Thursday, 29 March 2012

NPPF – Initial impressions


Pressure of work has prevented my getting my head round the final version of the NPPF yet, but my colleague David Brock has put together some initial comments, and you can read these in his own blog. (See the link on the left-hand side bar of this page.)

As expected, all the existing Planning Policy Guidance Notes and Planning Policy Statements have been swept away, leaving nothing in their place other than the very abbreviated text of the NPPF itself, plus another 27 pages of technical guidance on Flood Risk and Minerals Policy. There’s no sign yet of the suite of supporting documents which it was hinted would accompany the NPPF. Maybe they are waiting until the dust has settled before issuing further guidance. There is a help line for local planning authorities (but not for the rest of us?) which may alert De-CLoG to the need for additional guidance to fill some of the gaps left by the withdrawal of previous ministerial advice on policy and procedures.

Only one circular has been withdrawn so far - 05/2005, dealing with planning obligations, which had been rendered somewhat out-of-date by recent legislative changes, including the introduction of the Community Infrastructure Levy. Other important circulars, including 11/95, 10/97, etc. are still in full force. So if Uncle Eric’s curse on wordy policy guidance applies only to the old PPGs and PPSs, then maybe some newly published circulars could fill the gap left by the removal of important technical detail which some of the withdrawn policy documents contained.

My focus in the immediate future, when I can tear myself away from my ever-increasing workload to read the NPPF properly, will be to try to understand the real policy implications of the document, compared with the policy regime which applied before its publication. The strange and totally inexplicable euphoria expressed by the Daily Torygraph, the National Trust and others is certainly not a reliable guide to the actual effect which the NPPF may have in policy terms. Their apparent joy at the publication of the final version of the document appears to me to be just as bizarre as their excoriation of the original draft. One is driven to the conclusion that they simply don’t understand the planning system!

© MARTIN H GOODALL

Tuesday, 27 March 2012

NPPF published


Greg Clark got up in the House of Commons just after 12.30 to announce the publication of the NPPF in its final form, but I have not yet managed to get my hands on the published text.

No doubt this will become available on the internet later today. Unlike 'the usual suspects' (National Trust, CPRE and sundry newspapers) I do not propose to rush into premature comment.

What planning lawyers like me will be looking for is a clear indication as to how much of previous guidance on policy and procedure will be preserved in one form or another. We shall be looking in particular at how many existing circulars (if any) have been cancelled, and whether the detailed contents of certain PPGs/PPSs have been re-published in some other form outside the scope of the NPPF itself.

The views I have heard expressed by my own colleagues and other planning professionals vary from the expectation at one end of the scale that quite a lot of the existing guidance will in fact be preserved and will continue to apply, to the possibility at the other end of the scale that we really will be faced with a completely clean sheet, with all the resulting uncertainty that this will create.

UPDATE: It is now on the CLG website, at : http://www.communities.gov.uk/documents/planningandbuilding/pdf/2115939.pdf

© MARTIN H GOODALL

Wednesday, 21 March 2012

George Osborne’s damp squib


As my colleague, David Brock, blogged the other day (see the link on the side bar), publication of the final version of the National Planning Policy Framework seems to have been delayed slightly.

Publication was originally scheduled “before the end of March”, and the government still seems on target to meet that deadline, but there is strong evidence that efforts were being made to publish the NPPF in time to coincide with today’s Budget Statement.

At the weekend George Osborne was hoping to announce that the NPPF would be published “on Budget Day”, but it seems that this got changed at the last moment, so that what he actually said in a TV interview on Sunday was that it would be published “in Budget Week” (in fact I thought I heard him say, rather awkwardly, “ON Budget Week”).

In today’s Budget Statement this had changed to “next week”. Rumours are going around Whitehall that the Treasury was pressing very hard to get publication of the NPPF scheduled to coincide with the Budget, no doubt to allow George Osborne once again to make a splash by announcing significant planning ‘reforms’. He seems for some obscure reason to be intent whenever possible on stealing Uncle Eric’s thunder.

The reason for the last minute hitch seems to be, as David Brock suggested in his recent blog post, that there is some last-minute horse-trading going on between the Treasury and De-CLoG (and possibly also DEFRA) over the extent to which the dash for growth is to be the overriding aim of the document and how far this is to be tempered with ‘ifs’ and ‘buts’ as a sop to the environmental lobby.

For the government, it’s probably a case of “Heads – they win; Tails – we lose” in the sense that if the NPPF is seen to be a developers’ charter, there will be renewed screaming and shouting from the usual suspects (CPRE, National Trust, the Daily Torygraph, etc.) whereas if the document is seen to have been significantly watered down compared with the controversial consultation draft, we can expect to hear whingeing from the HBF, British Chambers of Commerce and other pro-development groups (“a lost opportunity to promote economic growth” etc. etc. – choose your own rent-a-quote).

What really interests me as a planning lawyer is how far Uncle Eric’s mad scheme to cut ministerial policy advice down to only a little over 50 pages will have been adhered to, or whether common sense has prevailed within De-CLoG, so that a significant body of advice on practice and procedure will have been preserved in a suite of supporting documents. Whilst PPGs and PPSs are set to disappear, there is no need to withdraw any of the existing circulars. As I have suggested before, some of the contents of existing PPGs and PPSs really do need to be re-published in some other form, and this is what I shall be looking out for when the NPPF comes out.

© MARTIN H GOODALL

Monday, 19 March 2012

Flying the flag – but not the ‘Skull and Crossbones’


If you follow the press closely you may have picked up on a couple of stories in recent weeks where local planning authorities were threatening to make the fliers of pirate flags ‘walk the plank’ in terms of planning enforcement.

In one case, East Lindsey District Council threatened a prosecution for the illegal display of an advertisement (viz: the flying of a pirate flag) in the garden of a house in their area. Needless to say the parents of the child whose flag it was were somewhat surprised to receive this pompous letter, which claimed that they needed advertisement control consent to display the skull and crossbones flag. The letter demanded that the offenders remove the flag and its pole within 28 days, and reminded them that it is an offence, prosecutable in the magistrate's court, to display an advert without consent from the council.

On being questioned about the letter, the council solemnly announced that it was lawful to fly a national flag (of any nation), but not the skull and crossbones. A pompous idiot, speaking on behalf of the Council is reported to have said: "As such, and in line with planning law, the district council has written to the family concerned asking that it is taken down. Rules around what flags are acceptable are contained within planning legislation and we'd be happy to provide advice and guidance on what is acceptable."

However, it was East Lindsey Council who eventually waved the white flag, when they realised what asses they had made of themselves by their officious action in demanding that the flag be taken down.

Meanwhile, not so far away, near Hull, a similar spat occurred over another pirate flag in a children’s play area in a local pub. This time, the over-zealous planning authority was East Riding Council, whose enforcement officer marched round to the pub and told the landlord that he could be taken to court if he did not remove the flag. The excuse was that there had been a ‘complaint’ and the council was ‘just following the rules’. (The enforcement officer was “just doing my job”.) Needless to say, the landlord was somewhat puzzled as to who might have complained about a pirate flag being flown in the children’s play area.

Like East Lindsey, the East Riding Council eventually backed down in the face of local ridicule, mumbling that they had a duty to investigate after a complaint was received. So the good citizens of Humberside and surrounding areas can now fly their pirate flags, safe in the knowledge that they will no longer be troubled by silly over-zealous planning authorities, who haven’t got the common-sense to realise that they are making fools of themselves.

Just for the record, it is very unlikely that any prosecution would have succeeded in these two cases, as it is unlikely (in light of previous judicial authority on the subject) that the courts would have accepted that these particular flags amounted to advertisements. A flag would only be regarded as an advertisement if it draws attention to the premises. This would certainly never apply to a private dwelling which is not being used for any commercial purpose. It is also very unlikely to occur in the case of a pub or similar premises where the flag is simply an adjunct of the children’s play area, and could not by any stretch of the imagination be seen as advertising the premises as such.

I wonder if there are any other planning authorities around the country who may be thinking of embarking on a crusade against the flying of pirate flags or other ‘unauthorised’ flags. Perhaps word may have got around about these two stupid local authorities in the East of England, and other councils may be deterred from pursuing a similar course of action.

And town planners wonder why they command such little respect!

© MARTIN H GOODALL

The 4-year rule – Holiday lets and second homes


‘Rick’ has raised a query in relation to my post on the 4-year rule. How does this stand against a breach of a planning condition? He cites the example of a condition that requires the property to be used only as holiday accommodation (usually for a stated maximum period of such occupation in any calendar year). As he points out, breaches of condition come under the 10-year rule, except where the breach of condition results in a change of use to use as a single dwellinghouse. Surely, Rick suggests, it is arguable that a residential use for holidays is materially different from a residential use facilitating full time occupation.

The case which Rick clearly had in mind is Arun DC v. FSS [2006] EWCA Civ 1172, which established that a breach of condition which results in a property being used as a single private dwellinghouse is governed by the 4-year rule. So if a granny annex becomes a separate dwelling in breach of a condition forbidding this, it is the 4-year rule that applies. However, if the property was a separate dwelling in the first place (which most holiday homes are), then a condition restricting the time in any one calendar year during which it can be used would be subject to the 10-year rule. This was confirmed by the judgment in Bloomfield v SSETR (1999).

Decided cases (e.g. R v. Tunbridge Wells BC ex p Blue Boys Development (1989) and Moore v. SSE (1998)) clearly indicate that (subject to the basic rule in Gravesham), buildings used as holiday homes are to be regarded as dwellinghouses, falling within Use Class C3. Thus, if we are looking at a change of use of a permanent structure to a use providing holiday accommodation, this is a change of use to use as a dwelling, and it is the 4-year rule that applies.

A further question arises where a non-domestic property is converted to a dwelling but is used purely as a holiday home rather than for full-time occupation. Is that use continuous so as to qualify under the 4-year rule? The leading case is Swale DC v. FSS [2005] EWCA Civ 1568, where it was held that it depends whether the building has been used as a single dwelling throughout the whole of the four years. The court rejected the suggestion that continued availability or suitability for continuing use as a dwelling was sufficient. There had to be continuity in the actual use of the property.

This suggests to me that a distinction may possibly be drawn between second homes and holiday lets. A second home is arguably in continuous use even when the family are not actually staying there, whereas a building which is let out as a holiday home is might be said to be in use as such only during periods when it is actually let. Any void periods of more than a few weeks at most might arguably break the continuity of the use, whereas even if family visits to a second home are infrequent the use is arguably continuous nonetheless.

However, even in the case of holiday lets, it could be argued that when they are not actually occupied, they remain fully furnished and equipped and are not therefore merely available or suitable for use in the sense mentioned in Swale, but remain in actual use even when they are not actually being occupied by guests. The test proposed by the Court of Appeal in Swale was whether the change of use remained susceptible to enforcement action by the LPA. If it could be argued at any particular time that the breach of planning control was not continuing at that time, by virtue of the property not being used for the unauthorised purpose, then the continuity of the use for the purpose of the 4-year rule was broken, and any resumption of the use would be a fresh breach of planning control, with the clock re-set to ‘zero’.

I have previously drawn attention to a planning appeal which related to the breach of an agricultural occupancy condition, where an Inspector accepted the proposition that it would be sensible to ignore a very temporary stopping and starting, so that this would not be taken to be an entirely new breach. There is, however, no judicial authority on the point other than a reluctant passing observation of the Deputy Judge in N Devon DC v. SSE that “continuous physical occupation is not required for there to be occupation in breach” (a remark which was actually directed to the continuity of a breach of a seasonal occupancy condition, which is not quite the same thing as we are discussing here).

Thus holiday lets remain a grey area so far as the 4-year rule is concerned, although I am more confident that second homes would usually be capable of benefiting from the 4-year rule.

© MARTIN H GOODALL

Friday, 16 March 2012

Comments again


I have finally found time to publish some of the comments which have been langishing in the 'Pending' box.

My apologies to the contributors for the delay in publishing these comments, due to recent pressure of work.

Time prevents my answering some of the queries raised in these comments. Maybe a another time.

MHG

The 4-year rule


The press have recently picked up on a case in Mole Valley District in Surrey, where the Council has granted a lawful development certificate for a dwelling ‘hidden’ in woodland in the district. It seems that the neighbours and some local councillors are not happy about this.

As in all cases of this type, the dwelling became immune from enforcement and therefore lawful because it had been continuously occupied as a dwelling for four years. The rule is quite straightforward. If a building is equipped with the essential facilities required for day-to-day domestic existence, so that it can genuinely be described as a dwelling, and it is continuously used as a dwelling for at least four years, then its occupants are entitled to apply for a Lawful Development Certificate. The dwelling would be lawful even without the certificate if the qualifications have been met; the certificate simply confirms the existing position.

There are two exceptions to this rule. The first is what is known as the Connor doctrine, and was well illustrated by the decision of the Supreme Court in Welwyn Hatfield v. SSCLG. In that case, Mr Beesley had deliberately set out to deceive the local planning authority by obtaining planning permission for an agricultural building, intending all along to erect a house. He purported to implement the planning permission, and what he built looked outwardly similar to the agricultural building for which planning permission had been granted, but it was designed and equipped as a house. Mr Beesley and his family then occupied the house for four years, following which an application was then made for a lawful development certificate. This was refused by the local planning authority on the grounds of Mr Beesley’s fraudulent conduct, but granted by an Inspector on appeal. A challenge to that decision by the Council in the High Court succeeded, but the Court of Appeal reversed this decision. However, the Supreme Court finally sided with the Council, deciding that Mr Beesley’s deliberate deceit prevented him from benefiting from his wrongdoing.

The Supreme Court nevertheless made it clear that it was only Mr Beesley’s deliberate deception in making a fraudulent planning application which had disqualified him from claiming immunity from enforcement under the 4-year rule. It is clear from the judgment that conduct falling short of deliberate deceit does not prevent the operation of the 4-year rule. So actions (or inaction) falling short of deliberate deception - for example, simply keeping a low profile, involving possibly refraining from registering on the register of electors, not registering for council tax, not obtaining a TV licence, etc. - do not prevent immunity from enforcement being claimed under the 4-year rule.

The second exception to the 4-year rule relates to “deliberately concealed development”. New rules introduced by the Localism Act which are due to be brought into force shortly (probably next month) will enable a local planning authority who become aware of development which has been deliberately concealed (which is not the same thing as development which has simply gone unnoticed) to apply to the magistrates’ court for a ‘planning enforcement order’. They must do so within six months of the date when they first became aware of the development, but their word as to when that was has to be accepted at face value and cannot be questioned.

Before they can make an order, the magistrates must be satisfied (on the balance of probability) that the development had indeed been deliberately concealed, and they must also decide that it is just in all the circumstances to make the order. If the order is granted, it gives the Council a year in which to serve an enforcement notice, even if this would otherwise have been out of time under the 4-year rule.

How much use will be made of the new procedure remains to be seen. My guess is that such cases are going to be fairly rare. The concealment of the development must be deliberate. So the local authority would have to produce evidence of a deliberate intention on the part of the developer to conceal the development; the fact that the development was in practice concealed may not be enough to demonstrate deliberate intent. It is doubtful whether simply living quietly and not drawing attention to one’s residential occupation of the property would be enough to amount to deliberate concealment.

Further speculation on this issue is unlikely to be very enlightening, and we are going to have to wait for the first cases to go through the courts before it becomes clear what effect the new provisions are likely to have in practice.

Meanwhile, the 4-year rule is alive and well, and I have no fewer than three live cases in progress at the moment.

© MARTIN H GOODALL

Thursday, 8 March 2012

Privatising development control


There is some speculation at the moment on the scope for privatising development control functions (a.k.a. development management). This is not new; I believe Westminster City Council was the first authority to do it quite some time ago. However, political and financial pressures are persuading more local authorities to look at the possibility of privatising this service.

I have always felt that it is cheaper in the long run to keep services in-house, and that out-sourcing (even within the private sector) causes more problems than it solves, not least due to loss of control over the delivery of the services in question, and the resulting threat to standards of performance. In the case of development control, however, it seems to me that there is also a potential legal problem.

Some years ago, I acted for a housing association which had in fact been the housing department of the local authority until the whole department was hived off and set up as a free-standing organisation. The Council had appreciated that there were certain functions they had to retain in-house, one of which was the determination of homelessness claims. But they nevertheless farmed out the processing of the homelessness casework to the housing association, reserving to themselves only the final decision as to whether the applicants were homeless within the statutory definition. This is where they came a cropper.

The way in which the processing of the casework had been delegated meant that the officers of the housing association were responsible for all the relevant investigations and they then compiled a report which included a recommendation to the Council as to whether the applicants should or should not be found to be unintentionally homeless, and therefore entitled to re-housing by the authority. An aggrieved applicant challenged this procedure in the High Court, on the basis that the Council had delegated so much of the process to the housing association as to be acting as no more than a rubber stamp for a decision which had already effectively been made by the officers of the housing association. The point is that the Council had no right to delegate this decision-making function to anyone outside the authority. It was the Council which had the statutory duty to make the decision, and they had gone too far in delegating the casework to the housing association. It is no longer fashionable for lawyers to quote Latin tags, but the maxim is – Delegatus non potest delegare.

Consider now how this principle would apply to development control. It is the local planning authority which has the statutory duty to determine planning applications and to make various other determinations under the Planning Acts. One can imagine that a certain amount of the processing of planning applications and similar casework might be out-sourced, but at what point would this impinge on the decision-making function of the Council, which they are not at liberty to delegate? This particularly applies to those decisions (an increasing number) which are delegated to officers for decision.

If a Council attempts to delegate only the basic processing of the application to an outside contractor, reserving to one or two officers retained within the Council’s own employment the exercise of the actual decision-making function (where this is not to be reported to a committee for determination), there is clearly a significant danger that they might fall foul of the rule which tripped up the housing authority mentioned above. A point could all too easily be reached where the processing of the application had gone so far as to impinge on the actual decision-making function. It is very difficult to draw the line, and if Councils were to proceed on the precautionary principle, there might be little point in outsourcing the processing of applications at all, when a substantial part of the procedure, including the analysis and assessment of the application might have to be dealt with in-house in any event in order to avoid the accusation that the Council had unlawfully delegated its decision-making function to someone outside the authority’s employment.

Even those applications determined by a committee of elected members might in principle be open to challenge if the report to the committee recommending that they either approve or refuse the application could be said to go too far in pre-determining the decision, as was the case with the homelessness applications I mentioned earlier.

In practice, the refusal of a planning application is unlikely to be the subject of a successful application for judicial review, because the courts generally take the view that where a statutory appeal process is available (in this case an appeal to the Planning Inspectorate), the court should not exercise its discretion to grant relief, even where there is a clear legal error or where the authority’s procedure is flawed. However, in the case of the grant of planning permission, applications for judicial review are a distinct possibility on the ground that the local planning authority has gone too far towards delegating its decision-making power to an outsider. A decision to issue an enforcement notice might be similarly open to challenge if taken on the advice of an outside contractor.

These are points which local planning authorities who are contemplating privatisation of their development management functions would do well to ponder.

© MARTIN H GOODALL

Monday, 5 March 2012

Comments


I owe an apology to several people who have kindly contributed comments in response to recent posts on this blog but whose comments have not yet been published.

Unfortunately, moderation of comments has proved to be a necessity in view of the high level of spam which blogs unavoidably attract. This unfortunately delays the publication of bona fide comments.

The plain fact is that I have been so busy with client work that it has been impossible to find the time to moderate all the comments which have been flowing in and, as matters stand at the moment, I fear that some further delay may occur before I am in a position to catch up with comments. So please bear with me.

MARTIN GOODALL