Saturday, 30 June 2012

The presumption in favour of sustainable development

I have noted over the past few months that some people seem to have been getting over-excited by the National Planning Policy Framework. They seem to think (no doubt prompted by the tendentious claims of ministers) that the NPPF has brought about a revolution in town and country planning. Nothing could be further from the truth; the changes that the NPPF has introduced are minor, and their impact is likely to be limited. The previous body of ministerial policy advice that the NPPF has replaced was lengthier and more detailed, but largely similar in its overall thrust and direction.

A particular focus of attention among those who hoped or wished that the NPPF heralded a fundamental change of approach was the ‘presumption in favour of sustainable development’ which it introduced. However, it seems that these hopes may prove to have been illusory. A recent planning appeal decision shed an interesting light on the topic. This was an appeal by Galliards Developments against the refusal of planning permission for 135 dwellings at Hunting Butts Farm, near Cheltenham. The decision seems to have occasioned a certain amount of excitement on both sides of the argument, but in practice it simply illustrates the practical limits to the application of the much-vaunted presumption in favour of ‘sustainable’ development.

The appeal site is in the Green Belt, although the Inspector acknowledged that some land will probably have to be released from the Green Belt in order to meet Cheltenham’s needs for housing and economic development. Notwithstanding this, he decided that the location of the appeal site in the Green Belt negatives the presumption in favour of sustainable development in the NPPF. The Inspector referred to paragraph 14 of the NPPF, which provides that where the development plan is absent, silent or relevant policies are out-of-date, permission should be granted unless “specific policies in this Framework indicate development should be restricted”. A footnote makes it clear that this applies, for example, to those policies relating to (among other things) land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or a National Park as well as to designated heritage assets.

Unsurprisingly, the Inspector therefore decided that because of its location in the Green Belt, "the site is subject to a specific framework policy indicating that development should be restricted". He continued: "In these circumstances, paragraph 14 is clear that, even if relevant development plan policies are out of date, the presumption to grant permission does not apply."

If anyone thinks that this is an interpretation of the NPPF which could not have been foreseen, or which somehow negatives the intentions of ministers in promulgating the NPPF, they clearly have not read the document properly. Paragraph 14 and footnote (9) could hardly make the position clearer.


Monday, 25 June 2012

More non-planning issues

I have complained before of issues being dragged into planning decisions which go beyond what could reasonably be regarded as material considerations in the planning context. Unfortunately, no-one seems to have mounted any legal challenge to this trend yet, but a developer who is prepared to make a stand on the issue might sooner or later be prepared to have a crack at a local planning authority that is guilty of this sort of thing.

Just to take one example that has come to my attention, I recently heard of “Enplanner”, which I understand is a new tool developed in Bristol to help planning applicants meet on-site renewable energy policies. Developers, architects, agents and consultants were invited to a workshop last week to learn how it can help them meet the on-site renewable energy requirements which are now to be part of every planning application.

I understand that “Enplanner” is intended to make it easy for applicants to show, by creating an energy statement, that they have met local policy requirements. This involves demonstrating that they have included sustainable energy measures such as biomass, solar or combined heat and power in their developments.

I am told that “Enplanner” has been developed in conjunction with the Carbon Trust for use by all local authorities who have adopted on-site renewable energy policies. This goes beyond mere guidance. It involves a requirement to submit energy statements, which applicants are expected to complete on-line.

Even if you believe that saving the planet is an important policy objective, the appropriate vehicle for doing so is the Building Regulations. Until comparatively recently, a firm dividing line was maintained between the proper confines of town and country planning on the one hand, which is concerned with issues of land use and design, and on the other hand the technical requirements associated with the actual construction of buildings, including sound construction methods and materials, adequate natural lighting and ventilation, and more recently, thermal insulation standards and energy performance. These considerations are the proper concern of the Building Regulations.

What the requirement for energy statements in conjunction with planning applications and the adoption of on-site renewable energy policies is doing is to blur the distinction between the planning system and the Building Regulations regime. “Enplanner” may be a useful tool in connection with meeting Building Regulations requirements for energy efficiency, but it has no place in the planning system.

Bristol City Council seems mighty proud of its role in developing “Enplanner” as a planning tool, and boasts that every person building or extending property on however large or small scale will be playing their part in applying this policy. They claim that most developers welcome the opportunity to address climate change in their proposals. But what the planners fail to appreciate is that demanding this sort of information up-front at the planning application stage (and it is only one of a number of similar impositions that are being piled onto an already over-complicated and unduly bureaucratic planning system) is an insupportable burden on developers and their professional advisers at this comparatively early stage in the development process. It involves massive additional expenditure when the final design of the development has probably not been determined and when everyone can well do without this unnecessary complication.

Having established the principle of development and the overall design through the planning process, the proper time for working up the technical details, including any proper and reasonable requirements for sustainable energy measures such as biomass, solar or combined heat and power or whatever, is at the Building Regulations stage.

The government says that it is trying to cut down on red tape and wants to simplify compliance regimes across government. The sooner they put a stop to this sort of nonsense in the planning system, the better it will be for everyone.


Challenging and reviewing planning decisions

A disappointed objector recently asked me what chance I thought there was that objectors might in future be granted more extensive rights to vent their opposition publicly to planning applications of which they disapprove, including the possibility of their being given a right of appeal against the issue of planning permission in the teeth of local opposition.

I don’t think there is likely to be any significant change in opportunities for third party representations in the foreseeable future. The current arrangements give objectors a fairly good crack of the whip. You do at least have the opportunity nowadays to address the committee. That was an innovation when it was gradually introduced around the country some years ago – so three minutes per person in front of the committee is a definite concession. On some occasions this can lead to excessively long committee meetings.

The possibility of third party appeals has been repeatedly canvassed over the years. Even the Conservatives proposed it before coming to power in 2010. However, I imagine that ‘Sir Humphrey’ spelt out the practical consequences to incoming ministers very soon after the election, and so the idea was quietly dropped. Whilst a third party right of appeal would give planning lawyers like me a vastly increased amount of work, it would be very damaging to development and to the economy generally. The planning system is already unduly cumbersome and bureaucratic as it is, without adding yet another complication and resultant delaying factor.

On the other hand, judicial review is an unduly expensive and complex procedure for challenging the legality of planning decisions. I would like to see a much simpler and cheaper tribunal system but, like judicial review, this would have to be strictly confined to cases where it is clearly arguable that there was a legal or procedural error or some other illegality which should properly lead to the planning permission being quashed. Like judicial review, it would not be an opportunity to re-argue the planning merits of the matter. I do not rule out the possibility of such a change being made at some time in the future, but I am not aware of any current proposals.

Meanwhile, objectors to planning applications will have to content themselves with writing letters of objection, campaigning and lobbying where this is practicable, and addressing the committee for their allotted three minutes. If this does not have the desired effect, then I am afraid that this will be the end of the road for the objectors in the vast majority of cases. The only other option is an application to the High Court under CPR Part 54, but you are looking at costs which are likely to be in the region of £30,000 (plus VAT), and you would be running a substantial risk of having to pay the other side’s costs as well if you were unsuccessful. I don’t know whether any statistics are maintained as to the success rate in judicial review cases, but my guess is that the percentage of successful challenges is pretty low. It is a step which I very rarely advise clients to take.


Friday, 8 June 2012

Concealed development and the Connor principle

An anonymous correspondent has made an interesting point in response to my post on “Concealed Development” [10 May 2012]. This concerns the wording of section 171BC of the 1990 Act (recently introduced by section 124 of the Localism Act 2011). I thought it deserved a post to itself, rather than being shunted into the Comments section.

Anonymous writes: “I am not sure that I agree that the concept of concealment, as set out at section 124 of the Localism Act 2011, is similar in terms of the evidential burden that is required under the public law Connor principle. Whilst the newly inserted sec 171BC refers to "deliberate" concealment, it also qualifies that by stating that this can be "to any extent".

“The scenario most often played out in my experience is that a building is used as an independent residential dwelling for 4-5 years and then having established that period for immunity purposes, a CLEUD application is made. The failure to seek Building Regulations approval for the conversion works, the failure to notify the local authority’s Council Tax department, or to register the address and its occupants on the Electoral Roll all have, in the context of a CLEUD application, the strong appearance of being deliberate acts of concealment rather than just omissions. In that scenario I do not see that there is any meaningful distinction between an act or an omission; the magistrates would be invited to conclude that the intention of the occupier/applicant was clear. Furthermore, the Council would contend that these detailed omissions with regard to its other departments deprived it of its only realistic chance to discover the breach.

Anonymous concludes: “I personally don’t think it is necessary to have deliberately lied to officers or physically to have concealed a structure or a use, and the types of omission mentioned above could be enough alone. It seems you disagree and, as your blogs are always highly informative and excellently reasoned, I would love to hear your response.”

Anonymous is correct in drawing attention to the wording of section 171BC(1), which provides that the court may make an order if it is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons. However, the mere fact that someone has not sought Building Regulations approval, is not paying Council Tax and/or has not registered on the Electoral Roll does not in itself amount to evidence of deliberate concealment. The court would still have to be satisfied that the developer deliberately intended by means of these acts or omissions to conceal the development. That intent cannot be inferred simply from the fact that they occurred. Mere suspicion would not be enough. There must be sufficient evidence on the balance of probability that there was deliberate intent to conceal the development by these specific means.

My own professional experience suggests that omissions of the type mentioned can just as easily be the result of ignorance, or general lack of organisation, rather than being part of some deliberate campaign of concealment. Many laymen are entirely unaware that conversion works of the type involved in these cases require Building Regulations approval. People refrain from registering on the electoral roll for all sorts of reasons, and so no inference can necessarily be drawn from that fact. As for failure to register for Council Tax or to get a TV licence, that is just as likely to be the result of general disorganisation as any more deliberate intent. Without some definite evidence that the motivation was concealment of unauthorised development, I do not believe a magistrates court would be entitled to draw any inference from the mere fact that such omissions had occurred. Something more would be required.

I am prepared to accept that the use of the words “to any extent” may catch acts or omissions which the Supreme Court in Welwyn Hatfield (and the Court of Appeal in Fidler) were prepared to accept do not engage the Connor principle, but the element of deliberate intent is still an essential ingredient. In my view, this brings the relevant behaviour into very much the same category of behaviour as would engage the Connor principle, and so a local planning authority might still find it more convenient to rely on the Connor principle, rather than having to jump through hoops to get an order from the magistrates' court before then proceeding to serve an enforcement notice.

I am prepared to make two predictions. First, there will be some significant legal battles over the interpretation and application of the provisions of sections 171BA to 171BC and, secondly, a local planning authority will sooner or later decide to take the risk of bypassing these statutory provisions (possibly because they had known about the breach for too long, or were unable for some other reason to invoke these provisions) and simply serve an enforcement notice ‘out of time’, placing their reliance on the Connor principle.


Saturday, 2 June 2012

10-year rule problem

The case of Harbige v Secretary of State for Communities and Local Government [2012] EWHC 1128 (Admin), in which judgment was given by Ouseley J on 21 March 2012, posed an interesting question concerning the interaction of the 10-year rule with the provisions of section 55(2)(f) of the 1990 Act.

This case arose from an enforcement notice appeal under section 174. The appeal had been allowed and the enforcement notice (‘EN’) had been quashed by the inspector. The claimants, who were neighbours living in a nearby flat, had no standing to appeal to the High Court under section 289, because they had obviously not been served with copy of the enforcement notice, so they correctly applied under CPR Part 54 for judicial review of the inspector’s appeal decision.

The EN had originally alleged "the unauthorised change of use of the land from the pre-1994 authorised B1 light industrial use to the currently unauthorised use within use class D1 .... including, but not limited to, a place of worship .... " The Inspector corrected the notice, so that the allegation read "without planning permission the unauthorised change of use of the land to use as a place of worship with ancillary activities within class D1 of the Town and Country Planning (Use Classes) Order 1987".

Planning permission had originally been granted by the LPA for a change of use to use as a place of worship (within Use Class D1) in 1994, but it was contended by the LPA (and accepted by the inspector) that conditions precedent to that planning permission had not been complied with, so that the use as a place of worship was originally unlawful. However, it was submitted on behalf of the appellants that in any event the use of the appeal premises for various purposes within Use Class D1 had continued for more than 10 years and was now therefore immune from enforcement.

There was some debate as to whether the use had at one stage been a mixed D1 and A2 use (involving the operation of an employment agency) so that, because this would not have fallen within a single use class, it had been a sui generis use for several years before the current use of the premises exclusively as a place of worship had commenced in July 2009. In the event, it was found that there had been successive changes of use of the appeal site since 1993, but that all of them fell entirely within Use Class D1.

The question for the Inspector, and for the Court, was whether the separate uses since the original breach of planning control in 1993 (being within a single use class) could be aggregated together to achieve immunity under the 10-year rule, or whether the fact that no single use had continued for 10 years prevented the 10-year rule from operating. In other words, could immunity only be acquired by one specific purpose being continued in breach of development control for 10 years, or could a sequence of different uses all of which fell within one and the same Use Class acquire immunity, so that the particular use being undertaken at or after the expiry of the 10 years was immune from planning control?

It was accepted on behalf of the claimants that if immunity from enforcement action is obtained, so that a particular use then becomes lawful, and there is then a further change of use within the same use class, then section 55(2)(f) of the 1990 Act will operate, and this further change of use does not constitute development. However, it was argued on behalf of the claimants that this did not apply where, prior to immunity being achieved, there had been a mixture of uses within the same use class (in this case D1) over the period of 10 years, with the result that no immunity could be claimed in these circumstances.

The Court considered the relevant wording of section 55(2), which reads:

"(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."

The reference to “any class specified in an order” is, of course to the use classes set out in the Use Classes Order.

Crucially, if the claimants’ submissions were to be accepted, it would be necessary to read the word “lawfully” into the wording of section 55(2)(f), so that it would operate only where buildings or other land are being lawfully used for a purpose of any specified use class. Ouseley J was unable to accept this contention. In his judgment, it was quite clear that the structure of the Act and its language does not permit the interpolation of the word "lawfully", nor of any construction in which a single purpose within a use class has to be undertaken for 10 years before immunity is conferred on uses within that class. The starting point is that section 55(2)(f) does not contain such a word. His lordship accepted that there are some instances where courts have implied the word "lawful" into statutory provisions, particularly where this word had appeared in other sections of the statute (as it does, for example in sections 57(4) and (5)). But in this context, which creates the circumstances in which development is or is not lawful, it would be wrong, in his judgment, to interpolate the word "lawfully", and thereby to produce such a change to the effect of the provision.

The inspector had therefore been entitled to conclude that that after 10 years of use within class D1 no enforcement action could be taken. The effect of the sequence of changes within class D1 was that the use that began after the use as a place of worship initially ceased did not constitute development. Nor did the subsequent changes constitute development, and so neither did the recent commencement (in 2009) of a fresh use of the appeal premises as a place of worship constitute development.

Ouseley J nevertheless spelt out the limitations of this approach. Suppose that a use is started within class D1, and after 2 years it is changed to a different use within class D1. By section 55(2)(f) that second change of use does not constitute development. However, this does not confer immunity merely because this second change of use is not development. The use remains part of the continuing unauthorised D1 use, and can be enforced against. It has simply taken a different form, but the change of use to the use of the site within Use Class D1 remains unlawful until this use (or use for other purposes within this same use class) has continued for 10 years.

The claim was dismissed. An application for permission to appeal was made but adjourned. By one means or another this is a case which might conceivably reach the Court of Appeal, but this judgment does appear to be a sound commonsense approach to the interpretation of the relevant statutory provisions, and the concerns expressed on behalf of the claimants regarding this interpretation of the statute do not appear to be justified, as Ouseley J made clear.