Friday, 27 May 2011

Cala Homes lose again

In a judgment delivered by the Court of Appeal this morning, Cala Homes lost their appeal against the dismissal of their application for judicial review of the Secretary of State’s intention to treat the forthcoming abolition of Regional Strategies as a material consideration in the determination of current applications and appeals. [R (Cala Homes (South) Ltd) v. SSCLG [2011] EWCA Civ 639]

Giving judgment, Sullivan LJ said that it was common ground that sections 70(2) of the 1990 Act and 38(6) of the 2004 Act confer a discretion, and that the planning decision-maker (the Secretary of State, the Planning Inspectorate or the local planning authority) must exercise that discretion so as to promote, and not so as to thwart or run counter to, the policy and objects of the legislation conferring the discretion: see Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] AC 997, per Lord Reid at page 1030 B-D.

The gist of Cala Homes’ case was that the Government's intention to abolish the regional strategies is not, as a matter of law, capable of being a material consideration for the purposes of sections 70(2) and 38(6), because taking into account an intention to abolish regional strategies would subvert or thwart the legislative purpose set out in section 70(1) of the Local Democracy, Economic Development and Construction Act 2009 that "there is to be a regional strategy for each region….". It had been submitted on behalf of Cala Homes that Lindblom J (at first instance) had not addressed this issue and had not answered the question: "How does taking into account the Respondent's aspiration to abolish regional strategies promote the object and purpose of the legislation that there should be regional strategies?"

Sullivan LJ did not accept that the Secretary of State’s intention to treat the anticipated abolition of Regional Strategies as a material consideration offends the Padfield principle. The 2009 Act had to be applied in the context of the whole body of planning legislation, including Section 70 of the 1990 Act and Section 38(6) of the 2004 Act. Cala Homes had contended that if the proposed abolition of regional strategies was legally capable of being a material consideration, planning decision-makers would be free to give a regional strategy no weight at all, and thus to subvert the statutory scheme by effectively "sidelining" the development plan. In his lordship’s judgment, that concern was overstated. He was persuaded by the Secretary of State’s submissions that where the issue is one of weight rather than materiality, "never say never" is the appropriate response to a submission that, as a matter of law, any decision-maker in any case would be bound to give no significant weight to a potentially material factor.

In dismissing the appeal, the Court did, however, sound a note of caution. It would be wrong to assume at this stage that the passage of the Localism Bill must inevitably lead to the abolition of Regional Strategies, not least because such abolition is also subject to the Strategic Environmental Assessment which the government has undertaken to carry out. The fact remains that, for the present, the Regional Strategies (where they have been adopted) remain part of the Development Plan, and s.38(6) of the 2004 Act applies accordingly.

The prospective abolition of Regional Strategies is clearly capable of being a material consideration which might indicate that a particular matter should be determined otherwise than in accordance with the Development Plan, but the decision-maker will clearly have to be very careful about this. It seems to me that the safe course for any Inspector would be to treat the Regional Strategy as an integral part of the Development Plan, but then to decide whether (in the circumstances of the particular case, and having regard to the position at the time when the decision is taken) the prospective abolition of the Regional Strategy might in that particular case lead to the conclusion that the matter should be determined otherwise than in accordance with that part of the Development Plan. However, as I have observed before, the underlying housing need which gave rise to the housing targets in the Regional Strategies is still there, and this in itself must be a significant material consideration, whether or not the Regional Strategy is about to be abolished. In quite a few cases, it is this factor which may well persuade an Inspector that the case in hand should not be determined otherwise than in accordance with the Development Plan, including the Regional Strategy.


Another curtilage query

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).

As you will see from the note on the top bar entitled “Getting in touch”, you cannot communicate with me personally by posting a comment on a specific item in the blog, because I will have no means of knowing what your email address is, even if you include it when posting your comment. The only way of establishing contact is for you to send a separate email direct to me. Of course, I cannot give detailed advice without formal instructions, and that advice will have to be paid for on the usual professional basis, but I do respond politely to bona fide emails, even if only briefly.

An anonymous reader recently tried to seek my advice by leaving a comment on a piece I wrote a short time ago on “curtilage confusion”. It was clear from that query that the confusion continues, so I will try to explain the point again.

Without going into the precise facts of the case which was put to me, the questioner was concerned about threatened enforcement action in respect of the stationing of a ‘mobile home’ on their property which is in fact used solely for storage in connection with domestic stables on the property accommodating the owners’ own recreational horses. Both the planning officer and the questioner seem to be exercised over the question as to whether the stables, and the area immediately next to the stables where the mobile home is stationed, are or are not within the domestic curtilage of the house.

This, with due respect to all concerned, is irrelevant. In fact, in the case in question, it does not really matter whether the stables are within the same planning unit as the house, although from the details provided it appears that they are, being part of an 11-acre site, comprising the house, gardens and other land, stables, other outbuildings and hardstandings (etc.)

Even if the stables were not part of the same planning unit as the house, the stationing of the mobile home on the same planning unit as the stables purely for storage purposes in connection with the use of the stables would not amount to a material change of use of the land on which the mobile home is stationed. It is obvious that this is a purely ancillary use in connection with the use of the stables. There is clear authority for this proposition. The case I have in mind is Wealden DC -v- SSE ([1988] JPL 268). That case was concerned with storage for agricultural purposes, but the principle holds good for ancillary storage for any purpose. On the other hand, if the stables are not within the same planning unit as the house, and the mobile home were to be used as residential accommodation, then that would amount to a material change of use in respect of that (non-domestic) planning unit.

In the present case I think we can assume that the mobile home is stationed within the same planning unit as the house. If a mobile home or caravan is stationed anywhere within a planning unit comprising a single private dwellinghouse and the land enjoyed with it for domestic purposes, it can be used for any ancillary (and not merely ‘incidental’) purpose in connection with the residential use of that planning unit, e.g. to provide additional bedroom space or other accommodation, provided that this did not amount to use as a separate dwelling.

This is a point which planning officers just don’t seem to be able to get their heads around. The use of any existing buildings and the use of any part of the land occupied together with a single private dwellinghouse for any purpose which forms part of the domestic use of that planning unit within Use Class C3 is perfectly lawful, irrespective of whether the particular part of the planning unit in question falls within the more narrowly defined ‘curtilage’ of the house. Defining the curtilage is only relevant to deciding whether or not the permitted development rights granted by Part 1 of the Second Schedule to the GPDO allow the erection of a new outbuilding or extension in that precise location.

If the questioner recognises their property from the description given above and would like my further professional help on the matter, perhaps they would care to email me. It may take a reasonably firm letter from me to the planning officer to resolve the matter, but I am in no doubt that we can see the planning officer off in this case in fairly short order.


Conditions attached to an expired permission

I am grateful to Louis Chicot for drawing to my attention last week a decision in the Court of Appeal in Avon Estates Ltd v Welsh Ministers [2011] EWCA Civ 553, in which judgment was given on 16 May. Pressure of work prevented my posting on it at the time, and I see that it has since been reported by a number of other commentators.

The point in issue was one which, perhaps surprisingly, had not previously come before the courts, namely whether conditions attached to a ‘temporary’ planning permission continue to apply after that permission has expired. An Inspector and a High Court judge thought they did, but giving judgment in the Court of Appeal, Sir David Keene came to the conclusion that the other conditions attached to the planning permission ceased to have effect after the date by which the use of the site had been required to cease.

The failure to cease the use and to remove the buildings in accordance with the time condition in the planning permission was, of course, a breach of planning control in itself, but in the present case a considerable time (well over 10 years) had expired since the date by which the development was required to be removed. The buildings had therefore become immune from enforcement either under the 4-year rule (in relation to the erection of the buildings) or under the 10-year rule (in relation to the time condition requiring cessation of the use and removal of the buildings). The development had therefore become lawful quite independently of the planning permission under which it was originally carried out.

The original planning permission had been for ‘holiday bungalows’, and a condition had been imposed requiring their use to be restricted to certain months of the year. However, the owner was now seeking a Lawful Development Certificate in respect of the unrestricted use of the bungalows as single private dwellings. An inspector allowed the owner’s appeal against the LPA’s refusal of that certificate, but stated that the lawful use was subject to the conditions (including the seasonal occupancy condition) imposed on the original planning permission.

At first instance it was held that it was only the time limit condition which no longer applied, but that (subject to that one exception) the planning permission remained extant, so that other conditions continued to apply. The argument on behalf of the respondents was effectively that a permission, if it contains other conditions as well as the time limit condition, still survives. Neither the permission nor its conditions expire. It is simply that the time limit condition will in due course become immune from enforcement, but that does not mean that the other conditions have acquired such immunity. A local planning authority, it was argued, can properly refrain from enforcing the time limit on the permitted use but may still enforce other conditions restricting that use, but this argument was rejected by the Court. Sir David Keene drew attention to the well-established rule that a condition in a permission cannot be enforced if the landowner does not have to rely on the permission to authorise his development, although the decided cases do not expressly deal with the situation where the landowner did need the permission originally to sanction his development and where the permission has been implemented.

However, Sir David observed that, having said that, it was very difficult to conceive of a condition on a temporary permission under section 72 which could sensibly relate to a development, once that development has ceased to be authorised by the permission. The time limit and restoration condition in this permission did not have that effect, since that condition is expressly and precisely provided for by section 72 (1) (b). One cannot derive a general approval from that for conditions which bind the land once the development itself has ceased to be authorised and has become immune from enforcement action. Such enduring conditions would, to be lawful, still have to relate fairly and reasonably to the authorised development, which was and is to be seen as a temporary development.

His lordship therefore concluded that the seasonal use conditions in these permissions applied only during the period for which development was authorised by those permissions. The seasonal use conditions were, as a matter of objective construction, intended to be coterminous with the authorised development, with the result that the seasonal use restriction applied during that period for which the holiday bungalows were permitted. The appeal was therefore allowed, and the case was remitted to Welsh Ministers for redetermination.


National Planning Policy Framework

A certain amount of interest has been generated by a suggested draft of the proposed NPPF which has been produced by the Practitioners Advisory Group.

It is important to understand that this draft document does not have official government backing, and that the government will not be producing its own official draft NPPF for consultation until July. Some commentators seem to think that the PAG’s suggestions may carry some weight with the government in the preparation of the actual NPPF draft, but this remains to be seen.

It is for this reason that I have not devoted too much time to looking at the PAG’s proposed draft of the NPPF. At a quick glance it appears to be a commendable attempt to summarise some fundamental principles derived from existing ministerial policy guidance. As a random sample, I looked at the section on Green Belts and found that the main principles which have become well-established appear to be adequately summarised. On the other hand, on this admittedly superficial skim through the document, I did not find any material which addressed the issues currently covered by PPS7, relating to development in the countryside – for example the requirement to demonstrate the operational necessity for an agricultural worker’s dwelling by reference to the viability of an existing agricultural business, and so on.

My main reservation about the proposed NPPF is that in attempting to replace a very large body of detailed ministerial policy advice with a single concise document, there is a real danger that important points which are currently covered by specific advice will be left open to doubt, leading to disputes which may be resolved only by litigation –which is precisely why the current policy advice was published in the first place.

There is some current policy guidance which will have to continue to be covered by ministerial circulars or some other form of published policy advice outside the scope of the NPPF, unless this too is expanded to proportions which are similar to the existing body of policy guidance. It would seem, for example, that we are likely to retain circulars such as 03/2009 on the subject of appeal costs. It would also be sensible to retain Circular 11/95 on the use of conditions, and there are quite a few other circulars which are equally important and need to be retained. There are also some PPGs or PPSs which will need either to be retained or replaced by corresponding circulars, for example PPS23 on planning and pollution control and PPG24 on planning and noise, among a number of others.

This does call into question the need for the replacement of current policy advice by a National Planning Policy Framework. Current guidance, though admittedly voluminous, serves a useful and indeed essential purpose. I fail to see the advantage to be gained by revamping it in abbreviated form, and a very real danger that in attempting to do so the government may in fact cause confusion and uncertainty, leading to results which are precisely the opposite of what they apparently intend.


Friday, 20 May 2011

Agricultural development

It seems the government has been persuaded that the current rules set out in Part 6 of the Second Schedule to the GPDO should be relaxed to some extent, so that development for agricultural purposes should become easier in future. The precise details are currently subject to consultation and the actual changes still lie in the future.

I am not sure that I agree with the proposition on which the proposed changes appear to be based; farmers can hardly complain of being tied up in red tape so far as the already fairly light regulation of agricultural development is concerned. I have never really felt that there was any justification for exempting agriculture from the planning system, especially since intensive farming methods, the proliferation of ‘prairie’ farming, the removal of hedges and copses and the erection of large tin sheds and silos, not to mention the establishment of extensive areas of polytunnels in fruit-growing areas, have all had a significant impact on the character and appearance of the countryside.

It seems to me that there is absolutely no reason why all building and engineering operations on agricultural land should not require express planning permission like any other built development, and I would scrap agricualtural Permitted Development rights altogether. It is true that the current rules set out in Part 6 are complex, in some cases ambiguous and in certain respects anomalous, but rather than tinkering with the GPDO (bearing in mind the mess the last government made of Part 1) it would be a great deal easier to scrap Part 6 altogether, and to subject agricultural development to the normal development control regime.

No doubt any such proposal would provoke screams of agony from the NFU, but it seems to me that farmers have had it far too much their own way over the past 60 years or more. The justification back then, in the wake of the Second World War, was the need to ensure the security of the nation’s home-grown food supplies, and no doubt the agricultural depression of the pre-war era was also a factor in the government’s thinking at that time. However, that is no excuse for what is now a thoroughly outdated ‘feather-bedding’ of the agricultural industry, especially when modern farming methods have a much increased capacity to impact on our environment.

No doubt townies like me will be told that we ‘don’t understand the countryside’, and that the ability of farmers to do exactly what they want, wherever and whenever they want is absolutely crucial to their economic survival and for the future of the countryside. I don’t believe it for one moment. It is high time they were brought fully into the planning system like everyone else.


Thursday, 19 May 2011

Tesco wars – you read it here first

I see that the BBC News website is carrying a story about the campaign to stop the onward march of Tesco through our High Streets [].

Those of you who follow this blog regularly will have seen the paragraph I included in my post-holiday summary on 16 May referring to Bristol City Council’s views on this issue. What they are asking the government to do is to refine the A1 use class so that it distinguishes between small local independent retailers and national chain stores, due to the much more significant impact of the latter on local shopping areas.

Much as I dislike Tesco myself (and my wife and I always avoid shopping there or buying their petrol), I have to agree with DCLG’s response to Bristol’s plea for a change to the Use Classes Order, when they pointed out that it is not the role of the planning system to restrict competition, or to give preference to one retailer over another.

As I suggested in my original piece, those who wish to stop Tesco in its ever-increasing bid for retail monopoly should be concentrating on competition law, rather than planning law. Don’t waste time on Eric Pickles (who is a waste of space anyway). Vince Cable is the minister who needs to be convinced to do something about it. As Business Secretary, he is responsible for competition law, and so it is his department which has the power to introduce legislation to tackle this issue.


Localism Bill – Report and Third Reading

I am sure I am it alone in having been totally confused by the 234 (or was it 236?) amendments put forward by the government, which were shoved into the Localism Bill this week with minimal debate. I suspect that the only way to make sense of them will be to read them in context when the Bill is reprinted in its revised form prior to its introduction in the House of Lords.

The most controversial addition to the Bill is New Clause 15, which will amend section 70(2) of the 1990 Act so as to provide that in addition to having regard to the development plan (so far as material) and to any other material considerations, a local planning authority must also take into account any local finance considerations, so far as material to the application. “Local finance consideration” means (a) a grant or other financial assistance that has been, or will or could be, provided to a relevant authority by a Minister of the Crown [i.e. the New Homes Bonus], or (b) sums that a relevant authority has received, or will or could receive, in payment of Community Infrastructure Levy. The RTPI has categorised this as “cash for sprawl”.

The clause will no doubt come in for strong criticism in the House of Lords, but one saving grace is that s.38(6) of the 2004 Act still puts the development plan first, so that the extent to which “any local financial considerations” will influence a decision will depend upon their being identified as material considerations which indicate that the matter should be determined otherwise than in accordance with the development plan. Planning lawyers will be rubbing their hands at the thought of the litigation which this is likely to generate.

I have made it clear in the past that this blog is not party political, but I nevertheless found myself in agreement again with the opposition spokesman, Jack Dromey, when he said in this week’s Commons debate that, on health, the Government gave not an inch in Committee, got it badly wrong and then paused for thought. On localism, the Government admitted in Committee that they had got it badly wrong. They committed to making changes and are now bringing forward 234 new clauses and amendments—more than the entirety of provisions in the original Bill. It is clear, he said, that the Secretary of State, a man with a closed mind, sat on his Ministers (“a fate too awful to contemplate”). Since the Committee stage the House had had additional changes to digest emerging from the Budget and those 234 new clauses and amendments. The sum total of the changes proposed is confusion, chaos and nothing short of a car crash.

Since taking power, Dromey continued, the Government have moved at breakneck speed to demolish the planning system and to rebuild it within a matter of months. The demolition is nearly complete, with the end of sensible regional strategic planning, including the folly of the abolition of the regional development agencies and their replacement with local economic partnerships with no powers and no money—all because the Secretary of State gets out the clove of garlic and the cross at the very mention of “regional”. Ending up in a pickle [geddit?], the Government have produced a system that is desperately unfit for purpose.

On New Clause 15, Dromey pointed out that the CPRE, RTPI and TCPA all condemn this proposal. To quote the CPRE : “We believe that this amendment would fundamentally distort the planning system by encouraging local authorities to base decisions on the financial implications rather than the spatial merits of the proposed development. It could also undermine the plan-led system and result in the spread of developments that go against the views of local people.” That view, said Dromey, is echoed across the planning community, and will soon be heard in Members’ surgeries up and down the country.

The new clause, Dromey observed, undermines the fundamental principle that planning decisions should be made in the long-term public interest, taking account of land use consequences and of what local people actually want, rather than being based on financial rewards for the decision-maker. The new clause represents a fundamental conflict of interests within planning.

Turning to the Government’s amended duty to co-operate in the formulation of neighbouring authorities’ Local Development Frameworks, Dromey pointed out that their most significant proposed change is to use the local development framework soundness test as a sanction to ensure that co-operation takes place. That sounds reasonable, except that it is a retrospective test. Unlike opposition amendments, the Government’s amendments do not specify what is meant by co-operation. It will be extremely difficult for any inspector to assess definitively whether there has been adequate co-operation. It could take several years to judge whether or not co-operation has been successful, a period we can ill afford given the pressing need to meet housing needs, to modernise our infrastructure and to respond to the increasing scientific evidence of climate change. In short, the Government’s proposed duty to co-operate, he said, remains essentially voluntary, does not specify a unified product in terms of plan or strategy, does not specify the issues to be dealt with, and does not create an effective boundary to shape the extent of co-operation. It is certainly true that the proposal in general is a step in the right direction, but this measure simply will not work.

Finally, Dromey turned to the National Planning Policy Framework, which has been trailed by the Government as a document that will streamline national planning policy guidance, but at every turn the Government have promised that something additional will be in the NPPF. The NPPF is clearly a document of vital importance to the proposed planning changes but, in the absence of a draft copy to read alongside the Bill, there is considerable uncertainty about what the NPPF will be, what it will look like, its status within the planning system and the process for its development and adoption. Promises from the Government that it will all be OK when the NPPF is published simply will not wash. It is wrong that such a major document, so relevant to the radical changes in the Bill, has not been published alongside it.

In conclusion, Dromey observed that the House had in front of them a blueprint for a planning system that will deliver nothing but chaos. It is full of contradictions in its objectives and overloaded with inconsistencies in the policies designed to deliver those same confused objectives. The Government claim that the Bill will deliver balanced economic growth and the housing we need, safeguard the environment and increase local engagement in planning. In reality, it dismantles the strategic planning system and the means to meet our housing need, deliver sustainable economic growth, meet our energy needs and capacity, safeguard our environment and mitigate climate change. While Ministers claim the Bill delivers localism, the sum total of their proposals are neighbourhood forums that will be thoroughly opaque, undemocratic and unaccountable, he said. Any hopes that the Government mean what they say about empowering communities, delivering on sustainable development or mitigating climate change are utterly discredited by their proposal to rig the planning system to make their regressive New Homes Bonus deliver housing in the wrong areas.

The only comment I can add to all of that is – “Hear! Hear!”


Tuesday, 17 May 2011


An anonymous commentator has asked me whether I could update the blog with additional information to reflect subsequent changes in the law or in the situation commented on in particular posts. If there has been an important development on that topic after the original item was posted, I will usually post a new item dealing with the change, but I do also add minor updates to items as and when it seems appropriate. However, if the item was purely topical and has become stale news, then I don’t always bother.

At the time of writing, there seems to be an ongoing problem with the functionality of the Blogger software which is preventing re-edits of items, but no doubt the site owners will resolve this problem shortly.

The ‘health warning’ found on the Introduction page should be taken to include the proviso that articles published in this blog refer to the law at the time they were originally published. The law may have changed or developed since then, and so reliance should not be placed on older items without checking for more up-to-date information.

Whilst I hope people find the contents of this blog helpful and informative, it is no substitute for obtaining proper legal advice, preferably from our team at KEYSTONE LAW.


Flying the flag

I see that Uncle Eric intends to amend the Control of Advertisements Regulations to remove some of the restrictions on the display of flags (which are classed as advertisements, even if they are not actually advertising anything).

This reminded me of a piece I wrote under this title, which appeared in this blog as long ago as 3 July 2006. Here is what I wrote on that occasion:

“Maybe it’s all those white flags with red crosses on them that have been seen around recently (to warn everyone to keep well away from the people flying them) that has led to the planning implications of flying flags getting on the TV news. I missed seeing this report, but apparently Channel 4 News last Thursday night picked up on the way the Control of Advertisements Regulations operates in relation to the flying of flags. (Has the ‘silly season’ started unusually early this year?)

The gist of the report seems to have been that the regulations permit the flying of a flag vertically but not horizontally or at an angle. Presumably, this was a reference to Schedule 3 Class 7, which gives deemed consent for an advertisement in the form of a flag attached to a single flagpole projecting vertically from the roof of a building or a single flagpole (again vertical) on a building site. I suppose some bright spark has decided that any other form of display is unauthorised.

The TV people even managed to get an interview with the planning minister, who promised to change the regulations and expressed the hope that LPAs would not take enforcement action in the meantime.

This is not the first time the regulations relating to flags have caused difficulty. You can have any number of vertical flagpoles each displaying a single national flag. The rules seem to be silent as to whether this means different national flags, or whether each separate flagpole could have the same national flag on it (such as that strange white flag with the red cross on it which seems to have been so popular recently).

The rules about other flags, such as a flag proclaiming “Jerrybuilt Developments”, are quite restrictive – one only on a site where houses are being built (Class 7B), or again only one (displayed vertically on the roof, as mentioned above) on any building, which can bear the name or device of the occupier (Class 7A) subject to the inevitable size limits.

So if you want to wind up your Enforcement Officer, tell him to go round and demand that people displaying flags on the front walls or roofs of their houses take them down immediately or face prosecution under the Control of Advertisements Regulations! Perhaps the best time to find the occupants in would be during the next World Cup match (although now that England has been knocked out, they seem to be disappearing fairly rapidly without the need for official intervention).

At the weekend, I discovered that the ‘problem’ of flags not being flown vertically from flagpoles was nothing new. I heard of a case in Tewkesbury five years ago where the proprietor of a hotel who flew a flag at an angle of about 45 degrees above the entrance to the hotel was told it was unauthorised. Very sensibly, he ignored the 'jobsworth' who told him it should be flown vertically, and it still flies at its unauthorised angle to this day. At least the hotel proprietor will now have the comfort of knowing that he has the support of the Planning Minister (Yvette Cooper) pending a long overdue updating of the Advertisement Control Regulations.”


The Control of Advertisements Regulations have already been amended since that article was written, so the position is already slightly more relaxed than that described above, but it seems that the Secretary of State has persuaded himself that some further relaxation of the rules is now called for.


Monday, 16 May 2011

Ton up!

This blog is published by me as an entirely independent legal commentary on planning law matters, but I am proud to be a member of KEYSTONE LAW, and you will have seen the link to the firm’s website on the sidebar.

In less than 10 years since it was founded, KEYSTONE LAW has recently passed a significant milestone: we now have a total of 100 solicitors in the firm. Unlike other firms, who have a mix of fee earners, including trainees and newly qualified solicitors, Keystone has no solicitors of less than 5 years’ post-qualification experience, and the average across the firm is 12 years’ practice since admission, which means that some of us have considerably more time under our belts than that. So we able to bring immense expertise and experience to bear on all the areas in which the firm practises.

As I have mentioned before, this ‘blog’ is not intended as a marketing tool, but is simply a conduit for comment on topics relating to planning law and practice, but you might care to take a look at KEYSTONE LAW’s website (by clicking on the link on the left-hand side of the page) to see the broad range of services the firm is able to provide.

Sorry for posting such a blatant ‘commercial’, but I felt that this occasion should not be allowed to pass without comment.

(End of commercial break!)


“We apologise for the late arrival of.......”

I am acutely aware that there has been a significant delay in postings here since late April. I cannot plead ‘leaves on the line’ or ‘the wrong sort of snow’ as an excuse; the explanation is much more straightforward - I have been on holiday. Unfortunately, I have probably reinforced Eric Pickles’ jaundiced view of planning lawyers, as we did go to Italy - but not to Tuscany this time.

While I have been away, there have been quite a few developments in planning law and practice, as was to be expected. I see that barn conversions are now back in fashion again. Residential conversion of agricultural buildings was once quite a popular form of development, but this then fell out of favour and further conversions were discouraged unless they were for rural industries or other commercial uses. Now, the government seems to be prepared to countenance residential conversions once again, although this relaxation may be confined to ‘affordable homes’ where farm buildings “are considered inappropriate for employment use”.

The vehicle for this policy change will be a proposed countryside policy statement setting out the government’s rural policy priorities, including economic priorities , which they have promised to publish before parliament’s summer recess. Beyond this, it is not clear yet what steps the government proposes to take to persuade Councils to relax their planning policies to allow such residential conversions, or how they would seek to prevent their resistance to such conversions in the future. The proposed change clearly does not presage a free-for-all for residential barn conversions, but a blanket refusal of applications for such developments would no longer seem to be an option for local councils.

Another news story which caught my eye was Bristol City Council’s plea for restrictions to be imposed on retail uses in Class A1 of the Use Classes Order, following the anti-Tesco riots in Stoke’s Croft recently. This seems a fairly forlorn hope in view of the current policy trend, which is precisely in the opposite direction, with the likelihood that changes of use within shopping centres may be made even easier in the foreseeable future. In any event, it seems pretty daft to complain of the establishment of what is effectively a grocery store in a retail shopping frontage! There may or may not be an argument for excluding uses such hairdressers, travel agencies or funeral directors from Class A1 (although I would not support a proposal for any such change), but I cannot immediately think of any re-definition of this use class which could realistically prevent Tesco or any other grocery chain from opening a store in such a location.

Those who wish to stop the onward march of Tesco should be concentrating on competition law, rather than planning law. The minister whose ear they need to bend is Vince Cable, not Eric Pickles.

Meanwhile, as expected, the government has tabled a large number of amendments to the Localism Bill, which are due to be debated on the floor of the Commons this week, on 17 and 18 May, when the Bill goes through its Report Stage and Third Reading. I have not yet had the chance to go through the proposed amendments in any detail, or those tabled by the opposition and back-benchers, but (unless I missed something in my haste) a quick trawl through the government amendments did not reveal any suggestion that the very unsatisfactory provisions on ‘concealed’ development are to be changed.

I am still in the process of playing ‘catch-up’ with my work following my return to the office, so it may be a day or two before I can pick up these various points and examine them in more detail. I must also take a look at any judgments that have been delivered while I have been away. Cala Homes have had their hearing in the Court of Appeal and judgment has been reserved in that case, so it may be a week or two before we know the result of this ongoing saga.

Frankly, I would rather be back in Italy right now, but I can’t afford it unless I get some more work done.

Ciao, ragazzi!