they did in practice comply with the details as subsequently approved. Nor does it matter that approval was granted only after the date on which the permission would have lapsed, provided that application for that approval was made before that date.

(4) Even if commencement of development was potentially unlawful under (3) above, the development will still not be unlawful if the planning authority could not lawfully take enforcement action against the development as a whole, either because to do so would be unreasonable (in the Wednesbury sense) or an abuse of power, or because the development had become lawful under the 4-year rule. In this case, the commencement of development is to be regarded as having been lawful, so that the entire development is therefore lawful (which incidentally means that any conditions attached to the planning permission which remain to be complied with are still enforceable – a point which has worried planning officers unnecessarily in the past).

These points will cover the vast majority of cases, so that it will be rare indeed for the commencement of development (and therefore for the development as a whole) to prove to have been unlawful, and so the planning permission will not have lapsed in these circumstances. Cases like Leisure GB v. IoW Council and Henry Boot Homes v. Bassetlaw DC were exceptional, and depended largely on their own facts, and earlier cases, such as Etheridge, Oakimber and Elmbridge can no longer be regarded as good law. Those cases do not detract in any way from the general application of the four points listed above. Nor does the obiter dictum of Lord Scott in Sage, which I have seen quoted on a number of occasions, have any relevance in this context.

Finally, it will not be necessary in most cases to obtain a formal discharge of these conditions (although it is common practice to do so). So the mere absence of a piece of paper showing that the LPA has discharged the condition does not mean that the condition has not been complied with.

I usually find that a robust letter from me to the LPA is enough to sort out problems of this sort (explaining the judicial authorities in somewhat greater detail than I have been able to do in this brief note), but if it really becomes necessary, an application for an LDC should resolve the matter. An appeal against the refusal of a certificate will usually result in an award of costs against the Council in cases of this nature.


4-year rule or 10-year rule?

If operational development takes place without planning permission and four years pass following its substantial completion without enforcement action having been taken against that development, then it becomes lawful by virtue of s.171B(1). There is, however, a well-known exception to this rule, as demonstrated by Murfitt. [The rule also applies to works which are not development, for example because they were purely internal and did not affect the external appearance of a building – Somak Travel.]

This requires an examination of the relationship of the operational development to any change of use and it may perhaps depend on or be influenced by the relationship between the building and the planning unit. Does the planning unit comprise the building and its curtilage (i.e. is the building effectively the whole of the planning unit, together with any curtilage which it may have) or is the building erected on part of a larger planning unit? In that case it may be necessary to consider what relationship the use of the building bears to the use of the planning unit as a whole.

Sullivan J (as he then was) surprised everyone by suggesting in R (Mid Suffolk DC) v. FSS [2005] EWHC 2634 that merely because a structure has become immune from enforcement action because it has been in existence for four years does not necessarily mean that any particular use of that structure will also be lawful. He pointed out that Section 75 (which provides that a planning permission for the erection of a building may specify the purposes for which the building may be used, and if no purpose is specified then the permission may be taken to authorise the purpose for which it is designed) has no application in relation to a building the erection of which was not authorised by planning permission but has become lawful solely by reason of the 4-year rule.

We now also have the case of Sumner v. SSCLG [2010] EWHC 372 (Admin) in which judgment was given by Collins J on 11 February 2010. In Sumner, an EN was served in respect of unauthorised C/U of a building. The appellant argued (both on appeal and in the High Court) that the use derived from the erection of the building (i.e. it was the purpose for which the building was erected) and therefore the 4-year rule applied. Paul Stinchcombe argued that s.75(3) should apply by analogy, but Collins J rejected this argument. Sullivan J’s earlier dictum in Mid-Suffolk does not seem to have been referred to. Stinchcombe’s argument was that if the building itself was lawful under the 4-year rule, it would produce a ridiculous situation if it could not lawfully be used for any purpose.

Collins J suggested it could be used for any purpose ancillary to the lawful use of the planning unit as a whole, but this implies that (a) there is an existing planning unit which is only partly occupied by the building, and (b) that the building remains part of that larger planning unit and is not hived off into a separate planning unit comprising only the building itself, or perhaps the building and a reasonable curtilage.

If there is a pre-existing lawful use of the site itself (whether by express permission or under the 10-year rule), then erection of a building or the execution of engineering works for the purposes of that existing lawful use will not give rise to any issue regarding change of use. The use of the building or other works for the same lawful use as the planning unit as a whole will not be in question, and the operational development involved in its erection is capable of becoming immune from enforcement under the 4-year rule.

Difficulty only arises where the use of the new building or other works also represents or is associated with a change of use of the planning unit as a whole. In this case, the rule in Murfitt clearly comes into play. The unresolved point relates to the use of a building which constitutes the whole or substantially the whole of the planning unit, where the use of the completed building differs from the previous use of that site, or where the building (together with any curtilage which it might be given) is hived off from the previous planning unit and becomes a separate planning unit, again used for a different purpose compared with the pre-existing planning unit.

This effectively resolves itself into two separate questions :

(1) If the building constitutes the whole or substantially the whole of the planning unit, should consideration be given to the issue of a material change of use of that planning unit (comprising the building and any curtilage of that building), as distinct from the operational development involved in its erection?

(2) If the building occupies only part of a planning unit and remains part of that planning unit, but the use of the planning unit changes with the erection of the building, does the lawfulness of the use of the building depend on the lawfulness of the use of the planning unit as a whole? If so, that would depend on the operation of the 10-year rule, and the rule in Murfitt would appear to confirm this.

I understand that Sumner may be going to the Court of Appeal, so we shall have to wait and see.


Challenging delegated decisions

I have noted before that the scope for impugning a grant of planning permission on the ground that the decision could not or should not have been taken under delegated powers is very limited, but a recent example of an attempt to challenge a decision on this ground is provided by R.(Technoprint) v. Leeds City Council [2010] EWHC 581 (Admin). In his judgment, delivered on 24 March 2010, Wyn Williams J quoted extensively from the Court of Appeal decision in R (Springhall) v Richmond-upon-Thames LBC [2006] EWCA Civ 19. That decision had made it clear that the scope for challenging a planning permission on this ground is extremely limited, and that the words of Pill LJ in R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 should not be interpreted in a way which would give rise to a separate challenge to planning permissions by reference to the mode by which those decisions had been reached (as distinct from a challenge to the rationality of that decision on general Wednesbury principles).

In Technoprint, as in most other cases, the scheme of delegation authorised the officers to grant planning permission where the application was compliant with adopted policies and/or certain other criteria were met. That in itself involved the exercise of planning judgment (with which the Courts will not interfere, unless it was irrational on Wednesbury grounds), and so it can only be said that the exercise of the delegated power to issue planning permission is ultra vires in such circumstances if the officers’ judgment that the application did meet the criteria giving them delegated power to issue the permission was irrational. There is no distinction between this and the rationality of the officers’ judgment on the planning merits of the application itself. It does not require a two-stage approach. The two issues are subsumed within a single judgment.

In Technoprint, the judge also indicated that he would not have been minded to exercise his discretion to quash the planning permission on this ground in any event, because the complainant had raised no objection to the application being dealt with under delegated powers at the time. In practice, the planning permission was in fact quashed in this case on other grounds, but the challenge on the ground that the officer issuing the decision did not have delegated power to do so was firmly rejected.

Of course, if there is no delegated power at all to grant planning permission in the circumstances of a particular case, then the planning permission might still be challenged on the grounds that the officers’ decision to issue it was ultra vires. If for example, the delegated power is removed by the scheme of delegation where a ward member has requested that the application be referred to committee, then it would be unlawful to issue a delegated decision in those circumstances. Such cases will be fairly clear (and also rare). What Springhall and Technoprint establish is that there cannot be a separate ‘technical’ objection to a delegated decision as distinct from the rationality of the planning decision generally.


Concealed development again

I commented over a year ago on the case of Fidler (which is expected to go to the Court of Appeal), but a lesser known case on this topic - Welwyn Hatfield Council v SSCLG – came before the High Court in April 2009, when a Lawful Development Certificate granted by an Inspector on appeal was quashed by Collins J, on the ground that the appellant had deliberately concealed the development and could not therefore rely on the 4-year rule to establish the lawfulness of the development.

This decision was overturned by the Court of Appeal on 29th January 2010 ([2010] EWCA Civ 26). Collins J had referred to a previous Court of Appeal judgment in FSS v Arun DC [2006] EWCA Civ 1172, but without apparently appreciating that it established in clear terms that concealment of a development does not prevent the 4-year rule from running.

Richards LJ drew attention to the judgment of Sedley LJ in Arun. In agreeing that any enforcement action had to be taken within the four year time limit in section 171B(2), Sedley LJ had said this (at para 36):

"I can entirely understand the local planning authority's sense of frustration about this. Their planning department is not a police station, and the discovery that a person such as Mrs Brown has – not to put too fine a point on it – cheated on a conditional grant of permission, to the detriment of her neighbours and of planning control, may well be a matter of time and of chance. The ordinary ten-year period might well have been thought reasonable for such cases, but – in circumstances which Carnwath LJ's judgment illuminates – it is not what Parliament decided to provide."

Richards LJ said that it seemed to him that a similarly restrained approach was called for in the present case. The court should not be tempted to adopt a strained construction of the section in reaction to the deliberate deceit practised by the landowner or out of concern for the difficulties that such conduct creates for local planning authorities in enforcing planning control. The outcome should be the same as if, for example, there had been a genuine change of mind in the course of construction of a building for which planning permission had been obtained in good faith. The question is whether the situation, viewed objectively, is one for which the statute has provided a four-year time limit or a ten-year time limit. If it is considered that there should be a different outcome in a case of dishonesty or deliberate concealment, it is for Parliament to amend the legislation.

In conclusion, Richards LJ took the view that in this case there was a breach of planning control consisting in the change of use of the building to use as a single dwelling house, within section 171B(2). On that basis a 4-year time limit applied and the owner was entitled to the certificate of lawfulness of existing use for which he had applied.

He added this final comment:

If my analysis is correct, the lesson for local planning authorities is clear. When checking whether a building has been built in accordance with planning permission and is being used in accordance with the permitted use, they need to look carefully at the inside of the building and not just at the exterior. External appearances can be highly misleading, as this case shows, and authorities need to be alert to the possibility of deception. The legislation in its existing form is open to abuse. Whether it should be amended so as to prevent dishonest advantage being taken of the shorter time limit under section 171B(1) and (2) is, as I have said, a matter for Parliament.”

The case of Fidler, of course, turns on an entirely different point, namely whether removal of the straw bales that concealed the development was part and parcel of the development, so that the development could not be said to have been substantially completed (as per Sage) until the straw bales had been removed. It was this which the Inspector, and the Court at first instance, felt prevented the 4-year rule from operating in Mr Fidler's favour.