Friday, 28 December 2012

Validating and registering planning applications

The changes I mentioned in my last post [Rules relaxed for planning applications: Friday, 21 December 2012] prompted an anonymous contributor to post a comment which deserves a post to itself, as it gives rise to a number of further thoughts on this topic.

My correspondent picked up on my comment that the new sub-clause in section 62 (which will provide that LPA information requirements must be reasonable having regard, in particular, to the nature and scale of the proposed development, and that the LPA may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application) will not entirely eliminate the problems arising from local validation lists. My correspondent suggests that these changes will do nothing whatsoever even to address the 'local list' and 'validation' problems. On reflection, I fear this may be right.

Anon suggests that to LPAs these 'tools' are not genuinely anything to do with development control (as in controlling actual outcomes) but about controlling the flow rate of applications and thus workload. That is to say, they are about serving the interests of the supply side not the demand side - all in the name of the 'public interest', of course. Half of the information demanded is not understood; the other half they don't read anyway. [I can only add “Hear! Hear!” to that.]

My correspondent has observed with increasing dismay the decay of LPA's DC operations over the last 30 years. There are still some very good people in planning departments who operate beyond the tick-box culture (and who are a pleasure to deal with) but, across the board in general, the silo mentality has triumphed - the pesky public have become the enemy whose unreasonable aspirations must be resisted and re-moulded to fit the pre-determined defaults prescribed.

Let's not forget (Anon continues) that those defaults have been developed and refined over more than 60 years into the current codes guiding what is and what is not acceptable development: deviation is allowed, but only when it fits the discretionary tastes and preferences of the decision maker. The applied defaults will not be given up easily despite the compelling need, for example, to improve radically, not marginally, the energy efficiency of existing buildings. These refined defaults are not merely some part of the DC system, they are the system. Changing those defaults amounts effectively to destroying the system as we know it from that first seminar at college to the last day at work. It is to tear up the very essence of itself. It would be like the legal field throwing out all case law and starting again.

What has been subordinated, if not lost altogether, my correspondent suggests, is respect for that most basic of all canons of development control: the presumption in favour of development. Instead, everything has to be justified by the applicant: Design & Access Statements - which go unread anyway; plus all the information set out in local lists etc. My correspondent doubts whether LPAs will have much regard for the requirement of reasonableness, even when it is enshrined in the new sub-section 62(4A) which I cited.

All 'requirements' for a valid application beyond a simple form should be abolished, including application fees, my correspondent proposes. Development control is necessary but not sufficient in its current form to be a system fit for purpose; it is far too focused on stopping, instead of enabling development and too often hijacked for invalid reasons and agendas. At this point my correspondent ended their rant [their own word] and wished us all a Merry Xmas.

My reason for devoting an entire post to this anonymous comment is that there is much in what my correspondent writes with which I agree. The changes to the DMPO and the new sub-section in section 62 may not be sufficient to change the mind-set which is now deeply entrenched in planning departments around the country that planning applications should not be registered until every last dot and comma is in place, as required by the local validation check-list. I even had a refusal by one LPA to register an application for an LDC because I had not sent in a copy of the full planning application check-list itself, duly ticked to show which items were included, despite my having pointed out that only one single item in the list (viz: a site plan) was actually required in that case, and it should have been obvious even to the dimmest junior admin assistant that this item had indeed accompanied the application. As my anonymous contributor suggests, this nonsense has a lot more to do with controlling workflow than any genuine need for the information demanded, much of which is not read anyway in most cases.

So I entirely agree that the only sure way of putting an end to this nonsense is to abolish local validation checklists altogether. LPAs could still request additional information after the application is registered, if they really need it, as they were entitled to do under an earlier version of section 62, when the applicant had the option of appealing against this under section 78 and in effect running an appeal against deemed refusal by reason of the LPA’s failure to determine the application. Design & Access Statements are equally unnecessary; we did without them for over 50 years and still managed to have a reasonably reliable and efficient development control system. There is also a respectable case to be made against the payment of application fees (and I have put this forward myself in the past), but that argument will have to await another post.

I was recently discussing the development management process with a planning consultant with whom I have done a great deal of work over the years. We rapidly came to the conclusion that the planning system could be immeasurably improved simply by repealing all the amending legislation (both primary and subordinate) introduced in the past 20 years or so, starting with what used to be section 54A of the 1990 Act (now section 38(6) of the 2004 Act). Every change since then, both to the development plan system and to the development management process has been downright damaging to the system and unhelpful to its users. If the government was really serious about sorting out the bureaucratic log-jams caused by the planning system (instead of indulging, like governments of all political persuasions, in empty gesture politics) they would take a radical initiative on this scale, rather than tinkering yet again with the details.


Friday, 21 December 2012

Rules relaxed for planning applications

I am grateful to my colleague David Brock for drawing attention to the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 3) Order 2012 made on 17 December, and due to come into force on 31 January 2013, which makes some welcome changes to the procedural requirements for submitting planning applications.

The amendment order relaxes the requirements of Article 4 of the DMPO in respect of outline applications and allows for certain details of the development which under the DMPO had to be included in the outline application to be treated in future as reserved matters for later approval by the LPA.

The version of the DMPO in force up to now required that where layout is a reserved matter, the application must state the approximate location of buildings, routes and open spaces and where scale is a reserved matter the application must state the upper and lower limit for the height, width and length of each building. The effect of the amendment is to remove the requirement to provide these details at the outline stage where layout and scale have been reserved. This effectively puts the position back to where it was before these requirements were imposed several years ago.

So far so good, but we still have to deal with those pesky ‘local lists’ setting out the LPA’s information requirements before the application can be registered. The amendment order does make a minor change to this requirement (although I confess that I do not understand precisely what practical effect this change will have in practice). In future, the only information requirements which are to apply to a particular planning application (i.e. all applications, not just outline applications) are those on a ‘local list’ which has been published or republished within two years before the planning application is made. This provision is to apply to all planning applications made after “31st June 2013” [sic]. I don’t think this is a misprint for 31st January, as it is presumably intended to give LPAs the chance to revise and update their local lists before this change takes effect. If the idea is that they should have six months in which to do so, then the date is presumably intended to read “31st July 2013”, and a correction will no doubt be issued to that effect.

For one wild moment, I thought we might have a window of opportunity early in the New Year to bang in applications without providing any of the information required in current local lists (unless LPAs had been very quick off the mark in republishing their local lists). However, a reality check suggests that no such thing was intended, but it does mean that LPAs must revisit their local lists within the next few months, and then again at intervals of not more than two years. My fear, however, is that these local lists will simply be re-published unamended or with only the most superficial changes, and so no advantage will in practice accrue from this amendment to the DMPO.

I have not had time yet to post my comments on the Growth and Infrastructure Bill, but it contains a welcome change in Clause 4 that will provide that in section 62 of the 1990 Act a new sub-section is to be inserted after subsection (4) (limitation of power under section 62(3) to require inclusion of particulars and evidence in an application) which will read -

(4A) Also, a requirement under subsection (3) in respect of an application for planning permission for development of land in England—
(a) must be reasonable having regard, in particular, to the nature and scale of the proposed development; and
(b) may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application.

I have been asking for this change ever since the judgment of Langstaff J in Newcastle Upon Tyne City Council v SSCLG [2009] EWHC 3469 (Admin), so that the right of appeal under section 78 is restored where an LPA is being unreasonable in demanding additional information before registering a planning application. [See “Validation dispute goes pear-shaped” : Wednesday, 5 May 2010, and “A much-needed reform” : Friday, 13 August 2010.]

However, even this will not entirely eliminate the problems arising from local validation lists. De-CLoG really needs to get to grips with these local lists by assuming some sort of supervisory oversight of their requirements or by taking powers for the Secretary of State to relax the requirements of a local list where he considers those requirements to be unduly onerous on applicants. However, I am not currently aware of any such proposals. There really ought to be some way in which applicants can be relieved of the obligation to provide information which is in practice entirely unnecessary or irrelevant in the context of the particular application in question. At present, junior administrative staff, taking a ‘tick-box’ approach, are all too likely summarily to throw back applications for failure to comply with the requirements of the local list, rather than taking a pragmatic approach, and only asking for the information that is genuinely required, while forgetting about those items that are clearly not appropriate to the application before them. The restoration of the right to appeal in these circumstances against non-determination under section 78 is not the whole answer to the problem; developers and their professional advisers would much prefer that these problems over the registration of applications should not arise in the first place.

As this may be my last post before Christmas, may I take this opportunity of wishing all my readers a Very Merry Christmas. I may possibly publish one or more further posts before New Year’s Day, but in case I don’t get that elusive ‘round tuit’ in my Christmas stocking, let me also add my best wishes for a Happy, Healthy and Prosperous New Year.

UPDATE: (14 Jan 2013) My guess that "31 June" should read "31 July" was correct. The Order has now been changed to remedy this misprint. Incidentally, I did not spell it out in my orignal post, but the amendment to the DMPO abolishes the short national validation checklist as such, although the information previously specified in that list will clearly continue to be essential, and may well be inserted in local checklists in future.


Thursday, 13 December 2012

Proposed restrictions on Judicial Review

Chris Grayling, the Lord Chancellor / Justice Secretary, has published a consultation paper setting out proposals that are deliberately aimed at reducing the number of Judicial Review applications, by making it more difficult and more expensive to apply for judicial review. Allegedly, these ideas are targeted at ‘weak or ill-founded’ judicial reviews, but their catch-all nature will affect all JR applications, not just the unmeritorious ones.

I had expected a suggested reduction in the time limit for making an application for permission to bring a claim for JR, and suggested that it might be sensible for the time limit to be brought into line with the six-week (42-day) time limit that applies to statutory High Court challenges to planning appeal decisions under section 288 of the Town & Country Planning Act 1990. This is what is now being proposed in planning cases “when the claimant knew or ought to have known of the grounds for the claim”. (In procurement cases , i.e. decisions or actions within the ambit of the Public Contracts Regulations, Grayling is suggesting that the time limit should be just 30 days from the date of the decision that is being challenged, which won’t make lawyers dealing with that type of case very happy).

Bearing in mind that an informal six-week time limit had been applied by the courts in planning cases, prior to the House of Lords decision in Birkett, there cannot really be any serious objection to the time limit being set at this level. However, it appears that in the interests of justice the Court will still have the discretion to extend time, in order to cater for exceptional circumstances, which are bound to occur from time to time. The removal of this discretion (which has always been sparingly exercised by the courts) would have caused injustice, particularly to amenity groups and other members of the public who do not have the legal and financial resources enjoyed by major developers and other commercial organisations, and who may therefore need extra time, including the time required to organise the funding of such litigation in some cases. Continued compliance with the Aarhus Convention would have required this in any event.

A point which immediately arises, and which is addressed by the consultation paper (but without a precise answer being suggested) is precisely at what point grounds of challenge should be said to arise. In planning cases, after Birkett, it is currently the date on which the planning permission under challenge is actually issued, rather than the date of the resolution leading to the grant of that planning permission. Grayling’s suggestion that time should run from the earliest date on which grounds of challenge arose could, in principle, put the date back to the original committee resolution. However, much can happen between such a resolution being passed and a planning permission actually being issued, and it is well settled law that the decision-maker must take into account any change of circumstances between the resolution being passed and the permission being issued (see Kides v. S Cambs DC [2002] EWCA Civ 926). Thus grounds of challenge (or additional grounds) might well arise between these two dates, and so it would probably be best to leave this rule derived from Birkett undisturbed. To do otherwise might encourage premature JR claims, when the matter might be resolved prior to any final and irrevocable action being taken by the authority.

The proposals also seek to tighten the procedural rules for applying for the Court’s permission to bring a claim for JR. The government’s proposal is that in cases where the claimant has been refused permission on the papers, and the matter is one which has been the subject of a prior judicial hearing, the claimant’s right to ask for an oral renewal of the application for permission should be removed. This is unlikely to affect most planning cases, although it might be relevant in cases like the Dale Farm saga and similar gypsy/traveller cases, where there has been a course of previous litigation. Any appeal to the Court of Appeal would also be on the papers only (a change that has already occurred, following amendment of the Civil Procedure Rules (Rule 54.7A and 52.15(4)) with effect from 1 October 2012).

The government has clearly had to steer a careful course here. Judicial Review may be the only available route for a claimant to challenge a decision, and so the procedure must not act as a barrier to access to justice, failing which it might infringe the requirements of Article 6 of the European Convention on Human Rights (the right to a fair and public hearing). The government’s reasoning is that the changes they propose will only act as a procedural barrier where there has been a prior judicial process involving a hearing (thus satisfying Article 6) or where the claimant has failed to make out a claim to be determined (and so has not engaged Article 6 substantively). In these circumstances, they believe, their proposals would operate compatibly with Article 6.

There is, however, a sting in the tail. The government is still proposing to remove the right to an oral renewal where the case is assessed as totally without merit. It seems that this is primarily targeted at immigration and asylum cases. It could prove to be somewhat controversial. The idea is that the judge reviewing whether to grant permission may, if he or she considers that no arguable case is made out, also decide that it is “totally without merit”. In the context of immigration, where a judge finds that a case is totally without merit, they may also state that oral renewal is no bar to removal, which means that an application for renewal will not of itself be sufficient to defer that removal, and the claimant will have to obtain an injunction to prevent it.

Finally, the government intends to hike the application fees for JR as an added disincentive to claimants. As matters stand at the moment, a party who wishes to bring Judicial Review proceedings in the High Court must pay an initial fee of £60, and where permission is granted a further fee of £215 is payable by the claimant before the matter can proceed to trial. There is no fee for an oral renewal of the application for permission. The government has already conducted a previous consultation exercise, which proposes to increase the fee both for an application for permission to bring a Judicial Review and then to proceed to trial to £235 (i.e. £470 in total). They now propose to tinker further with this, by introducing an extra fee for an oral renewal at the same level as for a full hearing of the Judicial Review (i.e. £235). On the other hand, where the application for permission is successful, they propose to waive the further fee for a full Judicial Review hearing. The rationale for this is that an applicant who is successful in securing permission for Judicial Review at an oral reconsideration would not have to pay any more than one who was successful on written submissions. Those entitled to a fee remission would have their fees reduced or waived. However, as I and other commentators have pointed out before, there must be some doubt as to whether these fee increases would put us in breach of the Aarhus Convention in relation to environmental challenges (including planning cases).

It is abundantly clear that in relation to planning cases, the number of judicial review applications coming forward does not even begin to justify the alleged grounds on which the government’s proposals are based. The total numbers are modest (only 191 in total in 2011), and there is no evidence that there is a disproportionate number of ‘unmeritorious’ claims within this group, still less that the proportion of such allegedly hopeless cases is on the increase. A respectable argument can be made in favour of the proposed six-week time limit, but it does not derive in any way from the quoted statistics; it simply removes an element of uncertainty which was arguably in breach of European law on this issue.

There will no doubt be detailed and well argued objections to some of these reforms, especially those which impact on immigration and asylum cases, and thereby raise issues of equality and human rights. The extent to which the government takes notice of the reasoned objections that can be expected will be a telling test of how honest and honourable this government really is.


Sunday, 2 December 2012

Judicial review - statistics update

Labour MP Frank Dobson has obtained more detailed figures for judicial review applications from the Ministry of Justice, in a written answer to a parliamentary question which appeared in Hansard last Monday (26 November). He asked the Secretary of State for Justice how many applications for judicial review related to planning or infrastructure proposals have been made in each year since 1998, and how many of those applications were (a) allowed to proceed to a hearing and (b) granted.

Until I saw these figures, I had assumed that planning cases would account for a majority of the ‘other’ cases in the JR statistics previously quoted. Not so. The numbers of JR (i.e. non-statutory) cases relating to town and country planning in the period in question were: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191.

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications last year being bandied about by the government. In fact, even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). As a proportion of all JR applications, planning-related JR applications account for less than 2% of the whole!

It is also clear that the upward trend in the number of applications (if there is one) is uneven. Numbers have gone down as well as up over the past 14 years - for example in 2002 (down 16% on 2001), 2004 (down 2% on 2003, and still down 2% on 2001), 2009 (down 10% on 2008) and 2010 (down 10% on 2009, and down 20% on 2008). The 191 planning-related JR applications in 2011 represent quite a jump compared with 2010 but, on previous performance, it is quite possible that 2012 might possibly see a drop in this number.

The fact remains that 29% of a very small number (comparing the increase in 2011 over 2010) is still a very small number. This is hardly a “growth industry”, as the PM described it in his CBI speech.

The other point which seemed to be exercising the PM was an alleged rise in the number of ‘hopeless’ JR applications. The answer to Frank Dobson’s question also shed light on this. The number of cases that received permission from the Court to proceed (and the percentage of total planning-related JR cases which these figure represent in each year) were: 1998 – 51 (= 46%); 1999 – 56 (= 48%); 2000 – 68 (= 56%); 2001 – 63 (= 44%); 2002 – 47 (= 39%); 2003 – 54 (= 44%); 2004 – 49 (= 41%); 2005 – 44 (= 31%); 2006 – 50 (= 35%); 2007 – 51 (= 34%); 2008 – 67 (= 36%); 2009 – 64 (= 39%); 2010 – 46 (= 31%); 2011 – 61 (= 32%).

Thus, in most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application. Furthermore, it is not possible to discern any clear trend from these figures which would suggest that there has been any increase in hopeless applications in this area of the law. The notion that Cameron was peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development projects, is clearly nonsense. There is already an effective process to weed out unarguable cases, and it is hard to see how a more stringent procedure could be devised without going into the case in more detail to ascertain whether it is not merely arguable but stands a reasonable chance of success. This would turn the initial filtering process into something much more akin to a substantive hearing, and would entirely defeat the object of the exercise.

Finally, the figures show the number of planning-related JR applications that are granted, i.e. where a quashing order is made or other appropriate relief is granted by the Court. These were (with the percentage success rates, compared with the number of cases given permission for a substantive hearing): 1998 – 10 (= 20%); 1999 – 19 (= 34%); 2000 – 29 (= 43%); 2001 – 17 (= 27%); 2002 – 12 (= 26%); 2003 – 11 (= 20%); 2004 – 10 (= 20%); 2005 – 11 (= 25%); 2006 – 7 (= 14%); 2007 – 17 (= 33%); 2008 – 14 (= 21%); 2009 – 15 (= 23%); 2010 – 17 (= 37%); 2011 – 6 (= 10%).

There is no discernible trend in these figure. Clearly, each of these cases was arguable; otherwise they would not have been given permission to proceed, but the success rate is bound to vary, and I am not aware that it has ever been significantly higher than these figures would appear to suggest. As it is, there seems to be a greater chance of success in planning-related JR cases than in other types of JR application.

These figures certainly do not justify any significant procedural change in relation to judicial review applications. As matters stand at present, a claim for JR is initially considered by a judge on the papers, and if dismissed can then be renewed for oral hearing before another judge. The government seems to want to stop the process at that point, whereas at present the application for permission to proceed can be taken on to the Court of Appeal and, in rare cases, to the Supreme Court - a change brought about by the case of Birkett, reversing the previous ruling in Re Poh (which had prevented such an application being appealed from the Court of Appeal to the House of Lords).

As I indicated in my earlier post on this topic, and as a number of other planning and public law specialists have pointed out, Cameron’s other proposal - that it should be made more expensive to apply for JR - would appear to be in breach of the Aarhus Convention, so far as environment-related cases (which would include planning) are concerned. It was precisely in order to ensure compliance with the convention that the MoJ put forward proposals only a few months ago to limit the costs in environment-related judicial review cases.

In addition to these statistics on JR, Hilary Benn, who shadows the communities and local government brief for Labour, asked for the figures for statutory quashing applications under sections 288 and 289 of the 1990 Act. A written reply to this question was also printed in Hansard for 26 November, and if time allows I will take a look at it in a future post.


Wednesday, 28 November 2012

Changes for Listed Buildings and Conservation Areas

While attention has been focused on the passage of the Growth and Infrastructure Bill through the Commons, another bill, the Enterprise and Regulatory Powers Bill, has been passed by the Commons and has been quietly making its way through the Lords. This bill includes a number of changes to the Planning (Listed Buildings and Conservation Areas) Act 1990. These changes had been announced some time ago, but it is interesting that the government has not taken the opportunity to revive the proposals that were included in the last government’s abortive Heritage Protection Bill.

Some of the ideas in this new Bill sound a bit high-falutin’, and one wonders what use is likely to be made of them in practice. For example the bill introduces ‘heritage partnership agreements’ between LPAs and the owners of listed buildings. These agreements can also be entered into with listed building owners by DCMS and by English Heritage.

A heritage partnership agreement may grant listed building consent under section 8(1) of the Act in respect of specified works for the alteration or extension of the listed building subject to any conditions that may be specified in the agreement. A heritage partnership agreement may also specify or describe works that would or would not, in the view of the parties to the agreement, affect the character of the listed building as a building of special architectural or historic interest, make provision for the maintenance and preservation of the listed building, and provide for the carrying out of specified work.

It may also provide for public access to the listed building and the provision to the public of associated facilities, information or services, while restricting access to, or use of, the listed building, or prohibiting the doing of any specified thing in relation to the listed building. The agreement may also provide for the payment of grants (on specified terms) for, or towards, the costs of any works provided for under the agreement, or in consideration of any restriction, prohibition or obligation accepted by any other party to the agreement.

A heritage partnership agreement must be in writing, must make provision for the parties to review its terms at intervals specified in the agreement, must make provision for its termination and variation and may relate to more than one listed building, as well as containing incidental and consequential provisions.

DCMS may make detailed regulations regarding any consultation that must take place before heritage partnership agreements are made or varied, about the publicity that must be given to heritage partnership agreements before or after they are made or varied and specifying terms that must be included in heritage partnership agreements. The regulations may also enable the Secretary of State or any other person specified in the regulations to make an order terminating a heritage partnership agreement or any provision of such an agreement;

Listed building consent granted by a heritage partnership agreement (except so far as the agreement or regulations otherwise provide) will enure for the benefit of the building and of all persons for the time being interested in it, but a heritage partnership agreement cannot impose any obligation or liability, or confer any right, on a person who is not a party to the agreement.

It will not be possible to get any of the covenants in a heritage partnership agreement lifted under Section 84 of the Law of Property Act 1925 (in contrast to the power to get restrictive covenants discharged or modified under that section).

Another innovation is the introduction of Listed Building Consent Orders, which will be similar in nature to the General Permitted Development Order. An LBCO will grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings in England. The consent may be granted subject to conditions specified in the order. An order may include a prior notification provision allowing an LPA to require details of works to be approved by them, and the order may grant consent subject to conditions relating to the making of an application to the authority for a determination as to whether such approval is required, and the outcome of such an application or the way it is dealt with.

A listed building consent order may enable the Secretary of State or the LPA to direct that consent granted by the order does not apply to a particular listed building, to listed buildings of a particular description, or to listed buildings in a particular area.

LPAs will also have power to make Local Listed Building Consent Orders (analogous to Local Development Orders). This power will be very similar in scope to Listed Building Consent Orders made by the Secretary of State. These powers will be subject to a degree of supervision by DCMS, enabling the Secretary of State to prevent the making of an LLBCO without his approval. The Secretary of State will also have power to revoke an LLBCO if of the opinion that it is expedient to do so.

There are provisions to cater for incomplete works to a listed building where a Listed Building Consent Order is revoked or amended. The order may include provisions permitting the completion of works if the listed building consent is withdrawn after the works are started but before they are completed. Compensation provisions are also included in the bill which are similar to those applying where the GPDO (or an LDO) is revoked so as to remove the deemed consent that was previously granted by the order.

A very welcome and long-awaited reform is the introduction of certificates of lawfulness for proposed works to a listed building. This will enable anyone who wishes to ascertain whether proposed works for the alteration or extension of a listed building in England would be lawful to make an application to the local planning authority specifying the building and describing the works. If on an application under this section the local planning authority are provided with information satisfying them that the works described in the application would be lawful at the time of the application, they must issue a certificate to that effect; and in any other case they must refuse the application. The lawfulness of any works for which a certificate is in force under this section is to be conclusively presumed unless there is a material change, before the works are begun, in any of the matters relevant to determining their lawfulness.

There will be a right of appeal against the refusal of a Lawful Works Certificate. Detailed procedure rules will be made for the conduct of appeals. In practice, these appeals will no doubt be very similar to appeals under section 195 of the principal Act.

In addition to these changes, there are provisions in Schedule 17 of the bill which amend section 171B of the principal Act so as to remove entirely the time limit for enforcement action against a breach of planning control in respect of the demolition of an unlisted building in a conservation area (in England only). However, in an enforcement notice appeal under section 174 against an enforcement notice that relates to any such demolition, an appeal may also be brought on the grounds that the demolition was urgently necessary in the interests of safety or health, it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter, and the relevant demolition was the minimum measure necessary.

A new section 196D will make it an offence to demolish an unlisted building in a conservation area without the required planning permission. Failing to comply with any condition or limitation in a planning permission for any such demolition will also be an offence. In the same way as in the case of a section 174 appeal, it will be a defence for a person accused of an offence under this section to prove that the relevant demolition was urgently necessary in the interests of safety or health, that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter, that the relevant demolition was the minimum measure necessary, and that notice in writing of the demolition was given to the local planning authority as soon as reasonably practicable. (All four elements of the defence must be proved.)

A person guilty of an offence under this section will be liable on summary conviction, to imprisonment for a term not exceeding 12 months or an unlimited fine or both, and on conviction on indictment, to imprisonment for a term not exceeding 2 years or an unlimited fine or both. This causes me to raise an eyebrow, because custodial sentences had been abolished for other planning offences. This, therefore, appears to be a retrograde step.

Where a fine is imposed, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence. It is also provided that where, after a person commits an offence under this section, planning permission is granted for any development carried out before the grant of the permission, that grant does not affect the person’s liability for the offence.

Finally, Schedule 17 also amends the Planning (Listed Buildings and Conservation Areas) Act 1990 by enabling any entry in the statutory list of buildings of special architectural or historic interest to provide that a particular object or structure fixed to the building or within the curtilage of the building is not to be treated as part of the building for the purposes of this Act, or that any part or feature of the building is not of special architectural or historic interest. However, this provision applies only to entries for buildings that are listed, or entries that are amended, on or after the date on which this new provision comes into force.

The House of Lords Committee Stage is due to start on 3 December.


Tuesday, 27 November 2012

Agricultural buildings – the prior notification procedure

If you follow comments as they are posted in this blog, you may be aware of a recent discussion on the prior notification procedure in relation to Permitted Development under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order.

More than one correspondent has queried the position where prior notification is given to the local planning authority, but they decide (either then or later) that the development is not in fact PD. Is the LPA under an obligation to respond within 28 days in these circumstances, and what is the legal effect if they do not do so?

The essential point is that if the development falls outside the parameters of Part 6, then it is not Permitted Development. It may exceed the size limit, or the height limit or the distance from the metalled part of a classified road (which includes a ‘C’ class road, incidentally). It might not in any event be reasonably necessary for the purposes of agriculture within that unit. In any such case, it makes no difference when the LPA responds to the notification or whether they do so at all. Giving prior notification cannot make a development PD if it simply doesn’t qualify within Part 6. Such a development cannot be built except with express planning permission.

It is a matter of fact and of law as to whether or not development qualifies as PD under Part 6. If the LPA claims the development is not PD, this is not determinative of the point. They might be wrong. If it turns out that they are wrong, and the development is PD after all, then the 28-day rule would apply, effective from the date of the original prior notification, and the payment of the correct fee (subject to a five-year deadline for commencement of the development).

There are various ways in which the view of the LPA that the development in question is not PD could be challenged. Applying to the High Court for a declaration (as happened in a case I reported late in 2010) is cumbersome and expensive. An application for an LDC would be a much better alternative, and a refusal by the LPA to issue an LDC could be appealed to the Planning Inspectorate. If the farmer is very confident of his position, he could just get on with the development, but this would be a high risk strategy, with the likelihood of enforcement action being attempted by the LPA.

Two correspondents have drawn attention to Annex E of PPG7 (which remains extant, despite the recent bonfire of ministerial planning advice). The advice suggests that in the course of dealing with the prior notification procedure the LPA should verify that the intended development does benefit from permitted development rights, and does not require a planning application. It points out that there is no scope to extend the 28-day determination procedure. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply.

However, the crucial point is that if the development in question is not in fact Permitted Development at all, then there is no 28-day period in which the LPA has to do anything. If, as a matter of fact and law, the development in question does not fall within the parameters of Part 6 (for example if it is not reasonably necessary for the purpose of agriculture within the holding) then the notice or application could simply be ignored. In practice, it would be advisable for the LPA to make it clear that they do not agree that the proposed development is Permitted Development within Part 6, but no legal consequences flow from their failure to do so, within 28 days or at all. Annex E to PPG7 does not have the force of law; it is simply ministerial policy guidance, no more than that.

If it turns out that the development does fall within Part 6, then the failure of the LPA to respond to a valid notice (complete with the correct fee) within 28 days would mean that the developer would then have the right to carry out the Permitted Development at any time within 5 years. But if the development does not meet the criteria set out in Part 6, it is not PD and cannot be carried out as such, whether the LPA responded within 28 days, after more than 28 days or did not respond at all.

There may be cases where it only becomes clear some time later that the development in question was not in fact PD under Part 6. Even here, the LPA is not bound by its previous conduct, even if it purported to approve the siting and design of the development. This would give rise to other considerations, including a possible complaint of maladministration, and it might not be ‘expedient’ (in terms of section 172) to take enforcement action in such circumstances. But the fact remains that the development would be unlawful until four years have passed since its substantial completion.


Wednesday, 21 November 2012

The plight of the planners

My recent piece on (allegedly) ‘Worst-performing Local Planning Authorities’ has prompted this comment from a town planner, who must necessarily remain anonymous. You will understand from what I have already written that I entirely sympathise with this officer’s views, and with their analysis of the problems that are accumulating due to cuts. I have absolutely no doubt that things really are as bad as he or she says.

My anonymous correspondent writes:

“As a local government planner, I won’t pretend there aren’t lots of things we could do better and we should always drive towards greater efficiency, but quite simply if experienced, knowledgeable planners are taken out of a planning department – deliberately through retirement/reorganisation, negligently through creating such a stressful work environment they choose to leave, or (equally as bad) as a result of loading unmanageable extra levels of work on them and rendering them effectively unable to devote time to planning (see all heads of planning who are now also heads of regeneration, building control, environmental services, land rec, highways, parks etc) the resulting poorer service is inevitable.

Planners able to deal successfully with Members, consultants and statutory consultees and who are able to see the wood for the trees are either not being replaced or replaced with junior, less experienced staff. Good luck to the next generation coming through who are getting their start in the workplace, but a graduate is never going to be able to fill the hole left by an experienced officer and nor should they be asked to. An experienced officer will not only be doing their own job, but helping everyone else around them - so you don’t just lose one member of staff, you also affect the performance of those that remain.

The warnings of future budget settlements are dire. We’re no longer ‘achieving efficiencies’; rather we’ll see good old cost cutting. No pretence about streamlining or realigning focus, Councils will just have to cut costs regardless of the effect on service. No Senior Planning Officer wants to deliver a poorer service, but if there aren’t the resources to fund anything other than a poorer service, what can they do? There’s only so much clever thinking that can hold off the inevitable.

Most worryingly of all, the professional officers rising to the top in this cost cutting era aren’t going to be your Chief Planning Officer types with 30 years of experience at all levels of planning, who know what it takes to deliver major development (by which I mean not just giving planning permission or getting the funding, but actually seeing something built on the ground). They’ll be cost-cutting management types, who neither understand or care what planning is or does and whose sole focus will be cut, cut, cut.

I’ve heard of one Council who are looking to scrap their entire planning policy section. If true, it’ll be spun well enough, but good luck to everyone involved in doing anything that needs more than a simple DC appraisal there in the future.

I try to tell myself we’ve been here before and sense will ultimately prevail, but another few years of the Coalition’s what-announcement-can-we-make-today approach and local government’s perhaps inevitable response of promoting up the cost-cutting non-planners to deliver cuts rather than the annoying planners who might suggest that doing away with things like planning policy is a bad idea, is going to have big consequences for us as a profession and ultimately for the communities we’re trying to make better.

Some may read this and think of all the poor local government planners they’ve ever had the frustration of dealing with, sitting round drinking tea all day and chatting about ‘I’m a Celebrity’ but trust me, when the department is led by a cost-cutting android, the expensive senior planners are all retired off, those that remain are either so good at their job they’re now also in charge of dog-catching, car parks and tree cutting or are so new and inexperienced that they’re left to get on with it, with no support and no ability to make decisions – everyone will look back on the good old days, where it might not have been as efficient as it should have been, but at least their local planning department had a thread of planning common sense running through its decisions and for good or bad there was some sense of ‘planning’ at the heart of it all.”

Before anyone scoffs at this, bear in mind that it is the 'consumers' of planning services - all sorts of people who need planning permission for a wide variety of developments, and in fact the public generally, who are ultimately going to suffer from all this. It certainly isn't going to deliver the growth the government so desperately wants to promote (or says it does).

© MARTIN H GOODALL (with acknowledgements to my anonymous contributor)

Tuesday, 20 November 2012

Judicial review – the statistics

After Cameron’s speech to the CBI yesterday, it occurred to me to wonder whether there really has been a huge increase in judicial review cases as he alleged. I am grateful to the Guardian for publishing the relevant statistics on their website. I am told that this point was also picked up yesterday on The World at One on Radio 4. It immediately becomes clear that Cameron’s assertion is grossly misleading.

The statistics are divided into three categories – (1) Immigration / asylum, (2) Criminal, and (3) ‘Others’. The first category vastly outnumbers all the others combined. Immigration/asylum cases represent more than three-quarters of all judicial review applications. This is almost undoubtedly a reflection of a basically unfair process which inevitably causes perceived injustice, coupled with the inadequacy of the existing immigration/asylum appeals system. Nonetheless, the success rate in immigration/asylum cases is far lower than in any other category (about 0.6% of all immigration/asylum JR applications), and the successful challenges represent less than 10% of those cases that go forward for a full hearing.

It is this one area that accounts for the entire increase in JR applications, but there are entirely understandable reasons for this, given the government’s clamp-down on immigration/asylum claims in recent years. The hard-line approach the government has adopted has undoubtedly led to an increasing sense of injustice and to a resulting rise in the number of JR applications in this category. However, this increase should not be allowed to distort the overall view of JR cases in the other categories.

The criminal cases are in a special category of their own and represent by far the lowest number of JR applications – only 3% of the total number of applications. They add little or nothing to the statistics.

This leaves the “other” category of JR applications, which cover all the planning, environmental and other cases (such as the Virgin Rail challenge to the West Coast rail franchise decision). The numbers involved are far fewer than the PM would have us believe. When you strip out the immigration/asylum and criminal cases, you are left with just 2,213 JR applications in 2011, of which 527 went forward to a full hearing and 87 were successful (about 4% of all ‘other’ applications, and about 16 or 17% of those that went to a full hearing).

As to the rise in applications, the recent figures for ‘other’ JR applications were 2011 – 2,213, 2010 – 2,091, 2009 – 2,132, 2008 – 2,228, 2007 – 2,059, 2006 – 2,121, 2005 – 1,797, 2004 – 1,685. This does not indicate any recent increase, although the level does seem to have jumped slightly after 2005. I don’t have the figures for the years before 2004.

The percentage of ‘other’ JR claimants getting permission for a full hearing in these years has been 2011 - 24%, 2010 - 20%, 2009 - 21%, 2008 - 22%, 2007 - 22%, 2006 - 19%, 2005 - 21%, 2004 - 29%. One might have expected to see a reduction in the percentage of cases granted permission to go forward if there had been any significant increase in unmeritorious claims, which the PM seemed to be suggesting, but these figures certainly don’t indicate any significant change, other than an apparent drop in the proportion of cases granted permission to proceed after 2004. I am not in a position to say whether 2004 was untypical, or whether there was a change in 2005, compared with previous years.

However, judging by the figures over the past 8 years, Judicial Review does not appear to be a ‘growth industry’, as the PM alleges. The overall increase in JR applications has been solely attributable to immigration/asylum cases. The figures in the criminal and ‘other’ categories look fairly stable over the past few years. This is all too typical of the shoddy research (or compete lack of research) and general superficiality that lies behind ministerial policy initiatives under this government. There really doesn’t seem to be any justification for the prime minister’s strictures, or for any attempted limitation on the existing right to apply for judicial review in the ‘other’ category. (I don’t propose to stray into the minefield of immigration law and policy, which is an entirely different subject.)


Monday, 19 November 2012

PM proposes Judicial Review changes

No doubt there will some fluttering in the legal dovecotes over the threatened reduction in the scope for challenging government decisions by way of an application to the High Court for judicial review (and this would include challenges to planning permissions granted both by local authorities and by ministers).

As is so often the case, the PM’s speech seems to be long on rhetoric and short on concrete proposals, probably because the latter are still the subject of some frantic head-scratching in Whitehall. One idea which will almost certainly come forward is the shortening of the period within which an application for JR can be made. The current rule that the application must be made ‘promptly’ and in any event within 3 months has caused numerous difficulties over the years, and its legality has been doubted. A fixed period, probably 6 weeks, would meet these objections, provided that discretion is allowed to judges to extend this period in exceptional cases. However, if the period is shortened too drastically this could actually lead to more claims being made, as the government discovered when the period for planning appeals was halved some years ago. (The original period had to be restored to cope with the overwhelming workload for the Planning Inspectorate that had resulted.)

Other changes could be more problematic. There remains a need to observe the Aarhus Convention in environmental cases, and increasing the court fees might be open to the same criticisms as were levelled at the costs of JR in Lord Justice Sullivan’s report a couple of years ago. The trend, up to now, has been in the opposite direction, with proposals for increased use of limited costs orders to avoid claimants for JR being potentially bankrupted by the costs of a failed application against a powerful and well-funded public authority. Article 6 of the Declaration of Human Rights also needs to kept in mind – the requirement for a fair trial includes reasonable ‘equality of arms’.

There is already a filtering process, requiring the court to grant permission (‘leave’ as it used to be called) for a JR action to proceed, so unmeritorious claims are already weeded out at an early stage. There seems to be little need or justification for further deterrents to claimants in what are often matters of vital concern to them. Those cases which go forward to a full hearing are ones where there is clearly an arguable point. Claimants are entitled to have these cases tested by the court. Where these claims are allowed and decisions are quashed, it is because there was a serious legal flaw in those decisions, leading to real injustice to the claimant. The government cannot realistically complain about that.

Like so much else in which they meddle, the PM and his cabinet colleagues just don’t seem to have any understanding of how the planning system or the judicial system actually works. It is already well-settled law that the High Court will not ‘second guess’ the decision-maker. The merits of a decision cannot be challenged before the court; there must be a clear legal error either in the decision itself or in the procedure leading to that decision. Only then does the court have the discretion to quash that decision. Furthermore, the court will not quash a decision on a technicality. The mere fact that some legal error can be identified is not enough in itself; the claimant must show that they have been substantially prejudiced by that error, and this involves satisfying the court that upon the decision being re-taken there is a realistic chance that a different decision would then be reached. The court will not intervene if it is likely to result in the same decision being reached, by a route that avoids the legal error that vitiated the original decision-taking process.

In practice, this speech on the part of Cameron may just be another example of a crowd-pleasing pronouncement addressed to a particular audience (a particular failing of Cameron’s even in his days in opposition). He acknowledges that there will have to be consultations about these ideas, and in practice, much of what Cameron was canvassing in his flight of fancy may never see the light of day. Expect to see a change in the application period for JR; this was a change that was already on the cards. But as to the rest, don’t hold your breath.


Worst-performing Local Planning Authorities

I have already commented on Uncle Eric’s nonsensical proposals to take planning applications out of the hands of allegedly under-performing planning authorities, even though the applicants might prefer him not to.

It appears that the sole criterion by which De-CLoG proposes to measure the performance of LPAs is by the percentage of major applications determined within the target period. A less reliable measure of performance would be hard to devise. There are so many variable factors, many of them outside the control of the authority, which can influence the timing of a final decision in these cases.

However, taking this crude measure of performance, Planning magazine has identified the 25 authorities with the lowest percentages of major applications determined within the arbitrary target time. What is interesting about this list is that out of these 25 authorities, only 7 are Labour–controlled, whereas no fewer than 14 are Conservative-controlled (with no one party controlling the other 4). Does Uncle Eric really want to draw attention to the fact that twice as many Tory councils appear in this worst-performing group compared with Labour councils? Pickles named Haringey as the worst performer of any (after incorrectly identifying Hackney, who don’t actually appear in the first 25 at all). But which authority is the second worst in the whole country? It’s the true-blue Royal Borough of Kensington and Chelsea, closely followed by one of the Tories’ Devon strongholds – Torbay. So, by this measure, two out of the worst three councils are Conservative flagships.

So what accounts for the fact that the performance of Tory-controlled authorities seems to be so much worse than that of Labour authorities in determining major applications? Could it be that Tory authorities have been more ruthless and enthusiastic in their cost-cutting, leaving their planning departments struggling to cope with their workload? It is becoming increasingly clear throughout the public sector that swingeing cuts are seriously affecting performance in all sorts of ways, not least because experienced staff with irreplaceable knowledge and expertise in their specialist fields have been lost through this process.

I confess that the whole of this post is written somewhat tongue-in-cheek, because the idea of using the time taken to determine major applications as a realistic or reliable measure of LPA performance is just plain daft. If De-CLoG were seriously intent on measuring performance in a meaningful way, they would use a whole range of indicators, of which the time taken to determine major applications would be only one (and not necessarily the most significant) factor.

We are rapidly approaching the pantomime season, and the government’s various cuckoo-brained ideas about ‘improving’ the performance of the planning system are in some danger of being mistaken for the script of one of these seasonal entertainments.


Wednesday, 14 November 2012

Permitted Development extension consultation out at last

After an inordinate delay (bearing in mind the energy and enthusiasm with which ministers announced their intentions more than 6 weeks ago), De-CLoG has at last published a consultation paper on proposed changes to the Second Schedule to the GPDO, outlining their proposals for increased permitted development rights for domestic extensions and certain other developments. The proposals are fairly simple and straightforward, so the delay is all the more mystifying. What kept them?

Single-storey rear extensions, currently limited to 4 metres for a detached house and 3 metres for other house types, will be increased to 8 metres and 6 metres respectively, although not in ‘protected areas’ (conservation areas, AONBs, etc.). This increase would also apply to conservatories. Other controls and limitations on extensions would be unchanged.

The government also wants to make it easier to carry out the conversion of garages to provide additional residential accommodation (such as a ‘granny annex’). As matters stand, this does not represent a change of use, and it is only physical changes to the garage that might possibly fall outside the scope of Class E. It is this, and restrictive conditions preventing such conversions that the government wants to tackle, although no concrete proposals are put forward.

Shops and financial/professional services establishments are currently able to extend their premises by up to 50 sq m, provided that this does not increase the gross floor space of the original building by more than 25%, and subject to various other limitations. The suggestion is that (except in ‘protected areas’ – conservation areas, AONBs, etc.) these limits should be raised to 100 sq m and 50%. It is also suggested that businesses should be able to build up to the boundary of the premises, except where the boundary is with a residential property (in which case the requirement to leave a 2-metre gap would be retained). The new right would not allow changes to a shop front, or extensions beyond a shop front. Similar increases are also proposed for offices and industrial premises.

As previously announced, the intention is that these extended permitted development rights will apply for only 3 years (starting with the publication of the necessary amendment to the GPDO), and they must actually be completed within that three-year period. This could lead to some interesting enforcement problems where such an extension is well advanced but not yet substantially completed when the three-year period expires. In practice, there is more than a hint that these changes may in fact be made permanent.

The consultation period runs until Christmas Eve. So it’s ‘Merry Christmas!’ from our friends at De-CLoG.


Thursday, 8 November 2012

Uncle Eric goes down with Foot-in-Mouth Disease

It seems that our wonderful Secretary of State has had a bad bout of foot-in-mouth disease this week. In the Commons on Monday he accused the London Borough of Hackney of being the worst performing planning authority in the country. Hackney indignantly denied this, and Pickles has now had Hansard corrected by having the official record of his remark corrected to read ‘Haringey’. Unless I have missed something, I get the impression that Hackney are still waiting for an apology. And they may have to go on waiting - I don’t get the impression that Uncle Eric is the apologising sort somehow.

So now Pickles has insulted not one but two London Boroughs. Needless to say, we are all agog to learn on what basis Pickles makes these accusations. In fact nobody can quite understand on what criteria the assertion about Haringey’s performance is based. Can we look forward to a correction of the correction in Hansard? And which will be the next LPA to be named if Pickles is forced to retract his strictures with regard to Haringey?

Maybe the Secretary of State should refrain from this sort of nonsense, and concentrate on getting on with his job, instead of dishing out gratuitous and apparently ill-founded jibes about hard-pressed and cash-starved local authorities, whose performance has probably been more seriously undermined by the cuts imposed on them by this government than by any other factor.


Permitted development by statutory undertakers

There are some 40 parts to the Second Schedule of the General Permitted Development Order, covering a wide variety of operational development. For example, Part 17 allows organisations such as railway operators, and other transport undertakings, as well as electricity, gas and water companies (among others) to carry out certain works on their operational land. However, this does not give these organisations carte blanche to carry out whatever development they like.

A correspondent has recently drawn my attention to a contentious case in East Grinstead, where the local railway company proposes to add a deck to the station car park, increasing its capacity to 300 cars. The car park currently accommodates 200 cars, and local residents say that cars go in and out via the access road at dangerously high speeds. They are concerned about safety not only on the approach road but on the local highway network, and especially at the junction with the main road, a factor which would clearly be a material consideration in the determination of a planning application. The access road to the car park is also crossed by a public footpath, and this is already considered to be a dangerous crossing place.

However, the railway company claims that the enlargement of the car park is permitted development under Part 17 of the GPDO, and it seems the LPA is prepared to accept this, much to the frustration of local residents, who fear for their safety if the development goes ahead. My correspondent asked me whether this is right.

What Part 17 permits (in Class A) is development by railway undertakers on their operational land, required in connection with the movement of traffic by rail, but such development is not permitted if it consists of or includes the construction or erection otherwise than wholly within a railway station of [among other things] a car park......provided under transport legislation. This poses several problems. I understand that the car park is in fact some distance from the station itself, and so even if it is on “operational land”, there must be some considerable doubt as to whether it is “wholly within a railway station”. One might also question whether the provision of a car park is “required in connection with the movement of traffic by rail”, although a generous interpretation of these words might perhaps include such ancillary facilities.

The precise extent of a railway station is not easily defined, particularly as regards the area ‘outside’ the station and there is widespread uncertainty regarding the interpretation of Part 17. There has in fact been considerable dispute as to whether permitted development rights apply to the entire uncovered station area, such as its forecourt, transport interchange area and car parks. This problem was recognised in the 2003 Review of the GDPO carried out by Nathaniel Lichfield and Partners, but the government has taken no steps to amend Part 17 so as to clarify the situation. On the other hand, there are a couple of reported enforcement notice appeal decisions which seem to indicate a restrictive interpretation of Part 17 by inspectors and by the Secretary of State. For these reasons, my provisional view (on the basis of the recited facts) is that this particular development does not come within the scope of Part 17, and so it needs express planning permission.

The problem now is to convince the LPA that they got it wrong when they told the railway company that the work to add an extra deck to the car park is permitted development. I have not been told whether an LDC was issued; if it was, then getting this revoked might be difficult. But if the LPA simply expressed an informal view on this point, they may still be persuaded to reconsider the matter. No doubt the local residents will be writing to the council and lobbying their local councillors in an effort to persuade the council that a planning application is required for this development, which can then be the subject of the usual consultations, giving the public the right to comment on the proposal.

I don’t know whether the good citizens of East Grinstead are as vociferous as the famously disgusted residents of Tunbridge Wells; but if they are, then the LPA could conceivably find themselves in the High Court if they can’t be persuaded to change their mind on this issue and to insist on a planning application being submitted for the car park development. The appeal decisions mentioned above appear to offer an encouraging precedent if the LPA decides to take enforcement action in the absence of planning permission being sought and granted.


Wednesday, 7 November 2012

Appeal changes mooted

De-CLoG is consulting on some suggested changes to appeal procedures in a “Technical Review of Planning Appeal Procedures”. It is not made entirely clear in the consultation document, but it appears that these proposals relate only to section 78 appeals (against the refusal of planning permission), and do not extend to section 174 appeals (against enforcement notices) or section 195 appeals (against the refusal of a Lawful Development Certificate).

If adopted, the proposals will mean that appeals will be ‘front-loaded’, in the sense that the parties will be required to submit their full appeal statement (currently the ‘Rule 6 Statement’) as part of the grounds of appeal in the appeal form. A draft statement of common ground (‘SCG’) would be required at the same time.

In enforcement appeals it may not be so easy to provide this material at the same time as the appeal goes in, because there is only a very short time in which an appeal can be lodged against an enforcement notice, and it can often be a last-minute rush to get the appeal in before the deadline, let alone compiling additional material at that stage. Having to submit a full statement of case and a draft SCG at the same time might be too much to ask in these cases. However, as indicated above, it does not appear that these proposals are intended to cover section 174 appeals, although there is a veiled threat that they could be extended to cover other types of appeal, including enforcement appeals, in the future.

At present, Rule 6 statements are submitted by both sides six weeks after the ‘start’ date fixed by the Planning Inspectorate, and both the appellant and the local planning authority put in their statements simultaneously. If the rules are changed as DeCLoG suggests, the LPA would not know an appeal is coming in, so their Rule 6 Statement will presumably follow some weeks later. They will in effect be given longer to prepare their statement. If they have by that time had prior sight of the appellant’s full statement, this could be prejudicial to the appellant. It would also negate the saving in time that the change in the rules is intended to achieve.

There is also the issue of comments on the Rule 6 statements (more important in hearing cases than in inquiry cases) and their timing. It seems that what De-CLoG intend is that no further written material should be submitted, except in inquiry cases, where proofs of evidence are exchanged four weeks before the inquiry. I can see one major objection to this. The LPA’s case can sometimes contain some quite erroneous or contentious statements, which the appellant should have the opportunity of countering. If this opportunity is to be removed, it could work injustice in a way that could only be remedied by the High Court. This would seem to be undesirable from any point of view.

More detailed proposals include a rule change to make it a requirement for parties to provide information on the appeal form of the number of witnesses and the length of time they need to give their evidence. This, frankly, would be totally impracticable in many cases. A need to produce a specialist witness on a specific topic as a result of issues raised by the other side, which may not have been foreseen at the outset, may only be recognised some time after the appeal procedure is under way. If PINS is inflexible about this, this may lead to appellants taking the precaution of naming a whole range of witnesses whose attendance at the inquiry is not really necessary, simply in order to avoid their being prevented from dealing with particular issues that might conceivably arise, but which might not. As for time estimates, it is absolutely impossible to predict how long it may take to deal with any particular witness, especially when cross-examination is taken into account (which is entirely outside the control of the party calling the witness).

As foreshadowed in legislation currently going through parliament, a fast-track commercial appeals service is proposed which would mirror the current householder appeals process. However (unlike householder appeals) there would be an element of choice for appellants in adopting the procedure.

Another proposal is to move over wholly to on-line appeals. Many planning professionals already use the on-line system through the Planning Portal, but it may not be so user-friendly from the point of view of a lay person wishing to conduct their own appeal. There is also a need to improve the electronic forms, which are slightly inflexible to use. Uploading electronic material is also a problem. There is often a need to upload far more than the online form can handle, and this then has to be emailed to PINS separately. These issues need to be addressed if electronic filing is to become the norm.


Tuesday, 30 October 2012

Holiday lets query

Rick Crombie has raised a query arising from my two blogs referring to holiday lets. The first was on “The 4-year rule – Holiday lets and second homes” (Monday, 19 March 2012), and the second was “Holiday lets may be change of use” (Saturday, 27 October 2012).

I can understand that at first sight the various rules explained in these two articles may appear confusing, but there is no contradiction between the two posts.

We are looking at two different types of development (or potential development). The first is a change of use of a dwelling to use as a holiday let; the second is the change of use of a holiday let to use as a permanent dwelling. In the latter case, an issue also arises with regard to a resulting breach of a condition or conditions attached to the permission for the holiday let.

Let’s take these two points separately. First, as regards a change of use of an existing dwelling; for the reasons explained when discussing the recent Moore case, the use of a single private dwellinghouse as a holiday let is not going to amount to a material change of use in the majority of cases. The Moore case itself demonstrated a clear exception to the usual position, but the circumstances of that case certainly were exceptional.

Next, let’s take a case in which planning permission has been given for the erection of a building for use as a holiday let, so that the planning permission itself is quite explicit as to the purpose for which the building is to be used (see section 75(2)). As I explained in the recent piece on the Moore case, the first use of that property can only be for the purpose specified in the description of development authorised by the planning permission (see Wilson v. West Sussex CC [1963] 2 Q.B. 764, East Suffolk CC v. Secretary of State for the Environment (1972) 70 L.G.R. 803).

In most cases, a holiday let will in practice have all the attributes of a single private dwellinghouse (as per Gravesham), so if it is subsequently used as a permanent dwelling, no material change of use would be involved. This is because, if the building could (even when used as a holiday let) be regarded as a dwellinghouse (as per Gravesham), then it will already be within Use Class C3. Section 55(2)(f) provides that changes of use within the same use class do not constitute development, and so the change of use from a holiday let will not (in most cases) amount to development.

However, where the holiday let was built under a planning permission, in such cases this change will almost certainly be a breach of condition. The conditions imposed on a planning permission for a holiday let may be either or both of two different kinds. First, there may be a condition which limits the period of occupation of the property, either specifying a maximum length of stay or specifying that the property is to be occupied only during certain months of the year. The other type of condition is one which specifically prohibits permanent residential occupation.

The general rule is that breaches of condition are subject to the 10-year rule (i.e. they will not become immune from enforcement until they have continued without a break for 10 years – section 171B(3)), but it was established in the Court of Appeal decision in Arun that where a breach of condition results in the property being used as a single private dwellinghouse, it is the 4-year rule that applies, because it comes within the scope section 171B(2), rather than section 171B(3). It is important, however, to understand that this applies only where the property was not already a separate private dwellinghouse (e.g. it was a ‘granny annexe’). As we have seen, most holiday lets will already qualify as a single private dwellinghouse under the rule in Gravesham.

So a breach of condition, whether it is a condition which limits the period of occupation of the property to a maximum length of stay or to certain months of the year, or a condition which prohibits permanent residential occupation, will be subject to the 10-year rule (as per Bloomfield) if the property already qualified as a dwelling under the rule in Gravesham. There will, I suggest, be very few cases in which a holiday let could not already be classified as a single private dwellinghouse, but in a case in which a holiday let which would not otherwise have qualified as a dwelling is converted (for example by installing any self-contained facilities that were previously missing) then the 4-year rule will apply, both to the material change of use to use as a single private dwellinghouse and to the breach of the occupancy condition (as per Arun). However, the important point to understand is that the rule in Arun will only apply if the property did not already constitute a single private dwellinghouse.

I hope that makes the point clear.


Saturday, 27 October 2012

Holiday lets may be a change of use

The judgment of the Court of Appeal in Moore v. SSCLG [2012] EWCA Civ 1202 (delivered on 18 September 2012) might appear at first sight to set alarm bells ringing for the owners of dwellings used as holiday lets, but a reading of the judgment should allay such fears for the majority of holiday lets.

The issue in this case has arisen on several previous occasions, and the relevant judgments were helpfully reviewed by Sullivan LJ in a characteristically clear and soundly reasoned judgment.

The question for the Court was whether a dwelling let out for short-term holiday or leisure use is still a single private dwellinghouse within Use Class C3. On the basis of the applicable judicial authorities, the Court rejected the notion that use as a holiday let can never be regarded as falling within Use Class C3; but the Court was equally clear in rejecting the proposition that use as a holiday let of a property which might normally be described as a dwellinghouse must always fall within Class C3. In other words, each case depends on its own facts - it is “a matter of fact and degree”.

The starting point for the definition of a dwellinghouse in this context is Gravesham BC v. SSE [1984] P&CR 142 (a case in which planning permission had been given for a “weekend and holiday chalet” but which was being used as a dwelling on a permanent basis). It must be a building which ordinarily affords the facilities required for day-to-day existence. If it meets that test, it is a dwellinghouse. However, the case on which the appellant in the instant cased primarily relied was Moore v. SSE [1998] 2 PLR 65 [no relation, and unconnected with the present case]. In that case, the outbuildings of a large country house had been converted into 10 single self-contained units of residential accommodation for the purpose of holiday lettings. Nine of the units were in use by May 1991. In May 1995 the LPA issued an enforcement notice alleging a material change of use from residential to mixed use for residential and as 10 units of holiday accommodation. If the change of use of each of the units was a change of use to a single dwelling, then the enforcement notice was not served within the 4-year time limit prescribed by section 171B(2).

In the section 174 appeal in that case, the inspector had found as a matter of fact and degree that each unit was self-contained and was supplied with the facilities necessary for daily life, including living, sleeping and eating space, kitchen, bathroom and WC. The units were each available for short term lets. However, he concluded that they were not used in the normal sense as independent residential units. Their use for holiday accommodation was, in his opinion, materially different to the use of premises by a household as a long term home. The High Court rejected an appeal against this decision, but the Court of Appeal overturned the Secretary of State’s decision. The Court accepted the approach taken in Gravesham, and held that there is no requirement that before a building can be described as a dwellinghouse it must be occupied as a permanent home.

There had in the meantime been another case (Blackpool BC v. SSE (1980) 40 P&CR 104) which had not been referred to in Moore. A house had been used by the owner as a second home for holidays by himself and his family, by members of his office staff, and by “family groups” who paid rent. There were lettings for a rent for 10 out of 18 weeks in the four-month holiday season; for the remainder of the year the premises were left empty. The LPA had served an enforcement notice alleging change of use from use as a private dwellinghouse to use for holiday lettings on a commercial basis. In the appeal against the enforcement notice, the inspector accepted that there had been no change of use and the enforcement notice was quashed. The LPA appealed against this decision to the Divisional Court, but their appeal was dismissed. The LPA argued that the inspector was wrong in approaching the matter on the basis that “if the house is occupied by one family, the house is residential and therefore in accordance with the permitted use as a dwellinghouse”. However Ackner LJ held that what the inspector had found as fact here was that the character of the user from a planning point of view had not been changed by the fact that the premises were being occupied not only by the owner and his family but also by his friends or by members of his office staff or by paying tenants on short holiday lets. This was a finding of fact that was not open to challenge.

After reviewing these judgments in the present case, Sullivan LJ held that whether the use of a dwellinghouse for commercial letting as holiday accommodation amounts to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. Neither of the two extreme propositions – that use of a dwellinghouse for commercial holiday lettings will always amount to a material change of use, or that use of a dwellinghouse for commercial holiday lettings can never amount to a material change of use - is correct. However, the inspector was entitled to find (as a matter of fact and degree) in this case that the way in which the property was being used fell outside the definition of a C3 use in the Use Classes Order.

What made the instant case unusual was the fact that the dwelling in question was very large (with 8 bedrooms) and could accommodate as many as 20 guests at any one time. Large groups of people (who were not family groups) stayed there, with all the associated comings and goings, vehicular movements and parking, and the noise and general disturbance inevitably associated with such a use. It was undoubtedly this factor that prompted the LPA to take enforcement action, and which led to a finding of fact on the part of the Inspector that a material change of use had taken place.

Whilst no hard and fast rule can be laid down, I think it is reasonably safe to assume that a holiday let comprising accommodation which would sleep, say, up to to 6 to 8 people, and is therefore likely to be occupied by family groups who, during their stay, constitute a single household, will in all probability still fall within Use Class C3, and so there will be no material change of use where the property was previously used as a family home. However, if the property is more in the nature of the property in the Suffolk Coastal (Moore) case, with a larger number of guests staying at any one time, then this may well constitute a material change of use to a sui generis use (a use of its own kind). Where such a change of use has occurred, it will be the 10-year rule (not the 4-year rule) that will apply in relation to any claimed immunity from enforcement.


Tuesday, 23 October 2012

Here we go again!

Planning professionals will be well aware by now that the Growth and Infrastructure Bill was introduced in Parliament last week. My colleague David Brock was quick off the mark with some initial reactions (see the link to his blog on the left-hand sidebar on this page).

I have not yet had a chance to look at the Bill, but will comment on it as it proceeds through the legislative process. This is the fourth piece of major planning legislation within 10 years, the previous Bills having been passed in 2004, 2008 and 2011. From comments I have already seen from other planning professionals, this one might more accurately be called “the Death of Localism Bill”, but then I have always said that the concept of localism was inconsistent with the government’s growing enthusiasm for economic growth through development. (I always thought 'localism' was a silly idea anyway.)


Friday, 19 October 2012

Extended PD rights for home-owners

One of the advantages of writing this blog and dealing with comments is that it provides me with excellent CPD! While I was taking a break from work during the past 10 days, a comment was received from ‘Toyzar78’ in response to my post of 24 September – ‘Pickles says “Sue the Council”!’. He points out that under Art. 5(13), Uncle Eric has the power to cancel or modify an Article 4(1) Direction made by an LPA at any time, in any event. Toyzar78 adds that Art. 6(3) & (4) prevents him from doing so within conservation areas and listed buildings, but he had assumed LPAs were not threatening to apply Directions solely within such locations.

This prompted me to refresh my memory of the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654). Toyzar78 is right in pointing out that the S of S has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA. As he points out, Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description). But as Toyzar78 points out, this won’t make much difference in practice.

So Uncle Eric will have the whip hand after all, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he intends to create. LPAs are obliged to give notice of Article 4 directions to DeCLoG, and cannot confirm them for 28 days or such longer period as the S of S may specify following notice of the draft Article 4 direction having been received by DeCLoG from the LPA. We can therefore expect a sort of ministerial ping-pong match with Uncle Eric lobbing the ball back over the net every time an LPA seeks to make an Article 4 direction in an attempt to remove the extended PD rights.

However, this assumes that the extended PD rights will actually be granted by an amendment to the GPDO. At the moment this seems slightly doubtful in view of the chorus of dissent with which the announcement of the government’s intentions has been greeted. However, if the proposed amendment does go ahead, some ministerial inconvenience could be avoided by modifying Articles 5 and 6 of the GPDO at the same time, so as to re-establish the requirement for ministerial confirmation of Article 4 Directions to which objections have been made.

I wouldn’t like to predict what the ultimate outcome may be, but if the government does press ahead with its intention to allow larger domestic extensions to be built (albeit for only a limited period), it seems that LPAs may not be able to thwart the government’s intentions as easily as I had originally assumed. As to the government’s timetable for this proposed change – it’s anyone’s guess. Maybe the amending Order could be laid before parliament just before the Commons rises for the Christmas recess!

[I was trying to add an update to this item, but the whole item then got lost in the system (!), and so is being reposted here. We are promised that a consultation draft should soon be published. The Planning Minister is still very bullish about this, despite mounting opposition, and says that the right to build enlarged extensions may be prolonged beyond the original three-year period and could even become permnanent.]


Tuesday, 9 October 2012

Crowd-pleasing at the Tory Party Conference

Ministers have been queuing up all week in Birmingham to announce little nuggets of policy calculated to please the party faithful (even if it leaves the rest of the electorate profoundly unimpressed). Thus we have had promises from the Minister of Justice to change the law so that we can all ‘have a go’ at burglars, promises of more road building from the Transport Secretary, and from Uncle Eric the promise of a brand new enforcement power – INSTANT stop notices!

This appears to have been in direct reaction to the Dale Farm case (which Pickles mentioned by name, if slightly inaccurately). Any nastiness aimed at disadvantaged and downtrodden members of the community can always be relied upon to raise a cheer from the Tory faithful at their annual shindig. And no group offers a more tempting target for those of a right-wing frame of mind than gypsies and travellers.

Pickles’ avowed target was those travellers who take the law into their own hands by moving onto land (sometimes as trespassers, but quite often after having bought it themselves) without seeking planning permission. This is undoubtedly a breach of planning control, but the travellers would no doubt point out that they often have little practical choice in face of the chronic shortage of legal sites. Local planning authorities have failed over many years to designate sites for gypsies and travellers, and Pickles compounded this soon after taking office by removing the legal duty that councils had to provide sufficient sites in their area.

Pickles intends to give councils greater powers to prevent travellers setting up a campsite without planning permission. What he announced at the conference was “ new rules for councils to literally stop those caravans in their tracks.” Pickles clearly has only a tenuous grasp of what he was announcing. He claimed that new instant stop notices “will allow councils to issue unlimited fines for those who ignore planning rules and defy the law” and he added - "We will stand by those who play by the rules and use the full force of the law against those who break them."

So what does this mean in practice? The first point to bear in mind is that a new kind of stop notice will require primary legislation, so this change will have to await a suitable Bill in which it can be incorporated. The promised ‘Economy Bill’, expected to be introduced this autumn, might possibly provide Pickles with a convenient legislative vehicle.

The next question is precisely how and in what circumstances this new power will operate. One correspondent suggested to me that I should dub this item “50 shades of Stop Notice”. We already have Temporary Stop Notices, and it is difficult to see what additional power the new Instant Stop Notices will give local planning authorities that they do not already have.

Finally, there is the nonsense (and I assure you it really is total nonsense) about councils issuing unlimited fines for those who ignore planning rules and defy the law. Councils do not issue fines. Fines are imposed by the criminal courts as a punishment following the conviction of a defendant who has committed a criminal offence. Pickles may think he is going to make new law, but this is simply a rather garbled version of current legal rules. Failure to comply with a stop notice is a criminal offence, and so the local planning authority will then have to launch a prosecution in the magistrates court (or in the Crown Court, as it is an ‘either way’ offence). A recent change in the law already enables the courts to impose an unlimited fine for this type of offence, but the courts are constrained by very strict sentencing guidelines, which they are legally obliged to follow. So, when all the relevant factors are taken into account, the fines handed down may be somewhat more modest than Pickles seemed to imply.

So to summarise - councils already have the power to serve a temporary stop notice, followed (within 28 days) by an enforcement notice. The new ‘instant’ stop notice will represent no practical change, unless the new ‘instant’ type of stop notice is divorced from the requirement to serve an enforcement notice within some stated time limit (in which case, expect some hard fought litigation over the legal propriety of serving the ‘instant’ stop notice). Furthermore, the further legal steps - prosecution, and possibly injunction proceedings under section 187B - will remain exactly the same as they are now. Pickles may be very pleased with the reception he got at the Tory Party Conference, but the rabbit he appeared to have produced out of his hat was an illusion. More important, it was entirely unnecessary, in view of the powers that local planning authorities already have to deal with these matters.

And as for putting an end to the sort of litigious saga that arose in the Dale Farm case, Pickles was seriously misleading his audience if he really thinks he can prevent that sort of litigation happening again. No amount of extra powers will prevent travellers from fighting for their rights. The only way to put a real stop to illegal encampments, and all the trouble that ensues, is to ensure that enough legal sites are provided for gypsies and travellers in the first place. The Secretary of State (in practice the planning casework team in De-CloG) has been robust in allowing appeals where LPAs cannot demonstrate a 5-year housing land supply. A similarly robust approach should be taken where councils cannot demonstrate a similar provision for gypsy and traveller sites in their area. The message should be – either find the sites yourselves, or we will find them for you.


Cala Homes wins at last

In case you hadn’t picked up on the news, the Secretary of State granted planning permission last week for the 2,000-home development by Cala Homes at Barton Farm, Winchester. This was a re-determination following the quashing (by consent) by the High Court of the original ministerial decision rejecting the scheme.

An inspector had originally recommended approval, but the Secretary of State rejected his inspector’s view on the grounds that it was premature in advance of the emerging development plan. De-CLoG accepted that they had erred in law in doing this. By contrast with the department’s previous stance, limited weight was attached to Winchester’s draft core strategy this time round, on the basis that there are various objections outstanding to the applicable policies, which have yet to be considered. But the clincher seems to have been that Winchester has now allocated Barton Farm in its core strategy as a site for 2,000 homes, albeit reluctantly.

The reason for the apparent volte-face is that, as in a number of other cases where LPAs have lost appeals, Winchester is unable to demonstrate that it has a five-year supply of housing land. A significant element of affordable housing (40%) is included in the scheme, and this appears to have been a further factor favouring approval. The scheme was also found to be in line with the presumption in favour of sustainable development in the NPPF.


Wednesday, 3 October 2012

Run it up the flagpole!

It’s good to know that the Secretary of State has got his eye firmly on the ball, and that he will leave no stone unturned in his unremitting efforts to restore Britain’s ailing economy.

The whole world will therefore stand back in wonder and amazement at the latest announcement from De-CLoG, confirming the relaxation of the Advertisement Control Regulations to allow more flags to be flown in future. These changes have, of course, been announced on at least two previous occasions. (Ministers love to make announcements; it makes it look as though they are actually doing something, and so it is not unusual for new initiatives, even of the most trivial nature, to be announced at least twice and sometimes on three or four separate occasions.)

I could not have invented Uncle Eric’s words even in my wildest flight of satirical fancy. He is reported as having said of this dynamic and decisive ministerial action: “Flags unite communities across colour, creed and class, so I am cutting municipal red tape to make it easier to fly Britain's varied and diverse flags without state interference. I've been celebrating this sense of patriotic pride by flying a range of flags outside my Department in recent months and look forward to seeing more flags flying around the country with the relaxation of these rules." [Memo to Westminster City Council – This was before the law changed, so Pickles was committing a criminal offence. Prosecute the man, I say!]

So even though the Olympic Games are now behind us, we can keep the warm afterglow going by putting out the flags, by courtesy of the greatest of our Secretaries of State.

As for the details, you can start flying the extra flags on 12 October. The new rules are set out in the Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2012 (S.I. 2012 No.2372). There are, of course, various conditions and limitations – after all, the bureaucrats must have something left for them still to do. So don’t run away with the idea that you can now fly any old flag wherever you like.

Class H of Schedule 1 (adverts that are exempt from control altogether) has been slightly, but not dramatically, widened. The previous version of the Regulations allowed the flag of any saint to be flown. Now, following these changes, this is confined to the flags of St David and St Patrick. Obviously the flags of St George and St Andrew are also included, as national flags, but what about the flag of St Paul (frequently flown by churches within the Diocese of London), for example, or the flags of other saints denoting various Church of England dioceses. Would these count as ‘the flag of any parish’? I am not sure that they would, unless they happen also to be the flag of one of the other administrative areas listed in this class. Diocesan flags don’t seem to feature in this list as such. So, enforcement officers – be alert! And be prepared to prosecute any vicar who has the effrontery to fly the flag of an unauthorised saint, in breach of the law.

Class 7 in Schedule 3 (adverts which have deemed consent) is also enlarged, but again only slightly. The main change here is the ability to fly flags other than from a flagpole on the roof of a building. And, yes - as promised, you can fly it at any angle you like (even suspended upside down!), provided it is not in a conservation area, AONB, National Park or area of special advertisement control.

If you want more details, you will have to look it all up for yourselves. The main point is that the rules controlling flag-flying have been relaxed only slightly and that they are still hedged around with various ifs and buts.

After all this exhausting effort to change the rules on flying flags, the Secretary of State can now take a well-earned rest, secure in the knowledge that he has done his bit for Britain on behalf of our wonderful and much-loved coalition government.