Friday, 1 July 2011
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  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