Restrictive Covenants

I drew attention to the threat to development posed by restrictive covenants in a piece posted here on Wednesday, 13 April 2011 (“Beware of restrictive covenants”).

Since then, another case has reached the Court of Appeal, on 23 January 2012. This was the case of Zenios v Hampstead Garden Suburb Trust Ltd [2011] EWCA Civ 1645. In this case, the restrictive covenant prevented alterations to the external appearance of a house within Hampstead Garden Suburb without the approval of the Hampstead Garden Suburb Trust, who are clearly diligent guardians of the architectural heritage of this world famous example of early town planning. Planning permission was granted for the erection of an extension of the house above the garage. But, as we have seen before, the mere fact that the local planning authority is happy to grant planning permission does not mean that the Lands Tribunal will obligingly lift the restriction upon an application being made under section 84 of the Law of Property Act 1925.

The criterion by which a restrictive covenant is to be judged under section 84 is whether it continues to have a practical benefit of substantial advantage to the covenantee (in this case, Hampstead Garden Suburb Trust Ltd). The Court of Appeal upheld the Lands Tribunal’s refusal to lift the restriction. The Trust itself should properly have taken account of the grant of planning permission (as they did), but they were not bound by it. They had a public role in relation to the integrity of the garden suburb and were entitled to conclude that the proposed development would not be in the public interest. Clearly damage of the sort which the proposed development might do to the character and appearance of the garden suburb was not the type of harm for which monetary compensation would be an adequate remedy.

This latest case serves to underline the warning I gave in my previous post on this topic last April. It should not be assumed that inconvenient covenants can easily be removed by applying to the Lands Tribunal. Clearly a covenantee, even if it is a public body, is not bound to consent to development simply because the development has been given planning permission. Nor is the Lands Tribunal bound to relax a covenant for that reason. As I have observed before, it is inadvisable to make a planning application before you have satisfied yourself as to the position regarding restrictive covenants and any other potential constraints on the title to the land which might affect its successful development. To do otherwise is fraught with risks.

© MARTIN H GOODALL

The planning process – more grumbles

Numerous examples of the nonsense dished out by local planning authorities continue to accumulate.

In one case, before the LPA would even register the application, they asked for a technical/manufacturer’s specification for a chimney flue. Since this did not form part of the detailed design, manufacturers were understandably reluctant to supply this information in view of the time and trouble they would have to take in doing so, unless the client placed a firm order. It took several days and a number of phone calls to a senior planner to get this requirement removed, and caused unnecessary delay. My informant points out that, had he actually sent in the requested details, it is doubtful if anyone in the Planning Department would have had the competence to appraise them.

As a previous correspondent wrote, these requirements increasingly go outside the competence of planners and are best dealt with by other departments; requirements for the approval of the relevant details could always be framed as conditions attached to the planning permission.

Finally, this planning authority demanded twelve (!) copies of drawings for 'consultation purposes'. This was a simple application for change of use of relatively small premises, not a major commercial development. These drawings were on A1 sheets at £2.50 a go, plus postage/packaging and the time involved in packing and dispatching them. My informant observes that, as I have previously suggested, too many administrators in this particular part of the public sector know little, and care even less, about the financial consequences of their demands.

My informant wishes to remain anonymous, and perhaps we should not embarrass the LPA concerned by naming and shaming them.

© MARTIN H GOODALL (with acknowledgements)

Powers of entry

As planners and planning lawyers are well aware, a local planning authority has a power of entry to land under s.196A of the principal Act. A similar power is granted in respect of listed buildings by s.88 of the Listed Buildings Act.

If access is denied, the Council can go and get a warrant from the magistrates’ court. However, a recent case in Wales shows that a local planning authority cannot automatically expect that a warrant will be granted by the magistrates.

The case in question involved a listed building which had been the subject of listed building enforcement action in respect of various alterations which had been made to it. Conservation officers had made numerous inspections exercising their statutory power of entry, but it seems the owner had finally had enough of this.

The planning authority wanted to arrange yet another visit, this time by a conservation expert who had been engaged by the authority to advise them about further works that it was suspected had taken place, with a view to possible further enforcement action.

The owner alleged that no further work had taken place since the planning officers’ last visit. There were also family reasons for his not wishing to be disturbed by yet another inspection visit. Counsel for the owner told the magistrates that it seemed the planning authority were ‘coming back for another bite of a cherry that has already been bitten on many occasions.’

The court declined to grant a warrant to the LPA and awarded £500 costs to the owner (somewhat less, one suspects, than he paid for legal representation). The chairman of the bench observed that the owner had said under oath that no further work had been carried out to the property and it was on that ground that the application was refused.

This may not be the end of the story. The LPA may not take this defeat lying down, and they can be expected to consider the possibility of appealing the magistrates’ decision. So no-one should take this as carte blanche to refuse entry to their property to planning officers. On the other hand, planning authorities may need to be more cautious in future about making too many repeat visits to the same property.

© MARTIN H GOODALL

Barn conversions (2)

[WARNING: This article must now be read in light of the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958. See the updates at the foot of this article for other decisions that have significantly changed the legal position since this article was written.]

In response to my recent piece on barn conversions, Andy Kirby left a comment which I feel deserves a post to itself, rather than being shunted into the usual comments box.

Andy writes: “Clearly the outcome is contingent on the terms of the permission in such cases. Where a full operational development planning permission for 'Conversion works, alterations and extension of barn to form a dwelling' is given it is clear from Barnett that the application plans are incorporated into the permission and there is no need for specific words of incorporation. In those circumstances much will turn on what the plans show, as you identify in your original blog. There you say, on the authority of Basildon, absent any condition to the contrary, the entire rebuilding of the original structure would only be precluded if the planning permission made it clear that the original building must be kept intact and provided the approved drawings were not departed from. Is that not an overstatement of the situation?

“If it can be reasonably inferred from the plans that something of the original was to be retained then would that not be enough? Moreover, on its face, the permission is for a conversion, not to erect a new building/dwelling. As a matter of logic and plain English that must mean that something of the original must be in situ otherwise there would be nothing there capable of being converted. And at its heart 'conversion' actually means a change, including certain works (which may or may not involve operational development), to a different use. Thus it would make much more sense, and provide clarity, if LPAs recognised what was the primary character of the proposed development and required the application to be expressed as a material change of use of the building which also involved certain specified changes to the structure. On the other hand were they to do so I fear both you and the Planning Inspectorate would have less work!”

I entirely agree with Andy that the actual outcome in any particular case depends on the precise wording of the particular planning permission. However, it is clear from the cited authorities that the intention of the planning permission cannot be ‘inferred’ – it must be clearly spelt out. Thus the mere use of the word ‘conversion’ is not in itself sufficient to imply retention of the original structure if the permission involves operational development – see Basildon, and various inspectors’ decisions to the same effect, but compare Iddenden, where the permission was simply for change of use.

As Andy has recognised, much turns on whether the planning permission is simply for a change of use (with perhaps no more than mainly internal works, and only minimal changes to the external appearance of the building) or whether it is in truth a permission for operational development. It would be wrong, however, to suppose that a barn conversion involving substantial operational development could be seen purely as a change of use or that the planning permission could be so worded as to ‘dress it up’ as a change of use. First of all, the LPA cannot unilaterally change the description of the development - there is judicial authority for this, but the name of the case escapes my memory at the moment; secondly, following completion of the operational development, the use of the converted building will depend not on any express authorisation in the planning permission but upon the operation of section 75 of the 1990 Act. So it is neither necessary nor appropriate to try to turn what is in truth a permission for operational development into a change of use.

If what we are dealing with is in truth operational development, as many barn conversions will be, then the judicial authorities in Basildon and Ashford will apply, and there will be nothing to prevent the demolition and replacement of the pre-existing structure, unless the planning permission expressly so provides in the manner described in those cases.

As regards the approved drawings, I do not accept that these would be enough by themselves to indicate that the pre-existing structure should be retained. Whilst it is clear from Barnett that the drawings are to be read together with the permission, this would not be enough in itself to reverse the effect of the clear rules laid down by Basildon and Ashford. The drawings will show what is intended, but I would not regard any annotations on the drawing (even assuming that they are explicit and unambiguous) as importing an express provision that the existing structure is to be retained. This would require a clear statement to that effect in the permission itself, preferably in the description of the development authorised by the permission, or at the very least by means of an express condition requiring the retention of the existing structure (preferably both).

As the judicial authorities stand at present, failure to specify in clear terms in the planning permission that the pre-existing structure must be retained will leave it open to the developer to demolish and rebuild within the terms of the planning permission (although, as I have indicated before, in the vast majority of cases, loss of the existing structure is entirely unexpected and unintended by the developer). The point of my latest piece and of my previous article on this subject is that an LPA would be wrong to jump to the conclusion in such circumstances that the planning permission has automatically been lost if the original structure has collapsed or been demolished. In a number of cases of which I am aware, including several in which I have been professionally involved myself, the planning permission remained extant and it was perfectly lawful for the developer to continue with the development by reconstructing the demolished building.

Planning officers tend to be fixated on what they had intended and on the planning permission they thought they were granting, rather than on the precise terms of the permission as issued. LPAs must accept, and in disputed cases have been forced to accept, that their intentions count for nothing if they have not succeeded in nailing down the scope of the permission in a manner which expressly requires the retention of the pre-existing structure of the building.
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[UPDATE: In view of two more recent appeal decisions, and the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958, the article above should be read in light of the series of 5 posts in this blog starting with “Barn Conversions again” posted on 5 March 2013, and in particular Barn Conversions again (Part 3)” posted on 7 March 2013, plus and a sixth article in this series posted on 1 December 2014 dealing with Williams.

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

© MARTIN H GOODALL

Barn conversions

[WARNING: This article must now be read in light of the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958. See the updates at the foot of this article for other decisions that have significantly changed the legal position since this article was written.]

Regular readers who have been following this blog for some time will recall the item I posted here on 15 July last year under the title of “More Development in Wonderland”. Alice and the Cheshire Cat were trying to help Humpty-Dumpty after the demolition of the barn for which he had obtained planning permission for a barn conversion. Tweedledum, the planning officer, was convinced that Humpty-Dumpty had lost his planning permission, but the Cheshire Cat pointed out that Humpty-Dumpty’s planning permission was not merely for a change of use; it authorised operational development, and so Humpty-Dumpty had not lost his planning permission after all. The Cheshire Cat helpfully cited the relevant High Court decisions (which you will find in my earlier article).

Tweedledum wasn’t having any of that. So far as he was concerned the planning permission was for a barn conversion, so there had to be a barn which could still be converted. As he pointed out, the Council had insisted on a structural survey to prove the original structure was sound before they granted planning permission. The Council’s policies did not permit the erection of new houses or other buildings in the open countryside, so they certainly wouldn’t have granted permission at all if they had thought the barn was going to fall down or be demolished and rebuilt anew. So far as Tweedledum was concerned, retention of the pre-existing structure of the barn was fundamental to the development.

As we left the scene, Tweedledum was striding off to consult the Gryphon, who was the head of the Council’s legal section. Actually, the Gryphon turned out not to be much help, because he wasn’t all that familiar with planning law, but Tweedledum wasn’t going to give up that easily, and so when the Cheshire Cat wrote in on behalf of Humpty-Dumpty as he said he would, Tweedledum pointed out that retention of the barn structure had been specifically referred to in the planning application, and also in the Design and Access Statement. It had been the subject of detailed discussions between Tweedledum and the Mock Turtle, who (as you may recall) was Humpty-Dumpty’s architect, and it had been specifically mentioned in the officers’ report to committee. Retention of the existing barn structure had clearly been a material consideration in the committee’s decision to grant planning permission. In fact, Tweedledum argued, the planning application, and the Design & Access Statement had to be read with the planning permission; they were in effect incorporated in the permission.

One can have some sympathy with Tweedledum. Retention of the barn clearly had been a material consideration in the determination of the planning application, and the Council’s policies would certainly not have permitted a development which would in practice produce an entirely new building in the countryside, even if it was an exact replica of the barn it replaced. In fairness to Humpty-Dumpty, though, he genuinely intended to convert the existing barn; demolition was not part of his plans, and the collapse of most of the barn and the demolition of the remainder of the building was as much of a shock to him as was to everyone else.

So was Tweedledum right after all? Well, despite what might be thought to be a perfectly common-sense approach to the issue on his part, the law does not support Tweedledum’s view. The development described in the planning permission was “Conversion works, alterations and extension of barn to form a dwelling”. (Actually, your humble scribe made a mistake in his original account, because the permission did not contain the words “in accordance with the application and approved drawings”.) And, as the Cheshire Cat pointed out when he first looked at the planning permission, there was no condition requiring retention of the barn structure. So could Tweedledum call in aid the planning application and other documents in construing or interpreting the planning permission?

In his judgment in the High Court in R v Ashford Borough Council ex parte Shepway District Council [1998] PLCR 12, Keene J (as he then was) summarised the legal principles to be applied as follows:

"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v Secretary of State for the Environment (1995) JPL 1128, and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196.

(2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council [1963] 2 QB 764; and Slough Estates Limited v Slough Borough Council [1971] AC 958.

(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application ...' or '... on the terms of the application ..., ' and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante).

(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Limited v London County Council, The Times, March 10, 1958.

(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P&CR 223 affirmed (1981) 42 P&CR 1."

This judicial approach to construing a planning permission did not take account of the approved drawings and their status in relation to the planning permission. However, any doubt which there might have been on that score was removed by the judgment of Sullivan J (as he then was) in Barnett v. SSCLG [2008] EWHC 1601 (Admin), where he explained that:

“If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an "ambiguity". On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.”

This judgment was subsequently approved by the Court of Appeal (see [2009] EWCA Civ 476).

That, in a nutshell, is why Tweedledum was wrong in assuming that the planning application itself and other background facts leading to the grant of planning permission could be called in aid in construing or interpreting the permission. A differently worded planning permission which expressly incorporated in the description of the development which the permiison authorised a reference to retention of the existing barn structure and/or which contained an express condition requiring retention of the existing structure might well have produced a different result, but as in Humpty-Dumpty’s case, Councils often fail to do this.

There are no prizes for guessing who played the part of the Cheshire Cat in our little excursion to Wonderland, and I am in fact dealing with two such cases at the moment, both of which are remarkably similar to Humpty-Dumpty’s case, even though they did not come across my desk until some time after my original piece was published. Neither of them has yet been finally resolved, and it seems that Tweedledum and his colleagues are still casting around for some excuse to avoid accepting that demolition and reconstruction of the barns in those two cases was entirely within the scope of the planning permission, but I am sure they will reach that inevitable conclusion in the end.
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[UPDATE: In view of two more recent appeal decisions, and the decision of the Court of Appeal in Williams v SSCLG [2013] EWCA Civ 958, the article above should be read in light of the series of 5 posts in this blog starting with “Barn Conversions again” posted on 5 March 2013, and in particular Barn Conversions again (Part 3)” posted on 7 March 2013, plus and a sixth article in this series posted on 1 December 2014 dealing with Williams.

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

© MARTIN H GOODALL

Legal costs in High Court planning challenges

I was interested to see that the Scottish Government is considering the introduction of what we refer to in England as protective costs orders (called ‘protective expenses orders’ in Scotland) so as to limit the liability of a claimant to pay the costs of the other side in an unsuccessful challenge to a planning appeal decision or other planning decision. Such a proposal would clearly be in line with the Aarhus Convention and would also chime in with Jeremy Sullivan’s (as yet unimplemented) recommendations on costs in such cases in the English context.

The suggestion is that an unsuccessful claimant (I am using the English terminology) should be liable for no more than a maximum of £5,000 when paying the defendant’s costs (in England the defendant would be the Secretary of State for Communities and Local Government, or the local planning authority where it is their grant of planning permission which was challenged). On the other hand, the costs which could be recovered by a successful claimant would be capped at £30,000.

In putting forward these proposals for consultation, the Scottish Government is clearly aware of the risk of encouraging frivolous or vexatious claims, but it is difficult to see how these can in practice be discouraged when the financial penalty for failure will be so comparatively low, unless the requirement to obtain the Court’s permission as a preliminary to bringing a claim were to be imposed across the board.

This proposal on the part of the Scottish Government is a welcome attempt to promote access to justice, and it will be interesting to see what response they get to this consultation exercise. I suspect that Scottish local authorities may not be too happy about it, and there can be no guarantee that these proposals will be put into practice in their current form.

I am not aware of any similar proposals being brought forward in England or Wales, notwithstanding the recommendations made by Jeremy Sullivan, but if the Scots go ahead with this proposal, it will no doubt be watched with great interest south of the border, and if it is seen to be a successful way of ensuring access to justice in cases of this type, the government in Whitehall may then come under pressure to introduce a similar scheme in England. Off-hand, I am not clear as to whether the Welsh Government would be able to take a similar initiative on their own. Planning is a devolved function in Wales but, because a change of the sort proposed in Scotland would relate to the administration of justice (which is not a devolved function in Wales), the Welsh may have to await the pleasure of the Ministry of Justice, which is not known for its generosity of spirit, even under the avuncular superintendence of Ken Clarke.

The Scottish consultation exercise runs until 3 April, and we may not know until much later in the year whether the proposals which have been suggested will be put into effect, either in their current form or subject to modifications (such as, for example, a higher cap on the costs recoverable by the defendant authority).

Planning lawyers in England and Wales will certainly follow the Scottish experiment with keen interest, trying not to lick our lips too vigorously at the thought of a similar rule being introduced down here.

© MARTIN H GOODALL

Put out more flags!

Rejoice! Rejoice! Uncle Eric is going to allow you to fly lots more flags. Today’s important announcement from DeCLoG is not new; the proposal to relax the Control of Advertisements Regulations to allow greater freedom to fly flags was, er, flagged up in May of last year.

Quite a lot of people were probably unaware that there are any restrictions on flying flags, but they are deemed to be advertisements, and so subject to control. The argument is that, even if the flag or flags do not display a commercial name or logo, it has the effect of drawing attention to the building or site on which it is being flown, and so is a form of advertising.

Uncle Eric has a few bees in his bonnet. One of them is the desirability of reducing ministerial planning advice to a mere 50 pages or so (and we all know where that has led); another is that greater freedom to fly flags is an absolutely essential contribution to the stimulation of economic growth in this year of the Diamond Jubilee and the Olympic Games.

As today’s DeCLoG discussion documents puts it:

“Flags deserve respect:
• They can demonstrate power and identity
• They can inspire pride
• They can rally people behind a cause
• They are a very British way of expressing joy.”

[Honestly, I am not making this up – that is what it actually says. In fact I have a shrewd suspicion that this document was drafted by Uncle Eric in person.]

However, before Uncle Eric hogs all the kudos for this stunningly brilliant initiative, which is so important in face of the continuing Eurozone crisis and the deteriorating economic situation, we should perhaps remind ourselves that a similar initiative was announced as long ago as July 2006 by the then planning minister in the Labour Government (Yvette Cooper). In fact, if you go to http://planningmatter.blogspot.com/2006_07_01_archive.html you will find a piece I wrote about ‘Flying the Flag’ in my old blog.

What had prompted ministerial interest in the subject back then was a report on Channel 4 News (at a time when the World Cup was on) which drew attention to the potential legal hazards of displaying flags. The news report, on what must have been a ‘slow news’ day, drew attention to the fact that the regulations permit the flying of a flag vertically but not horizontally or at an angle. The TV people even managed to get an interview with Yvette Cooper, who promised to change the regulations and expressed the hope that local planning authorities would not take enforcement action in the meantime.

And now - oh, joy of joys - only some five and a half years later, Uncle Eric has solemnly announced in paragraph 21 of the discussion paper that he will remove the stipulation that the flagstaff must be ‘vertical’. I can hardly contain my excitement.

It would be wrong to suggest that it’s going to be a total flag-waving free-for-all; the policy wonks at DeCLoG could never contemplate anything so revolutionary as that. So we can look forward to some exquisitely detailed (but badly drafted and ambiguous) amendments to the Control of Advertisements Regulations to put Uncle Eric’s bright ideas into practice. (After all, they’ve got to keep us planning lawyers in remunerative employment.)

Isn’t it wonderful that we have a government that is so proactive in reforming the planning system that they do not shirk from coming forward with brave initiatives like this. It must make members of the Conservative Party proud to be British.

© MARTIN H GOODALL

Promptness in judicial review

In a post under this title on 7 June 2011 I expressed the view that (despite the decision in Buglife) the effect of Uniplex would not be as wide as some people had predicted, and that I would still be advising my clients to apply promptly if they wish to challenge a planning decision by way of judicial review, rather than relying on the three-month long-stop date under CPR Part 54.

In September, the issue arose again in the High Court in R (Macrae) v Herefordshire Council [2011] EWHC 2810 (Admin), when the Court rather neatly side-stepped the problem potentially posed by Uniplex by deciding that, because this case did not involve a European directive, Uniplex did not apply, so the requirement for ‘promptness’ in the rules was lawful and therefore applicable to this case. The claim was therefore dismissed, because it had not been brought promptly.

One problem which seems to be opening up is that we have two different European jurisdictions (the European Court of Human Rights and the Court of Justice of the European Union), which seem to be taking a different approach to this issue. How are they to be reconciled?

If one follows the line of authority established in the ECHR, one should be guided by the decision of the Court of Appeal in Hardy and Maile v. Pembrokeshire County Council [2006] EWCA Civ 240. In that case Keene LJ drew attention to the fact that this very point (the challenge to the requirement for ‘promptness’) had been advanced before the European Court of Human Rights in the case of Lam v. United Kingdom, Application 41671/98, and rejected. The ECHR had stated that “In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions.”

On the other hand, we have the decision of the European Court of Justice in Uniplex, which seems to take the opposite view. Ultimately, I suspect that it will take an amendment of the legislation (both primary and subordinate) to resolve the position, and this amendment will need to take account of the Aarhus Convention, as well as European Law and directives.

In the meantime, it seems that defendants in judicial review cases will continue to rely on two points. They may argue, first, that Uniplex is confined to procurement cases. Secondly, if that argument fails, they may argue (in reliance on Macrae) that Uniplex applies only where a European directive is in issue. That may be sufficient to dispose of a fairly large swathe of tardy JR applications, but would still leave the argument open in all those cases involving the Habitats Directive or the Birds Directive (among others).

DEFRA is currently looking at ways in which European directives have been transposed into UK law, and whether this is having an unnecessarily blighting effect on development proposals. The issue of whether in such cases third party objectors could, in principle, have unlimited time in which to launch legal challenges based on alleged failure to follow these directives is something which should perhaps be taken on board as part of the current study.

Most planning lawyers would accept that, in the interests of justice and good administration, there should be a time limit on applications for judicial review. The one criticism which could be levelled at the rules as they are framed at present is that they contain a substantial element of uncertainty, in the sense that whilst there is theoretically a time limit of three months (which can be extended in exceptional cases), the need for ‘promptness’ and the avoidance of ‘undue delay’ leaves claimants in a state of uncertainty as to whether their claims might be rejected as having been made too late, even though made within the three-month time limit.

Prior to the House of Lords decision in Burkett, an unofficial six-week rule had become established through a line of judicial rulings in these cases. Perhaps we ought to legislate to introduce a definite six-week time limit for judicial review applications, subject to discretionary extension by the Court where there is a strong argument for exercising that discretion in favour of the claimant. Some environmental campaigners might not like it, but we really ought not to allow our legal system to be exploited and abused as a means of delaying or frustrating development where it has already been subject to due process. There must, of course, continue to be resort to the courts, but it need not be open-ended.

© MARTIN H GOODALL

Curtilage confusion (3)

If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).

I doubt whether we shall ever be rid of problems revolving around the issue of ‘curtilage’ until legislation is eventually introduced to do away with curtilage as a legal concept altogether, and to substitute the planning unit as the appropriate entity in planning terms, by reference to which the use of land, permitted development and other issues are to be considered.

Meanwhile, the curtilage problem will continue to rumble on, and a further point has been raised by one of my readers following on from what I recently wrote on this topic. I had pointed out that, whilst the incorporation of extra land within the planning unit would become lawful if its use continued for 10 years, this would not necessarily have the effect of making that land part of the domestic ‘curtilage’ as such. This land might or might not also be incorporated within the domestic curtilage of the dwelling (though probably not in most cases); the point I was making was that inclusion in the curtilage did not automatically follow. However, that statement should not be taken as applying to the incorporation into the domestic curtilage of land already forming part of the same planning unit and which is already being lawfully used for residential purposes, even though it did not previously come within the actual curtilage of the dwelling. The question which arises in that case is for how long an extension of the domestic curtilage within the existing planning unit has to be used in such a way as to qualify it as ‘curtilage’ before the legal consequences (in planning terms) of its being within the curtilage then apply.

My correspondent has drawn my attention in this connection to the decision of the High Court in Sumption v. Greenwich LBC [2007] EWHC 2776 (Admin) [Just as an aside, one is accustomed to s.288 and s.289 applications being incorrectly cited as “R (on the application of X) v. SSCLG”, but this seems to be an example of the converse error – citing an application for JR under CPR54 as “X v. Y”.] Very briefly, Jonathan Sumption QC (who will being taking his place this year as a judge of the Supreme Court, the first such appointment directly from the bar) successfully challenged the grant of a Lawful Development Certificate to a neighbour of his who had erected a wall and gates around his property. This would normally be permitted development under Part 2 of the Second Schedule to the General Permitted Development Order (subject to certain height limits), and it does not have to be within the curtilage of a dwellinghouse, but it is not permitted development if it is within the curtilage of a listed building.

The issue before the Court was whether or not the newly erected wall and gates were in fact within the curtilage of the listed building. The Council had decided that they were not; therefore they were lawful as permitted development. The case for the Council was that they had decided as a matter of fact and degree, applying the criteria laid down in the well-known line of judicial authorities on the point, that the part of the property where the wall and gates had been erected did not fall within the domestic curtilage of the listed building, and that this decision was unassailable unless it could be shown that it was Wednesbury unreasonable.

The LDC application had referred to the ‘recently expanded garden of Hillside House’ and stated that the proposal comprised ‘the formation of a new means of enclosure to part of the western boundary of Hillside House adjacent to a highway’. It went on to seek to demonstrate that the development was outside the curtilage and would not surround the house. It was said that it was separated from the cultivated garden which had been attached to the house since the 1840s. No work, other than some mowing and tidying, had been done to the land in question and it did not ‘serve the property in a useful or necessary manner’, nor did it provide amenity space for the enjoyment of the occupier of Hillside House, or serve any functional purpose. It was visually separated from the original garden, in that it was enclosed by shrubs and trees. There had been no historical connection, bearing in mind that it was not even in the same ownership until 2004.

The learned judge acknowledged that the decision of the Court of Appeal in A-G v Calderdale BC (1982) 46 P. & C.R. 399, at 409, is authority for the proposition that there should be some historical connection of the area in question with the principal building. However, whilst Collins J accepted that lack of any such connection was a relevant fact, in his view it was not determinative. The reason for the erection of the fence in this case would not of itself determine whether the land enclosed by it comes within the curtilage. He therefore felt it was necessary to look at the factual situation created by the erection of the fence. In an urban environment, land attached to a dwelling house which is able and intended to be used in conjunction with the house (whether or not formally described as its garden) is likely to be within its curtilage. [This rather obviously begs the question, where the planning unit is large enough to embrace land which might not come within the usually accepted definition of ‘curtilage’.]

Collins J then posed this question: “Over the years, land may have been acquired which extends a garden. One has to ask oneself whether there is a minimum period over which it has to be held and perhaps used before it can properly be said to form part of the curtilage.” However, this is a question which the learned judge does not seem to have attempted to answer. Instead, he said that it seemed to him that it is necessary to determine the status of the land from the factual situation existing at the date of the application. The land had been acquired in 2004, it had been fenced and it was useable and was intended to be used as an extension of the garden of Hillside House.

Mr Sumption (in challenging the LDC) relied on the fact that the land was physically proximate to the house, had been enclosed with the house and was being landscaped with the rest of the grounds. In addition, he relied on the reference in the certificate to the erection of a ‘boundary wall and gates’ to Hillside House. The nub of Collins J’s judgment was set out in paragraph 27 - He concluded that once the wall was erected and the garden use confirmed so that the land did indeed form part of the garden of Hillside House it would be well nigh impossible to contend that it was not within the curtilage. It did not seem to him to be relevant that the garden use had not formally been approved. What mattered was what was in fact the use being made of the land. It was clearly capable of being used by the owner and some work had been done, if only tidying. He had access to it and it was now part of the land attached to Hillside House and being enjoyed with it. The learned judge did not regard the historical lack of connection as being capable of carrying weight in the circumstances. It was the situation as at November 2006 which was material. He was clearly of the view that the facts permitted of only one conclusion, namely that the curtilage of Hillside House does extend over the land in question. The reference in the application to the ‘recently expanded garden’ was accurate and was fatal to the grant of the certificate.

[I have deliberately refrained from going into a subsidiary argument about the precise wording of paragraph A(1)(d) in Part 2 in the GPDO, as that raises a different point.]

It seems to me that, when considering permitted development rights within Part 1 of the Second Schedule to the GPDO, the decision in Sumption may be taken as authority for the proposition that land does not have to be incorporated within the domestic curtilage for any specific length of time before the legal consequences of its being so defined take effect. That coincides with my own view of the position, although the way in which I had approached the point was to argue that incorporation of land within the curtilage of a dwellinghouse (or other building) is purely a matter of fact and degree; it is not a ‘use’ of the land for planning purposes, and so concepts relating to material changes of use are irrelevant, as are the time limits under the 4-year or 10-year rules. It is for that reason that I would agree that it is the position at the material date which has to be considered, which in the case of an LDC application is the date of the application.

This does, however, leave several points unresolved. First, it is difficult to reconcile this view with the view apparently taken by the Court of Appeal in Calderdale that there should be some historical connection of the area in question with the dwellinghouse (or other principal building), although it may be relevant to point out that that decision related to the curtilage of a listed building (a point to which I will return below).

Secondly, there is also an outstanding query arising from the lawfulness of the use of the area of land under consideration. Collins J seems to have lightly swept this point aside in Sumption, but it might well be argued that land cannot be treated, as a matter of fact and degree, as being within the curtilage of a dwellinghouse if its use as part of the planning unit (comprising the dwellinghouse together with the land occupied with it) is not lawful, because it has been incorporated in the planning unit without planning permission and this change of use has not become immune from enforcement under the 10-year rule. The converse proposition could lead to some mind-boggling anomalies. If the lawfulness of the use of the land had no bearing on its being within the curtilage, permitted development rights would in principle apply to that land, even though its use for residential purposes remained unlawful!

A third point, which might arise when considering a listed building, is the extent of the listing in relation to outbuildings, boundary walls, gates, etc. It seems to me that for this purpose one should consider the curtilage as it was at the time of the original listing, in accordance with Calderdale.

I freely admit that I seem to be advocating a different approach when considering the curtilage in relation to the extent of the listing in the case of a listed building, compared with the approach which I have suggested to the identification of the curtilage in relation to permitted development rights under Part 1 (and in particular Class E) of Schedule 2 to the GPDO. The ‘historical connection’ does seems to me to be relevant in the context of a listed building, but I am still inclined to take the ‘current situation’ as the appropriate starting point in considering the curtilage in the context of PD rights for non-listed buildings. There is just one minor problem with this dual-pronged approach - arguably Sumption should have been decided on the ‘historical connection’ basis, as per Calderdale, rather than on the basis of the ‘current situation’ (!)

This may not be the conclusion which my correspondent had expected, but I stress that the view I have expressed is potentially open to challenge, and so must be regarded as a provisional or tentative view for the present . This means, I fear, that the High Court may be troubled by this issue again at some date in the future, and Planning Inspectors will have to wrestle with it as best they can in the meantime.

© MARTIN H GOODALL