Listing the Abbey Road crossing

Cynical planning lawyers like me will have raised an eyebrow or two on hearing the news that the pedestrian crossing in Abbey Road, near the former EMI recording studios in St John’s Wood has been listed.

I have not seen any formal documentation, but reports seem to indicate that this is a listing under the 1990 Listed Buildings Act (as opposed to scheduling as an ancient monument). Apparently it has been put in Grade II.

At the risk of a Scrooge-like failure to enter into the seasonal joy that this news must bring to Beatles fans throughout the world, it did occur to me to wonder whether the listing is lawful or legally effective.

As the Planning Encyclopedia, points out, only a “building” may be listed. So I turned first to the definition of “building” in section 91. This refers us to the principal Act (the T&CPA 1990), where section 336 tells us that “building” includes any structure or erection, and any part of a building, as so defined. It is stretching the definition somewhat to apply it to the painted surface of a road, although the ‘Belisha’ beacons associated with the crossing would, in themselves, appear to come within the definition as a ‘structure or erection’, but that would not appear to be sufficient to enable the term “building” to be applied to the pedestrian crossing in its totality.

Even if this listing is not ultra vires (as it may well be), there must be considerable doubt as to the extent of the listing. What does the pedestrian crossing comprise exactly? The listing description may possibly answer this question. But in relation to the crossing itself, one obvious question is whether the listing extends only to the painted markings on the road, or whether it also includes the top layer of the road surface or the whole underlying structure of the road under the crossing. And does it extend to the ‘zig’zag’ markings at the approach to the crossing, and the area of road to which those markings relate?

Finally, just to throw an even bigger pebble into the pond, what exactly is the historical justification for listing the existing pedestrian crossing in its current location? It has been pointed out that at the time when the crossing was famously photographed in 1969 as the Beatles crossed and re-crossed Abbey Road, the crossing was in a different position altogether! So this is not the historic “building” to which the listing is apparently intended to relate. In any case, the road surface is bound to have been replaced more than once since 1969, and the road markings have probably been repainted and possibly changed in their details on several occasions (not to mention replacement of the ‘Belisha’ beacons), quite apart from the whole crossing being in an entirely different place now. So all these factors suggest that what is there now is not the historic “building” which the Secretary of State purports to have listed.

So - Bah! Humbug!

[Oh, and by the way, Merry Christmas!]

© MARTIN H GOODALL

A telecoms case

I have in the past been professionally involved in planning problems relating to phone boxes and the advertising material displayed in them. [Stop sniggering at the back! I’m not talking about that sort of advertising.] So I was interested to see the High Court judgment in Infocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin), in which judgment was given on 17 December. [As an aside, it is interesting to note that, although the phone boxes in question are in the City of London, and the Corporation of London was second defendant, this s.289 application was issued in the Birmingham District Registry and heard in Birmingham.]

The case raised two interesting points. First, on what date is a prior notification under Part 24 in the GPDO made where a fee cheque is forwarded to the LPA after the prior notification was sent electronically? Secondly, if the LPA (and subsequently an Inspector on appeal) have to determine whether approval should be given, what are the material considerations which may be taken into account and, in particular, is the actual or potential display of advertisements a material consideration in this context?

It is clear from the provisions of Part 24 that the 56-day period which an LPA has in which to respond to the prior notification begins on the date on which the LPA received the application. The first issue in the appeal to the court was whether, and if so, when an effective or valid application was received by the LPA, because it is from that point that time begins to run. Paragraph A.3.4(a) of Part 24 and paragraph 6(e) of Annex 1 to PPG 8 state that the application must be "accompanied" by the relevant fee. It does not seem that this has ever been interpreted literally, because, whilst it is possible to make an application online, it has not been possible until fairly recently for the fee to be paid online (and not all LPAs may yet offer this facility). So, as in this case, the fee often has to be paid separately, usually by means of a cheque sent through the post.

In this case, applications were made electronically via the LPA’s website in respect of seven telephone kiosks on Monday 23 February 2009 and a letter was sent that day by post enclosing the cheque. The Appellant therefore contended that the completed applications were received by the LPA on Wednesday 25 February 2009, and that the LPA accordingly had 56 days, until Tuesday 21 April 2009, to communicate its decision. However, the LPA seems to have had a reliable system for recording the date of receipt of incoming post, and this showed that the letter from the company dated 23 February 2009 enclosing the fee cheque for £3,350 was received on 3 March 2009, so that they had until about 28 April to deal with the matter. The Appellant, on the other hand, simply assumed that there had been delay in the LPA in processing the post upon receipt, which accounted for receipt of the cheque not being recorded until 3 March, particularly since another letter to the LPA also sent on 23 February had been date-stamped as having been received by the LPA on 24 February.

On 21 April, the Appellant informed the LPA that they would be installing the kiosks within 7 days of Friday 24 April 2009, as per the Opening Notices that were sent to the LPA on 21 February 2009. On or around Monday 27 April 2009, the Appellant received a letter from the LPA, dated 23 April 2009, advising the Appellant that prior approval had been refused. The reason for the refusal was that the size, design, appearance and position of the proposed kiosk would detract from the townscape by adding visual clutter to the street. In addition, the LPA believed that the proposed kiosks would be more prominent in the street as it was intended that advertisements would be placed on them. However, the Appellant took the view that the LPA was out of time in giving its decision, and so they went ahead and erected the kiosks between 24 April and 1 May and the LPA subsequently issued and served enforcement notices in respect of this development.

Reference was made in the judgment to the decision of the Court of Appeal in Murrell v SSCLG [2010] EWCA Civ 1367 on which I commented recently (see “Agricultural Permitted Development”, posted on 13 December 2010). In the present case, however, the burden of proof was on the appellant to show proof of the date of posting. If there had been evidence of that nature, it might have been open to the Inspector to conclude that the cheque was indeed received a day or so after 23 February (possibly relying, if appropriate, on Section 7 of the Interpretation Act 1978) and that any failure to register its receipt, or to "validate" the application, for another 10 days or so was simply the result of internal inertia within the LPA. If that had been the conclusion, then the Inspector would have been entitled to conclude (and indeed should have concluded) that the application was "received" in complete form at a much earlier date than the date of registration or "validation" of the application. However, having considered the material before him, the Inspector concluded that the LPA’s evidence satisfied him that the cheque was not received until 3 March. This was a finding of fact which could not be challenged.

Turning to the second issue, the Appellant challenged the Inspector’s approach to the deemed application under s.177. The Court of Appeal in Murrell had issued a timely reminder that in cases such as this it is important to recognise that, by virtue of the GPDO, the principle of development is already established. Whilst this is not quite the same as an outline planning permission, nevertheless, the two situations call for a broadly similar approach, and the analogy with outline planning permission has a real value in underlining the point that the assessment of siting, design and external appearance has to be made in a context where the principle of the development is not itself in issue.

The Inspector in the present case dismissed the appeals in two instances on grounds relating to the physical location of the kiosk, causing possible interruption to pedestrian flows, interruption of views, and the intrinsic appearance of the kiosk itself in the townscape, but he had also cited the display of advertisements as a significant reason for refusal in all seven appeals and had concluded that in every case the amount of advertising material on the kiosk intruded into its surroundings.

The Court decided that the Inspector in dealing with these appeals had in fact confined himself to issues of siting, design and external appearance without impinging on the principle of development. However, in relying on the visual effect of the display of advertisements on the kiosks, the Inspector had taken into account an immaterial consideration. The reason for this was that there is a separate and self-contained statutory code for the control of advertisements, which grants deemed consent for advertisements on telephone boxes. If an LPA wishes to prevent the display of such adverts it has the power to serve a discontinuance notice. In those circumstances, the Court did not consider that the existence of advertising material on a telephone kiosk which is otherwise sited appropriately in the planning context and has an intrinsically acceptable appearance is a material consideration in deciding whether prior approval should or should not be given to the erection of that kiosk.

The Court therefore quashed those five appeal decisions which depended solely on the display of advertisements as the reason for dismissing the appeals, but declined to quash the two appeal decisions where, although these were also rejected partly on this ground, the predominant reason was the siting of the kiosks.

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (3)

'CONCEALED' DEVELOPMENT

Resuming our leisurely stroll through the Bill, Clause 104 will insert three additional sections in the 1990 Act after Section 171B so as to provide extended time limits “for enforcing concealed breaches of planning control” [sic]. These three new sections introduce a complex and cumbersome procedure involving an application by the LPA to the magistrates’ court for a ‘planning enforcement order’.

This really is an appallingly convoluted piece of drafting. You won’t actually find a reference to concealment until you get to section 171BC. Having gone through all the procedural rigmarole and tortuous definitions in sections 171BA and 171BB (to which I shall return below), this section provides that a magistrates’ court may make a planning enforcement order in relation to an apparent breach of planning control only if the court is satisfied, on the balance of probabilities, that the actions of a person or persons have resulted in, or contributed to, full or partial concealment of the apparent breach of planning control or any of the matters constituting the apparent breach. What constitutes ‘concealment’ is not defined, and this is likely to be a fruitful area for legal challenges, especially where there is a dispute between the LPA and the developer as to whether there has actually been concealment as such (as distinct from a mere failure on the part of the LPA or others to notice the development), and whether or not this was due to someone’s actions. On the latter point, a person’s actions are to be taken to include representations made by the person, and inaction on the person’s part. The last of these would appear to be grossly unjust, and is likely to be the source of potentially serious difficulty.

Under section 171BA, a ‘planning enforcement order’ when issued by a magistrates’ court will give the LPA a year (which starts at the end of 22 days beginning with the day on which the court’s decision to make the order is given, unless an application is made to the magistrates to state a case for the opinion of the High Court, in which case it starts with the day on which those proceedings are finally determined or withdrawn) within which they can take enforcement action. So it simply extends the time in which an enforcement notice (or a breach of condition notice) can be served, even if the development would otherwise be or become immune under the 4-year rule or the 10-year rule.

Incidentally, there does not actually have to have been a breach of planning control. The LPA can apply to the magistrates where it simply ‘appears’ to them that there ‘may have been’ a breach of planning control. The issue of whether or not there has indeed been a breach of planning control will be a matter for the section 174 appeal.

Section 171BB deals with the procedure to be followed in connection with planning enforcement orders. An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the LPA to justify the application came to the authority’s knowledge. There will be no scope for disputes on this point; a certificate signed on behalf of the LPA, and stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, will be conclusive evidence of that fact. Furthermore, a certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved.

The LPA will be required to serve a copy of the application for an order on the owner and on the occupier of the land, and on any other person having an interest in the land which in the opinion of the authority would be materially affected by the taking of enforcement action in respect of the apparent breach. The persons entitled to appear before, and be heard by, the magistrates’ court will include the LPA, any person on whom a copy of the application was served and any other person having an interest in the land which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach.

Finally, section 171BC deals with the magistrates’ powers to make a planning enforcement order. As we have already seen, this is dependent on the court’s being satisfied that there has been concealment (as explained above), and they must also consider it just to make the order having regard to all the circumstances. The planning enforcement order when made must identify the apparent breach of planning control to which it relates, and state the date on which the court’s decision to make the order was given.

There are some consequential amendments to other sections of the 1990 Act. The most important of these concerns section 191 (relating to certificates of lawfulness of existing use or development). In future, in determining whether the time for taking enforcement action in respect of a matter has expired, that time is to be taken as not having expired if the time for applying for a planning enforcement order in relation to the matter has not expired, and an application has in fact been made for a planning enforcement order but has not been decided nor been withdrawn, or a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the one year period of the order (whether or not it has begun) has not expired.

There’s more to come on enforcement, so look out for the next posting on this subject.

© MARTIN H GOODALL

Affordable housing ruled out

The Court of Appeal has allowed an appeal against a decision in the High Court in which the Royal Borough of Kensington & Chelsea had succeeded in overturning an inspector’s appeal decision which had accepted that affordable housing should not be provided in a 9-flat luxury development. The developers had successfully argued before the inspector that the development would not go ahead if it had to include an element of affordable housing.

In Vannes KFT v. R B Kensington & Chelsea [2010] EWCA Civ 1466, in which judgment was handed down today [20 December], the Court restored the Inspector’s original decision. The issue of whether it was economically viable to make any provision for affordable housing at all was a principal important controversial issue at the inquiry. In his appeal decision, the inspector had noted that the appeal scheme was intended as a "high-end residential development that is aimed, either as one lot or as individual flats, at those very wealthy purchasers (often foreign nationals) who wish to locate in a relatively tightly-drawn area of central London where the supply of suitable property is limited…". He concluded that, given the nature of the proposed flats and the market at which they were aimed, the proposal would be "…in line with the aims of the London Plan to support London's development as ‘the main world city’".

The Inspector then considered the issue of affordable housing, whether provided either on-site or alternatively off-site. The affordable housing policy was triggered in this case because the site had a capacity for more than 10 homes. However, the inspector expressed some sympathy with the view that affordable housing might not sit easily with the type of housing proposed by the developer, although he was not convinced that the on-site provision of affordable housing would be impossible. The evidence at the Inquiry had centred on whether the appeal scheme would be sufficiently viable to support any provision of affordable housing, whether on or off-site.

There was a clear conflict of evidence between the two sides, using the ‘Three Dragons’ program (or ‘toolkit’) for assessing the viability of the scheme with an element of affordable housing. The inspector carefully analysed these figures, but noted that the toolkit analysis is not a policy requirement in determining affordable housing provision; the London Plan simply indicates that it is just "one mechanism that will help". Given the number of uncertain input values which the inspector had noted, the inability of the professional witnesses to reach agreement on them at the inquiry, and their significant cumulative value, he considered that, in this case, none of the ‘toolkit’ results was sufficiently robust to enable any significant weight to be attached to it in determining the provision of affordable housing that could be expected from the appeal proposal.

The appellant's position had been that, if affordable housing were to be a requirement, the appeal scheme would be unlikely to go ahead. In that case, no new residential development would result and the hotel building which it was proposed to convert to flats would either remain unused or the hotel use would be reinstated. Policy 3A.10 of The London Plan refers to the need to encourage rather than restrain residential development and to take account of the particular circumstances of the site, applying targets flexibly taking into account individual site costs and other scheme requirements. Having regard to all the circumstances, including the specialised nature of the area in which the building is situated and lack of reliance that could be placed on the ‘toolkit’ results, the inspector concluded that it would be unreasonable to require affordable housing provision in the case of the appeal proposal, and that in the circumstances there would be no conflict with the aim of policies in The London Plan to secure the maximum reasonable contribution to the provision of affordable housing.

At first instance, Sir Michael Harrison had concluded that in this case, the economic viability of providing any affordable housing on or off-site was undoubtedly a principal important controversial issue at the inquiry which the Inspector had to decide. In his view, the Inspector failed to determine it properly or at all. That was an error of law which vitiated the decision. The importance of deciding that issue was emphasised by the undisputed need for affordable housing and by the policy provisions relating to affordable housing. He therefore held that it was unlawful to grant planning permission without deciding the viability issue in those circumstances.

One of the criticisms levelled at the inspector’s decision (at first instance) had been that the Inspector had failed to grapple with the various input figures, but the Court of Appeal concluded that he had done so, in the sense that he understood the evidence that was put before him and he evaluated the reliability of the figures. The Court decided that the issue of economic viability of the development site was only a part of the relevant "principal important controversial issue". The Inspector was bound to evaluate the evidence on the input figures for use with the "Three Dragons" software. He did so. If the Inspector concluded that the input figures were unreliable and would lead to unreliable results, he was duty bound to say so. He did so. Therefore the Inspector did not err in law in deciding that he could not use any of the input figures to arrive at a conclusion on the economic viability of the proposed development, using the "Three Dragons" software.

Having concluded that it could not reliably be determined whether the proposed development would be economically viable, then it was reasonable for the Inspector also to conclude that he could not place any significant weight on the factor of economic viability when determining whether or not there should be a provision of affordable housing in the proposed development scheme. It was difficult to see what other weight could be placed on that factor in the circumstances. Questions of weight to be attached to a particular factor are a matter for the Inspector and not the court. Accordingly, the conclusion reached in the Inspector's Decision Letter did not disclose an error of law.

The LPA had argued that the view taken by the Inspector on the developer’s position at the Inquiry (that the development would not proceed if there had to be an element of affordable housing) must necessarily be dependent on the determination of the economic viability issue in the developer’s favour. That was because the developer’s position depended on their ‘toolkit’ input figures being correct. As the Inspector did not determine the issue of economic viability, it was argued, he did not properly take account of the developer’s stated position when reaching his overall conclusion that it would be unreasonable to require an affordable housing provision in the case of the appeal proposal. The judge at first instance had accepted this argument and concluded that insofar as the developer’s position was dependent on the issue of viability, the Inspector's failure to decide that issue would infect his reliance on the developer’s stated position.

However, the Court of Appeal did not read the Inspector's decision letter as a statement that depended on the Inspector’s having accepted the developer’s expert evidence about the input values or the result of the "Three Dragons" toolkit exercise. There was nothing to suggest that the developer’s position was dependent on such a conclusion. The decision letter merely expressed the obvious logical consequences if the scheme were not to go ahead; viz. there would be no new residential development and so the hotel site would remain unused or its hotel use would be reinstated.

The Inspector had referred to the policy considerations set out at Policy 3A.10 of the London Plan, and expressed his conclusion on the "principal important controversial issue" as to whether there should be an affordable housing provision in the case of the appeal proposal. He stated that he had had regard to "all the circumstances". If (as the decision letter made clear), the developer’s position was not dependent on any finding by the Inspector on the correctness of its figures on input values, nor therefore upon its case on the development's economic viability, then Aikens LJ could not see how taking the developer’s stated position into account vitiated the Inspector's decision on the issue of whether there should be a requirement for affordable housing. When reaching his decision on that issue, the Inspector was entitled to take into account the stated position of the developer that if there was an affordable housing requirement, then the appeal scheme was unlikely to go ahead.

I can well understand the concern which has already been expressed about this Court of Appeal decision. There is a certain circularity in the argument which the Court seems to have accepted. The judgment would appear to suggest that a developer has only to assert that he will not go ahead with a proposed residential development if forced to include an element of affordable housing (even off-site), and that may be enough to justify the decision-maker in taking that statement at face value (although not, of course, obliged to do so). It makes a nonsense of the widely accepted need for convincing objective evidence of viability if it is asserted that the requirement for affordable housing will prevent the proposed housing development from going ahead.

Oh the other hand, it does highlight a fundamental weakness in relying on a policy requirement for the provision of a proportion of affordable housing (particularly at the increased percentages now being demanded by some LPAs). The developer will ultimately take his own subjective view as to the viability of the project, and if he concludes that the requirement for affordable housing will reduce the profit on the scheme to less than what the developer would consider acceptable, then he may well decide not to proceed further but may simply keep the site in his land bank in the hope of securing a better deal at some date in the future. This could have the effect of both reducing the overall amount of housing actually built and also limiting the actual availability of affordable housing. It is a conundrum that planning authorities would do well to ponder.

My own view has always been that reliance on this method of securing the provision of affordable housing is misplaced, and that the only sure means of securing its provision is through publicly-funded social housing. Admittedly, the prospect of such provision is more remote than ever in the foreseeable future, and so the guerrilla warfare between LPAs and developers typified by this case is set to continue.

© MARTIN H GOODALL

Cala Homes - a further update

On 3 December, I reported that the Secretary of State was making an interlocutory application to lift the temporary stay on the notorious DCLG letter which still sought to make his intention to scrap regional strategies a material consideration in the determination of current applications and appeals. What I did not appreciate (and what I have not seen reported until today) was that there was a hearing on that application before Lindblom J that very day. At the end of the hearing the stay on the letter was lifted (subject to an undertaking from the Secretary of State). In a written judgment handed down yesterday (16 December) Lindblom J set out the reasons for the Order he made on 7 December.

The mystery of the gnomic ‘clarification’ from DCLG (and PINS) on which I commented on 7 December is now made clear. This was the clarification which the Secretary of State had undertaken to the Court that he would publish. I described it at the time as ‘walking on eggshells’, but did not appreciate that it was issued in light of the undertaking given to the Court and the consequent lifting of the stay. As I observed, it leaves considerable uncertainty as to whether or not the Secretary of State’s intention to abolish Regional Strategies should or should not be taken into account in partcular cases as a material consideration which might indicate that applications and appeals should be determined otherwise than in accordance with the Development Plan (which in many cases includes the still currently extant Regional Strategy).

I shall not attempt to summarise Lindblom J’s judgment, other than to note that the Secretary of State’s undertaking was clearly a significant factor in persuading the judge that the stay could now be lifted. It was, as he explained in his judgment, a question of the balance of convenience as to whether the stay ought or ought not to be maintained. Strong submissions had been made on both sides on this issue.

It is worth bearing in mind the judge’s words (having noted the Secretary of State’s acknowledgement to this effect in the course of the proceedings) that “while the present proceedings are alive, it would be open to a local planning authority to give no weight to the Secretary of State's statement and the Chief Planner's letter of 10 November 2010 and the Secretary of State's letter of 27 May 2010, or to defer its decision altogether until after judgment has been delivered. That acknowledgment is helpful as far as it goes. But authorities and inspectors must understand that the very materiality of the statement and letter of 10 November 2010 and of the letter of 27 May 2010, and not merely the weight they should carry, is at issue between Cala Homes and the Secretary of State, and that the present claim may result in the court holding the Secretary of State's actions to have been unlawful. Keeping that in mind, planning decision-makers will in the meantime have to consider how they should deal with the matters that come before them. This will be for them to resolve in every relevant case.”

The order made by Lindblom J on 7 December 2010, in terms agreed by the parties, accordingly set aside the stay, the Secretary of State having undertaken "to cause to be publicised forthwith on the websites of the Department for Communities and Local Government and of the Planning Inspectorate a statement" in the terms with which we are now familiar (even if we are still confused as to what it actually means or is intended to mean!).

It is understood that the substantive hearing in this action will take place in the week beginning 17 January.

[Update: See 7 Feb posting for the judgment.]

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (2)

RETROSPECTIVE PLANNING PERMISSION -
MULTIPLE APPLICATIONS AND APPEALS (continued)

We have not yet finished with Clause 103. It is clear from press statements from De-CLoG that the intention of this clause is to prevent the alleged exploitation of the planning system by gypsies and travellers through lodging multiple applications and appeals for the retention of unauthorised caravan sites. Whatever your view of that may be, the new Section 70C will be a catch-all provision which could well affect many other people who are genuinely attempting to defend their legitimate interests, and it is likely to work injustice for the reasons I explained in my previous post.

Clause 103 will also amend section 174 [in England only] by inserting a provision that an appeal may not be brought under Ground (a) (that planning permission ought to be granted) if the enforcement notice was issued after a related planning application had been made (i.e. in respect of the same matters as are specified in the enforcement notice as constituting a breach of planning control), but before the end of the 8-week period [or 13/16-week period as applicable] under section 78(2) in the case of that application [i.e. the time for appealing against a deemed refusal by reason of non-determination]. Corresponding amendments are proposed to section 177 (the deemed application for planning permission in enforcement notice appeals) and this change will also apply in Wales.

I must confess that I am at a loss to understand the perceived problem at which this amendment is aimed. Where related Section 78 and Section 174 appeals are lodged by the same appellant they are nearly always consolidated and determined together (or should be), so wherein lies the ‘evil’ in this situation? The intention seems to be to force appellants to choose in this situation between appealing the refusal of planning permission or relying instead on the Ground (a) appeal (or deemed application under section 177) in an appeal against the enforcement notice. The only purpose served by this change would appear to be to make a minor saving in administrative time and effort for PINS. Yet I have a nagging feeling that I have missed something here; no doubt it will all become clear in due course.

And we still haven’t got beyond discussing just one clause in the Bill! Clauses 104 to 106 will have to await another post.

© MARTIN H GOODALL

Localism Bill - Second Reading

The Leader of the House announced in Business Questions yesterday that the Second Reading debate on the Localism Bill will be held on Monday 17th January.

© MARTIN H GOOODALL

Localism Bill – Enforcement provisions (1)

Although there are only four clauses in the Bill dealing with Enforcement, they will make substantial changes to the existing legislation. Clause 103 will significantly reduce the scope for obtaining retrospective planning permission where an enforcement notice is in force. Clause 104 will insert some far-reaching provisions in the 1990 Act after Section 171B dealing with the time limits for enforcement action and, in particular, in cases where development has been concealed (no doubt prompted by the Welwyn-Hatfield and Fidler cases). Clause 105 will make a number of changes to the time limits for prosecutions and the penalties which can be imposed by the Courts. Finally, Clause 106 will introduce extensive changes to the remedies available in respect of the unauthorised display of advertisements.

RETROSPECTIVE PLANNING PERMISSION -
MULTIPLE APPLICATIONS AND APPEALS

Clause 103 will insert a new Section 70C in the 1990 Act, which will give local planning authorities the power to decline to determine retrospective applications if a grant of planning permission for the development would involve granting (whether in relation to the whole or any part of the land to which an enforcement notice relates) planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

This appears to me to be a very undesirable change, although the limited use which LPAs have made of their power under Section 70A to decline to entertain repeat applications may possibly indicate that the use of this new power could in practice be fairly selective. The power would clearly be discretionary, and one would expect circular guidance similar to that in Circular 14/91 advising LPAs not to use the power indiscriminately. The right of appeal under Section 78 would be excluded (in the same way as under Section 70A), but the LPA would have to observe the Wednesbury principles, and so such action on the part of the LPA would in principle be susceptible to judicial review. Nevertheless, this very limited (and somewhat expensive and uncertain) protection for the applicant is hardly adequate to prevent unfair treatment at the hands of an LPA.

No change is to be made to Section 180, so that if the LPA does decide to entertain the application, and permission is then granted, either by the Council or on appeal, the enforcement notice will still cease to have effect so far as inconsistent with that permission.

I frankly cannot see the need for the new Section 70C. If the LPA thinks that an application for retrospective planning permission in these circumstances is unacceptable, they already have the option of refusing that application. It seems perfectly reasonable that such a decision should then be capable of being appealed under Section 78. If it is unmeritorious, the appeal will be dismissed (and there is the possibility of an award of costs against an unreasonable appellant). However, a retrospective grant of planning permission could be the only way of resolving the type of anomalous position to which I have referred in previous posts where an enforcement notice has taken effect in circumstances in which no enforcement notice should have been served or in which it would have been quashed if there had been a timely appeal against it. I have already drawn attention to the injustice wrought by the preclusive provisions of Section 285, and this new provision could well compound such injustices.

I will deal with Clauses 104 to 106 in future posts.

© MARTIN H GOODALL

Localism Bill – the debate begins

Quite a few people have rushed forward in the queue to be first with their reactions to the Bill, but I propose to work through the text of the Bill more carefully before sounding off on particular issues. There are undoubtedly some real ‘nasties’ in the Bill, but then we have always known there would be.

Rather than tackling the Bill in the order in which the various provisions are presented, I propose to take first the Enforcement provisions, partly because it is an area in which I am frequently involved on a professional basis and also because it seems to me that the proposed changes are important and potentially damaging to the interest of those who have the misfortune to incur the displeasure of the planners. Another very controversial area is the whole subject of “Neighbourhood Planning”, and this too calls for close attention. It may be next week before I am in a position to set out my thoughts on these provisions, but they clearly merit careful examination before I attempt to do so.

Incidentally, expressions of relief that the Bill does not contain some of the proposals set out in the Tories’ pre-election ‘Green Paper’ (“Open Source Planning”) are somewhat premature. It was always clear that ideas such as third party rights of appeal against the grant of planning permission and the serious curtailment of the right to appeal against the refusal of planning permission would not be included in the current Bill. But that does not mean they have gone away. My understanding is that they are still on the agenda, and that the government intends to introduce them at a later date. Of course, there is always the hope that those ideas might still fall by the wayside, whether due to lack of parliamentary time to introduce further legislation later in the present parliament, or in light of difficulties encountered in implementing the ‘Localism Act’ when it eventually becomes law. At present, however, the threat to the appeals system contained in “Open Source Planning” is still there, albeit postponed for the time being.

© MARTIN H GOODALL

Localism Bill – an overview

A lot of attention has rightly focused on the changes which the Localism Bill will make to the planning system, but this is only one part of a very substantial piece of legislation which makes far reaching changes to local government and the way it operates. Nevertheless, in keeping with the brief I have set myself, I shall concentrate on those provisions in the Bill which deal with town and country planning, although I may take a look later at one or two other clauses which could have a peripheral effect on the operation of the planning system.

The section of the Bill primarily concerned with planning is Part 5. This comprises seven chapters, covering (1) Plans and strategies, (2) Community infrastructure levy, (3) Neighbourhood planning, (4) Consultation before applying for planning permission, (5) Enforcement, (6) Nationally significant infrastructure projects, and (7) Other planning matters. Important changes are also proposed in London, which has a section of the Bill to itself (Part 7), Chapter 2 of which provides for the setting up of Mayoral Development Corporations.

Part 5 of the Bill has to be read in conjunction with Schedules 8 to 13. These deal with (8) Consequential amendments flowing from the abolition of regional strategies, (9) Neighbourhood planning, (10) the process for making neighbourhood development orders, (11) Neighbourhood planning - community right to build orders, (12) Neighbourhood planning - consequential amendments, and (13) Infrastructure Planning Commission - transfer of functions to the Secretary of State.

The changes in London are supplemented by Schedules 20 to 23, comprising (20) Consequential amendments flowing from abolition of the London Development Agency, (21) Mayoral development corporations, (22) Consequential and other amendments related to Mayoral development corporations, and (23) minor and consequential amendments of the Greater London Authority Act 1999 in relation to the London Environment Strategy.

I propose to look at some of these provisions over the next few weeks.

© MARTIN H GOODALL

Frankenstein’s Monster

The “Decentralisation and Localism Bill” (now with its name shortened to just the “Localism Bill”) has at last been published, and manic cries can be heard coming from within DCLG’s Eland Street headquarters – “It’s alive! It’s alive!” (When reading these words, think either of Kenneth Williams in ‘Carry on Screaming’ or Gene Wilder in ‘Young Frankenstein’.)

As I expected, it is a truly massive document, which makes even the Secretary of State look quite slim by comparison. Someone predicted a few weeks ago that the Bill could have as many as 100 clauses; in fact it contains 207 clauses and 24 schedules and runs to 406 pages of text (printed in two volumes).

Those familiar with Mary Shelley’s novel will be aware that the real trouble began when the monster escaped from the laboratory and got out into the surrounding towns and countryside. That is what is worrying a lot of people involved in planning and development. It is the practical consequences of unleashing this Frankenstein’s Monster into the world that really scares us.

Meanwhile, one wonders how parliament is going to handle such an unwieldy Bill. I strongly suspect that discussion of large parts of the Bill may well end up being guillotined, which will lead to what are in any event controversial and possibly unworkable proposals passing into law without any proper scrutiny.

I don’t propose to rush into superficial comment on the Bill’s detailed contents. I will examine at my leisure those parts of the Bill which affect the planning system, and draw attention to particular points as they arise. There are bound to be second and third thoughts on the part of ministers and their advisers as the Bill wends its way through the parliamentary process, and some parts of the Bill may emerge in a form which differs significantly from this first draft.

So watch this space in the weeks and months to come.

© MARTIN H GOODALL

Localism Bill First Reading

After all the huffing and puffing of the last few weeks (and no-one can huff and puff like the Secretary of State), the “Decentralisation and Localism Bill” finally got its formal First Reading in the House of Commons at 6.00 p.m. today (Monday 13 December).

When asked by the Deputy Speaker what date is fixed for the Second Reading debate, I thought I heard the Secretary of State say “Tomorrow”, which considerably surprised me, particularly since the order of business for tomorrow (Tuesday 14 December) makes no mention of the Bill, and the House seems to have a full programme for the day already.

The opposition have asked, understandably, that all stages of what is undoubtedly an extremely important Bill should be taken on the floor of the House, but (again if I understood correctly what the Secretary of State said earlier in the afternoon) the government intends to send the Bill ‘upstairs’ i.e. to a Standing Committee, when it reaches the Committee Stage.

At the time of writing I have still not managed to clap eyes on the text of the Bill, but I am still hunting for it on various websites. It must be out there somewhere!

[14 Dec: I must be getting rusty on my parliamentary procedure. I did not mis-hear what Uncle Eric said. Hansard records: "Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 126) with explanatory notes (Bill 126-EN)", yet there is no mention in today's Commons Order Paper (14 Dec) of a second reading debate on this Bill. So is there some sort of fast-track procedure which dispenses with a Second Reading debate? When it comes to the point, I would not expect a second reading debate to be particularly enlightening - it just gives the politicians on both sides of the House the opportunity to exchange jibes about the need for the Bill, the purpose which it is intended to serve (more waffle from Uncle Eric) and so on. I propose to concentrate on the contents of the Bill when I have a chance to examine them in detail.]

[15 Dec: Notwithstanding Tuesday's announcement that the Second Reading of the Bill would be "tomorrow" (i.e. 14 December), the timetable for the Bill on the House of Commons website makes it clear that no date has yet been fixed for the Second Reading debate. As I previously expected, this means that in practice it is unlikely to be until some time after the Christmas/New Year recess.]

[17 Dec: The Leader of the House announced in Business Questions yesterday that the Second Reading debate on the Localism Bill will be held on Monday 17th January.]



© MARTIN H GOODALL

Another case on reasons

Some topics keep on coming up in the Courts. One of these is the requirement for a local planning authority to give a summary of its reasons for granting planning permission. I have commented on several previous cases which deal with this issue.

The most recent is the Court of Appeal decision in R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286. This was a case involving a site in the Green Belt. The appellant seeking to quash a grant of planning permissions by the Council is a local resident, who, together with other local residents, objected to the proposed development. The planning officer's report had recommended that planning permission should be granted, explaining that the application had been referred to the relevant subcommittee by officers "due to the sensitive nature of the proposal in the Green Belt". The officers’ report stated (among other things) that "It is appreciated that this application is a departure from green belt policy but hope that weight is given to the efforts the business has made to find more suitable land / premises and the need for this business to be retained in this area for the reasons outlined." The officers conceded that “The proposal is without question inappropriate development in the Green Belt. UDP policy D8 states that such development will not be granted in the Green Belt unless very special circumstances can be demonstrated by the applicant. This is reflected in PPG 2 which states that very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

The officers’ recommendation was accepted and the sub-committee granted planning permission. The decision notice said that: "The applicant has demonstrated the specialist nature of his operation, the operational requirements of customers, the difficulties of remaining in his present location and the lack of other suitable alternative sites all of which are considered to comprise very special circumstances to justify this inappropriate development in the Green Belt. Further the design and materials would not be harmful to the character of the area nor would the use be harmful to road safety."

One limb of the legal challenge related to ‘very special reasons’ justifying a grant of planning permission for inappropriate development (as defined by PPG2) in the Green Belt. However, the challenge on this ground failed.

The other limb of the challenge related to the adequacy of the summary reasons given for granting planning permission. However the Court of Appeal was careful to distinguish between the reasons which the Secretary of State must explain in determining a called-in application or a planning appeal compared with the summary reasons for the grant of planning permission required by Art 22 of the GDPO (now Art. 31 of the DMPO).

In the view of the Court, against the background of the officer's report, it was not in the least surprising that the summary reasons for granting planning permission did not repeat the appropriate test (which had been fully and correctly set out in the officers’ report) or refer to PPG 2 but simply referred to the fact that, in the members' view, the applicant for planning permission had demonstrated the existence of four factors which comprised "very special circumstances to justify the inappropriate development in the Green Belt". Had the summary reasons merely stated that the applicant had demonstrated the existence of the four factors, there might have been some support for the appellants’ contention that the members had merely considered whether those factors had been established and had not gone on to consider whether they were very special circumstances which clearly outweighed the harm done by reason of inappropriate development in the Green Belt or that, if they did go on to consider that question, it was not sufficiently clear from the summary reasons that they had done so. But the summary reasons did not stop there. They made it clear that the members considered that those four factors comprised "very special circumstances to justify this inappropriate development in the Green Belt".

There was no force in the appellant's submission that the summary reasons did not explain why the four factors amounting to very special circumstances outweighed the objection to inappropriate development in the Green Belt. This was a summary. In that summary the respondent was not required to give reasons for reasons. Indeed it was difficult to see what more could sensibly have been said. Provided the four factors were capable of amounting to very special circumstances clearly outweighing the harm caused by inappropriate development in the Green Belt, the question for the members was: did they or did they not clearly outweigh that harm? The conclusion that they did sufficiently explained, particularly in summary form, why planning permission was granted. Further analysis in the summary reasons was not required.

It is perhaps surprising that the cases on which I commented in previous posts some time ago were not referred to in the judgment. However, this judgment affirms the general approach of the courts which is not unduly demanding as to the summary of reasons required to comply with what is now Art. 31 of the DMPO.

© MARTIN H GOODALL

Proceeds of crime again

I drew attention some time ago to the decision of the Court of Appeal in Basso & anor v. R. [2010] EWCA Crim 1119 confirming the power of the Crown Court to make confiscation orders under the Proceeds of Crime Act 2004 in planning enforcement cases. (See "Another weapon in the enforcement armoury" posted on 1 June 2010.)

At the time, I was not aware of another case in which a local planning authority had successfully applied for a confiscation order earlier in the year. In this case, Hounslow LBC used the powers available under POCA to recover money earned by Kuldeep Singh Deol from the illegal conversion of two residential properties into flats.

Mr Deol had without planning permission converted a single dwelling into four self contained flats, and the dwelling next-door into three self contained flats. In addition, he had built an unauthorised rear extension at one of the properties and an unauthorised front extension at the other. Planning permission to continue using the two properties as seven flats was refused by the council in February 2005. Following this, four separate enforcement notices were served in relation to these changes of use and the unauthorised operational development. The notices required the cessation of the use of the properties as separate flats and the removal of the unauthorised extensions. Mr Deol eventually pleaded guilty to failure to comply with the enforcement notices at Kingston Magistrates Court on 10 November 2008.

The case was presumably sent up to the Crown Court for sentence. (Magistrates Courts do not have the power to make a confiscation order under POCA.) On 21 January 2010 the case came before HH Judge Barnes at Kingston Crown Court, when the Council sought a confiscation order in respect of the proceeds of the crime. (See my previous post on 1 June 2010 for details of the applicable rules.) The judge found that Mr Deol had financially benefitted from his offences in the sum of £186,680 and a confiscation order was made for that amount. Mr Deol was fined £750 for the offences and was also ordered to pay £2,000 towards the council’s costs. It is understood that Mr Deol has now complied with the enforcement notices.

© MARTIN H GOODALL

Agricultural permitted development

One of the traps for unwary planning officers is the time limit within which a local planning authority must respond to prior notification of development which is PD but over which the LPA has a potential measure of control under the GPDO. The best known cases of failure to respond in time are those which relate to telecommunications development, but a similar elephant trap awaits planning officers in relation to agricultural PD under Part 6. A recent case which illustrates the problem is the Court of Appeal decision in Murrell v. SSCLG [2010] EWCA Civ 1367 in which judgment was given on 3 December.

The appellants proposed to erect a cattle shelter on their farm, which was permitted development within Class A of Part 6. As required by the GPDO, the appellants applied to the LPA for a determination as to whether the prior approval of the authority would be required to the siting, design and external appearance of the building. The council determined that prior approval was needed and in the same decision it refused approval. An appeal against that refusal was dismissed and an application to the High Court under s.288 also failed. The matter then came before the Court of Appeal.

The main issue was whether the council's determination was made more than 28 days from the date of receipt of a valid application (the period specified in the GPDO), with the consequence that deemed permission for the development became automatic on the expiry of the 28 day period, so that the subsequent refusal of prior approval was of no legal effect.

The notice to the Council applying for a determination as to whether prior approval would be required in respect of the erection of the cattle shelter was dated 28 November 2008. The application form was date-stamped as received by the council on 1 December 2008. Receipt of the fee was noted in manuscript on the top of the form, but on the same day the council wrote to the appellants, stating that the application was invalid because it was on a superseded form and did not contain the necessary number of copies of the drawings. The letter did nevertheless assign an application number to the application.

In response to the Council’s letter, the appellants completed an application in the new form together with the requested elevations and plans and the requested number of copies. The new form was dated 4 December 2008 and was date-stamped as received by the council on 9 December. The form was endorsed on receipt by the council with the application number given in the letter of 1 December. It was also endorsed with a manuscript note referring to the payment of the fee of £70 on 1 December. The council acknowledged receipt of the new form by letter dated 9 December 2008. The letter gave the application number assigned on 1 December and stated that the application was validated on 09/12/2008, and that every effort would be made to reach a decision within the statutory 28-day period which (the letter said) would expire on 5 January 2009.

The statutory period (in accordance with paragraph A2(2)(cc) of Part 6) ends on "the expiry of 28 days following the date on which the application was received". If a valid application was made on 1 December 2008, the period expired on 29 December. The appellants heard nothing further until they received a written determination dated 31 December 2008, by which the council decided that prior approval was required and that such approval was refused, on the ground that the proposed development did not comply with a number of planning policies referred to in the determination. One of the points noted in the course of the determination was that no detailed landscaping scheme had been provided.

The appellants appealed against the council's decision on the grounds that (1) the council had not made a determination as to the need for prior approval within the statutory 28-day period and permission for the development was therefore granted within the terms of the GPDO; (2) the appellants had been given no opportunity to submit further details, in particular about landscaping, because the council had combined the decision that prior approval was needed with the decision refusing it [a point which was not subsequently pursued in the courts]; and (3) the proposed development was consistent with the relevant policies and approval should be granted.

On appeal, the Inspector accepted that use of the new standard form was not required for prior approval applications but considered that "the Council needed sufficient details to judge the design, siting and appearance of the proposed building" and had acted reasonably in requesting the additional information referred to in the letter of 1 December. She was not persuaded that it was impermissible for the council to combine in one decision its determination that prior approval was required and its refusal of approval. She observed that there had been nothing to prevent landscaping details being submitted at any time before the council made its decision. The Inspector also dismissed the appeal on the substantive ground that the development was visually unacceptable in the proposed location.

The subsequent application to the High Court failed on the substantive ground, because the judge at first instance felt that the Inspector had adequately dealt with the planning merits. He dismissed the procedural challenge (relating to the 28-day period) on the basis that it was ‘technical’.

The Court of Appeal found that the appellants' case on the procedural issue was perfectly straightforward, namely that the application received by the council on 1 December 2008 met the requirements in paragraph A2(2)(ii) and was a valid application. The council had not been entitled to require the completion of the new standard form or the submission of further material before treating the application as valid; the 28 day period specified in paragraph A2(2)(iii)(cc) therefore expired on 29 December; and the permission granted by the GPDO accrued or crystallised on the expiry of that period without a determination having been made or notified.

The Court of Appeal accepted this submission. The original application received on 1 December complied with the statutory requirements and was a valid application. The statutory 28-day period for consideration of the need for prior approval ran from that date. The mistakes made by the council in the handling of the application, and the fact that the appellants submitted a new form and further plans in accordance with the council's request, did not stop the clock running or otherwise affect the position. On the expiry of the statutory period, on 28 December, permission for the development accrued under the GPDO. The council's determination of 31 December came too late to have any legal effect.

This is a point that LPAs would do well to take on board. The prior approval procedure for Class A permitted development, as set out in paragraph A2(2) and explained in Annex E to PPG7 requires the minimum of formalities and should be simple to operate. The application for determination as to whether prior approval is required does not need to be in any particular form and does not need to be accompanied by anything more than a written description of the proposed development and of the materials to be used and a plan indicating the site, together with the required fee (see paragraph A2(2)(i) and (ii)). In practice the Court felt it would be advisable to use an up-to-date standard form and to provide the information referred to in the standard form, because that will facilitate the council's consideration of whether prior approval is needed and, if so, whether it should be given, and will minimise the need for the provision of further information at a later stage. It is not, however, mandatory to use the standard form or to provide any information beyond that specified in paragraph A2(2)(ii).

When an application is submitted, it engages a two-stage process, the nature of which is set out clearly in Annex E (see, in particular, paragraphs E12-E20). The first stage involves consideration of whether prior approval is required. If the council determines that it is not required, it should notify the applicant accordingly. If it determines that prior approval is required and notifies the applicant of the decision, it moves into the second stage, in which it has 8 weeks or such longer period as may be agreed in writing to decide whether to give approval (see article 21 of the Town and Country Planning (General Development Procedure) Order 1995, which applied to applications for approval other than those under Part 24 of Schedule 2 to the GPDO; now replaced by article 30 of the Town and Country Planning (Development Management Procedure) (England) Order 2010). The existence of a discrete second stage is underlined by the requirement in paragraph A2(2)(iv) as to the display of a site notice where the local planning authority has given notice that prior approval is required.

The council can request further details at any time, though Annex E appears to contemplate that they will generally be called for only at the second stage, after it has been determined that prior approval is required. The appellants' original application received on 1 December clearly complied with the requirements of the GPDO and was a valid application. Each of the points made in the council's letter of 1 December was a bad one. The GPDO does not require an application to be accompanied by proposed elevations or a block plan. It does require a location plan, although a location plan was in fact provided with the application. It does not require multiple copies of any documents. Since use of the new standard application form is not mandatory, the council was mistaken in stating that these were the only forms they could accept and in requesting the appellants to complete and return, in quadruplicate, the new standard form. Accordingly, the council's assertion that the application was invalid was wrong in law.

Since the application was valid, the 28 day period referred to in paragraph A2(2)(iii)(cc) began to run on 1 December, despite the council's assertion to the contrary. The Secretary of State sought to rely on the absence of any challenge at the time to the council's "decision" that the application was invalid. The GPDO, however, does not make the running of time dependent on a decision by the local planning authority to accept an application as valid. Whether there was a valid application or not is an objective question of law.

Nor was the running of time affected by the fact that the appellants complied with the council's request to submit the new forms and further information. The submission of that material did not constitute a fresh application superseding or amounting to an implied withdrawal of the original application. The new form was given the same application number as that assigned on 1 December to the original application. No further fee was paid; the new form was endorsed with a reference to the fee received with the original application. Nothing was said by the appellants to suggest that they were withdrawing the original application or that the new form superseded it. They simply sent to the council the further material requested. It was the decision of the council alone to treat the receipt of that further material on 9 December as the point at which a valid application was made and time began to run.

The judge at first instance had said that the council was entitled to ask for the additional material it requested in the letter of 1 December and that this had the effect of stopping the clock. The Court of Appeal agreed that the council was entitled to ask for further information. It was not, however, entitled to refuse to treat the application as a valid application until that further information was received. The clock carried on ticking from 1 December until the expiry of the statutory period on 29 December.

The appeal decision was quashed, and on redetermination it must clearly be allowed on the procedural ground. The appeal on the actual planning issue clearly does not fall to be determined. In point of fact, it seems to me that the appellants might have saved themselves the time and trouble of taking this case to appeal and then on to the High Court and Court of Appeal by simply proceeding with the development after the expiry of the 28-day period. This would admittedly have been a high risk strategy in the circumstances but, armed with this Court of Appeal judgment, that is precisely what a farmer faced with this situation in the future might best be advised to do.

© MARTIN H GOODALL

Overriding an enforcement notice

There are two ramifications of the law on enforcement notices which seem to be imperfectly understood by planning officers. The first is the effect of under-enforcement, which is governed by Section 173(11), and on which I have commented on at least two previous occasions in this blog. The second is the operation of Section 180, which provides that where, after the service of an enforcement notice planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as is inconsistent with that permission.

It seems that Wandsworth LBC failed to understand the effect of this provision when they decided to use their powers under Section 178 to take action in default of the owners of a property not complying with an enforcement notice. The resulting dispute came before the High Court in Rapose v. Wandsworth LBC [2010] EWHC 3126 (Admin) in which judgment was given by Lindblom J on 3 December.

The enforcement notice had alleged the erection of a three-storey side extension and required the removal of the extension and all materials from the property and the restoration of the property to its condition before the breach took place. Having lost an appeal against the notice and having also failed to have the appeal decision quashed in High Court proceedings, Mr. Rapose then applied for planning permission for the redevelopment of the site to provide a three-storey building on an enlarged site comprising a restaurant and six residential units.

Planning permission was granted, but it seems that the Council’s decision to permit the unauthorised extension at the rear of the property was made (or intended to be made) on the basis that it was to be incorporated as part of a comprehensive redevelopment of the larger site, so that the reasons for the enforcement action to secure its removal were largely overcome. The enforcement notice was subsequently put on hold because this planning consent (if actioned) would have permitted the extension to remain as part of the comprehensive development of the larger site. However, the Council now claimed that the planning consent could no longer be actioned because of the compulsory acquisition of the other part of the site by the Council and so the extension must now be taken down.

The Council therefore resolved to use its powers under s.178 to secure the removal of the three-storey extension, apparently on the ground that the planning permission had not been implemented and that following the compulsory purchase of the remainder of the property it was no longer capable of being implemented. The Council’s position was that the application made by Mr Rapose, and the permission granted in June 2003, was significantly different from a scheme which might have been submitted to retain the unauthorised extension by itself. The June 2003 Permission only granted permission as an opportunity to regularise the position as part of a single comprehensive development of a larger site. The June 2003 Permission (they claimed) did not permit the freestanding retention or construction of the unauthorised extension at the property but only permitted development as part of a comprehensive scheme across a combination of three sites, which could no longer take place.

Lindblom J considered the case of Havering LBC v. SSE [1983] J.P.L. 240 in which Hodgson J. had held that a planning permission would be effective to override an enforcement notice, even though it did not go precisely to the matters covered by the enforcement notice and even though it contained conditions, as long as it covered the same area of land and the use permitted by the permission embraced the use enforced against. In that case, which concerned enforcement action against a material change of use and a planning permission which had been granted for effectively the same use, it had been submitted that what is now s.180 of the 1990 Act only applied where the planning permission was to do precisely that which was enforced against, and if the permission had conditions attached to it the section did not apply, at least to the extent that the conditions affected the use. Hodgson J. rejected that proposition and also held that the section plainly deals with the "granting", not the so-called "implementation", of planning permission, and so it is not possible to read it as meaning that the enforcement notice shall only cease to have effect when all the conditions in the permission have been complied with. In Cresswell and Cresswell v. Pearson (1998) 75 P. & C.R. the Divisional Court, endorsing the construction adopted by Hodgson J. in the Havering case, rejected the argument that an enforcement notice would merely be put into suspense while a temporary planning permission subsisted.

On the other hand, the effect of section 180 is not that the enforcement notice ceases to have effect altogether, but only that it ceases to have effect to the extent that its requirements are inconsistent with the subsequent grant of planning permission (see R. v. Chichester Justices, ex p. Chichester District Council (1990) 60 P. & C.R. 342).

In Lindblom J’s judgment, the main question to be considered here was not, as the Council appeared originally to contend, whether the 2003 planning permission did or did not permit the unauthorised extension to be retained on its own, but whether there were elements of development common to both the permission and the enforcement notice. As counsel for the developer submitted, if there is fabric which forms part of the development which the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. Conversely, however, the enforcement notice continues to be effective against so much of the fabric as is not approved by the planning permission.

The Council's resolution under challenge in these proceedings authorised direct action against the whole of the extension. It seems that, when it passed that resolution, the committee did not appreciate what the consequences of the operation of section 180 of the 1990 Act would be for its enforcement notice, given the grant of the 2003 permission. It was advised that the development in that permission had not been commenced (which was in fact irrelevant). This may have distracted the committee from examining the extent to which the originally unauthorised extension had been granted planning permission as part of the development approved by the 2003 planning permission. This failure in itself was sufficient to vitiate the Council's decision to proceed with action under sections 178 and 179 of the 1990 Act. The question of whether the enforcement notice was inconsistent with the planning permission, and the precise extent to which it was, were matters of fact and degree for the Council as local planning authority to determine, subject to review by the Court on normal public law principles, but there was enough in the material before the Court to demonstrate that such an exercise was not undertaken in this case. The Council's decision therefore had to be quashed.

© MARTIN H GOODALL

Flexible Help for Lawyers

As I have mentioned before, this blog was never intended to be a vehicle for advertising or marketing my professional services, but...........

It occurred to me recently that whilst I have explained my role as a consultant in Keystone Law (see “My Day Job” on the top bar) and have included a link to the firm’s website on the sidebar, I have not previously mentioned CONSULTANT LAWYERS DIRECT (CLD), with whom I am also a consultant.

CLD is a practice which offers its services exclusively to other law firms and to in-house legal teams. I am one of over 80 solicitors within CLD covering a very wide range of commercial legal practice.

CLD helps firms to plug gaps in their expertise (whether these are of a purely temporary nature or are simply areas of the law in which the firm does not normally practise) so that the client firm can improve profit and reduce risk by offering a full service.

CLD client firms have complete discretion as to how to present a CLD solicitor. For instance I could be presented as a regular member of that firm, an independent consultant or could simply work behind the scenes. All CLD solicitors have their own fully operational offices but, if preferred, they are available to work directly alongside the client firm’s team from that firm’s offices.

CLD does not look for any long-term contract or commitment. Instructions are accepted on a case-by-case basis. The intention is to provide flexible support for law firms (and equally for in-house legal teams) as and when required. This enables law firms to provide a service to their clients in fields in which that firm does not usually practise, so as to offer an extended professional service without disturbing existing client relationships.

I have now added a link on the sidebar to CLD’s website in addition to the Keystone Law website.

© MARTIN H GOODALL

Where is the Localism Bill?

Today (9 December) was the day the much-trumpeted “Decentralisation and Localism Bill” was finally expected to emerge from the bowels of the DCLG, but after several previously promised dates had passed by with no Bill, it seems that today will be yet another occasion when the Bill fails to make its promised appearance. Those clowns in DCLG, headed by Chief Clown, Eric Pickles (who you must admit looks the part), just don’t seem to be able to get their act (or should that be Act?) together, and are becoming the laughing stock of Whitehall.

When pressed about the failure of the Bill to appear on any of the successive promised dates, DCLG won’t admit that they had ever fixed a date, despite the fact that the previously expected dates for the Bill’s appearance had emanated from within the Department, and publication of the Bill before now was in the Department’s ‘Business Plan’.

The precise reasons for the Bill’s continued failure to put in an appearance has been the subject of much speculation and rumour. It has been suggested that there are some inter-departmental ‘issues’ within Whitehall over the Bill’s contents, with accusations of lack of consultation and secretiveness on the part of DCLG.

I would expect a Bill as important as this one to be introduced in the Commons but, as you will have seen from one of my earlier posts, there may be difficulty in fitting it into the government’s legislative timetable, which may result in its being introduced in the Lords. As I observed in that earlier post, starting such a controversial bill in the Lords would be tendentious, to put it mildly.

Whichever route the Bill takes on its parliamentary passage, it is going to be January at the earliest before a Second Reading debate can be arranged in either House (whichever is chosen). Someone from DCLG was glibly predicting a few months ago that the Bill would attain Royal Assent by Easter. I observed at the time that they were living in Cloud-Cuckoo-Land if they thought that this was even remotely possible. It was always going to take until nearly the end of 2011 before the Bill was finally passed, and with the continuing delay in its appearance, it looks as though even that might be over-optimistic, and that it could now be 2012 before it finally emerges as an Act.

What’s the betting that Uncle Eric won’t be the Secretary of State after Cameron’s first cabinet reshuffle? That is likely to be in the summer recess next year, unless the coalition falls apart in the interim (unlikely in my view – I think the Lib Dems have decided to hang together rather than be hanged singly). If I were the Prime Minister I would clear out the whole of the DCLG’s ministerial team and start again, even with the Bill still going through parliament.

[UPDATE: The First Reading of the "Decentralisation and Localism Bill" is now listed for next Monday's parliamentary business in the Commons (i.e. Monday 13 December). This is a purely formal step, involving no debate, not even a ministerial statement, although we can no doubt expect some political blather in a press release from DCLG timed to coincide with the formal introduction of the Bill. In the Commons on Monday, the Clerk will simply read the name of the Bill and it will be ordered to be printed. I can't remember off-hand whether the date of the Second Reading debate will be announced at this stage. The text of the Bill may not be published for a few more days, but it should appear later in the week.]

© MARTIN H GOODALL

More ‘guidance’ in light of the Cala Homes decision

PINS has issued further guidance in light of the High Court order staying the effect of DCLG’s letter reaffirming their intention to scrap Regional Strategies. (Interesting that this comes from PINS rather than CLG. Too much egg –on-face for ministers to issue their own statement?)

Referring to the High Court’s interim order that the Government’s intended revocation of Regional Strategies is not necessarily to be regarded as a material consideration in the determination of planning applications and appeals prior to actual revocation of those strategies, PINS reminds us that (pending the further hearing in the High Court, expected by the end of January) decision makers in LPAs and PINS will “need to consider whether the existence of the challenge and the basis of it, affects the significance and weight which they judge may be given to the Secretary of State’s statements and to the letter of the Chief Planner” in determining applications and appeals.

This is the civil service equivalent of walking on eggshells. They don’t want to upset ministers by asserting outright that the Secretary of State’s intentions are wholly immaterial, but they cannot ignore the High Court’s order staying the effect of the Chief Planner’s letter (which did assert that the intention to scrap RS ought to be treated as a material consideration).

This latest ‘clarification’ from PINS is in fact less clear than their earlier advice. It fails to remind everyone that adopted Regional Strategies remain part of the Development Plan and that decisions must therefore be made in accordance with that Regional Strategy (and other elements of the Development Plan), as required by s.38(6) of the 2004 Act, “unless material considerations indicate otherwise”. The materiality of the Secretary of State’s intention to scrap RS is a matter to be pondered by the decision-maker, and the weight (if any) they give to it is also a matter for them. That really is all the interim High Court order amounts to. It prevents the government from asserting that the Secretary of State’s intention must or should be treated as a material consideration, but leaves open the possibility that it still may be a material consideration, although the decision-maker may reasonably decide not to treat it as such or to give it very little weight in determining a particular application or appeal.

© MARTIN H GOODALL

Round 2 to Cala Homes

Cala Homes have obtained interlocutory relief in the High Court in their bid to prevent the Secretary of State from treating his intention to abolish Regional Strategies as a material consideration in the determination of current planning applications and appeals.

Cala’s renewed application to the High Court has been expedited and the Chief Planner’s letter (in which the Secretary of State’s intention to treat his intention to abolish RS as a material consideration was reiterated) has been stayed pending a full hearing.

This interlocutory ruling does not necessarily indicate the way the case will ultimately be decided, but it does have the effect of ensuring that, until that hearing, those Regional Strategies which have been formally adopted will remain in full force and effect, and the Secretary of State’s continuing determination to revoke them is not (for the time being) capable of being a material consideration in those cases that are about to be determined.

So Regional Strategies, where adopted, remain an integral part of the Development Plan and decisions must be made in accordance with that plan (in accordance with Section 38(6) of the 2004 Act) unless material considerations – which cannot now include the forthcoming abolition of the Regional Strategy – indicate otherwise.

No doubt everyone will await the third and final round of this litigation (the substantive hearing in the High Court) with great interest.

Update (3 Dec): Apparently, Uncle Eric isn’t happy with the interlocutory Order made by the High Court staying the effect of the letter from his Department which sought to make his intention to scrap regional strategies a material consideration in the determination of current applications and appeals. So the government’s lawyers are now trying to get the stay removed. Initial indications had been that the substantive hearing in the High Court might be later this month, but latest indications are that it will not now take place until some time in the New Year. I don’t know whether the Department will be seeking an interlocutory hearing in the meantime on their application to lift the temporary stay on the infamous letter, but no doubt that will become clear in the near future.

© MARTIN H GOODALL

Could PINS be swamped by the IPC?

Rumours have reached my ears that there is concern within PINS that in subsuming the Infrastructure Planning Commission, which is intended to become PINS’ ‘Major Infrastructure Planning Unit’, the Inspectorate is being asked to absorb and digest an organisation which is somewhat larger than itself. At the very least this has major implications in management terms, but the fear is that it might turn out in practice to be a reverse take-over, whereby the enlarged Planning Inspectorate is in effect the IPC with PINS bolted on as an adjunct, even though the new organisation still bears the PINS name.

Like so many other changes proposed by the present government, the merger of the IPC with PINS will require legislation (expected to be incorporated in the ‘Localism Bill’) amending the 2008 Act and bringing about the merger. Only time will tell whether the fears currently emanating from within PINS will prove to be justified.

A longer term threat to PINS and its current functions is contained in the Conservatives’ pre-election ‘Green Paper’ (“Open Source Planning”) which seems to envisage the abrogation of the current right to appeal against the refusal of planning permission, and to replace it with what amounts to no more than a desk-based review to check that correct procedure was followed in assessing the application, and that the decision reached is not in contravention of the local plan. The suggestion is that the first of these issues would be dealt with not by PINS but by the Local Government Ombudsman, leaving PINS to deal solely with appeals concerning ‘correct’ application of the local plan. So far as I am aware, this proposal does not seem to feature in the expected contents of the imminent ‘Localism Bill’, but we cannot be sure about this until the draft bill emerges.

PINS (“The Planning and Housing Inspectorate” to give it its full official title) celebrated its centenary last year, having been set up under the 1909 Act. It looks as though its days may now be numbered, at least in the form in which it has existed for the past hundred years and that it may survive in name only, with its functions radically altered.

© MARTIN H GOODALL

More mobile advertisements

Shortly after the Tile Wise case about advertising on a vehicle (on which I commented on 21 October), the Divisional Court heard another appeal by way of case stated on precisely the same point. This time the appeal was by the prosecutor against the dismissal by magistrates of a prosecution alleging several offences involving the display of mobile advertisements on a farm, so as to be readily visible from the M62. This was the case of Calderdale MBC v. Windy Bank Dairy Farm Ltd and Steve Quinn [2010] EWHC 2929 (Admin). On 12 November, the Court gave its reasons for dismissing this appeal and upholding the acquittal of the defendants by the magistrates.

It is fair to say that this case turned primarily on the factual evidence or, to be precise, on the inadequacy of that evidence. The magistrates had concluded that they could not be satisfied beyond reasonable doubt that the offences as charged had actually been committed. The High Court could find no grounds for saying that this was a conclusion which no reasonable bench of magistrates could reach on the facts before them, and so the prosecutor’s appeal must necessarily fail.

The magistrates had received evidence of several visits made by the LPA’s staff who had taken photographs of the number, type and position of several vans and lorry trailers on the land, adjacent to the M62 motorway. The dates of the taking of these photographs were stated as 20 October 2006, 9, 13 and 31 March 2009, and 13 and 22 June 2009. On cross-examination, the Applicant's main witness accepted that there had been no measurements taken of the precise position of the vehicles, nor any notes made of licence plate numbers or trailer markings. The magistrates were not therefore satisfied beyond a reasonable doubt that these vehicles had not been moved between the various visits undertaken by the witness.

The witness further stated that in his view at least in respect of one vehicle the wheels were immobilised, such that it could not be considered to be a vehicle normally employed as a moving vehicle, but rather one that could not be used for any other principal purpose other than advertising, as it was in effect static. In cross-examination, he accepted that he did not have any engineering or mechanical qualifications to hold this view nor could he be certain of his view. The magistrates did not find this to be evidence upon which they could rely to the required standard.

The magistrates upon considering the photographs produced found as a fact that the vehicles and trailers were not the same ones shown in the pictures on all the dates on which they had been taken. In all the photographs there was a 40-foot trailer, but in the earlier photographs it appeared to be white whereas in later ones it was blue. In other photographs, some of the vehicles and trailers were clearly different.

The prosecuting authority provided no evidence upon which the magistrates could make a finding of fact as to whether the 40-foot trailer had or had not been moved during the period of time covering the charges before the Court. Against this, the second defendant when giving his evidence produced documents, which were not successfully challenged, detailing a trailer being exchanged with another from its Shrewsbury base.

The magistrates’ conclusion was that, on the balance of probabilities, both defendants had satisfied the requirements of the exemption from the requirement to obtain consent for the display of the advertisements on the side of the lorries and trailers. They accordingly dismissed the prosecutions.

Although counsel for the appellant prosecutor sought to rely on the decision in Tile Wise, it is clear that the case in Calderdale did not turn on the interpretation of the exemption in the first schedule to the Control of Advertisements Regulations (as it did in Tile Wise); it simply came down to a question of fact and degree. The prosecuting authority had simply failed to prove its case on the facts. The magistrates were therefore entitled to dismiss the prosecutions.

This case may serve to explain why so few prosecutions seem to be brought by LPAs against this type of unauthorised advertising. It is clear that in order to be sure that a conviction will be secured, the LPA will have to be very thorough in gathering its evidence, and must be able to prove that where the photographic or other evidence covers two or more different dates, that evidence does refer to one and the same vehicle, and that if the charges relate to a period of time during which the display of advertisements is alleged to have continued, the vehicle was not moved within that time. This may place an almost impossible burden on LPA enforcement staff seeking to prosecute this type of infringement, but it does underline the fact that prosecutors must prove their case in the Magistrates’ Court or the Crown Court beyond reasonable doubt.

© MARTIN H GOODALL

Concealed development still on the agenda

Readers will no doubt recall the two cases which arose from the concealment of development which it was then claimed had become lawful under the four-year rule. In Welwyn-Hatfield, the Court of Appeal, applying the clear ruling in FSS v Arun DC [2006] EWCA Civ 1172, held that the deliberate concealment of the development did not prevent the four-year rule from operating. In the case of Fidler, the High Court upheld an Inspector’s decision that the concealed development had not been substantially completed (in accordance with the criterion laid down by the House of Lords in Sage) until the straw bales hiding the development were removed. The straw bales, and their subsequent removal, were regarded by the Inspector (and apparently by the High Court) as being an integral part of the development.

Both decisions are the subject of further appeals. I understand that the Supreme Court is likely to hear the appeal in Welwyn-Hatfield some time next term (i.e. between Christmas and Easter). The appeal in Fidler is due for hearing in the Court of Appeal, but so far as I am aware no date has been set, and it is impossible to estimate when that appeal may come on.

So it looks as though we may have to wait a while longer before we get a definitive answer on the issues arising from these two cases. For what it’s worth, I think the Court of Appeal got it right in Welwyn-Hatfield - one simply has to look at what the statute actually says. If this leads to what some may regard as an unsatisfactory result, it is for parliament to amend the legislation, and the courts ought not to concoct some strained interpretation in order to produce an expedient result.

As regards Fidler, I find it very difficult to understand how the removal of a free-standing pile of straw bales can be brought within the definition of operational development, although the thrust of the House of Lords decision in Sage was that one has to take into account the entirety of the project, rather than confining one’s consideration to those operations which actually constitute development. This view, however, differed markedly from the conclusion reached in that case both at first instance and in the Court of Appeal, and there must be some considerable remaining doubt as to how far the Sage doctrine can be taken, and in particular whether it can be said to include the removal of a physically separate pile of straw bales.

The so-called ‘Localism Bill’ will still be going through parliament at the relevant time, so there is a possibility of an amendment to the Bill being proposed to deal with these issues. The precedent represented by the rules on demolition, which were hurriedly shoved into what became the 1991 Act is not encouraging. A similarly ill-thought-out amendment made to the same Bill was the provision which then became Section 54A of the 1990 Act (now, in slightly amended form, Section 38(6) of the 2004 Act). So before anyone makes any hasty proposals to amend Section 171B, the implications of such a change, and the way it would work in practice need to be carefully thought through.

[UPDATE (14 December): The Localism Bill will make amendments to the 1990 Act which will introduce a procedure for taking enforcement action 'out of time' against development which has been concealed. See later posts in this blog dealing with the enforcement provisions in the Bill (in this case Clause 104).]

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More is less

Fellow planning professionals will no doubt be aware that the Welsh Assembly Government is consulting on proposed changes to householder permitted development rights in Wales. The consultation period runs until 15 Feb.

If you take at face value what the WAG says, they want to make a number of changes to allow “more improvements” and to clarify what permitted development householders can do. They claim that the proposed changes will:

• Allow householders freedom to make more improvements and alterations within their property without planning permission;
• Set conditions for some permitted development rights so developments are carried out in a way that minimises impact on others, and takes account of flood prevention measures; and
• Place more restrictions on permitted development within World Heritage Sites.

Stephen Ibbitson, who as you know from recent posts takes a close interest in PD issues, has pointed out to me that whilst the new draft Order 'tidies up' some of the mess in the English revision to Part 1 of the Second Schedule to the GPDO, the proposed new Welsh PD Order is most notable for how much MORE RESTRICTIVE it will be than the current order.

So the claim by the Welsh Assembly that the proposed changes will "allow householders freedom to make more improvements and alterations within their property without planning permission" represents either ignorance/stupidity or downright mendacity. The new Order would be even more restrictive that the English version and cannot but add to the number of applications for minor developments that householders will be obliged to make in Wales in the future.

Planning professionals in Wales should make strong representations to WAG about this. Maybe it would give us all a bit more work, but it cannot be in the interests of the wider public, nor will it assist administrative efficiency if planning departments are clogged up with a lot of householder applications for minor development. The whole idea of amending the GPDO was to avoid this. It takes a peculiar kind of bureaucratic genius to dream up a ‘simplification’ of the order which has precisely the opposite effect of what is purportedly intended.

© MARTIN H GOODALL

The future of the Community Infrastructure Levy

You are no doubt aware by now that the government has decided to retain CIL, but to amend some of the details. As a ‘stakeholder’, I have been privileged to receive a communication from DCLG drawing my attention to the recently amended notes on the CIL regime. I don’t flatter myself that anyone in “De-CLoG” (as I gather it is called by insiders) actually reads this blog or would take any notice of it if they did, so I assume this arises from my being registered as a professional user of the Planning Portal, and that other portal users got the same note.

The note acknowledges that the proposed changes will require primary legislation amending the provisions of the 2008 Act. This will be included in the ‘Localism Bill’, when it finally appears. This all-embracing bill seems likely to be of massive proportions – possibly even larger than the Secretary of State himself.

Until we see the Bill, it is still not entirely clear how the proposed changes will work. The note does not give any details as to the precise nature of the proposed changes to CIL. As provided in the 2008 Act, when CIL is fully in force there will be restrictions of the use of planning obligations under Section 106. Amended restrictions will take effect from April 2014, or earlier where a charging authority starts to charge the levy. Perhaps the most important point (already incorporated in the 2008 legislation and in the regulations) is that it will no longer be possible to demand developer contributions to fund infrastructure on a tariff basis through the medium of a Section 106 agreement. The intention is that CIL will be used in future as the mechanism for pooling contributions from a variety of new developments to fund infrastructure.

Planning obligations under Section 106 will continue to have a role, for example as the medium by which the provision of affordable housing will be secured, and for restricting the use or development of land where this would be a more effective method than a condition attached to a planning permission.

I confess that I did not find the new ‘overview’ of CIL particularly enlightening. (Admittedly I had been hoping that CIL would just go away.) Hopefully we shall all get to grips with it once practical implementation is under way, and when we know how the new Bill modifies the rules.

© MARTIN H GOODALL