CONDITIONS PRECEDENT – an important development

On 28 January of this year, I reported on the High Court judgment in Greyfort Properties Ltd v. SSCLG [2010] EWHC 3455 (Admin). [Lawful implementation of planning permission – another case]. On 28 July, the Court of Appeal upheld that decision ([2011] EWCA Civ 908).

The appellant ("Greyfort") obtained planning permission in 1974 for the erection of 19 flats in Torquay . Greyfort contended that access work carried out in January 1978 amounted to commencement of the development, with the consequence that the planning permission remains extant. An inspector held that the work was carried out in breach of a condition of the planning permission and could not therefore amount to commencement of the development authorised by the permission. That decision turned on the application of the Whitley principle (see Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296), which was extensively reviewed by Sullivan J (as he then was) in giving judgment in R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin).

As noted in my commentary on the first instance decision, this case turned on the wording of 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”. At first instance, Mitting J upheld the Inspector’s view that this was a true condition precedent, saying [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.”

As I predicted, the appellant obtained permission to take the case to the Court of Appeal, and it was Sullivan LJ who granted leave, although he agreed with Mitting J’s observation that the relevant law is "still in a state of flux". Sullivan LJ also observed that the question whether Hart Aggregates was correctly decided and/or was correctly applied by the judge was of some wider importance. Before the Court of Appeal, however, it was common ground that Hart Aggregates had been correctly decided and the argument proceeded within the framework established by Sullivan J's observations in that case. The real disagreement was about their application to the particular circumstances of this case.

With regard to condition 4 of the 1974 planning permission, the Planning Inspector had said that he was satisfied that "any work that took place on the site in advance of this condition having been discharged would not comprise a lawful implementation of the 1974 permission"; it was a condition that needed to be discharged before any work was commenced on the site. He went on to find as a fact that condition 4 had not been discharged prior to the date of the access works relied on as constituting commencement of the development. It was, in the Inspector’s view, a condition precedent that did go to the heart of the 1974 permission. He considered that the ground floor levels were fundamental to the authorised development rather than merely being a minor component, such as a detail of the external finish of the flats like facing materials. On the basis of Whitley he decided that the specified operations contravened condition 4 and so could not commence the development authorised by the 1974 permission.

As was to be expected, leading counsel for the appellant (Martin Kingston QC) placed particular reliance on Sullivan J's statement in Hart Aggregates at [58] that if a local planning authority wishes to impose any obligation on an applicant by way of a requirement or prohibition it should do so in express terms, and that the need to spell out the 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. Since Hart Aggregates, it has certainly been my own understanding that expressly prohibitive wording of the condition is one of the two essential characteristics of a true ‘condition precedent’.

The inspector held that condition 4 was a prohibition that had to be satisfied before any work could commence on any part of the site. In the Court of Appeal, Richards LJ held that there could be no doubt that the access works fell within the prohibition. The condition referred to commencement of any work on the site. In substance, therefore, the prohibition in condition 4 on the commencement of "any work … on the site" was at the very least equivalent to a prohibition on the commencement of "development".

Mitting J had held at first instance that condition 4 was in substance exactly that which Sullivan J gave in Hart Aggregates as an example of an express prohibition. Secondly, he made the observation which I have previously quoted that [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." Richards LJ agreed with the judge's conclusion and his reasons for it. The passage in Hart Aggregates to which the judge referred was at [59], quoted in my original piece in January, where Sullivan J gave two examples of express language that could have been used by the local planning authority if it had wished to prohibit extraction before a restoration scheme for the worked out areas was agreed: it could have imposed a condition in the form "No extraction shall take place …"; or it could have imposed the standard form of condition used in the grant of outline planning permission, namely "before any development takes place". Sullivan J plainly, and in Richards LJ’s view rightly, regarded the two forms of words as equivalent. It could not seriously be suggested that the latter form of words is inapt to impose an express prohibition on the commencement of development before submission and approval of reserved matters.

The appellant’s second contention was that Condition 4 was not one which ‘went to the heart of the permission’ (the second essential characteristic of a ‘true’; condition precedent). Unsurprisingly, the Court rejected this submission.

The importance of this latest decision on ‘conditions precedent’ is that it makes it clear that whilst (in accordance with Sullivan J’s observations in Hart Aggregates) a true condition precedent must both prohibit development without compliance with it and must also go to the heart of the permission (and not merely be concerned with some minor detail), it is not necessary, as might have appeared from Sullivan J’s judgment in Hart Aggregates, that the wording itself should be expressly prohibitive One has to look at the substance of the condition. If it is essentially prohibitive in its effect, even though it is only expressed as requiring something to be done “prior to the commencement of development” then it is still capable of being a true condition precedent (subject, of course, to its also going to the heart of the permission).

This does leave a slight area of doubt, because not every condition which requires something to be done “prior to the commencement of development” will necessarily be construed as prohibitive in substance or in its effect. It may depend on the precise language used in the condition. This poses an additional problem in determining the legal effect of the condition, quite apart from the need to show that the condition also goes to the heart of the permission. I foresee scope for plentiful further litigation on this issue!

© MARTIN H GOODALL

Don’t knock it down!

Following my piece on the hazards of barn conversions [More Development in Wonderland], ‘Major Loophole’ has drawn my attention to a recent case of unauthorised demolition of a Regency-period house in Twickenham. A succinct summary of the facts was published in yesterday’s Evening Standard.

This has nothing to do with barn conversions, but is nevertheless an interesting example of what can happen when a building which was intended to be altered and extended has been entirely demolished, with a view to its complete rebuilding.

This was an unlisted building in a Conservation Area, so could not be demolished without express consent. ‘Major Loophole’ wonders whether the rule in Shimizu might apply in a case of this nature, but it seems clear from the published photos that the demolition involved the whole or substantially the whole of the house, so Shimizu (which ruled that partial demolition of an unlisted building does not need Conservation Area Consent) would not have assisted the developer in this case. Conservation lobbyists have long campaigned for legislation to reverse the Shimizu judgment, but the issue has been put on the back burner by successive governments.

In the Twickenham case, the Crown Court has fined the owner £80,000 plus £42,500 costs. ‘Major Loophole’ is uncomfortable about the nature and proportionality of the LPA's and Court's reaction, bearing in mind that it seems the owner was still going to end up with substantially the same development as that for which he had obtained permission. ‘Loophole’ suggests that the Court's decision seems to have been to penalise the man for finding a more economical method of getting to that same 'end point', and perhaps improving the energy efficiency of the resultant building in the process.

I don’t propose to be drawn into a debate about the rights and wrongs of this from a policy point of view. As I have said, the rule in Shimizu did not apply in this case and so an offence had clearly been committed. The fundamental point is that it was not lawful to go about the development in this way. The court clearly looked on this as a serious offence, and this is reflected in the level of the fine.

It seems to me that there must also now be a question mark over the planning permission which the developer had obtained for the alteration and extension of the house. If, as a result of the demolition of the property, this permission is no longer capable of being implemented, then the owner may now require a fresh planning permission for the entire rebuilding of the house, incorporating such alterations to the design as the Council may be prepared to accept (which may not include all the extra accommodation originally proposed, now that the development is starting from a cleared site). At the very least the Council will no doubt want the new house to be externally identical to its previous appearance, so as to match the adjoining semi-detached Regency house with which it formed a pair.

I don’t know what other action the Council may have taken in this matter. They may have served an enforcement notice, which will be a further complication for the developer. He can no doubt expect that the Council will be watching him like a hawk from now on.

© MARTIN H GOODALL

NPPF – the published consultation version

Following the PAG’s ‘semi-official’ suggested draft and the later leaked draft, we now have the government’s considered consultation draft of the National Planning Policy Framework.

As I predicted, this is certainly stirring people up, but I propose to hold my fire until I have had a chance to look at it more thoroughly.

What I have not yet had time to research is how topics not covered by the NPPF are to be dealt with in future. Will there really be a gaping void in policy guidance where detailed advice was previously given in Planning Policy Guidance notes or in Planning Policy Statements which has not been carried over into the NPPF? And what is to be the fate of numerous circulars, some of them of considerable practical importance? Are they to be withdrawn, or will we still have the essential guidance which they give on a number of detailed topics?

My own guess is that, by one means or another, a way will be found of preserving a significant part of this advice, even though ministers will crow about their shiny new and thoroughly streamlined National Planning Policy Framework.

If I am wrong about this, I still propose to preserve my copies of the existing Circulars, PPGs and PPSs on the basis that whilst some or all of the Circulars may be withdrwn and certainly all of the existing PPGs and PPSs, the underlying principles which informed them should still apply as a matter of commonsense, even though one may not be able to quote directly from them in planning inquiries in the way one did before.

If there really is a policy void left by the changeover to the NPPF, I strongly suspect that that void will in practice be filled by the courts, who may well expound principles in the practical application of planning legislation which is very similar to those with which we have become familiar through the existing suite of ministerial policy guidance.

Unless something dramatic provokes me to do so, I don’t propose to return to this topic for a little while. I think we all need to go away and wrap a wet towel round our heads in order to work out precisely what the NPPF does and does not contain, particularly the latter.

© MARTIN H GOODALL

MORE DEVELOPMENT IN WONDERLAND

[WARNING: This article is now of no more than literary and/or historical interest. What the Cheshire Cat says here should NOT be relied upon. Read the updates at the foot of this article for later authorities that have significantly changed the legal position in the three years since this article was written.]

In which Alice learns about the hazards of Barn Conversions

[I won’t have time to post any more items on this blog for at least a week, and so I have decided to let you have this rather longer piece to digest while I am otherwise engaged. Now - are you sitting comfortably, children? Then we’ll begin………]


Alice came across Humpty-Dumpty, sitting on a bank next to a heap of rubble, crying his eyes out. This puzzled Alice, because Humpty-Dumpty was completely intact – it was the wall that lay in ruins. In fact, when she looked more closely, she saw it was not just a wall but a complete building which had been knocked down, leaving only part of one wall standing on the far side.

‘What’s the matter?’ asked Alice.

‘Oh, dear me!’ exclaimed Humpty-Dumpty. ‘I employed the Walrus and the Carpenter to carry out my barn conversion, and look what’s happened!’

Alice surveyed the mess, and then she noticed the Walrus and the Carpenter lurking furtively on the other side of the heap of rubble, looking somewhat chastened.

Alice marched up to the guilty pair.

‘What’s been going on here?’ she demanded. ‘Why have you knocked down Humpty-Dumpty’s barn?’

‘Well, you see, it’s like this,’ replied the Walrus. ‘Humpty-Dumpty got planning permission to convert the barn into a house.’

‘And we got the contract to do the job,’ the Carpenter chipped in.

‘Well, when we looked at it, we realised the old barn was structurally unsound,’ the Walrus continued; ‘so we asked the Building Inspector, and he said we should take it down and rebuild it.’

‘So that’s what we started to do,’ added the Carpenter.

‘Then the Planning Officer came along and said we couldn’t rebuild it!’ protested the Walrus.

‘Just a minute,’ said Alice. ‘I don’t understand. You say you got planning permission to convert the barn. Then surely you can continue with the work.’

‘Contrariwise!’ a voice shouted in her ear. It was Tweedledum, who had crept up on Alice unawares, and made her jump.

‘I’m the Planning Officer,’ said Tweedledum.

‘And I’m the Building Inspector,’ said Tweedledee, who had crept up on Alice’s other side, making her jump with fright for a second time.

‘My job,’ Tweedledee continued, ‘is to see that all buildings are soundly constructed to modern standards. This old barn was structurally unsound. It was obvious to me that most of the walls would have to be taken down and replaced with properly constructed walls on good foundations.’

‘Well, yes,’ said Alice. ‘I can see that might be sensible. And so I suppose, before the Walrus and the Carpenter could do the conversion works to produce Humpty-Dumpty’s new home, they had to take down those parts of the original structure that were unsound.’

‘Actually, most of it fell down of its own accord,’ said the Walrus. ‘We took down one wall, and the rest just sort of collapsed like a pack of cards, all except that bit of brick wall over the far side. That bit’s alright. So, I mean, it’ll still be a conversion, won’t it? We’ll rebuild the walls that fell down. It’ll look just like the original when we’ve finished. No problem, squire - er, I mean, Miss.’

‘Contrariwise!’ Tweedledum shouted, with even more emphasis than before.

‘Look, I don’t understand this,’ said Alice. ‘Clearly the intention was to convert the barn, and that must surely involve some rebuilding, especially of those parts of the original structure that weren’t strong enough in their original state. Admittedly, more of the structure came down than was originally intended, but surely it will still be a conversion. It will look pretty much the same as the original structure and, in any case, one wall of the original barn is still standing.’

‘Contrariwise!’ Tweedledum repeated yet again. ‘That wouldn’t do at all. We gave planning permission to convert an existing structure. That structure has now ceased to exist. You can’t say that just part of one wall left standing is still an existing building. If the Walrus and the Carpenter rebuild the barn as a house, they will be producing a new building, and that’s not what we gave planning permission for. It would be a new dwelling in the countryside, and that’s contrary to policy. So there!’

At this, Humpty-Dumpty burst into a renewed bout of sobbing.

‘There, there,’ said Alice. ‘Don’t upset yourself. I’m sure there must be something we can do.’

‘Not really,’ said Tweedledum. ‘We wouldn’t have granted planning permission for a new house in this location. In fact, if he applied for it now, we wouldn’t even give Humpty-Dumpty planning permission to convert an existing barn to a house. We’ve got a new Local Development Framework now, and our policies have changed. We would be looking for some sort of commercial use now, rather than a dwelling. Even when we allowed barns to be converted to residential use, it was only on the basis that an existing old building would be preserved in the landscape rather than being allowed to fall down.’

‘Well, I still don’t think it’s fair,’ said Alice. ‘You had given planning permission for this conversion, and I really don’t see what difference it makes if some of the walls (or even most of them) are actually newly-built replacements of the original walls, so long as a they look the same.’

‘Contrariwise,’ said Tweedledum. ‘What we were doing was giving planning permission exceptionally for conversion of an existing barn to a dwelling, when we wouldn’t normally have given planning permission for a dwelling in that location at all. So the continued existence of the original barn, as the basis of the conversion, was crucial. Once it ceased to exist, there could no longer be a conversion.’

‘Well, suppose the barn had blown down in a gale before the conversion could be carried out,’ Alice mused. ‘That wouldn’t have been the Walrus and the Carpenter’s fault. Surely, if the barn falls down and it’s not the owner’s fault (or his builder’s fault), he can’t be deprived of his planning permission just like that.’

Ha, ha!’ exclaimed Tweedledum. ‘Contrariwise! That’s exactly what happened in Sussex in The Great Storm of 1987. There was this barn which had planning permission for a residential conversion, and it was absolutely flattened by the wind! End of barn - end of planning permission! Ha, ha, ha!’

Tweedledum laughed so violently that Alice thought he would burst.

‘I think that’s mean,’ she said.

‘Yes, well maybe I am mean and nasty. After all, I’m a Planning Officer. But that’s the law; so it’s hard luck on Humpty-Dumpty.’

Alice vaguely recalled a verse her nanny had taught her. How did it go?……….“All the King’s horses and all the King’s men, couldn’t put Humpty-Dumpty’s barn together again.” Well, it went something like that.

After this there didn’t seem to be much more that Alice could do to help the situation. Humpty-Dumpty was inconsolable.

The insufferable Tweedledum puffed himself up and strutted off round the ruins of the barn, looking more self-satisfied than ever. As for Tweedledee, and the Walrus and the Carpenter, they had obviously taken the opportunity to escape any further embarrassment by absenting themselves during Alice’s debate with Tweedledum.

Alice squeezed Humpty-Dumpty’s hand and was planning to creep quietly away as soon as she could. But before she was able to do so, she suddenly noticed a grin that began to appear from nowhere in the tree which stood beside the ruins of the barn. The grin grew steadily larger, followed by a nose and eyes, until Alice could see that it was the grinning face of a cat. The rest of the body slowly appeared, and Alice realised that it was the Cheshire Cat.

‘What do you want?’ asked Alice.

‘I just want to help,’ said the Cheshire Cat. ‘I couldn’t help overhearing, and I know a bit about Humpty-Dumpty’s case, as a matter of fact.’

‘You see,’ he went on ‘it all depends on what the Planning Permission says. I could show you a couple of cases where the demolition or collapse of the barn didn’t lead to the loss of the permission.’

‘Really?’ said Humpty-Dumpty, suddenly brightening up.

‘Yes,’ purred the cat. ‘It really comes down to this - is the development which is being, or has been, carried out so different from the development described in the planning permission that it is not the development authorised by the permission?’

‘Well, I’d say it was the same development, even if the barn were completely demolished and rebuilt,’ replied Alice, ‘provided the new building looked exactly like the old one.’

‘No, that’s not the point,’ the Cheshire Cat insisted. ‘If the planning permission was for a change of use, then there has to be an existing building whose use can be changed. If the building is demolished or falls down, then any existing use rights disappear with it. That was established in Iddenden v. SSE in 1972 [Footnote 1]. So the High Court accepted in Hadfield v. SSE in 1996 [Footnote 2]that where the planning permission was for a change of use, the loss of the building resulted in loss of the planning permission. Tweedledum was right about that.’

‘But doesn’t the grant of planning permission for conversion imply permission to rebuild if necessary?’ Asked Alice.

‘No,’ said the Cheshire Cat. ‘It was established in North Norfolk DC v Long in 1982 [Footnote 3] that there is no permission for any reconstruction in the absence of express authorisation of any such works by the permission.’

‘But you said there were cases in which the planning permission had not been lost,’ Humpty-Dumpty objected.

‘Yes, there have been,’ the Cheshire Cat agreed. ‘But they were cases where the planning permission was not for a change of use as such, but for substantial operational development. They were permissions for barn conversions, but they involved so much structural alteration that they clearly went much further than a simple change of use.’

‘Well, then,’ asked Alice, ‘how can you tell the difference?’

‘You have to look at the planning permission itself,’ replied the Cat, ‘and read it very carefully, together with the approved drawings.’

‘What do you mean by that?’ Humpty-Dumpty demanded.

‘Let me give you an example,’ the Cat purred. ‘Take the case of Basildon DC v SSE in 1985 [Footnote 4]. There was a planning permission (obtained on appeal) for converting a stable to a dwelling. The permission included an extension and alterations; so it wasn’t just a planning permission for change of use – it involved operational development. While the work was in progress the frame was blown down in a storm, but the builders just built a replacement and carried on with the development. The Council claimed that this amounted to the erection of a new building and served an enforcement notice. On appeal an Inspector agreed with the appellant that the work was within the scope of the planning permission. So the Council took the case to the High Court, which held that in a case like this (involving operational development), entire rebuilding of the original structure would only be precluded if the planning permission made it clear that the original building must be kept intact. In that case, despite the fact that the development retained no part of the original, the developer had not departed from the terms of the permission (and the approved drawings). No condition had been imposed on the permission requiring retention of the original structure.’

‘So what Humpty-Dumpty needs to do is to see exactly how his planning permission is worded,’ Alice added. ‘And, of course, he needs to look at the conditions in the permission.’

‘Exactly,’ said the Cat. ‘And there have been several appeal decisions which were decided the same way, including one I dealt with myself,’ he added, proudly puffing out his chest.

At that moment another figure came panting up the hill towards the site.

‘It’s the Mock Turtle,’ sighed Humpty-Dumpty. ‘He’s my architect.’

The Mock Turtle arrived breathlessly, carrying an unmanageably large bundle of plans and documents.

‘I’ve just heard from Tweedledee about the barn being taken down. I don’t see what the problem is with Tweedledum. We just have to tell the Walrus and the Carpenter to get on and rebuild it. It’ll look really splendid when it’s finished.’

‘It’s not as simple as that,’ Humpty-Dumpty replied. ‘Have you got the planning permission with you?’

‘Oh, I expect it’s here somewhere,’ said the Mock Turtle, rummaging through the bundle of paper.

‘Yes, here it is,’ he exclaimed, producing a rather crumpled piece of paper from the bottom of the heap. ‘But why do you want it? We know we’ve got planning permission already.’

‘Just let us see it,’ said Humpty-Dumpty, and they all crowded round to read it.

‘There you are,’ said the Cheshire Cat. ‘This gives permission for “Conversion works, alterations and extension of barn to form a dwelling, in accordance with the application and approved drawings”. Now let’s take a look at the conditions.’

He ran his paw down the list of conditions.

‘Well, there’s no condition requiring retention of the barn structure. And look here; there’s a condition requiring approval of all walling and roofing materials, and a condition requiring that construction of this development shall comply in all respects with the approved drawings. That all suggests ‘new build’ to me.’

‘Which of these drawings are the approved drawings?’ asked Humpty-Dumpty, turning to the Mock Turtle.

‘Blessed if I know now,’ the Mock Turtle replied. ‘There have been so many revisions.’

‘Just look for the drawings with the “Approved” stamp on them,’ Alice suggested.

‘And the planning application number,’ added the Cat. ‘You don’t want to confuse the planning application drawings with the drawings approved under the Building Regulations.’

‘Surely they should be the same?’ asked Alice innocently.

The Cheshire Cat did not reply, but just smiled even more than usual.

‘Here we are,’ said the Cat. ‘It will be very helpful to see what the annotations say. Ah, this is useful – “All new brickwork to match existing.” Then over here it says “New window frames in green oak”. In fact there are quite a few references to new work on the drawings, and nothing about retention of any of the existing fabric.’

‘But that doesn’t mean that whole thing is to be rebuilt, does it?’ queried Alice.

‘No,’ replied the Cheshire Cat, ‘but it all helps to indicate that the scheme involved substantial building operations, and that retention of the original structure was not a necessary part of the scheme.’

At this point Tweedledum re-appeared, having been poking about in the rubble on the far side of the site.

‘Well, I suppose you had better start getting this site cleared,’ he said. ‘You won’t want me serving a Section 215 notice on you.’ [Footnote 5]

‘Contrariwise, if I may say so,’ said the Cheshire Cat, grinning more broadly than ever. ‘We’ve just been checking the planning permission. It allows the barn to be reconstructed.’

‘Nonsense,’ said Tweedledum. ‘It’s a barn conversion. We insisted on a structural survey to prove the original structure was sound before we granted planning permission. We wouldn’t have granted permission at all if we thought it was going to fall down. It was an implied condition that the barn would be retained.’

‘There’s no such thing as an implied condition,’ the Cheshire Cat observed [Footnote 6]. ‘So I’m advising Humpty-Dumpty to continue with his development.’

‘Well, he can’t,’ Tweedledum spluttered. ‘I’ll serve an enforcement notice on him.’

‘And I say it’s all perfectly lawful,’ purred the Cheshire Cat.

‘Well, you’ll have to apply for a Lawful Development Certificate, then,’ said Tweedledum.

‘We don’t need one,’ the Cat replied. ‘There’s no doubt about the legal position. The lawfulness of the development derives from the planning permission itself.’

‘Well, we’ll see about that,’ muttered Tweedledum, as he strode off. ‘I’m going to take it up with the Gryphon. He’s the head of our Legal Section.’

Humpty-Dumpty was jumping for joy as Tweedledum disappeared. The Cheshire Cat was still grinning from ear to ear and even Alice couldn’t resist a little skip.

When everyone had calmed down a bit, Humpty-Dumpty turned to the Cheshire Cat and asked, ‘So should we just tell the Walrus and the Carpenter to carry on, or should we apply for a Lawful Development Certificate, like Tweedledum said, just to be on the safe side?’

‘No. As I said, we don’t need a Lawful Development Certificate, but I think it might be a good idea if I were to write to the Planning Department, carefully explaining our position by reference to the terms of the planning permission and drawing their attention to the judicial authorities which I mentioned to you. That ought to convince them that there has been no breach of planning control, and that the reconstruction of the barn is covered by this particular planning permission. In the meantime, I don’t see why the Walrus and the Carpenter shouldn’t be told to carry on with the development. But the Mock Turtle really must keep an eye on them. You do need to make sure they build the new dwelling in strict accordance with the approved drawings.’

With that settled, Alice decided the time had finally come when she could leave. While the Mock Turtle was scrabbling around trying to pick up all his drawings, Alice gave Humpty-Dumpty a farewell hug and waved goodbye to the Cheshire Cat, who was already beginning to do his disappearing trick, leaving only his broad smile behind.

Alice wandered off happily, wondering what new adventures she might have in Wonderland.
_______________________________________

[UPDATE: In view of two more recent appeal decisions, and the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958, the Cheshire Cat’s remarks are no longer a correct statement of the law. See now a series of posts in this blog starting with “Barn Conversions again” posted on 5 March 2013, and in particular Barn Conversions again (Part 3)” posted on 7 March 2013, plus and a sixth article in this series posted on 1 December 2014.]

Basildon appeared to be authority for the proposition that complete demolition is not ruled out where the approved drawings show that no element of the pre-existing structure would be visible if the development is carried out in the form authorised by the permission. In light of the Court of Appeal decision in Williams, it would appear that this proposition can no longer be relied upon. It is clear that if the description of the development in a planning permission shows that what it is intended to authorise is the conversion or alteration of the pre-existing building, then it is not permissible construe the planning permission as authorising (or as not ruling out) complete demolition and reconstruction of the pre-existing building.]

© MARTIN H GOODALL
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Footnotes

1 Iddenden v. Secretary of State for the Environment [1972] 1 W.L.R 1433; [1972] 3 All E.R. 883; 71 L.G.R. 20; (1973) 26 P. & C.R. 553; 116 S.J. 665; [CA]

2 Hadfield v. Secretary of State for the Environment 1996 E.G.C.S 114

3 North Norfolk District Council v. Long (1983) 267 EG 251; [1984] JPL 45 [CA]

4 Basildon District Council v. Secretary of State for the Environment & Asplin (CO/1391/84. 28/6/1985. Unreported)

5 A notice served under Section 215 of the Town & Country Planning Act 1990 requiring proper maintenance of land adversely affecting the amenity of the neighbourhood. The remedial steps in this case would comprise removal of the building rubble and any other rubbish resulting from the demolition of the building.

6 See Uttlesford District Council v. Secretary of State for the Environment and Leigh [1989] JPL 685 and I’m Your Man Limited v. Secretary of State for the Environment [1998] P.L.C.R. 107

Localism Bill – Lords Committee stage

The House of Lords began to debate Part 5 of the Localism Bill yesterday (12 July), discussing Clauses 95 (Duty to co-operate in relation to planning of sustainable development), 96 (Local development schemes), 97 (Adoption and withdrawal of development plan documents) and 99 (Community Infrastructure Levy: approval of charging schedules).

I confess that I simply cannot work up any enthusiasm for the ‘duty to co-operate’. I remain deeply sceptical of its practical effect; it is certainly no substitute for strategic planning, and so tinkering with the wording is very unlikely to make it work any more effectively.

Various amendments to the four clauses mentioned above were moved, debated and then withdrawn. I am bound to say that this appeared to me to make this day’s proceedings on the Bill largely pointless. I am rather hoping that a more decisive debate may be held on those clauses which have caused really serious concern.

I may not have the time in the next couple of weeks to keep an eye on the debate on a day-to-day basis, so (subject to any brief comments that I might be able to make during the course of this week), further coverage of the Bill in this blog may have to wait until later in the month.

© MARTIN H GOODALL

The definition of development (3)

As I mentioned in my last post on this topic, I would also propose an amendment to paragraph (a) of sub-section (3). At the moment, this paragraph is confined to the subdivision of dwellings. There is also continuing doubt as to whether the amalgamation of two or more existing dwellings into a single dwelling amounts to development. This needs to be resolved.

What I am proposing is that both the subdivision of any planning unit (not just a dwelling) and the amalgamation of two or more planning units should in future be defined as development (being treated as a use which differs materially from the purpose for which the original planning units in question were last used) - thus:

(3) For the avoidance of doubt it is hereby declared that for the purposes of this section—

(a) the division of any planning unit into two or more separate planning units shall be regarded as a use of the original planning unit and of each of the new planning units so created for a purpose which differs materially from the purpose for which the original planning unit was last used, notwithstanding that any two or more of the resulting planning units are then used for the same purpose as the original planning unit, and whether or not any such use is within the same class specified in an order made by the Secretary of State under this section;

(b) the amalgamation of two or more planning units into a single planning unit shall be regarded as a use of each of the original planning units and of the newly formed or enlarged planning unit so created for a purpose which differs materially from the purpose for which each of the original planning units was last used, notwithstanding that any two or more of the pre-existing planning units were used for the same purpose as the new or enlarged planning unit, and whether or not any such use is within the same class specified in an order made by the Secretary of State under this section;

This is not designed solely in order to deal with the problem of ‘leisure plots’ (although it would have that effect) but will serve to remove other anomalies and difficulties which could otherwise arise where planning units are subdivided or amalgamated.

I have always been puzzled by the thinking behind the existing sub-section (3)(b) [which would become (3)(c) if it were to remain in the amended section]. This provides that the deposit of refuse or waste materials on land is to be regarded as a use of the land, if the superficial area of the deposit is extended, or if the height of the deposit is extended and exceeds the level of the adjoining land, rather than being engineering operations as you might expect. The provision seems to have been designed as a saving for the continued use of waste tips which had been established before the ‘Appointed Day’ (1 July 1948), but I am inclined to suggest that use of the land for this purpose ought logically to be treated as an engineering operation. The GPDO provides the necessary mechanism by which certain tipping operations can continue to be permitted development.

I am not proposing any changes to sub-sections (4) and (5), but sub-section (6) has long since ceased to be of any practical use, as it relates to the original compensation scheme introduced by the 1947 Act, which has long since become obsolete.

I dare say I have been wasting my time in thinking about the amendment of section 55 in this way, because the only ‘reform’ of the planning legislation in which ministers seem to be interested is the sort that enables them to grab the occasional headline – there are no votes in tidying up the technicalities. There are in fact a great many more provisions in the 1990 legislation that need sorting out and tidying up, and I live in hope that the day may come when an enlightened Secretary of State will finally appreciate the value of such an exercise. There may be no votes to be won in doing so, but he or she would earn the undying gratitude of planning practitioners throughout the land.

© MARTIN H GOODALL

Agricultural dwellings and other houses in the countryside

The following is an article which took the form of an interview with a journalist which, for reasons which are too complicated to explain, never got published. Having been written for lay readers, it omits the usual references to relevant legislation and to decided cases, but I hope that readers of this blog may nevertheless find it helpful.

NOTE: Since this article was written the General Permitted Development Order has been amended to enable the residential conversion of agricultural buildings. For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” the Third Edition of which was published by Bath Publishing in October 2019. You can order your copy by clicking on the link on the left-hand sidebar of this page.

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Can I ask you about a problem people sometimes come across when they find just the right home out in the country, but it has an agricultural tie on it – a planning condition which says it can only be occupied by someone “wholly or mainly occupied in agriculture”? How can they overcome that problem?

First of all, it’s no good thinking you can get round it by just doing a little bit of ‘hobby farming’ – keeping a few chickens or goats. What these agricultural occupancy conditions mean is that the family’s main earner must make their living from agriculture. It must form the larger part of their income. You will be in breach of this condition if you don’t derive most of your income from some form of agriculture.

The only exception is if you are a retired farmer, but even then the Council would need to be convinced that you did derive most of your income from farming before you retired. The same would apply to a farmer’s widow.

Is it possible to get these conditions lifted? Some of them are quite old, and things may have changed since they were first imposed on a property.

You can certainly apply to the Council to remove an agricultural occupancy condition, but they will be very reluctant to do so, unless you can demonstrate very clearly that there is no longer a need for this type of accommodation to be kept available for farmworkers in that locality.

The property would need to have been on the market for at least six months, or preferably a year (at a substantially discounted price that reflects the fact that it is subject to an agricultural occupancy condition). Only if there were no takers at that price after a genuine attempt to sell it might you then persuade the Council to remove the condition.

I suppose you might argue that because of the way farming has changed, there is no need for so many agricultural dwellings in the area, but I think it would still come down to proving that there is no demand by putting it on the market subject to the agricultural occupancy condition. As I said, the asking price would have to reflect the fact that it was subject to this condition.

After that, you could then apply to the Council to remove the condition, and provide them with the evidence of the unsuccessful marketing campaign.

What happens if an agricultural occupancy condition has not been complied with for a long time?

A breach of condition will become immune from enforcement and therefore lawful if it has been continuously breached for a period of 10 years, and if that breach is still continuing.

But you will need to be able to prove that the breach has continued throughout the 10-year period without interruption.

Can you add together the time a property has been occupied by two or more different owners or occupiers who don’t comply with the condition?

Yes, but only if they have all been living there in breach of the condition, without a break.

If there has been a breach of the condition for several years, and then someone moves into the property who does comply with the condition, this puts an end to that breach. If, after this, the condition is breached once again, the clock starts again from zero, and the earlier breach cannot be counted towards the 10-year period. In other words, you can’t add together two separate breaches of the condition to make up the 10-year period. [The 10-year period might comprise occupation by two or more owners or occupiers during that 10-year period, but only if the breach of condition continues throughout these successive ownerships or tenancies.]

There’s an even more important point to bear in mind. If the property has been unoccupied for a time, then that may count as a period when there has been no breach of the agricultural occupancy condition, so that the clock goes back to zero again if the next occupier is someone who doesn’t comply with the condition. In that case, the previous occupation of the property in breach of the condition wouldn’t count towards the 10-year period.

But supposing a breach of the condition has continued for 10 years or more, does that have the effect of removing the condition altogether?

No it doesn’t. The fact that a breach of condition has become lawful after 10 years does not mean that the condition has been removed. All that has happened is that it has become lawful to occupy the property in breach of the condition. If someone else then moves into the property who complies with the condition, then a later breach of the condition will not be lawful – it will only become immune from enforcement (and therefore lawful) if the fresh breach of the condition lasts 10 years or more.

Can you not get a certificate to prove conclusively that the condition no longer applies?

You can apply for a Lawful Development Certificate (which in this case would take the form of a Certificate as to the Lawfulness of an Existing Use or Development), but that certificate will not say that the condition no longer applies; it will simply confirm that continued occupation of the property in breach of the condition is lawful, which is not quite the same thing.

These certificates can be useful if you need to establish the position beyond dispute. Such a certificate is ‘conclusive’, but that doesn’t mean that it applies for all time. It simply certifies ‘conclusively’ what the legal position was at the time it was granted.

It doesn’t change anything. It doesn’t have the effect of removing the condition. It simply proves that on the date when the Certificate was issued the breach of condition had become lawful. So continued occupation of the property in breach of the condition would continue to be lawful. But the condition would still be there in the background, and could potentially be complied with by a future occupier. If that were to happen the Lawful Development Certificate could no longer be relied upon.

But if the condition has become a ‘dead letter’, then presumably you can apply to the Council to remove it?

You could certainly apply, but most Councils won’t agree to remove an agricultural occupancy condition just because a current breach of that condition has become lawful by having continued for 10 years or more. They would argue that someone might move in who does comply with the condition, and then it would ‘bite’ again.


So there are really no easy answers when it comes to agricultural occupancy conditions?

No. You have to recognise that they are quite an obstacle, and you need to take sound legal advice before committing yourself to buying a property with an agricultural tie on it. Don’t assume you can get round it or get rid of it easily. That is why the price of a property which is subject to an agricultural occupancy condition is usually subject to a substantial discount compared with the open market value.

On a related topic, how easy is it to get planning permission to build a new house in the countryside? What do you have to do to get planning permission?

There are strong planning policies, both nationally and at a local level, which discourage the construction of new homes in the open countryside, even a single house.

There are only two exceptions – the first is a planning permission for an agricultural dwelling. (I’ll come back to that in a moment).

The second, which is fairly rare, is building a substantial house of ‘exceptional’ architectural quality – in effect a modern ‘stately home’. Some planning authorities have been persuaded to give permission for one or two houses of this type, but it is not going to be an option for most people.

So if you are prepared to do a bit of farming ‘on the side’, can you get planning permission for what the planners would call an ‘agricultural dwelling’ ?

The first thing is that there has to be a genuine agricultural need for a new home on a particular agricultural holding. That involves passing two tests.

First, you will need to prove to the planners that there is an existing agricultural business on the holding which is commercially viable, and you will need to produce accounts to prove it, together with an agricultural expert’s report confirming the viability of the business.

Secondly, you will have to prove that it is essential to that agricultural business to have someone actually living on the holding. Most arable farms don’t need someone on site; it is only if you are involved in something like intensive livestock rearing that you are going to be able to justify having someone living on site. Just occasionally, if there have been problems with theft or vandalism, Councils have been persuaded to allow a home on a smallholding, but you really do have to prove a genuine need. Just wanting to live on the property instead of in a nearby village is not enough.

Most Councils will not grant permission to build a house or bungalow right away. They will probably only give you a limited permission for a caravan or mobile home for a trial period, and if you then want to extend that permission or build a permanent home on the site, you will have to convince them that the business is still viable and that the need still exists after that first trial period. I had a client in Somerset once who succeeded in getting a temporary permission for two residential caravans on the site, but the agricultural business failed, and when he tried to get permission for a bungalow or to extend the permission for the mobile homes, the Council refused, and he had to get off the site.

You certainly won’t get planning permission for a home just because you fancy doing a bit of ‘hobby farming’. Even genuine farmers can find it difficult to get over these hurdles.

As regards the position of "dependants" of an agricultural worker living with them, see now Shortt v. SSCLG discussed in my blog post of 28 July 2014.

© MARTIN H GOODALL

Trees and pre-conditions

I am very grateful to Paolo Bavaresco, of TMN Tree Management [www.treemettlenexus.com] for contributing the following note on this topic.

Paolo writes : “I shall offer the benefit of my knowledge and experience over 23 yrs, including hostile confrontations and developer/LPA wars with TPOs.

Trees are protected in law by TPO and Conservation Area restrictions - as Martin states - but also via felling licences [ http://www.forestry.gov.uk/forestry/infd-6dfkw6 ] - I think that answers Martin’s blog question?

There are also litigation considerations for the developer regarding trees – the public and construction staff can be at risk of injury from trees, often from inadvertent damage on site by construction. I once witnessed a construction-damaged tree uproot with each gust of wind to an angle of 30 degrees blocking the site entrance; the dumper driver would wait for the wind to die down and the tree lift back up to allow him to proceed. Upon cautioning him regarding his own safety, he replied he’d been doing it all week!

Although a developer can prune branches and roots of third party trees up to his boundary, this may be detrimental to the health and safety of those trees. Legal action could be taken by the owner of the trees against the developer for compensation based on the amenity valuation of the trees.

Developers have been known to fell all trees owned by them in close proximity to any development of theirs, BEFORE any contact with planning. It is very rare for this approach nowadays, at least with my clients, because it sends a bad signal to planning, risks prosecution by DEFRA for breach of tree felling licence restrictions (more than 5 cu m of timber felled within any quarter requires a licence, of which no more than 2 cu m can be sold - see exemptions) and the Wildlife & Access to the Countryside Act may also be breached in the process.

As a response to bulldozing unprotected trees, some LPAs do not make available to the public the maps showing where all TPOs and Conservation Areas are in force.

The preferred LPA modus operandi is for the public to contact the LPA with site and enquirer grid reference/ address and postcode, before the information is divulged. This allows them to control loss of tree cover - they can check if there are any trees of significance and apply a TPO.

The Town & Country Planning Act states that maps of TPOs and Conservation Areas must be made available for public viewing at a public venue such as a library or council offices. Some LPAs do not make this information available without tight restriction. Their response is that such maps would be misleading, as new Conservation Areas and TPOs can come into force at any time - the law could be broken without the user realising, based only on out-of-date mapping information. This is something of a red herring, I feel, as a tree owner must be informed of such new restrictions coming into force, and new TPOs are rarely pro-active in my experience; a sound TPO really needs to have been assessed by a qualified arboriculturalist due to the subjective nature of assessing risk/cost/benefits of trees.

I would appreciate Martin’s point of view on the lawfulness of restricting access to Conservation Area/TPO maps.

The game changes once the LPA is notified of intent to develop. Trees are a material consideration in the planning process, regardless of TPO/Conservation Area status - it is the LPA’s duty to procure the amenity of the area; all trees have an inherent amenity to varying degrees. Arboriculture (and the Town & Country Planning Act) makes provision for health, safety and visual amenity of trees. But trees are also at the centre of ecological systems - the Wildlife & Access to the Countryside Act is concerned with their protection as a form of habitat in an indirect way, as wildlife is a material consideration in the planning process, and see also relevant ministerial guidance in both Wales and England

I agree with Martin that the use of conditions as stated is laughable really, but the planners are following ministerial guidance. TPOs and conditions have historically been used inappropriately in protecting trees subject to potential development.

Fortunately, there is a long established British Standard for assessing amenity value of trees suitable for removal or retention on development sites – BS5837 (up for revision). All an LPA need do is insist it is applied before any site work commences, along with citing BS3998:2010 for any tree work recommendations made.

Most LPAs as part of the planning process, will insist on a tree survey being carried out to BS5837:2005, including third party trees in the zone of influence, prior to any site works commencing, and a grant of planning permission will not even be considered until this has been done.

An ecological survey will also demonstrate that National and LPA planning policies regarding trees and their habitat will be complied with, again before site works commence and before planning permission can be considered.

I expect Martin is aware of all this, and he would probably agree that a requirement to assess trees to BS5837 does not afford them protection, and I would agree, but it certainly jeopardises the chances of receiving planning permission if tree constraints are ‘removed’ pre-application. In a recent fee proposal for such a survey, I stipulated that all trees within 12 x the diameter at breast height would need to be included. Upon reaching the site to survey, all trees within that zone had been felled, because of lack of statutory protection.

Urban trees are not being replaced as fast as they are being lost. Urban tree replacements take many years of careful attention to establish, let alone reach maturity. Trees absorb 10 Kg of Carbon Dioxide per year. Trees are vital carbon sinks, especially urban trees, particularly in the UK, which has a low percentage of forest cover. Add to this their importance in lowering flood risk, particulate pollution, noise levels and improving various warm fuzzy feelings of general well being. Current statutory protection (relating only to timber, wildlife and amenity) is wholly inadequate in protecting them and us from our development needs.

I hope this may be of some use to Martin and his blog visitors.”

© PAOLO BAVARESCO

[I confess that, when I wrote my original note, the possible need for a felling licence was not in the forefront of my mind, and so Paolo’s note came as a timely reminder of this further constraint on the removal of trees. The exemptions (which will be found on the Forestry Commission website mentioned above) are narrower than I recalled.

The extent of designated Conservation Areas should be readily ascertainable by viewing Council websites. I cannot recall the precise statutory rules within the planning legislation as to the availability of TPOs, but this is environmental information and as such should therefore be readily accessible under the Freedom of Information legislation.

I am not sure whether LPAs are always so rigorous in their approach to the retention of existing trees as Paolo suggests they should be when processing planning applications. As in so many other aspects of development management, performance can be very variable as between one LPA and another.

One final point which I should make clear is that a condition designed to protect retained trees will be perfectly effective and enforceable, once development has commenced; the problem which I identified in my original note arises during the period between the grant of planning permission and its implementation, when none of the conditions will yet have come into effect. No amount of clever wording of conditions will overcome this; a TPO may be the only way, although the need for a felling licence, as Paolo points out, may be a further measure of protection for the trees in the meantime. - MHG]

The definition of development (2)

As promised, I am returning to this topic to follow up the suggestions for reform which I proposed here last week.

I would propose to amend s.55 [1A] by deleting paragraph (a) [“demolition of buildings”]. This was a hasty and ill-thought out insertion in the Act in 1991, which necessitated some complex gymnastics, including ministerial directions under s.55(2)(g) - recently found to have been unlawful (!) - plus Part 31 of the GPDO. This nonsense could all be done away with by simply removing demolition from the definition of development.

There are some further amendments which might usefully be made to some of the other sub-sections of section 55.

Sub-section (2) sets out some exceptions to or exclusions from the definition of development, and there are a number of changes that I would propose to this sub-section.

Paragraph (d) has been anomalous and unnecessary since the inclusion of dwellinghouses within the Use Classes Order in 1987. Since that date, the wider provisions of paragraph (f) have applied to dwellinghouses (which are now in Use Class C3), and so the uses to which any buildings or other land within the curtilage of a dwellinghouse may be put are no longer limited (if they ever were) to purposes which are “incidental to the enjoyment of the dwellinghouse as such”; they include purposes which form part of the primary residential use of the property and ancillary uses as well. Nor is the lawfulness of such uses confined to the ‘curtilage’ of the dwellinghouse; it extends to the whole of the planning unit.

For the avoidance of doubt, I should make it clear that, as matters stand at present, the wording of Part 1 of the Second Schedule to the General Permitted Development Order does confine the initial use of outbuildings and other structures (including pools, etc.), built as permitted development, to purposes which are strictly “incidental” to the residential use, and such operational development is also confined to the ‘curtilage’ of the dwellinghouse. However, once that permitted development has been carried out, the effect of Section 55(2)(f) is such that there is nothing (after a decent interval) to prevent that development, which was originally for a purpose which was strictly “incidental” to the enjoyment of the dwellinghouse as such, then being used instead for purposes which form part of the primary residential use (such as extra sleeping accommodation) or for any ancillary purpose. This suggests to me that there is a need to amend the wording of Part 1 so that it no longer uses the term “incidental”, but that is another topic, and we must return to the provisions of section 55.

I have used the removal of paragraph (d) as an opportunity to insert a new paragraph in its place, dealing with the use or uses to which a newly erected building can be put. If erected with the benefit of planning permission, the use of a new building is governed by section 75, but that section does not apply to buildings which were not built with the benefit of planning permission. This gives rise to a possible difficulty where an unauthorised building has become immune from enforcement under the 4-year rule and therefore lawful. There is judicial authority which suggests that the use of that building may not become lawful at the same time. It is in order to obviate that difficulty that I have proposed the following new paragraph to exempt the use itself from the definition of development:

(d) the use of a building or part of a building for the purpose or purposes for which it was designed or adapted when first built together with the use for the same purpose or purposes of any land which forms part of the same planning unit which comprises that building or part of a building and the land occupied with it;

This exemption would apply only to the first use of a new building; it would not exempt a subsequent change of use of the building from the definition of development. The effect of the change would be to make it clear that the use of a new building does not need to be considered separately from the operational development involved in its erection.

The next proposed amendment relates to agricultural and forestry uses. At the moment, any change of use to use for agriculture, horticulture or forestry is entirely excluded from the definition of development, so that turning your house and garden into a smallholding (as Tom and Barbara Good did in the well-known sitcom The Good Life) is perfectly lawful. To avoid anomalies and difficulties arising in future, I am proposing that this exemption should be confined to changes within this group of uses, and would not apply to a change of use from some other use. So, as amended, this paragraph would read:

(e) the use of any planning unit for the purposes of agriculture or forestry (including afforestation) where the last use of the planning unit was for one of those purposes, and the use for any of those purposes of any building which existed within the planning unit when the current use commenced;

I think the wording of paragraph (f) would also benefit from a little tidying up, to make it clear that it applies to the planning unit:

(f) in the case of a planning unit which is used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the whole of the planning unit for any other purpose of the same class, including the use for such purpose or purposes of any building which existed within the same planning unit when the current use commenced.
Note that I have omitted the reference in the current wording of this paragraph to part of the buildings or land. That arises from an amendment which I am proposing to sub-section (3), to which I will return in the next post on this topic.

Finally, in light of my proposal to remove demolition from the definition of development, paragraph (g) would also need to be taken out of sub-section (2), and it might be advisable to put the point beyond doubt by adding to the exclusions in sub-section (2) the following new paragraph (g) :

(g) the demolition in whole or in part of any building or structure or any part of a building or structure.

© MARTIN H GOODALL

Planning ahead

There are several topics for discussion which are likely to arise in the next few weeks. The House of Lords has begun the Committee Stage of the Localism Bill but, at the time of writing, they have not yet reached Part 5 of the Bill, dealing with town and country planning. Judging by their Second Reading debate, the Lords are likely to give this part of the Bill rather more robust and thorough scrutiny than it got in the Commons.

I am aware that I never returned to the ‘Plan for Growth’ after my initial post on that document on 7 April, in order to deal with issues such as land auctions, financial incentives, proposed revision of the Use Classes Order coupled with greater freedom to switch between use classes, and other possible changes to the GPDO, plus ideas for speeding up the processing of applications and appeals. Most of these topics are the subject of ongoing consultations, and so further comment at the moment would be superfluous. We shall see exactly what emerges in due course.

The next ‘big’ thing in planning will be the draft National Planning Policy Framework. We have had a ‘semi-official’ sponsored first draft (from the Planning Practitioners Group), plus a recent leak (which may or may not be accurate). We should get the real thing some time this month, and then the fat will be in the fire. Watch out for some strong reactions, not least from me.

There seems to have been a dearth of interesting judgments in the courts recently. I try to keep a lookout for cases that may be of concern to planning practitioners, but there is no point in commenting on cases which depend very much on their own facts and which do not establish or illustrate a principle of more general application. Nevertheless, I shall continue to monitor judgments as I become aware of them.

Several general discussion topics have arisen recently on which I propose to comment when I get time to write them up. It is clear that many people find that planning law is an impenetrable jungle, and need a ‘native’ guide to steer them safely through it. (This includes a good few planning officers!) Despite Eric Pickles’ avowed intent to cut down the jungle, I very much doubt whether his efforts will result in any improvement, and they may only serve to make the jungle even thicker and more impenetrable in certain parts.

There is likely to be no shortage of material for this blog in the foreseeable future, and the only problem is finding the time to write it all up in between the demands of a busy professional practice.

© MARTIN H GOODALL

Another confiscation case

A month ago I noticed a report of another confiscation order being made in a planning enforcement case. The London Borough of Bexley obtained a confiscation order under the Proceeds of Crime 2002 against defendants who were running an illegal car trade from residential premises. Prosecution had followed their failure to comply with an enforcement notice by continuing to allow cars to be sold from their home.

The defendants appeared at Bexley Magistrates' Court on 20 July 2010 for trial, having earlier pleaded not guilty. They were found guilty of the offence and committed to Woolwich Crown Court for sentencing and for the Council's application for a confiscation order against them to be considered. The defendants were said to have benefited by £182,120 from their illegal activity.

However, the confiscation order was limited to £3,000 to be paid within six months. The court accepted that the defendants lacked the means to pay the balance, but made an order which was intended to secure the confiscation of the remaining £179,120 should the defendants be able to pay in future.

The Planning Committee Chairman claimed that this was one of the first cases in the country where a confiscation order has been issued in a planning enforcement case but, as we have seen in this blog, there have already been a number of other reported cases, and no doubt there have been more cases which have gone unreported.

This case does nevertheless serve as a further reminder of the financial risk that people run if they fail to comply with an enforcement notice against a development which gives them a financial reward of any kind. As we have seen, the gross sum received (and not just the net profit), if the failure to comply with the enforcement notice continues for more than six months after the enforcement notice took effect, can then be confiscated, subject to the other criteria set out in POCA being satisfied.

© MARTIN H GOODALL

The definition of development (1)

It was reported to me once that a certain local government officer had complained that “Martin Goodall goes to bed with the Planning Encyclopedia under his pillow.” This idea rather amused me, although I would deny the implication that I am obsessively interested in the minutiae of planning law. Nevertheless it is a very interesting area of the law, and I make no apology for my enthusiasm for the subject.

Much of my time is naturally spent in working on practical planning problems on behalf of clients, but my thoughts do occasionally turn to more theoretical aspects of planning law, and so it was that, in an admittedly rare idle moment, I began to consider how the definition of development in section 55 of the 1990 Act might be improved. These are some of the ideas that occurred to me.

First, I would propose to re-draft sub-section (1) to read:

“55.—(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering or mining operations in, on, over or under land, including land covered by water, or the use of any planning unit for a purpose which differs materially from the purpose for which the land or building or part of a building which now comprises that planning unit was last used prior to its current use.”

It will be seen that I am proposing two important changes to the basic definition of development in sub-section (1). The first of these is the omission of “other” operations from the categories of operational development. It might reasonably have been supposed that this term should be construed ejusdem generis with “building, engineering and mining” operations, but the decision of the House of Lords in Coleshill & District Development Co v. MHLG [1969] 2 All E.R. 525 scotched that proposition, thus leaving “other” operations in an undefined limbo. It seems to me that the term serves no useful purpose – either development falls within the definition of “building, engineering or mining” operations or it does not. Anything else should be regarded as de minimis. I can see no merit in having some sort of ‘long-stop’ term intended to catch undefined activities of an operational nature which fall outside the scope of those types of operational development which are expressly mentioned in sub-section (1).

I have also taken the opportunity of including a point which has previously been established by litigation, but which it might be helpful to spell out – namely that ‘land’ includes land covered by water.

The second important change relates to changes of use. As the law stands at present, the use of land on a continuing basis, for any purpose whatsoever, does not constitute development. The statutory definition of development currently relates solely to “the making of any material change” in the use of any buildings or other land. This is a single event. The lawfulness of the subsequent use depends on that event, but this has led to a number of legal difficulties and anomalies. Some of these difficulties could be removed if the actual use, rather than the material change of use with which it commenced, is treated as development. I have not sought to abandon the concept of a change of use altogether, so the definition refers to a use which differs materially from a previous use, but it is the use itself which would in future constitute development, rather than the material change of use with which it commenced.

I have also taken the opportunity to refer to the “planning unit” rather than the vague phrase “any buildings or other land” in the current version of s.55. I would propose that a suitable definition of “planning unit” be added to s.336, based on the well-known formula proposed in Burdle (i.e. it would be the unit of occupation, until or unless some other unit is identified which is physically and/or functionally separate from it).

I would also propose some amendments to sub-sections (2) and (3), and I will return to these later next week.

I have no idea whether anyone will ever take up these suggestions. I hope they do, but it is probably too late to amend the Localism Bill to incorporate such changes, and another opportunity for further legislative reform may not occur for several years. Nevertheless, I would hope in the meantime that consideration might be given to some sensible tidying up of anomalies in the existing legislation. Such an exercise is long overdue.

© MARTIN H GOODALL