Saturday, 28 April 2012

We apologise for the break in transmission.........

Regular followers of this blog will be all too well aware that only one item has been posted this month, and we are nearly at the end of April already. There is certainly no shortage of material which could have been (and I hope will soon be) the subject of blog entries, but time has been against me.

The explanation is simply that I have been far too busy with fee-paying work in the past month to be able to spare the time to write blog entries, and I then took a much-needed 10-day holiday, before plunging back into the maelstrom of planning problems which urgently require my attention.

The irony is that this blog is suffering from its own success. I explained on the ‘Introduction’ page that this blog was never intended as a marketing tool, but in practice it has brought in a huge amount of work, and continues to do so. It is this factor alone that has slowed the flow of blog articles to a trickle.

Fortunately, I have three very experienced colleagues in our planning law team, which enables us to share out work across the team to even up the workload. I certainly don’t want to have to work quite such long hours as I have done in the past few months. (Easter was effectively cancelled for me this year – it just didn’t happen.) I hope and believe that I have now got my workload under control, and so I am aiming to publish rather more blog entries in the next month than I have in the past few weeks.

So, as the old cliché goes – “Watch this space.”


Monday, 2 April 2012

Agricultural development after the NPPF

The truth is slowly dawning on a widening circle of farmers, builders and developers and their advisers that with the publication of the National Planning Policy Framework and the withdrawal of PPS7 (along with all the other PPGs and PPSs), the technical advice set out in Annexes A and E of PPS7 has also been ‘lost’. Annex A dealt with agricultural workers’ dwellings, and Annex E explained the practical operation of agricultural permitted development under Part 6 of the Second Schedule to the General Permitted Development Order.

The ‘loss’ of Annex A potentially poses a problem, but in practice I believe this is readily overcome. The only reference to agricultural workers’ dwellings in the NPPF is in paragraph 55, which simply states that local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as (inter alia) the essential need for a rural worker to live permanently at or near their place of work in the countryside. No guidance is given in the NPPF as to the use of agricultural occupancy conditions or as to their removal (but see below). However, “the essential need for a rural worker to live permanently at or near their place of work in the countryside” can only be judged on an objective basis, and I strongly suggest that the methodology explained in Annex A to PPS7, whilst it no longer forms part of ministerial policy as such, is nevertheless the appropriate way in which this issue should be approached. It is well-established and well understood, and I would expect LPAs and planning inspectors to continue to apply this approach, even though PPS7 can no longer be called in aid as the authority for doing so.

It should also be remembered that Circular 11/95 (on the use of planning conditions) remains in force, and so paragraphs 102 to 105 of that circular continue to apply, dealing with agricultural occupancy conditions and their removal. In relation to the removal of an agricultural occupancy condition, paragraph 105 refers to the requirement to show that the existing need for dwellings for agricultural workers in the locality no longer warrants reserving a house for that purpose. This paragraph does not prescribe any particular method for assessing continuing need, but long-established practice, which is clearly supported by several relevant judicial authorities, will undoubtedly continue to apply.

As regards Annex E to PPS7, this simply re-stated the basic rules applying to agricultural Permitted Development which would apply in any event, even if they had never been referred to in PPS7. The withdrawal of PPS7 does not affect those principles in any way, and they continue to apply as they always did. My own inclination would be to continue to quote from the text of Annex E to PPS7 in order to explain these principles, but without necessarily citing this as the source.

Thus I do not believe there need be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions. Similarly, the principles and practice relating to agricultural Permitted Development under Part 6 of the Second Schedule to the General Permitted Development Order will not change as a result of the withdrawal of PPS7. Nevertheless, De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annexes A and E of PPS7 in the form of a Circular. Failure to do so could lead to legal disputes which might otherwise be avoided.