Lawful implementation of planning permission – another case

Although I have written at length, both publicly and privately, on the issue of so-called ‘conditions precedent’ and the legal effect of a commencement of development without complying with such a condition, I have always taken the view that this issue has not yet been finally resolved, as indeed has proved to be the case, with further challenges coming before the courts on this issue.

The latest is the case of Greyfort Properties Ltd v. SSCLG [2010] EWHC 3455 (Admin), in which judgment was given in the High Court on 7 December 2010. This is a case which was drawn to my attention almost immediately after the Inspector’s decision letter was issued, and I felt at the time that the appellants might be tempted to take the matter to the High Court, as indeed they did.

As I understood the Inspector’s decision, this appeal finally turned on a condition which read - “Before any work is commenced on the site the ground floor levels of the building hereby permitted shall be agreed with the Local Planning Authority in writing”.

My own view, which I expressed privately at the time, was that this could arguably be a condition which went to the heart of the permission [a view which I understand the appellant in this case would dispute], but there is a second limb to Hart Aggregates, in which Sullivan J (as he then was) made it clear that to be a true 'condition precedent' the condition must also be expressly prohibitive, rather than merely requiring that something be done before the commencement of development.

The relevant passages of Sullivan J’s judgment read:

"57. ...........The 1990 Act draws a clear distinction between development without planning permission and development in breach of condition; see section 171(A)(1)(a) and (b). It is important that that distinction is not blurred by an indiscriminate use of the judge-made term 'condition precedent'."

"58. Going back to first principles, the starting point should be the proposition that there is no scope for implied conditions in a planning permission. If a local planning authority wishes to impose any obligation upon an applicant by way of a requirement or prohibition, it should do so in express terms, because failure to comply with the condition may, ultimately, lead to prosecution for failure to comply with a breach of condition notice and/or an enforcement notice; see sections 179 and 187(A) of the 1990 Act. The need for a local planning authority to spell out any requirement or prohibition in clear terms applies with particular force where the condition is said to prevent not merely some detail of the development, but the commencement of any development pursuant to the planning permission."

"62. In my judgment, the principle argued for by the defendant applies only where a condition expressly prohibits any development before a particular requirement, such as the approval of plans, has been met. Condition 10 is not such a condition. If it had been breached some 34 years ago, the effect of that breach would have been to render any restoration in breach of condition, and therefore unlawful. Other activities permitted by the 1971 permission, such as extraction, would not have been rendered unlawful."

[The italics and bold type are mine.] It is these passages (read together) which led me to the view that it is not sufficient by itself that a condition should "go to the heart of the permission" - it is a two-fold test; the condition must also be expressly prohibitive in its wording. Thus a condition which says "Before any work is commenced on the site [X shall be done]" cannot (even it goes to the heart of the permission) be a true condition precedent, whereas a condition which says "No work shall commence on the site [until X has been done]" will (provided it goes to the heart of the permission and is not simply concerned with a matter of detail) be a true condition precedent, failure to comply with which may render the whole development unlawful.

I could see a possible argument that the prohibition might not need to be so starkly prohibitive in its wording as I had proposed, but Sullivan J's words did seem to suggest the need for an express prohibition on the commencement of development without compliance with the condition.

Notwithstanding the apparent incompatibility of the Inspector’s decision with the judgment in Hart Aggregates, Mitting J upheld the Inspector’s dismissal of the appeal. The crucial passage in the judgment is:

[27] “There is in any event, in my judgment, no material difference between a condition which expressly prohibits development before a particular matter is approved and one which requires a particular matter to be approved before development commences. The effect is the same.”

However, this appears to me to directly contradict the view of Sullivan J in the passages in the Hart Aggregates judgment quoted above. It also seems to overlook the judgment in Bedford BC v. SSCLG [2008] EWHC 2304 (Admin), which followed Hart Aggregates. The appellant, I gather, would in fact deny that the condition in question could even be construed as one which ‘goes to the heart of the permission’, so that it is not a true condition precedent under either of the criteria laid down by Sullivan J in Hart Aggregates.

I understand that the appellant is seeking permission from the Court of Appeal to appeal the recent judgment, and without intending to imply any disrespect of the learned judge’s decision at first instance, I would rather expect that permission to appeal might be granted. That is not, however, to predict the outcome of a substantive appeal if the case does come to be heard by the Court of Appeal. We may yet get a definitive ruling from the Court of Appeal on this troublesome issue. I rather hope that Sullivan LJ might be one of the judges who hear the appeal.

© MARTIN H GOODALL

Misdescription of a listed building

An interesting little dispute over the listing of a house in Kent has reached the Court of Appeal, who gave judgment on 25 January. This was the case of Barratt v. Ashford BC [2011] EWCA Civ 27. Due to certain inaccuracies in the way in which a house was recorded on the statutory list of buildings of special architectural or historic interest, the Appellants sought to claim that their property was not in fact listed, so that they did not require Listed Building Consent for alterations they had carried out to the property. This claim failed in the County Court, and the appeal was unanimously dismissed by the Court of Appeal.

The name or address of the listed building was recorded on the statutory list as “High House Cottage, Corkscrew Lane”. There were several problems with this description. The name of the house had not at any time been “High House Cottage”; it has for many years been called “Hayes Cottage”. The building was stated to be in Corkscrew Lane, but there has never been a road of that name in the area. The correct name of the road has always been Ebony Road. The Appellants therefore claimed that their house was not included in the statutory list, because the name and address in the list was not the name and address of their house.

This problem was compounded by some apparent inaccuracies in the listing description ("Two storeys. Ground floor red brick. First floor tile hung. Tiled roof. Two casements"). Photographs show that the house has four casement windows on the front elevation alone, not two casements as stated in the listing description. The description made no mention at all of the distinctive architectural feature of the tiled, cat-slide roof at the back of the house. The Appellants relied on this as further evidence that the listing in the statutory list did not refer to their property.

On the other hand, the listing also contained references to "TQ92NW" and "13/422." These were references to the Ordnance Survey sheet for the area and to an annotated section of that sheet. The Appellants complained that these references were not explained in the listing itself and contended that they were not part of the official list. However, these references in the statutory list were clearly intend to refer to an annotated map on which the property was indicated by an arrow marked "422", and this is clearly the building referred to in the entry on the list, which the map shows is located in the same spot as the Appellants' house.

In the County Court, the O.S. map reference was the decisive factor which satisfied the Court that the entry in the statutory list was intended to refer to the Appellants’ property at Hayes Cottage, Ebony Lane (notwithstanding the anomalous verbal references and description) and that this property was and is duly included in the statutory list of buildings of special architectural or historic interest.

The Court of Appeal upheld the judgment at first instance. Although the common way of identifying a building is by its name and address, that is not the only way. Nothing in the 1990 Act expressly or impliedly precludes the list from using other sorts of identifying detail, such as verbal descriptions, map references, post-codes, explanatory notes, or even photographs. That sort of detail may be included in addition to a name or address and may, in appropriate circumstances, suffice to identify a building, even in the absence of the correct name and address.

In interpreting the statutory list, one should read the entirety of the entry in order to understand the ordinary and natural meaning of a document by reading it as a whole in the setting of its relevant surrounding circumstances. Sensible allowances can and should be made for the fact that in the real world more than one name may be commonly used to describe a building, a road or a place. Road names in rural areas sometimes change without precise or clear indications to the person trying to find the way along them. Names of buildings and places can undergo change over time. The name of a building in a list compiled 30 years ago may not stay the same and be the same as the name under which the building later changes ownership. It is obviously good administration to update the list entries from time to time to reflect change, but an effective listing would not cease to have effect simply because the owners changed the name of the building, or because the local administrative or highway authority decided to adopt a new name for a road or a place.

The Court of Appeal held that the local planning authority was entitled to rely on the map references in the list for the purpose of construing the list and identifying which building is listed. The inaccurate names in the list referring to High House Cottage, instead of Hayes Cottage, and to Corkscrew Lane instead of Ebony Road, did not render the listing ineffective if, read as a whole, the entry correctly identified the location of an actual building. A name in the list is not the only way to identify a building, any more that the name of a person is the only way to establish personal identity. The significance and effect of a map reference in the entry is not excluded, overridden or cancelled by the entry of the name of a building or the incorrect name of a building.

The entry on the statutory list must be read and interpreted by reference to all of its interconnected parts. Exclusive reliance on a correct name or address for a building would demand a degree of clarity and precision that does not reflect real life. The map references TQ 92 NW and 13/422 were included in the entry for a reason. Their obvious purpose is to identify a listed building by its location, whatever name it is given in the entry. Although the sheet and the annotated map are not reproduced in, or physically attached to, the list, they are incorporated into it by the references contained in the list. It is trite law that the contents of a document may be incorporated into another document in this cross-referential way. The maps referred to are publicly available for inspection. When read together with the rest of the entry and then interpreted as a whole, Item 422 pinpoints the exact location of the building bought by the Appellants as Hayes Cottage, Ebony Road. The annotated map Item 422 does not refer to any other building in the vicinity.

Furthermore, there was no substance in the point regarding the verbal misdescription of the Appellants' house, first because the building is identified on the annotated map, as incorporated by reference in the list, and, secondly, because, in any case, the verbal description, read as a whole, fits the Appellants' house.

One final point which sank the Appellants’ case was that, on the evidence, the misnomer of the building and of the road in the list did not in practice mislead the Appellants into believing that their house was unaffected by the Listed Buildings Act. The listing (albeit under the name “High House Cottage”) was disclosed in the Council’s responses to the normal Local Land Charges search prior to the Appellant’s purchase of the property, and when the Appellants applied for planning permission to extend the property in 2006, the Council made known to the Appellants its view as to the listed status of their house. Thus they were never at any stage ‘in the dark’ as to the possibility that the house might be (and was in fact) listed.

© MARTIN H GOODALL

Polytunnels decision vindicated

I commented on 2 August 2010 on the permission granted by the Court of Appeal for an appeal to be brought against the first instance decision in R (Wye Valley Action Association Ltd) v. Herefordshire Council (see “EIA for polytunnels”). Following a hearing in the Court of Appeal in November, judgment was delivered yesterday (26 January) - [2011] EWCA Civ 20 - and the first instance decision was overturned, thus restoring the local planning authority’s original decision.

It was not the visual impact of the development which was directly in point in this litigation, although there are many who think that the visual effect of such an extensive area of polytunnels does have a significantly damaging impact on the landscape in question. The case turned on the interpretation of the phrase “projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes” as used in the European directive on environmental impact assessment and in the corresponding UK regulations.

What was in dispute, therefore, was the Council’s screening opinion, determining that this was not a case in which EIA was required. The land in question was clearly not ‘uncultivated’, and the case turned on whether it could be described as ‘a semi-natural area’. The Court of Appeal drew attention to the relevant guidance note on the interpretation of these phrases issued by the European Commission and to corresponding guidance issued by Natural England, and placed particular reliance on the advice that “some semi-natural areas may have been subject to low levels of cultivation (e.g. some semi-natural hay meadows and wetland may have been subject to low levels of farmyard manure)”. The guidance note from Natural England gives further examples, including species-rich hay meadow (upland and lowland), unimproved grassland (including calcareous, acid and neutral grassland), coastal and floodplain grazing marsh, scrub consisting of self seeded wild shrubs and trees, fen, marsh and swamp, dwarf shrub heath (i.e. moorland and heathland), peat bogs, bracken, land above the tree-line (i.e. usually over 600 metres above sea-level) and standing water and canals.

The guidance note goes on to say that semi-natural areas are defined largely by the plants and wildlife they support (as detailed in Annex 1 to the note). Often they will not have been subject to active cultivation for many years. However, they may in the last 15 years have been subject to low levels of physical cultivation (e.g. chain harrowing may have caused some disturbance of soil, but there will not normally have been any sub-surface cultivation such as ploughing, discing or heavy harrowing), or to low levels of chemical cultivation (e.g. to replace nutrients lost through hay-cutting or water leaching, as often happens in the traditional management of semi-natural meadows and wetland). The Court of Appeal placed particular reliance on a statement in Annex 1 that "All 'Arable and Horticulture' and 'Built-up areas and gardens' are excluded from the semi-natural habitat definitions."

The primary question, therefore, was whether the Council correctly understood the meaning of the expression "uncultivated land or semi-natural areas". Richards LJ, giving the leading judgment, could see nothing to support the view that it misunderstood the expression or, therefore, that it fell into legal error at this stage of the analysis. The deputy judge (at first instance) considered that the Council erred in its screening opinion by relying only on the fact that the land was already cultivated, thereby failing to appreciate that land which has been the subject of cultivation can still be semi-natural. That was an unfairly narrow reading of the reasons given in the screening opinion. As Richards LJ read the screening opinion, the point being made, albeit in a compressed way, was that the extent of existing cultivation (with a mixture of arable and turf production) was such that the land did not come within the description "uncultivated land or semi-natural areas" in paragraph 1(a) of Schedule 2 to the regulations. This revealed no legal error concerning the meaning of the expression.

The Court went on to find that in applying the expression to the facts, the council reached a rational conclusion. The Court saw see no difficulty whatsoever in the view that the application site, consisting as it did of actively managed farmland already in use for the production of soft fruit, arable crops and turf in rotation, was neither uncultivated land nor a semi-natural area. Even if there had been any doubt on the point, it would be difficult to brand as irrational a view reached on an issue of this kind by council officials familiar with the site and the surrounding area.

© MARTIN H GOODALL

Curtilage confusion

If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).

In two separate cases recently, involving different authorities, I have had to deal with misunderstandings on the part of planning officers regarding the concept of a building’s ‘curtilage’. There seems to be a rather widespread ignorance of planning law in this regard.

The lawful use of a property (whatever it is) extends to the whole of the ‘planning unit’ (i.e. the unit of occupation, unless or until any part of it can be identified as being physically and functionally separate from the whole). With this one exception, the planning unit in the case of a single private dwellinghouse is undoubtedly the whole of the land occupied with the house, and the lawful use of the whole of that planning unit falls within Use Class C3 in the Use Classes Order (namely use as a single private dwellinghouse).

Where planning officers seem to get confused is in relation to the concept of the domestic ‘curtilage’. The first point which it is important to grasp is that the ‘curtilage’ (or the ‘residential curtilage’) of a property does not represent a use of land for planning purposes. You cannot change the use of land to use ‘as residential curtilage’. If land not forming part of the original planning unit is incorporated within that planning unit (for example, a house and the land enjoyed with it for domestic purposes), in other words if its use is changed from (say) agricultural use to domestic use, then that represents a material change of use of that land, but it makes no difference whether the area of land in question was incorporated in what can be described as the ‘residential curtilage’ of the house; what matters is whether it has been incorporated in the planning unit so as to change its use to domestic use.

The second point to bear in mind (as you may appreciate from what I have already written above) is that the ‘domestic curtilage’ of a house is not necessarily co-extensive with the planning unit. This particularly applies to large houses in the countryside, where the ‘curtilage’ may extend only to the cultivated garden, plus the forecourt immediately in front of the house, etc. However, other land within the planning unit which is not so directly related to the house may in fact fall outside the domestic curtilage. As I have pointed out above, this makes no difference in terms of the lawful use of the land. The only significance of the definition of the curtilage for planning purposes is that certain permitted development rights for operational development (outbuildings, extensions and certain other structures) apply within the curtilage of a single private dwellinghouse, but not to any land within the same planning unit which falls outside the curtilage.

Planning officers sometimes seem to get hung up with the definition of the ‘curtilage’ when considering questions of lawful use (as distinct from permitted development rights, which are an entirely separate issue), but I really must stress that this is of no relevance in relation to the lawful use of any part of the property. In the vast majority of cases, the whole of a domestic property will constitute a single planning unit, so that the lawful use of the whole of the property will be use as a single private dwellinghouse within Use Class C3 of the Use Classes Order, and this necessarily includes the whole of the land enjoyed with it for domestic purposes, whether it falls inside or outside the slightly narrower definition of ‘residential curtilage’.

© MARTIN H GOODALL

Habitat protection

The case of Morge v Hampshire County Council [2011] UKSC 2 reached the Supreme Court in November, and judgment was given on 19 January. I commented on the Court of Appeal decision in this case on 11 June last year (see “Developing overgrown land”).

This appeal concerned the obligation imposed by the Habitats Directive to prohibit “deliberate disturbance” of certain species of bats, and the corresponding UK legislation designed to meet that requirement. It was contended on behalf of the appellant that the appeal site (a disused railway line) had become a habitat for bats but the developer, Hampshire County Council, had found no evidence that bats roosted on the site. The appeal before the Supreme Court turned on the definition of ‘deliberate disturbance’ as prohibited in Article 12(1)(b) of the Directive and also the degree to which a local planning authority must consider the Habitats Directive when determining a planning application.

By a majority of 4 to 1, the Supreme Court dismissed the appeal (thus upholding the decisions at first instance and in the Court of Appeal). In doing so, the Court explained the correct approach to article 12(1)(b) of the Habitats Directive and to Regulation 3(4) of the 1994 Regulations. The Court noted that Article 12 affords protection specifically to species and not to habitats. The prohibition relates to the protection of “species” and not “specimens of these species” (as in other articles). This requires an assessment of the nature and extent of the negative impact of the activity upon the species and a judgment as to whether that is sufficient to constitute “disturbance” of the species. Furthermore, it is implicit in Article 12 that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute “disturbance”.

Some useful assistance can be found in the European Commission’s own guidance document. It provides illustrations as to whether any given activity constitutes disturbance, but explains that every case must be judged on its own merits. Account should also be taken of the rarity and conservation status of the species in question and the impact of the disturbance on the local population of that species. Disturbance includes in particular something which is likely to impair an animal’s ability to survive, breed, rear its young, hibernate or migrate, and that which is likely to affect the local distribution or abundance of the species.

The Court held that the correct approach to Regulation 3(4) is that planning permission should ordinarily be granted save only in cases where the LPA concludes that the proposed development would not only be likely to offend Article 12(1) but would also be unlikely to be licensed as a derogation from the requirements of Article 12(1). Where Natural England express themselves satisfied that a proposed development will be compliant with Article 12(1), the planning authority is entitled to presume that that is so. In this case, Natural England had originally objected to the development, but had withdrawn that objection when satisfied that necessary measures would be taken to compensate for the loss of foraging.

© MARTIN H GOODALL

Goodbye ‘PlanningMatters’

I was sorry to hear that ‘PlanningMatters’, the RTPI website on which this blog originally appeared (between November 2005 and April 2009) is to close at the end of February.

The website was primarily intended to help planning professionals to obtain on-line CPD. This blog was started as a means of attracting planners to that website, and was available free for the first year after it was launched. The RTPI, in their wisdom, then decided that it should be put behind the ‘pay wall’ (Mr Murdoch wasn’t the first person to think of that particular wheeze), but the blog still remained popular.

However, when Kaplan Hawksmere took over the PlanningMatters website from Echelon Learning (who had done an excellent job in running it for over four years), it was decided that my services could be dispensed with, and so I disappeared from the ether until I re-launched this blog myself last April.

I am trying hard to avoid any sense of schadenfreude, but I felt that the RTPI were making a mistake in dropping Echelon Learning in favour of Kaplan Hawksmere, and that their decision to drop yours truly at the same time was also ill-considered (but then I would say that, wouldn’t I?).

If you know any friends or colleagues who have been subscribers to PlanningMatters but who have still not found out about the re-launch of this blog last year, do let them know that they can still gain access to it on this site.

It is tempting to think in terms of expanding this blog to encompass material of the sort that has hitherto been available on the PlanningMatters website, but it is early days yet and it would require some careful consideration before we race off down that road.

Meanwhile, this blog is safe and independent and I hope it will continue to appear for some considerable time to come.

© MARTIN H GOODALL

Judicial Review of enforcement action

The preclusive provisions of section 285 prevent a challenge to an enforcement notice except by way of an appeal under section 174. However, if the basis of the challenge falls outside the grounds of appeal set out in section 174, then there is a ‘residual’ right to challenge the enforcement notice by way of an application for judicial review. This was illustrated by the decision of Lindblom J on 3 December 2010 in Gazelle Properties Ltd and Sustainable Environmental Services Ltd v. Bath & North East Somerset Council [2010] EWHC 3127 (Admin).

The basis on which an LPA’s decision to issue an enforcement notice can be challenged outside the scope of a section 174 appeal in this way was established in Davy v Spelthorne Borough Council [1984] AC 262 and was amplified in R v Wicks [1998] A.C. 92. It was also established in R v Caradon DC, ex parte Knott [2000] 3PLR 1, and recently confirmed in Health & Safety Executive v. Wolverhampton City Council ([2010] EWCA Civ 892), that the ‘expediency’ of taking enforcement action (as required by section 172) can be challenged by way of judicial review.

So, in the present case, the judge was satisfied that, in principle, an attack on the Council's decision as to the expediency of taking enforcement action could legitimately be pursued by means of a claim for judicial review. It was, however, necessary, for each of the issues raised in this case to be considered in order to decide whether the challenge on that particular issue truly belonged to the "residual" grounds outside the scope of section 174(2) of the 1990 Act.

The first of these questions was whether, in discounting negotiations which had taken place between the Council and the appellant, the Council had failed to take into account a material consideration. Both the officers and the members appear to have convinced themselves that those negotiations were immaterial. It was clear from the Council’s minutes that the members simply prevented themselves from judging what weight the negotiations and the intentions of the appellant should have. The members ought to have been allowed to make up their own minds on the weight, if any, to be given to the negotiations and, in particular, to the appellant’s representations so that they could put that factor in the balance with the others which militated for or against the taking of enforcement action. Without that factor they could not properly strike the balance they had to strike. That they failed to do this was, in his lordship’s judgment, a basic and fatal error, and he was in no doubt that it is the kind of error which attracts relief in a claim for judicial review, rather than one which ought to be left, or could be, to an inspector hearing a statutory enforcement appeal.

The judge further decided that the delegated decision of the planning officer to take enforcement action was vitiated by a failure to have regard to the previous negotiations. The planning officer’s decision to issue the enforcement notices was infected by the same error as his lordship had found in the members' approach. He did not think that the officer's failure to have regard to the intentions of the appellant was overridden by the Government's advice in paragraph 5(5) of PPG 18 that where a local planning authority fails in an initial attempt to persuade the owner or occupier of the site to remedy the harmful effects of unauthorized development, "negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop". That advice does not say that negotiations are generally immaterial to the question of whether enforcement action is required or not, and it should not be read in that way. It needs to be set in the broader context of the advice in PPG 18, the tenor of which is to support a case-specific consideration of whether the taking of enforcement action is essential. As with the previous ground, so too with this, the error was an error of law, and there is no reason why the court should not intervene to grant appropriate relief.

The Court also decided that both the committee's decision to delegate the decision on enforcement to the planning officer and his subsequent delegated decision were unfair and irrational. This issue was closely connected with the previous two, and the judge’s conclusions on it were similar. It could not sensibly be denied that in preventing the appellant’s representative from speaking at its meeting on 18 February 2009 the Council's committee acted unfairly. He had something relevant to say about the matters in hand. He was entitled to have that taken into account by the members. There was no reasonable basis for the committee refusing to do that. Fairness in the making of a planning decision extends in both directions: to applicant and to objector (see R.v. Monmouth District Council, ex parte Jones [1985] 53 P.& C.R. 108, per Woolf J. at p.115). The unfairness in the appellant’s representative not being heard affected both the appellant and the landowner, with the latter facing the possibility of enforcement action being launched against the current use of its site. The interests of both were prejudiced. It was enough that there was something which might have affected the outcome. As was held in Hibernian Property Co. Ltd. v. Secretary of State for the Environment and another (1974) 27 P.& C.R. 197, a case in which objectors to a compulsory purchase order had not had the opportunity of commenting on information taken by the inspector from other objectors in the course of her site inspection, the court is concerned here with the loss of a chance to influence the outcome.

Furthermore, for the committee consciously to rule out any consideration of what the appellant’s representative had to say was neither reasonable nor rational. Lindblom J made it clear that he would have reached this view even in the absence of the Council's enforcement policy – underpinned as it was by national policy in PPG 18 – which refers to the prospect of negotiating a satisfactory outcome or means of regularising the use or development of a site. The existence of that policy did, however, strengthen the conclusion that for the members to deny themselves any discussion of those matters and how much, if any weight, to give them, was irrational. As on the previous two issues, Lindblom J did not doubt that this part of the claim fell well within the province of judicial review.

Finally, there had been a change of circumstances which should have been taken into account before delegated enforcement action was pursued (see Kides v. S Cambs DC [2002] EWCA Civ 926). In pursuing the allocation of the site for a waste recycling facility the Council had self-evidently accepted the principle of this form of industrial use on the site, no matter whether it is properly to be categorized as a "sui generis" or as a Class B2 use. To have done this the Council must presumably have considered whether such a facility could be acceptable in principle, notwithstanding the site's presence in the Green Belt and its proximity to the Area of Outstanding Natural Beauty and the World Heritage Site. The fact that the site had originally been kept out of the emerging core strategy, and was only put in after enforcement action had been taken, is itself a material change in circumstances. The fact of the site's having been promoted for waste recycling development was, on any sensible view, a consideration relevant not merely to the merits of the appellant’s ground (a) appeals against the enforcement notices but also to the expediency of the very decision to enforce.

It was plain that neither by the decision of its Development Control Committee nor by the planning officer exercising his delegated authority had the Council considered whether the progress of the proposed allocation and its own support for that allocation were factors which would justify the exercise of the power available to it under section 173A. This ought to have been done. At this stage the proposed allocation was, without doubt, a material consideration which went to the expediency of the enforcement action which the Council had seen fit to take, and for this reason it was a matter for the members, not the planning officer, to weigh.

The challenge to the Council’s actions therefore succeeded and a quashing order was granted.

© MARTIN H GOODALL

Third party appeals ruled out

Everyone is well aware that third party rights of appeal do not feature in the Localism Bill, but that did not necessarily preclude their introduction at a later date. However, in answer to a question in the Commons yesterday, the Planning Minister, Bob Neill, said that the coalition government has dropped the idea. The government intends to rely instead on ‘localism’, the idea behind the current Bill which is intended to give communities greater control over what is considered to be appropriate development for their areas at the very beginning, through the neighbourhood planning system which the Bill introduces.

Neill said that both coalition parties thought that a third party right of appeal was well worth looking at, and they did so carefully; it was not lightly dismissed. The system that the previous Government left in place resulted in people feeling aggrieved, he said. The government has concluded, however, that the best means of reducing that grievance is not through the third party right of appeal, but by front-loading the system and giving residents and communities what the government claims will be far greater control over development at the beginning, which (they say) will be swifter and more cost effective. [Pause for hollow laughter.]

This does not necessarily rule out the introduction at some future date of the other changes to the appeals system which were canvassed in the Tories’ pre-election ‘Green Paper’ (“Open Source Planning”), but it does perhaps make those changes less likely.

© MARTIN H GOODALL

Localism Bill – Second Reading

Yesterday’s Second Reading debate in the Commons was profoundly unenlightening, although I suppose one should not be surprised.

One of the best contributions to the debate was from Nick Raynsford, who pointed out that the drafting of the Bill, with its countless clauses and schedules, is very unhelpful to the government’s hope of winning support for it. The Bill’s drafting, he said, is overwhelmingly by way of amendment to other legislation, and with the absence of detailed provision in many of its clauses, which, we are told, will be supplemented by regulations, so that it makes it difficult to have a full feel for what exactly the Government intends. One can understand their aspirations, but what will be the detailed implications? That is far from clear, and inevitably lots of suspicions abound that, while their intentions may be good, the outcomes will not be.

Whether we are talking about how neighbourhood plans will be shaped, he continued, or how the new insecure tenancies that the Government are imposing on social housing will operate, we do not know the full implications because no provisions have been published, so of course we do not know what the details will be. That suggests a Bill put together in a hurry, without adequate consultation or proper consideration of some of its provisions. If ever a measure cried out for pre-legislative scrutiny, this is it, he said. It is a tragedy that it is being rushed through without proper consideration of its detailed implications and of how the Government's localist intentions will work in practice.

The lack of certainty over the Government's plans and over the effect of the Bill is obvious throughout, Raynsford said. On the theme of localism itself, the Government have put an emphasis on neighbourhoods. That might imply a commitment to neighbourhood decision making, or to devolution to a local authority or, in London, to the Mayor, but what happens if those bodies come into conflict? What happens if the Mayor pursues an objective with which the borough council or the local neighbourhood does not agree? There is the added problem that in areas without parish councils the neighbourhood forum that may come into existence under the Bill will not have a recognised form of democratic accountability. Who will prevail when there is a conflict between the various bodies?

Raynsford said that some provisions in the Bill are slightly bonkers, but others are seriously damaging. The housing and planning provisions will destabilise the planning and housing process at a time when, above all, we need confidence and certainty to get the new homes that we need. The housing market was badly hit by the recession and recovered strongly in early 2010, but the Government's maladroit and unlawful interference in the planning system has undermined that confidence. The market is now tottering along on the bottom, there is no confidence, and millions of people know that the prospects of getting a decent home at a price within their means are terribly short. The Bill's ill-considered and untested changes to the planning regime will make an already bad situation worse.

As one Labour member put it later in the debate, it seems almost an exaggeration to call the Localism Bill a Bill. It is really 400 pages of the Secretary of State's incoherent streams of consciousness, largely unconnected and all focused on different parts of local government legislation. In so much as it is a Bill, it is a sham.

A number of members understandably expressed concerns about the effect the Bill will have on house building. Even a Conservative member, Peter Aldous (Waveney), expressed some misgivings about the Bill. For neighbourhood planning to be successful, he said, there is a need for capacity building in neighbourhoods and for communities to have access to advice, training and funding. With that in mind, the ending of Planning Aid this March appears short-sighted, he observed, and asked if consideration could be given either to reviewing that decision or to putting new arrangements in place. He also felt that it is important to ensure that all communities are able to participate, not just a few, so he called for further information on how neighbourhood planning will be promoted in those deprived areas where it is needed most.

In summing up the debate for the opposition, Barbara Keeley pointed out that although the Bill aims to allow communities a say on developments in their area through the planning system, those measures are particularly poorly thought through. She drew attention to the views of the RTPI, which has observed that work is needed on the Bill "to remove those barriers in its drafting that deaden its effectiveness and hinder the ability of Government to achieve its own objectives" and that "the lack of a coherent strategic planning system combined with the complexity of the neighbourhood planning system" that the Bill proposes will "hinder...economic recovery...addressing climate change and enhancing the environment".

It comes as no surprise, of course, that the Bill received a Second Reading by 332 votes to 228.

As previously predicted, the Committee Stage of the Bill will be dealt with in a Public Bill Committee. A timetable (‘guillotine’) motion was passed which requires the Committee Stage to be terminated on Thursday 10 March. Any clauses not reached by that time simply won’t get discussed.

[Update (21 Jan): The Commons Committee Stage will start on Tuedsay 25 January.]

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (5)

Clause 106 will introduce no fewer than 10 new sections into the 1990 Act (sections 225A to 225J), thus adding substantially to the primary legislation relating to the control of advertisements. These provisions are designed to give LPAs greater powers to remedy breaches of advertisement control and also to deal with the ‘defacement’ of premises (i.e. to remove graffiti).

UNAUTHORISED ADVERTISEMENTS

Section 225A will give LPAs in England power to remove structures (such as hoardings) which “in their opinion” are being used for unauthorised advertisement displays. But why in their opinion? This must surely be a matter of fact, not opinion; either the structure is being used for the display of advertisements in contravention of the Control of Advertisements Regulations or it is not. The LPA must first serve a “removal notice” (the terms of which are specified in Section 225A). The LPA will be able to recover the expenses of removal but there will be a right of compensation where in the exercise of these powers any damage is caused to land or chattels, other than damage caused to the display structure itself; or damage reasonably caused in removing the display structure.

Section 225B will give powers to LPAs who “have reason to believe” that there is a persistent problem with the display of unauthorised advertisements to serve an ‘action notice’ requiring the owner or occupier of the land to carry out reasonable measures specified in the notice to prevent or reduce the frequency of the display of unauthorised advertisements by a date (not less than 28 days) specified in the notice. There is more detail in the section which I do not propose to recite here, including a right to compensation similar to that in section 225A. Section 225C creates a right of appeal to a magistrates court against a notice under section 225B on one or more of four specified grounds.

Section 225D will apply section 225B to statutory undertakers’ operational land, but in this case the statutory undertaker may, within 28 days, serve a counter-notice on the LPA specifying alternative measures which will in the statutory undertaker’s reasonable opinion have the effect of preventing or reducing the frequency of the display of unauthorised advertisements to at least the same extent as the measures specified in the notice, and those alternative measures will then take effect in place of the measures in the LPA’s action notice.

There are further provisions in section 225J dealing with action under sections 225A, 225B and 225E which relates to the operational land of statutory undertakers.

DEFACEMENT OF PREMISES

Section 225E will introduce some slightly complex provisions, designed to remedy the ‘defacement’ of premises. This power will relate to any sign readily visible from a place to which the public have access (with certain exceptions in the case of operational land of a statutory undertaker) where the LPA consider the sign to be detrimental to the amenity of the area or offensive. This does not relate to adverts but is aimed at graffiti. The LPA may serve on the occupier of the premises a notice requiring the occupier to remove or obliterate the sign by a time specified in the notice. The LPA will have default powers to remove the sign and recover their expenses (except in certain specified circumstances). This power will be subject to a right of appeal under section 225H. Section 225F will make provision for the extension of these powers to post boxes, subject to certain conditions. Similarly, section 225G will extend these powers to bus shelters and other street furniture, again subject to certain conditions.

Under section 225H there will be a right to appeal to a magistrates' court against a notice served under section 225E on one or more of four specified grounds.

Finally, section 225I will provide for the removal of graffiti by the LPA at the owner or occupier’s request, but subject to their repaying the LPA’s expenses of doing so.

© MARTIN H GOODALL

Getting in touch

As I have pointed out a couple of times before, the way the Comments system works on ‘Blogger’ does not enable me to see the e-mail address of anyone posting a comment. Consequently, I am unable to respond to a request to get in touch with someone who attempts to contact me by using the comments facility.

Can I please remind readers wishing to instruct me professionally or who want to correspond with me on any of the topics raised in the blog that the only way of doing so is by sending an e-mail to my own e-mail address. This is shown at various places on this website, but in case you can’t find it easily, it is:

martin.goodall@keystonelaw.co.uk

I have not yet succeeded in making internal links work on this site, so you will have to copy and paste this e-mail address into your contacts list or into the address line of an e-mail.

In case you were unaware of how to do so when you can’t use the usual copy and paste icons, you can use the keyboard to copy [CTRL + C] and also to paste [CTRL + V]. This works in e-mails and on websites, and is very useful when you can’t use the mouse to perform these functions.

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (4)

TIME LIMITS AND PENALTIES

Clause 105 will make certain changes to the time limits within which local planning authorities can start prosecutions for offences under the Planning Acts and in the penalties which the courts can impose upon conviction.

It will amend section 187A(12) of the 1990 Act so that the maximum penalty for failure to comply with a Breach of Condition Notice will be raised from Level 3 to Level 4 on the standard scale (i.e. from £1,000 to £2,500) (except in Wales, where the previous maximum will continue to apply).

It will also amend section 210 of the 1990 Act (except in Wales) so that proceedings for unauthorised works to a protected tree which fall short of destroying it or being likely to destroy it may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge, subject to the proviso that proceedings cannot be commenced more than 3 years after the date on which the offence was committed. This seems to set a very dangerous precedent. The offence is actually committed when the unauthorised works to the tree are carried out, and the time limit within which proceedings can be instituted should not depend on the date when the prosecutor (in its own opinion) has gained sufficient evidence to justify the proceedings.

As elsewhere in the Bill, the position is compounded by a provision that, for this purpose, a certificate signed by or on behalf of the prosecutor, stating the date on which evidence sufficient in the prosecutor’s opinion to justify the proceedings came to the prosecutor’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. So even if it is only signed by the tea lady, the certificate must be accepted at face value unless the defendant is in a position to prove that it was not duly signed. I think this is monstrous.

Section 224 of the 1990 Act, which deals with the enforcement of advertisement control, will be similarly amended so that 6-month period within which proceedings for an offence of displaying an advertisement in contravention of the Control of Advertisements Regulations may be brought will start from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge. This, again, is subject to the 3-year long-stop date, and the conclusiveness of the prosecutor’s certificate (even if it is in fact signed by the tea lady). I can see no excuse for such an illiberal change.

The changes made by Clause 105 will only apply to offences committed after the amendments made by the clause have come into force.

© MARTIN H GOODALL

Lighting the bonfires

Having made a ‘bonfire of the quangos’ (the results of which range from disastrous to merely very damaging), the coalition government is now proposing to tear up a substantial body of ministerial planning policy advice, as set out in a variety of Circulars, Planning Policy Guidance Notes and Planning Policy Statements.

It is very easy to make a headline by pointing out that this material extends to thousands of pages, but it entirely misses the point that most of this guidance is extremely helpful to users of the planning system and quite often essential. We need to know what approach we can expect decision-makers to take when determining planning applications and other matters under planning legislation, and this body of policy advice is therefore a valuable resource for everyone using the planning system.

The fact that this published ministerial advice is voluminous is entirely beside the point; it merely reflects the complexity of the planning system. It is, of course, desirable that the planning system should be simplified (whereas previous efforts at ‘reform’ have only succeeded in adding to its complexity), but scrapping the essential operational guidance provided by Circulars, PPGs and PPSs will not help in that process.

Three examples immediately spring to mind – Circulars 11/95, 10/97 and 03/2009. The first of these gives comprehensive and detailed guidance on the use of conditions attached to planning permissions. Unfortunately, some local planning authorities seem to be largely ignorant of the circular’s provisions, but it is robustly applied by planning inspectors in appeals and provides a valuable check on the imposition of unreasonable or unenforceable conditions.

Essential guidance on enforcement procedures is given by Circular 10/97, together with the accompanying Good Practice Guide and PPG18. This also covers related matters such as Lawful Development Certificates, and the advice in Annex 8 to Circular 10/97 is particularly helpful on this topic. The absence of equivalent guidance in Wales is a nuisance, and I can recall one Inspector taking a pragmatic decision to treat the ‘principles’ explained in 10/97 as a material consideration in Wales even though the circular does not apply there. The appeal in question would otherwise have had to be decided in a policy void.

Finally, Circular 03/2009 deals comprehensively with costs in planning appeals. It would be a lot simpler if we were to follow the practice in the courts where costs, although they are at the discretion of the court, are in practice awarded to the winning party unless there are exceptional reasons for not doing so. However, while it remains the rule in planning appeals that costs will be awarded only in respect of unreasonable conduct by the paying party, there needs to be detailed guidance on the criteria to be applied in determining costs applications, and how and when these should be made.

These are just three examples out of a great many. Most of the PPGs and PPSs have been of real value in setting down guidelines on the topics which they cover. If they are scrapped, this will leave considerable uncertainty in their absence, with a significant increase in appeals and litigation. Parties may well be forced to resort to judicial review in order to resolve such uncertainties.

The coalition government’s policies, not only in relation to town and country planning but also with regard to education, health and other areas, have been described as a ‘Maoist revolution’. We should remember that it took a generation for China to recover from the chaos caused by Chairman Mao’s ‘Great Leap Forward’ and from his equally disastrous 'Cultural Revolution'. One can only hope that the coalition government is persuaded that this is not the way to go, before similar chaos engulfs this country’s planning system.

© MARTIN H GOODALL

HS2 – London to Birmingham route

Planning lawyers (and especially members of the planning bar) are licking their lips at the thought of all the litigation and other legal procedures that are going to arise from the proposed London - Birmingham high speed rail route.

Attention is currently focused on the precise details of the preferred route, and the slight adjustments which the government has made to that route, and it is no surprise that much heat is being generated over this. Although I now live a long way from the affected area, I am familiar with its geography, having once worked in that part of the world.

It occurred to me some time ago that a high speed route could be based on the existing Paddington to Birmingham main line, which follows an almost straight line (with very little curvature) as far as Seer Green, before beginning to twist and curve its way up through the Chilterns, snaking through High Wycombe and on up to the Risborough Gap. On reaching Princes Risborough, the line resumes an almost straight course across the Vale of Aylesbury in the direction of Birmingham, and if you join up the two points on the map where the line deviates from its direct course near Seer Green and at Risborough, so as to form a straight line, this would produce an almost straight route all the way from London to North Oxfordshire, with comparatively modest curvature between there and Birmingham.

This would, of course, involve driving a tunnel through the chalk under the Chilterns similar to the Channel Tunnel and about half its length - roughly 18 kilometres - and this might well make ‘the tunnel route’ (as it might be called) impossibly expensive. Both ends of the tunnel would in fact be at the same height above sea level, so the tunnel would not only be straight but also entirely level throughout its length, and bearing in mind that some 8km of tunnelling is already proposed on the preferred route, the cost of a further 10km might not be so much more expensive than all the hassle and compulsory purchase procedures involved in forcing through the currently intended route.

The existing line would have to be widened between South Ruislip and Seer Green to accommodate commuter trains using existing tracks alongside the new line, but the stations on this line were so designed as to enable the fast lines to pass through the middle of the station while commuter trains serve the platforms on the outside. So it is all perfectly feasible in engineering terms, and it would only be issues of cost and any possible geological objections to boring a deep tunnel through the chalk under the Chilterns that would appear to militate against this ‘tunnel route’. Someone must surely have suggested it already, but I have not found any reference to it.

This may be slightly off-topic in a planning law commentary, but it was the prospect of all those legal fees that set off this particular train of thought, and so it is perhaps relevant from that point of view. In practice, I don’t suppose anybody will take this suggestion seriously, and so we need not lose any sleep over the possible loss of legal fees that might follow from the adoption of a less controversial route.

© MARTIN H GOODALL

[Update: The preferred route does follow the line suggested above as far as West Ruislip, but then turns gradually away from the existing railway line to take a more northerly route past the Chalfonts and on towards Amersham. Route 2.5 would have continued on or close to the line of the existing railway through Gerrards Cross, Beaconsfield and Seer Green, but would then have continued across country towards Hazlemere. It is at Seer Green that the ‘tunnel route’ (suggested in the post above) would enter an 18km tunnel, emerging beyond Princes Risborough on the line of the existing London to Birmingham railway line. The preferred route passes close to Wendover and Aylesbury, whereas route 2.5 would have regained the original London to Birmingham rail route near Haddenham. Thus the ‘tunnel route’ suggested in the post above is in effect a variant on Route 2.5, taking a straight and level line by tunnel between Seer Green and Princes Risborough, but otherwise following the existing rail route more closely. Admittedly, the new line would not fit within the existing station layouts in quite the way I had suggested, but it still makes sense to follow the established transport corridor so far as possible.]

Grotton Revisited

Among the gifts which Father Christmas brought down my chimney was a copy of “Grotton Revisited” by Steve Ankers, David Kaiserman and Chris Shepley (published by Routledge in association with the RTPI - ISBN 978-0-415-54647-8 @ £19.99). If I had ordered it myself, I could have got £2.50 off as an RTPI member, but no doubt the distressed authors could do with the royalties.

I missed getting a copy of the original “Grotton Papers” back in 1979. I had only just begun to specialise in planning law at that time, and it might have been educational. On the other hand, it could have put me off the idea altogether!

My reaction to the new volume is very much the same as that of other reviewers – it is both very funny, and yet rather depressing, because the authors’ satirical barbs are so well aimed, and the nonsense of the planning system is so well observed.

I particularly liked one of the stories found in the Souvenir Conference Edition of the Grotton Advertiser (on page 132) entitled ‘Boy Tory’s Planning Story’. This piece relates how a 13-year old schoolboy from Grotton came to write the Conservative Party’s planning policies. They had originated as a school project, but the boy’s headmaster had been so impressed with this essay, that he had forwarded it to Conservative Central Office, where it was eagerly adopted as party policy and published as the party’s pre-election Green Paper (“Open Source Planning”). That just about sums up the intellectual weight of the Tory proposals. But what has wiped the smile off my face is that the coalition government is actually attempting to put these half-baked ideas into practice!

Throughout the book I felt stabs of recognition. In fact, the satire could have been even more savage without in any way being exaggerated. For example, another passage which is wickedly accurate is a civil servant’s summary of the process involved in producing a Local Development Scheme (see page 41).

Anyone who has any involvement or interest in town and country planning should get hold of a copy of this book. But I suggest you open it only on days when you are feeling reasonably optimistic and upbeat – if you dip into it after a bad day at the office, it may persuade you that it’s time to give up and go and find something less stressful and frustrating to do between the hours of 9 and 5 (not to mention all the other hours that planning professionals have to work nowadays in an effort to keep on top of the ever more demanding workload).

Happy New Year!

© MARTIN H GOODALL