Wednesday, 31 August 2011

Permitted development for outbuildings

‘Legalalien’ has kindly drawn my attention to a recent controversy which has been aired on ‘Mumsnet’ (not a website which it had ever occurred to me to visit, although I gather it is required reading for David Cameron and his policy advisers).

The argument is raging around some unwelcome development being carried on by someone’s neighbour in their back garden, and they were wondering what if anything they could do about it.

The subject of what development or other works a householder can and cannot carry out on their own property would take a book in itself and, if I can ever find the time to do so, I might well write just such a book. In the meantime, however, and looking at it from the point of view of the concerned neighbour, it may be helpful if I mention some of the constraints on householder developments.

I should stress that I am confining this note to free-standing buildings within the ‘curtilage’ which are permitted by Class E in Part 1 of the Second Schedule to the General Permitted Development Order (the ‘GPDO’), so these remarks do not apply to extensions and alterations of the house itself.

Perhaps the most important constraint on Permitted Development within this Class of Part 1 in the GPDO is the purpose for which the outbuilding is being erected. The wording of the Order is quite restrictive; it only permits the erection of such a building if it is “required for a purpose incidental to the enjoyment of the dwellinghouse as such”. The term ‘incidental’ as used here has been held to exclude purposes which are part of the primary residential use of the property, so a free-standing building to provide extra sleeping accommodation, extra living space, and/or a kitchen, etc. are not permitted by this part of the GPDO.

There is, however, one weakness in this rule. Provided the original purpose of the extra building was purely incidental to the enjoyment of the dwellinghouse, its later use as primary (but not separate) residential accommodation is not prevented. In order to demonstrate that the outbuilding had originally been erected for a strictly incidental purpose, I suggest that it would be necessary to show that it was actually used for that purpose when first built, and for some time thereafter. How long this period would have to be has never been settled, but I suggest that it would need to be for several months at the very least, if not a year or more.

So if a neighbour thinks that any building is being erected for a purpose which is not strictly incidental to the use of the house but is intended for some primary residential purpose, they should draw this to the attention of the local Council’s enforcement officer. Whether the Council will do anything about it is another matter, but certainly nothing will happen if they are not alerted to the situation.

The nature of the property or the area in which it is located may also affect the right to build within its ‘curtilage’. So, for example, if the house is a Listed Building, there is no right to develop within its curtilage at all. If the house is within a World Heritage Site, a National Park, an Area of Outstanding Natural Beauty, or the Broads (which are all formal planning designations), the development permitted by Class E is limited to no more than 10 square metres in area if it is situated more than 20 metres from any wall of the house. Furthermore, in these areas, and also within a Conservation Area, the development must not be built at the side of the house.

Apart from these specific restrictions, there is a general limit on such development, which prohibits building on more than 50% of the total area of the curtilage (excluding the ground area of the original house), and no part of the building must be positioned forward of the principal elevation of the original house. The building must not have more than one storey, and its height must not exceed 4 metres in the case of a building with a dual-pitched roof, or 2.5 metres if it is within 2 metres of the boundary of the property. In any other case, the height must not exceed 3 metres, and the height of the eaves of the building (in all cases) must not exceed 2.5 metres.

This note is not intended to be a comprehensive guide to the subject, but was written in order briefly to explain the limitations on the outbuildings which can be built as permitted development under Class E of Part 1.

Anyone can apply for planning permission for larger buildings on their property, but the usual development management criteria would apply in such a case, and neighbours may object if they consider that the proposed development will adversely affect them.

If ‘Legalalien’ would like to draw this note to the attention of the readers of ‘Mumsnet’ it may help in answering some of the queries which have arisen in the recent discussion on that website. Other readers of this blog might also find it helpful as a reminder of the limitations applying to the development permitted by Class E of Part 1 in the GPDO.


Tuesday, 23 August 2011

Green Belt rethink ?

In his regular column in Planning magazine on 12 August, Tony Fyson drew attention to the impact assessment associated with the recently published draft NPPF, which indicates that changes to the planning system could lead to greater development on the green belt. Fyson also pointed out that the text of the NPPF itself also refers to “drawing up or reviewing green belt boundaries”. This raises the possibility that there might in future be scope for some flexibility both in relation to green belt boundaries and also as to the acceptability of some development with the green belt.

Before anyone gets too excited about this, it should be remembered that the current rigidity both as regards green belt boundaries and as regards the rules for development within the green belt were not part of the original concept of the green belt. They are comparatively recent innovations in the 70+ years since green belts began to be set up.

I put some radical ideas in the mouth of ‘Jim Hacker’ in my pre-election piece on Real Reform of the Planning System [Tuesday, 20 April 2010]. Whilst they went somewhat beyond what most people would find acceptable, some of the ideas canvassed there might well be worthy of consideration.

The original object of our Green Belts was to discourage urban sprawl into the open countryside around our larger towns and cities and to prevent the coalescence of two or more large neighbouring towns. That is an objective which would no doubt be universally supported; but two undesirable elements have crept into our Green Belt policies over the years.

First, the Green Belts have been expanded much further than was originally intended and to a far greater extent than is necessary to achieve their objective. For example, the Metropolitan Green Belt around London was intended to be about 12 to 15 miles deep. In some places it is now well over 30 miles deep. Our Green Belts now encompass huge areas of land that ought never to have been incorporated in them. There is therefore a case to be made for reviewing green belt boundaries more thoroughly than has so far been contemplated.

Green belt boundaries should be kept under review in the same way as other planning designations. The current rule that they should be changed only in ‘exceptional circumstances’ is far too rigid, and takes no account of changed circumstances, not to mention anomalies and inconsistencies at specific places on the green belt boundary which ought to be ironed out.

The second undesirable element that has crept into Green Belt policy is an entirely unnecessary and inappropriate rigidity in the treatment of development proposals, which seeks to resist all development in the Green Belt unless either it is deemed to be ‘appropriate’ development (such as certain ‘green’ leisure uses) or ‘very special circumstances’ can be demonstrated. Rather than this somewhat inflexible approach, I suggest that government policy advice ought to be amended to indicate that within Green Belts development should not be permitted which would prejudice the objectives of the Green Belt and/or which would compromise its openness, but that in determining applications for development in the Green Belt local planning authorities should examine the contribution that the application site in question makes to the Green Belt (in other words, its ‘Green Belt value’). It would thus be the impact of the development on the Green Belt as a whole that would be the determining factor, rather than the ‘appropriateness’ of the development in the Green Belt (in land use terms) or any question of exceptional circumstances being required to justify the development. That was certainly the position for many years. It really does need to be emphasised that Green Belts are not and never have been intended to create wholly development-free zones in the countryside.

What I am suggesting is no more than a return to the approach which applied until at least 1990 (which was well-illustrated by Cranford Hall Parking Ltd v SSE [1989] JPL 169), but I fear that ministers simply haven’t got the guts to take this up in face of the screaming tantrums that are likely to be thrown by all the usual suspects, such as the CPRE, and even nowadays the formerly staid National Trust.


Taxing development

There have been several attempts in the past 60+ years to impose a tax on development; but on each occasion it had a severely depressing effect on the development market, and (except for the most recent version) was repealed by the next incoming government. The nationalisation of the ‘development value’ in land was a major feature of the Town & Country Planning Act 1947. We then had ‘betterment levy’ in the mid-sixties, followed by Community Land Tax in the ’70s (coupled with the horrendously complex machinery of the Community Land Act) and a proposal by the last Labour government for a Development Land Tax. This was dropped in favour of a Community Infrastructure Levy (‘CIL’), which is simply a development tax under a different name. This was put into effect in the 2008 Act and, after initial hesitation, has been adopted by the coalition government.

The justification for CIL (which may be open to debate, but I will refrain from comment on that issue) is that it was devised in order to pay for infrastructure (such as roads, schools, etc.) the need for which is created by new development. The principle on which it was based is that the developer (which ultimately means the occupiers of the new development), rather than the community as a whole, should pay for infrastructure which would not have to be provided in the absence of that new development. The fact remains, however, that this is a tax on development.

It seems that the government is now departing from the original justification for this tax, by proposing that CIL should not be reserved exclusively to pay for the infrastructure required to service new development, but should be available to be spent by local authorities for other purposes. It is thus a misnomer still to call it an ‘infrastructure levy’; it is set to become what it was originally called – a Development Land Tax.

It is strange that a Tory-led government should be promoting a development tax when successive Tory governments in the past repealed similar development tax regimes, partly on doctrinaire grounds but also because of the damaging effect which they had had on the market and thus, in more general terms, on the economy. Bearing in mind the government’s anxiety to promote development as a means to boost an economy which is clearly faltering in face of international pressures (and which has not been helped by the economic and fiscal policies which this government has pursued since it gained office), a development tax such as CIL appears to run counter to this aim.

This is not the only proposal emanating from the present government which will in effect be a tax on development. There is also the daft Lib-Dem idea (now adopted as government policy) of holding ‘land auctions’ which, as other commentators have already pointed out, means in effect auctioning planning permissions to developers. The openly stated intention is to ‘cream off’ for the public purse a significant part of the development value of land which is (allegedly) attributable to the grant of planning permission. For a variety of reasons, the notion that a grant of planning permission automatically increases the value of land is mistaken, but if implemented this would be a further element of taxation on development.

All this comes on top of a substantial element of taxation which already applies to housing developments. This is the requirement that a significant proportion of houses on any housing development must be provided as affordable housing, thus reducing the financial return on that development – to such an extent in some cases as to destroy the viability of the development altogether. Some developers have succeeded in negotiating a reduction in the proportion of affordable housing provided on particular sites, but others have just walked away from the development, so that neither the open market housing nor the much-needed affordable housing is built. There is a huge need for affordable housing in this country, but it is a grotesque distortion of the planning system to seek to provide it by this means, and it has certainly not delivered the levels of affordable housing that are needed.

The point of this piece is not to argue the rights and wrongs of taxing development as a principle of fiscal policy, but to question whether such taxes and impositions are consistent with the government’s declared aim of boosting the economy by encouraging development. If the government is serious about facilitating development as a means of promoting economic growth, they ought to give serious consideration to scrapping both CIL and the land auctions proposal in order to remove these impediments to development. A further boost to housing development should be given by scrapping the requirement to include an element of affordable housing in residential developments, and to fund the provision of much-needed affordable housing instead by a more effective means which does not act as a tax or brake on development.


Thursday, 18 August 2011

Curtilage problems - a practical example

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 I have mentioned before, if you want to contact me, you need to send an email. I have no means of responding to someone who simply leaves a comment on the website, especially if they do not give any clue as to their identity.

I am nevertheless responding by means of this post to a recent note received from a correspondent who is inevitably identified simply as ‘Anonymous’ (because they did not leave any name or other details), as an example of the sort of problems people frequently encounter in trying to work out what is included in their domestic curtilage, and what lies beyond it, and what can and cannot be lawfully done both inside and outside the curtilage.

My correspondent wrote : “We are very interested in your comments regarding confusion on the part of planners. We live in a house that was converted from a barn 30 years ago, at which time, apparently, only a small area around the house was designated as domestic curtilage. When we moved in 9½ years ago we were unaware of any such designation as most of the other 2 acres was clearly used as garden, though some was rather unkempt, rough meadow in continuity with mown lawn in an enclosed overall plot. We built a tennis court and new driveway on this land and are now told it is illegal simply because of this being outside the domestic curtilage as defined 30 years ago. Do we have any defence?”

My comments are, of course, subject to the usual ‘health warning’ published in the Introduction to this blog – “Every possible care has been taken in the preparation of this material but no responsibility can be accepted by me, by Keystone Law or by the site owner for loss occasioned to any person acting or refraining from action in reliance on any material appearing in any part of this blog.”

With that proviso in mind, the first point that occurs to me is to ask what was the planning unit in respect of which planning permission was originally given? In principle, it should have been the whole of the land within the red line (but not the blue line, if any) on the application drawings. [Notice that I have been careful not to refer to ‘curtilage’ in this context.]

Assuming that the original planning unit comprised the barn and a comparatively small area around it, it appears that the planning unit has subsequently been significantly expanded. This would have involved a material change of use of the land in question, which in the absence of express planning permission was a breach of planning control, but if it took place more than 10 years ago (as seems to be the case) and provide also that the use has been continuous and unbroken ever since, then this change of use has now become immune from enforcement and therefore lawful.

One still has to be careful in identifying the precise extent of the planning unit. The well-known rule in Burdle is subject to the proviso that no part of the unit of occupation is physically and functionally separate from the remainder. So in the present case we have to consider whether some part or parts of the 2 acres might be physically and functionally separate, so as not to be in domestic or residential use as such. It does seem, however, that most (and perhaps all) of the 2 acres is now within one and the same planning unit as the house (the former barn), and that the change of use of the land which brought that about is now lawful.

(There may have been one or more conditions attached to the planning permission for the barn conversion which might have been relevant in this context, but if any such condition has been continuously breached for more than 10 years, then that breach of condition would now also have become lawful.)

It follows from this that the use of the whole of the current (enlarged) planning unit for all domestic purposes, whether they be primary or ancillary uses or merely incidental, would appear to be lawful.

We then come to the operational development which has been carried out – the creation of a tennis court and the construction of a drive. The first thing to say is that operational development is subject to the 4-year rule, so if these works were substantially completed more than four years ago, they are now immune from enforcement and therefore lawful.

But let us assume that these works were more recent than that. Let’s look first at the drive. It is worth remembering that it is only those types of development which fall within Classes E, F and H in Part 1 of the Second Schedule to the General Permitted Development Order which are restricted to the ‘curtilage’ of a dwellinghouse. The erection of a gate, fence, wall or other means of enclosure and the formation, laying out and construction of a means of access to a highway (e.g. a private drive) fall within Part 2 and are not confined to the ‘curtilage’ of a dwellinghouse; in fact they need not be associated with any building at all.

The permitted development allowed by Class B of Part 2 is slightly tricky – it doesn’t apply to any and every means of access to a highway. First of all, the highway must not be a classified road, and that does not just mean ‘A’ and ‘B’ class roads. It is a little known fact that there are also ‘C’ class roads (formerly referred to as ‘Class III’ roads) which also count as classified roads for this purpose. They are not indicated on road signs or shown on Ordnance Survey maps, but there a quite a few minor roads which are in fact ‘C’ Class roads. The problem is that it is very difficult to identify them, unless you send a Local Land Charges Search and accompanying form of inquiries to the Local Authority. (Your solicitor would have done so when you bought your house, so that may be the best place to look.)

There is also case law to show that this permitted development right only applies to a direct means of access to a highway. If the access passes through other land, or joins another driveway, so that it gives only indirect access to the highway, then it is not permitted development within this class.

The other limitation, which people often seem to overlook, is that the formation of a new access to a highway is only permitted development if it is “required in connection with development permitted by any Class in this Schedule (other than Class A of this Part)”. So you can only lay a new driveway as permitted development if it is required (which denotes some measure of need) in connection with some other class of permitted development, and that permitted development must be something other than (or in addition to) the erection of any gate, fence, wall or other means of enclosure. This does have the effect of reducing the scope of this particular class of permitted development quite significantly.

Turning to the tennis court, this is the one item where we need to determine whether it lies inside or outside the ‘curtilage’ of the house. My correspondent referred to “most of the other 2 acres” being used “as garden, though some was rather unkempt, rough meadow in continuity with mown lawn in an enclosed overall plot.” I am not going to try to guess from this description exactly where the boundary of the curtilage should be drawn, but it is unlikely to embrace any area which lies outside the formal cultivated garden close to the house. Any rough grass, paddock or other area of informal recreation is likely to be seen as falling outside the curtilage. So if the tennis court was built in that area, it was not permitted development and would require express planning permission.

So, does my correspondent have any defence? Well, as I indicated above, timing is the first factor to look at. It seems that the addition of about 2 acres of land to the planning unit has become lawful under the 10-year rule. If the tennis court was substantially completed more than four years ago, then that is lawful under the 4-year rule. The same would apply to the driveway.

If the 4-year rule cannot be relied upon in respect of this operational development, then the lawfulness of the driveway as permitted development would depend on the factors mentioned above, and the lawfulness of the tennis court as permitted development would depend on its precise location in relation to the ‘curtilage’ of the house.

I have used this example to illustrate the way in which problems like this one should be approached in practice. I am afraid that I won’t be able to answer other queries in the same way. If you were to ask Gypsy Rose Lee to read your palm, she would reply: “If you wants yer fortune told, dearie, you ’as to cross me palm wiv silver.” I operate on the same principle, but we always agree a fee budget with our clients before we start work, so you should have a reasonable idea how much my services are going to cost you before you commit yourself to instructing me. (It’s worth every penny, of course.)


Monday, 15 August 2011

Localism Bill – Lords debate Part 5

Pressures on my time have prevented my reporting previously on the House of Lords’ debate in committee on Part 5 of the Localism Bill. As I mentioned on 13 July, their lordships reached this part of the Bill on 12 July, and they continued their debate on the planning provisions in the Bill on 14, 19 and 20 July.

I do not propose to comment on the debate on the Duty to Co-operate (Clause 95), Neighbourhood Planning (Schedules 9 and 10 and Clauses 100 and 101), nor the provisions regarding the IPC (Schedule 13) and the Financial Considerations clause (Clause 124). These will all no doubt be re-visited at the Report stage in September.

The clauses which continue to be of particular concern to me as a planning lawyer are (what were at the time) Clauses 108 to 111, dealing with various enforcement issues. In the event, there was no debate on Clause 108, which deals with applications for retrospective planning permission. Nor was Clause 110 debated, dealing with planning offences: time limits and penalties. This is regrettable as these are potentially damaging clauses. What was then Clause 109 [now Clause 112] is even more problematic, and this did at least get an airing. This is the ‘concealed development’ clause.

In common with the Law Society’s Planning & Environmental Law Committee, and also Lord Brown in his judgment on the Welwyn Hatfield case in the Supreme Court, I do not accept that amending legislation is required. There is absolutely no need for this clause in the Localism Bill, which is intended to amend the 1990 Act by inserting three new subsections (171BA, 171BB, and 171BC) expressly to deal with issues of concealment. The Connor principle is available in cases of this sort, where a developer sets out deliberately and dishonestly to mislead a planning authority. In such cases the law is already capable of preventing the developer from benefitting from their dishonesty in such circumstances (as did happen in the Welwyn Hatfield case), although such cases are, and are likely to remain, extremely rare.

The Law Society was partially successful in persuading the government to introduce amendments to this clause during the House of Lords committee stage. The first of these amendments removes the bizarre concept of ‘concealment by inaction’, much to the relief of anyone who would have had to advise owners and purchasers of property in the event that this provision had ever come into effect as originally proposed.

The second amendment introduces a cumbersome and hardly satisfactory rigmarole, whereby a local planning authority, having used its powers to take enforcement action against ‘concealed’ development beyond the time limit which would normally have applied, can then send a letter to a subsequent owner of the property to assure them that they will not be prosecuted for non-compliance with the enforcement notice (or breach of condition notice). This appears, however, to be entirely at the discretion of the authority. Besides being a weird way of going about things, it is still completely unsatisfactory from the point of view of anyone buying the property with no knowledge of the previous breach of planning control. I really must resist the temptation to over-use the Alice in Wonderland analogy, but this amendment really does look like something dreamed up by the Mad Hatter!

The Law Society is still lobbying the government about this clause, and it is to be hoped that ministers will see the impossibility of ‘improving’ the clause to meet the strong criticism which it has rightly attracted. The only sensible course is to drop Clause 112 entirely, and to rely on the Connor doctrine, as applied by the Supreme Court in Welwyn Hatfield.

If this is too much for the government to swallow, then what is needed is a clause whereby the power to take enforcement action out of time in respect of deliberately concealed development is strictly confined to a period during which the person who committed the breach of planning control remains in possession or control of the property. A person who acquires the property after the expiry of the 4-year or 10-year period (whichever is applicable) should be able to take it free of the risk that some allegedly concealed development might subsequently become the subject of enforcement action. The cumbersome business of letters of assurance would then be entirely unnecessary. Relying on the good grace of the LPA in this way would in any event be a completely inadequate form of protection for an innocent purchaser and is unacceptable from that point of view, quite apart from the shear silliness of such a procedure.

I fervently hope that the further efforts of the Law Society to make the government see sense on this issue will bear fruit.


Friday, 12 August 2011

Curtilage confusion – some further thoughts

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 some readers have discovered, the ‘curtilage’ of a dwelling (or of any other building) is not necessarily co-extensive with the property as a whole. If one is dealing with a suburban house on a comparatively small plot, then the curtilage may in fact cover the whole property, and I suspect it is this which has led to the widespread habit (but not among lawyers) of using the word ‘curtilage’ in this rather loose and, in fact, inaccurate way.

However, where a house stands in larger grounds, as many do in the country, the curtilage almost certainly won’t include the whole of the grounds surrounding the house. It is in these cases where the difficulty of defining what is or is not within the curtilage of the house arises. As I have said before, this does not matter so far as primary and ancillary uses of the property are concerned. The whole of the land lying within one and the same planning unit as the house can lawfully be used for all domestic purposes, whether or not the use in question takes place inside or outside the actual ‘curtilage’ as such. (This is subject to the proviso that the area in question has not been added to the planning unit, without planning permission, within the past ten years.) Where the identification of the curtilage becomes important is in deciding whether or not the various operational development which is authorised by Part 1 of Second Schedule to the General Permitted Development Order can be carried out as permitted development – it is permitted only if it is within the ‘curtilage’ of the house. Another case where the precise extent of the curtilage is important is in relation to Listed Buildings; the listing extends to the whole of the ‘curtilage’, but not to any buildings or structures which lie outside the curtilage.

Regrettably, there is no clear definition of ‘curtilage’ (and the usually quoted dictionary definition is of only limited use). The best one can do is to refer to the various judicial authorities which have discussed the concept over the years. Arguably, not only the word but also the idea of a ‘curtilage’ is an anachronism, and we ought perhaps to adopt a clearer and more modern definition of the land which is beneficially used with a building.

It seems to me that the idea of the ‘planning unit’ is a much more useful concept and it is much easier to identify in a particular case, although even here we are dependent on ‘judge-made’ law for the definition (proposed by Bridge J, as he then was, in the case of Burdle.) Unfortunately, the word ‘curtilage’ is written into our planning legislation (both in the 1990 Planning Acts and in the GPDO), and so it will take an Act of Parliament to consign the word to the dustbin of history and to refer to the planning unit instead (with a statutory definition based on Burdle). I frankly see no prospect of genuine planning law reform of this nature ever being brought about, despite the stated intention of successive governments to ‘reform’ the planning system.

There appears to be an assumption that for an area of land to be defined as ‘curtilage’ or to be included within that definition, it must be contiguous with the building (usually a house) to which it relates. However, so far as I can recall, none of the judicial authorities on the definition of ‘curtilage’ actually says this, although it would need to be reasonably close to the dwelling and would probably need to be directly connected to it (e.g. by a path). One correspondent raised this point with me in relation to cottage gardens arranged ‘in tandem’. I don’t see why cottage gardens arranged in this way should not be necessarily be regarded as being within the curtilage of the relevant cottage, and it might be worth arguing by means of an application for a Lawful Development Certificate (seeking confirmation that, say, the erection of a garden shed, would be permitted development under Part 1 of the Second Schedule to the GPDO) and then appealing any refusal of that application to the Planning Inspectorate.

In practice, I suspect that the most practical way of tackling the problem is simply to treat the gardens as (part of) the ‘curtilage’ of the cottage to which each belongs and to assume that the usual PD rights apply. In many cases, no-one will complain about a garden shed or the like, and the local planning authority may never get to hear about it. I have found from experience that in many cases it makes sense just to get on with minor developments of this sort, rather than getting entangled with the planners in advance over whether or not they require planning permission.

My correspondent also raised with me the question of parking a car on this area. However, as I pointed out above, when considering this or any other use of the land ancillary to the occupation of the dwelling, it does not matter whether the area in question is within the ‘curtilage’ of the dwelling or not, provided that it is within the same planning unit. This was the point of my original article on this topic. Such an ancillary use is lawful, and does not in fact constitute development at all (but this is subject to the proviso which I mentioned earlier, that the area in question has not been added to the planning unit, without planning permission, within the past ten years).


Wednesday, 10 August 2011

How long is an EIA screening direction valid?

On 1 November 2010, I reported on the High Court decision in R (Mageean) v SSCLG ([2010] EWHC 2652) [see “Shelf life of an EIA”]. That decision has now been overturned by the Court of Appeal ([2011] EWCA Civ 863).

As I pointed out, the EIA regulations are silent as to how long an environmental statement lasts. There is therefore no ‘sell-by date’ attached to an environmental statement, and the same applies to a screening opinion or screening direction. The High Court decision in Mageean confirmed that it was not the lapse of time (six years in this case) which may lead to a need for a screening direction to be reconsidered, but a material change in circumstances in the meantime. A change of circumstances could render a screening opinion out-of-date within weeks but, on the other hand, if there were to be no change of circumstance, the screening opinion might hold good for many years.

The Court of Appeal decision has not disturbed that basic rule. The Court of Appeal simply decided that the change of circumstance in question (the designation of a nearby World Heritage Site) was not a change that required the screening direction to be revisited, and for that reason they overturned the High Court decision, which had quashed a permission for a wind turbine given on appeal.

The Court of Appeal determined that the planning inspector's decision not to ask the Secretary of State to reconsider the screening direction had not been irrational, in view of the fact that he had concluded that the proposed wind turbine would not have a detrimental effect on the World Heritage Site and he had not been asked by any party to the appeal (including the objectors) to refer the screening direction back to the Secretary of State.

One point where the Court of Appeal seems to have differed materially from the High Court’s basic approach to the issue was in relation to the question as to whether the change in circumstances ‘could’ or ‘would’ lead to a different view being taken in the event of the screening direction being reconsidered. The High Court had decided that the question was whether the change in circumstance could, rather than would, affect the Secretary of State's screening decision; only he could make that decision. The High Court had held that the Planning Inspectorate should have considered whether or not to refer the screening direction back to the Secretary of State for reconsideration on the grounds that the change could affect the screening decision. The Court of Appeal disagreed with this approach. The question is whether the change of circumstance would have led to a different view being taken on a reconsideration of the screening direction. In this case, the Court of Appeal decided, it would not have done so.

In taking this approach, the Court of Appeal seems to have relied on their earlier decision in Evans v First Secretary of State [2003] EWCA Civ 1523, in which they had ruled that an inspector should invite the Secretary of State to reconsider a screening direction if it appears that he had proceeded under some important misapprehension as to the nature of the proposed development or an underlying assumption, or if other material facts come to light that appear to invalidate the basis of the Secretary of State's original screening direction.

[Practitioners should be aware that the 1999 regulations have now been replaced by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824). However, the new regulations do not affect the ruling reported above.]


Finding it

According to the notes on the sidebar, there have been more than 170 posts on this blog since April of last year, and even I have difficulty sometimes in finding material which I previously wrote on a particular topic. I have resorted occasionally to using the Search facility, and it occurred to me that some readers may not be aware of this method of finding particular items in this blog.

Right up at the top left-hand corner of the page (above the main title), next to the ‘Blogger’ logo, there is a box in which you can type a keyword or key phrase. Then click on the ‘magnifying glass’ icon and it will open the page on which the word or phrase most recently appeared. If you want a previous item in which the word or phrase was used, just click on the box which appears on that page inviting you to go back to the previous entry, and so on.

This is a quick way of looking up references in the blog to decided cases. You don’t need the whole citation, just the name of one party will suffice. It should work for any word or phrase.


Monday, 8 August 2011

Human Rights nonsense

Sundry journalists and politicians seem to be working themselves into a quite unnecessary lather over a Swedish case in the European Court of Human Rights (Khurshid Mustafa and Ttarzibachi v. Sweden - application no. 23883/06), in which judgment was given as long ago as 16 December 2008. This arose from a tenancy dispute about a satellite dish, which the tenants had refused to remove as their landlord had demanded. In eviction proceedings, the Rent Review Board found in favour of the tenants but, on appeal to the Swedish Court of Appeal, that decision was overturned and an eviction order was granted. The case then went to the ECHR, where the tenants alleged that their eviction from their flat due to a refusal to remove the satellite dish involved violations of Articles 8 and 10 of the Convention.

The ECHR dealt with the matter entirely in relation to Article 10, which states that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” It is important to understand that in this case, the tenants (who were Iraqi in origin) particularly wished to use the satellite dish to receive TV broadcasts in Arabic and Farsi. The tenants complained that their freedom to receive information had been breached, as the restrictions imposed on them either had not been prescribed by law or had been more far-reaching than necessary in a democratic society. Moreover, they claimed that the consequences – the eviction from their flat and the move to another town – had been disproportionate to the aims pursued.

The ECHR held that the Swedish Court of Appeal's ruling (that the applicants' tenancy agreement should be terminated because of their refusal to dismount the satellite dish in question) amounted to an “interference by a public authority” in the exercise of the rights guaranteed by Article 10. The ECHR particularly noted that the tenants wished to receive television programmes in Arabic and Farsi from their native country or region. That information included, for instance, political and social news that could be of particular interest to the applicants as immigrants from Iraq. Moreover, while such news might be the most important information protected by Article 10, the freedom to receive information does not extend only to reports of events of public concern, but covers in principle also cultural expressions as well as pure entertainment. The importance of the latter types of information should not be underestimated, especially for an immigrant family with three children, who may wish to maintain contact with the culture and language of their country of origin. The right at issue was therefore of particular importance to the applicants.

The Court stressed that it had not been claimed that there were any other means for the applicants to receive these or similar programmes at the time of the impugned decision than through the use of the satellite installation in question, nor that their satellite dish could be placed at a different location. They might have been able to obtain certain news through foreign newspapers and radio programmes, but these sources of information only cover parts of what is available via television broadcasts and cannot in any way be equated with the latter. Moreover, it had not been shown that the landlord later installed broadband and internet access or other alternative means which gave the tenants in the building the possibility to receive these television programmes.

The Swedish Court of Appeal had found that, while the tenants' interest in receiving the television broadcasts had to be taken into consideration, their right to freedom of information did not have such a bearing on the case that it could be considered to have any real importance. This led the ECHR to conclude that the Swedish Appeal Court, in weighing the interests involved, failed to apply standards in conformity with Article 10. The ECHR attached particular importance to the actual outcome of the case, which resulted in the tenants' eviction from the flat in which they had lived for more than six years. The applicants had stated that, as a result of this, they had to move to another city with negative consequences of a practical, economic and social nature. The Court considered that evicting the applicants and their three children from their home was a measure which could not be considered proportionate to the aim pursued.

Having regard to these factors, the ECHR concluded that, even if a certain margin of appreciation was afforded to the national authorities, the interference with the applicants' right to freedom of information was not “necessary in a democratic society” and that the respondent State failed in their positive obligation to protect that right. There had accordingly been a violation of Article 10 of the Convention. In those circumstances, the Court did not find it necessary to consider the alternative claim in respect of Article 8.

What seems to have caused such a fuss, some two-and-a-half years after this case was decided, is that in March of this year the Equality and Human Rights Commission issued a document entitled “Human Rights at Home (Guidance for social housing providers)”, which referred to this case. Interestingly, the document does not refer to Article 10 but, in citing the ECHR decision, incorrectly refers to Article 9!

It seems that Grant Shapps, the housing minister, has finally got round to reading this document, several months after it was published, and he is widely quoted as having said (presumably in reference to the Swedish case) that the Human Rights Act threatens to drive “a horse and cart through planning laws and tenancy agreements”. That is palpable nonsense. As the Equality and Human Rights Commission pointed out in response to Shapps’ precipitate and ill-considered remark, “There is no human right to satellite TV.” The human right in the example they gave in their guidance note referred to the right to practise one’s religion (under Article 9), whereas the Swedish case was exclusively concerned with Article 10 (freedom of expression, and freedom of information). However, as the Commission have pointed out, this is only an illustration of how the law might apply in exceptional circumstances, nor should it be taken out of context. Only the courts can decide if someone’s human rights have in fact been breached.

As the Commission also explained, the “Human Rights in Social Housing” guidance note was produced with expert input from an Advisory Group consisting of social housing providers, representative organisations of social housing providers, central government - including Shapps’ own department (!) - and other regulators. It has been well received by the sector.

Most importantly, and the reason for my taking an interest in this particular brouhaha is that, as the Equality and Human Rights Commission has also pointed out, the example quoted in their guidance note (and the Swedish case itself) refers to "standard terms of tenancy", not to planning law.

It is nonsense to suppose that the Swedish case could have any application to planning law. There are permitted development rights for satellite dishes in the General Permitted Development Order, and any restriction on such rights, for example in conservation areas, (or their removal by an Article 4 direction) would undoubtedly be seen as entirely proportionate, and could not bring the UK authorities into conflict with the European Court of Human Rights. Nor would a refusal of planning permission for a satellite aerial (if needed) have that effect. To suggest otherwise is either disingenuous or just plain ignorant.

So it’s a D-minus for Shapps, G. Go to the bottom of the class, Shapps.

[By the way, in case there are any loony Eurosceptics out there who happen to read this piece, the European Court of Human Rights has absolutely no connection with the EU. It was set up long before the Common Market. We signed up to the European Convention on Human Rights, which is enforced through the Court, some 60 years ago! The Human Rights Act, which incorporates the Convention into our domestic law, has had far less of an impact on our law than some Tory MPs and other right-wing nutters would like to believe. There is absolutely no justification for seeking to repeal the Act, and idiotic outbursts like this recent one from Grant Shapps serve only to undermine the credibility of those who would seek to do so.]


Thursday, 4 August 2011

This Government IS for turning

I wrote a piece a few months ago entitled “U-turn if you want to”. Since then, there seems to have been a growing sense of panic in Whitehall over the state of the economy, and ministers are clearly worried that things are not going the way they had hoped. Recent jitters over US government debt have done nothing to help, not to mention a continuing sense of crisis in the Eurozone, which could yet engulf all of us in further economic mayhem.

All the indicators are pointing the wrong way, and so ministers are looking for any and every means at their disposal which might boost the economy. The planning system is seen as one of these potential tools. We saw this in the announcements made at the time of the budget in late March, and events since then have only served to lend a greater sense of urgency to ministerial hopes of stimulating the economy through development. De-CLoG has only a limited role in this; the desperate drive for growth is coming from No.10 and the Treasury, supported by the Business Secretary.

The problem that Eric Pickles and his ministerial mates at De-CLoG are facing is that they were appointed to pursue the Tories’ pre-election ‘localism’ agenda, which is now looking increasingly irrelevant in face of the clear change of direction which is being signalled from Downing Street. As I said they would, the government has now embarked on a pro-development agenda very similar to that pursued by Margaret Thatcher and Michael Heseltine in the early 1980s. The means by which they expect to achieve this is exactly the same as that which was used before, and relies on central government effectively telling local planning authorities that they must grant planning permission for housing and other development whether they like it or not. Ministerial appeal decisions will back this up and will ensure that local councils fall into line.

There are plenty of signs of the direction in which the government is now heading in relation to planning and development. The presumption in favour of ‘sustainable’ development (whatever ‘sustainable’ means in this context – not a lot, I suspect), the drafting of the National Planning Policy Framework and various other administrative actions and initiatives are all evidence of this. ‘Localism’ is effectively dead in the water, and I bet the government now bitterly regrets having pinned that title on their local government and planning bill. With this albatross around their corporate neck, ministers have little choice but to continue paying lip service to the concept, and the Bill will eventually reach the statute book, but it seems increasingly likely that ‘neighbourhood planning’ may prove to be still-born, having been effectively killed off by all the rules and procedures in the Bill which will have to be followed to put it into effect, not to mention the very limited role it will have in the overall planning system. Any communities who want to participate in neighbourhood planning are going to need stamina and determination to fight their way through all the red tape. Many probably won’t bother.

Meanwhile, just to add to the misery of the NIMBYs and the BANANAs [= “Build Absolutely Nothing Anywhere Near Anyone”], it is becoming increasingly clear that the prospective abolition of Regional Strategies, and their abandonment where they had not yet been formally adopted, is likely to make very little difference to the outcome of development proposals, particularly for major housing developments. In common with a number of other commentators, I pointed out that the housing need which underpinned the Regional Strategies was not going to go away just because Regional Strategies are set to disappear. The evidence base from which RSS housing figures were calculated is still there and is still an important material consideration in the ultimate determination (on appeal if necessary) of development proposals. Several recent ministerial appeal decisions have demonstrated this.

Some local politicians have seized on the prospective abolition of regional strategies as an excuse to slash housing allocations in the core strategies of their local development frameworks, but they should not be surprised if Inspectors find as a result that those core strategies are unsound and must be re-written. Meanwhile, any applications which go to appeal in the absence of an up-to-date development plan are likely to be dealt with under the government’s increasingly pro-development policy regime. Local councillors who were congratulating themselves on having escaped from the hated top-down imposition of unwanted housing allocations may find that their attempts to resist or restrict housebuilding on their green fields are no more effective than King Canute’s attempt to command the incoming tide to go out.

There are still some loose ends to be tied up. In order to ensure that the government’s pro-development agenda is effectively enforced, there needs to be a robust appeals system. Ministers will therefore have to abandon the intention which they had when they first entered office of emasculating the appeals system. That message may not yet have reached all corners of De-CLoG, but I expect we shall hear no more of the desk-based ‘checking’ exercise which it was suggested should replace the current appeals system. Ministers will soon realise that they need to beef up the resources of the Planning Inspectorate so as to ensure that an increasing workload does not lead to a backlog of appeals. A log-jam in the system is just what ministers do not need if they are to deliver development as a boost to the economy. (Expect a recruiting drive for more Inspectors in the New Year!)

I confess to being vastly amused by this volte-face on the part of the government. I never dreamed that they would actually attempt to put their half-baked pre-election policy ideas into practice, because I was confident that ‘Sir Humphrey’ would ensure that ministers were given a reality check before their ideas could get anywhere near implementation. When the government proceeded immediately after the election to forge ahead with their ‘localism’ agenda, I came to the conclusion that ‘Sir Humphrey’ had decided to let them have their head and see for themselves the chaos that would result. In practice, it is economic reality which has asserted itself, and which has imposed an altogether different imperative.


Wednesday, 3 August 2011

Conditions precedent - a further thought

When I reported on the first instance decision in Greyfort Properties ["Lawful implementation of planning permission – another case" : 28 January 2011], I expressed the hope that we might get a definitive ruling from the Court of Appeal on this troublesome issue. Regrettably, the Court of Appeal seems only to have succeeded in further muddying the waters, so that it will be more difficult in future to identify a ‘true’ condition precedent than before.

On reflection, it seems to me that the key to this problem may lie in an alternative approach which I suggested in a lecture on this subject to members of the Planning Inspectorate a couple of years ago.

Rather than attempting to decide whether or not the condition in question was a ‘true’ condition precedent, we should perhaps take a broader view and ask ourselves this question - Is the development which is being or has been carried out the development which was authorised by the planning permission? This is the same question one would have to ask oneself if it were alleged that a building had been built in the wrong place or was larger or higher than it should have been. As always, this is a matter of fact and degree in every case. I suggested that any breaches of condition (not just so-called ‘conditions precedent’, but any condition attached to the planning permission) ought to be considered in that context. Is development in breach of the condition or conditions in question so different, in the form and manner in which it has been carried out, from what was authorised (assuming proper compliance with that condition or those conditions) that it is not within the scope of the planning permission?

This would necessarily involve consideration not only of the condition itself in the context of the permission as a whole, but also the nature and consequences of the breach. To use the formulation adopted by Sullivan J in Hart Aggregates, does the condition (and also the breach) “go to the heart of the permission” ? If not, then this breach of condition will not have rendered the development as a whole unlawful (although there is, of course, a breach of planning control comprising the breach of the condition itself, which may require enforcement action limited to that particular breach of condition). It follows that if, on this basis, enforcement action cannot be taken against the development as a whole, then (in accordance with Hammerton and Prokopp, applying a principle originally derived from Whitley) the commencement of that development must be taken to have been lawful.

If one looks at the matter in this way, it is unnecessary to trouble oneself with the wholly judge-made concept of “conditions precedent”. Nor is it necessary to determine whether or not the precise wording of any requirement to comply with the condition in question before the commencement of development is actually prohibitive in its effect (so as to make it a ‘true’ “condition precedent”). Notwithstanding the judgment of the Court of Appeal in Greyfort Properties, merely requiring that something is to be done “before development commences” might not necessarily be enough to make it a condition that “goes to the heart of the permission”. Furthermore, even if worded in the form of an express prohibition, failure to comply with the condition in question might not take the development outside the scope of the permission if the condition deals only with some minor detail.

At the end of the lecture I speculated as to whether it might take the intervention of the Scottish Court of Session (as it did in East Dunbartonshire v. SSS in relation to ‘colourable implementation’) to catch and shoot the hare which was set running so long ago by Woolf J’s obiter remark in Etheridge. Or could we hope (I asked) that a strongly constituted Court of Appeal will re-examine the issue afresh, taking on board the points made, first by Woolf LJ in Whitley, then by Ouseley J in Hammerton and by Buxton LJ in Prokopp, and more recently by Sullivan J in Hart Aggregates? Unfortunately, the Court of Appeal did not do that in Greyfort Properties, and so we shall have to await a further case in which this whole issue is re-examined yet again. But I have not given up hope that the time may yet come when we can bury the prickly concept of “conditions precedent” once and for all.