Monday, 30 July 2012

Buildings or structures - the Woolley Chickens case

One of the perennial problems for planning lawyers is whether objects placed on land which are allegedly ‘portable’ or ‘moveable’ or ‘temporary’ are in truth buildings or structures, so that their installation, assembly or erection on the site comes within the definition of development in section 55 of the 1990 Act, thus requiring planning permission under section 57.

We have been accustomed for many years to refer to the test originally set out in Cardiff Rating Authority v. Guest Keen Baldwin [1949] 1 KB 385 as refined by later decisions such as Skerritts of Nottingham Limited v SSETR [2000] 2 P.L.R. 102, and we now have a further case which provides additional clarification of this issue. This is the ‘Woolley Chickens’ case – R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), in which judgment was given in the High Court last Friday (27 July).

This was a challenge to a decision by the Council that ‘chicken sheds’ (or ‘mobile poultry units’) in the Woolley Valley were not development. The Claimant contended that the poultry units were “development” within the meaning of section 55, and further that they required EIA, pursuant to the EIA Regulations and the EIA Directive. The Secretary of State supported the Claimant’s position on both these points.

The poultry units were each intended to house 1,000 laying hens (although in practice they accommodate ducks); each unit is approximately 20 metres by 6 metres by 3.5 metres high; the units are not fixed to the ground but are on metal skids to allow them to slide along the ground when pulled by a tractor; if extreme winds are forecast, they can be held down with metal spikes; each unit weighs about 2 tonnes (in addition to the 2 tonne flock of birds which each unit houses); each unit is located in a fenced paddock of 1-2 acres and stays in its paddock; the intention was that the units would be moved within their paddocks regularly (approximately every 8 weeks) by being dragged by a tractor or 4 x 4. Each unit can be assembled by a ‘skilled team’ from metal hoops, metal skids, uPVC planks, polythene and insulation in ‘a couple of days’. If the metal hoops are not taken apart, a shed can be dismantled in 3-4 hours. The units contain slatted floors, manually operated conveyor belts, drinkers, feeders and internal lighting. They are powered by an on-site external generator. The units are supplied with mains water by means of a hosepipe connection to standpipes, which are located along the side of the access track.

The units have not, in fact, been moved in the way that was originally envisaged. There was evidence before the court that none of the units has been moved since being placed in position between April and October 2010. There had been some attempts to move the units within the paddocks but the towing support bars supplied by the manufacturer failed.

The Council decided that the placing of the poultry units on the land did not constitute development. The Council therefore concluded that no EIA of that activity was required and no enforcement action could be taken. The Council’s planning judgment was based on their size, permanence and physical attachment to the ground, as a matter of fact and degree. The Council considered that factors weighing against the sheds being buildings were their lack of attachment to the ground and ability to be moved around the site. However weighing in favour of them being buildings were their sheer size, weight and bulk. The developer had produced a planning appeal decision dating from December 2009 against the refusal of a Lawful Development Certificate, in which it had been concluded that a mobile poultry unit measuring 9.5m x 5.5m x 3.2m high did not constitute a building for the purposes of section 55 of the Act. In that case, only one unit had been proposed. It housed 465 laying hens, was delivered as a flat pack and assembled on site by two unqualified people in two days. It was not anchored to the ground, nor did it require a hard standing, and it could be moved by a tractor and was expected to be moved every 15 months. [This commentator feels bound to observe that, in view of this last fact, that earlier appeal decision was arguably wrong in law, even at that time - see Skerritts.]

In the present case, the 10 units would be larger and heavier, but were intended to be moved more frequently and assembled on site in the same way as in the cited appeal case. The Council also noted that the dimensions of each unit were almost the same as the dimensions of a twin-unit caravan as defined in section 13 of the Caravan Sites Act 1968 (which are: 20 metres long, 6.8 metres wide and 3.05 metres high). On the basis of the information supplied and as a matter of fact and degree, the Council’s officers considered that the mobile poultry units would appear to be ‘chattels’ capable of being moved around the site by a 4x4 vehicle. Furthermore, once assembled they could be dismantled and loaded onto a flat bed lorry in a matter of hours and transported to other sites. On this basis the Council’s officers concluded that these units did not constitute development.

The Council submitted that it had correctly applied the test in Skerritts in deciding whether or not the poultry units were ‘buildings’, which in turn referred back to the test in the Cardiff Rating case. The Council had assessed the evidence, and acknowledged that the “sheer size, weight and bulk” of the units pointed towards a finding that they were ‘buildings’. However, these factors (the Council said) were outweighed by the fact that the units were not attached to the ground, and were mobile. The Council claimed that, on the evidence, it was entitled to conclude that the units were impermanent and were chattels, not buildings.

However Mrs Justice Lang held that the Council erred in law in taking too narrow an approach to the meaning of “development” in section 55. The term “building” in section 336(1) of the 1990 Act has a wide definition which includes “any structure or erection”. This definition has been interpreted by the courts to include structures which would not ordinarily be described as buildings. In Skerritts, an Inspector held that the erection of a 40 metre by 17 metre by 5 metre high marquee for an eight month period was the erection of a building. In Hall Hunter v First Secretary of State [2007] 2 P. & C.R. 5 the erection of polytunnels was also the erection of a building. Both decisions were upheld by the Courts.

In the light of these authorities, the Council should have carefully considered whether a poultry unit was an “erection” or “structure” within the meaning of section 336(1), particularly bearing in mind the substantial size and weight of each unit. Furthermore, the Council did not have regard to the relevant authorities when it concluded that the units were chattels, not buildings, by reason of the fact that they were capable of being moved around the site. In Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710, a tower crane on a steel track was held to be a “structure” or “erection” and thus a “building”, even though it was moved around the site and, at the end of the contract, it would be dismantled and removed to another site. Moreover, an object may be a building in planning law without being incorporated into the land, as part of the realty (see R v Swansea City Council ex p Elitestone (1993) 66 P. & C.R. 422. )

Moreover, the Council did not direct itself correctly in law on the issue of permanence. Permanence has to be construed in terms of significance in the planning context. In Skerritts Schiemann LJ said of permanence: “in situ for how long, to which I would answer: for a sufficient length of time to be of significance in the planning context”. For the polytunnels in Hall Hunter to remain in one particular location for three months was found by the Inspector to be sufficient to be of consequence in the planning context. In this case, the units were permanently in their field, and there was no limit on the length of time they would remain there – they could be there for years. The ability to move them around the field did not remove the significance of their presence in planning terms. The visual and landscape impact of the units was not affected to any material extent by any periodic changes to their position in the field. [N.B. This is an important change compared with the previous understanding as to periodic movement of items within a site.]

The Council submitted that each unit was prefabricated and easily assembled, so its construction was not an operation “normally undertaken by a person carrying on business as a builder” (section 55(1A)(d)). They had argued that it followed that constructing the units was not a “building operation” within the meaning of section 55. However, in Her Ladyship’s judgment, section 55(1A) is inclusive; it is not intended to be an exhaustive definition of “building operations”. In any event, she accepted the submission made on behalf of the Secretary of State that the works carried out to construct and install the units were capable of coming within section 55(1A)(d). The Council had failed to consider the application of that paragraph of the sub-section.

The Secretary of State also submitted that the Council erred in failing to consider whether the construction of the poultry units came within the residual category in section 55(1), namely, “other operations in, on, over or under land”. This residual category is not limited to building, engineering or mining operations: see Coleshill and District Investment Co Ltd v. Minister of Housing and Local Government [1969] 1 WLR 746 and Beronstone Ltd v. First Secretary of State [2006] EWHC 2391 (Admin). (In light of these judgments, the view of Jack J. in Tewksbury Borough Council v Keeley [2004] EWHC 2954, which appears to decide to the contrary, cannot be relied upon.). The Court agreed that this term is sufficiently broad to encompass the construction / installation of the poultry units, if they do not fall within the meaning of “building operations”, and therefore the Council should have gone on to consider this question.

The Council was therefore held to have misdirected itself in law in its application of section 55 of the 1990 Act to the poultry units.

I confess that I have always had difficulty with the concept of “other operations”, not least because of the decision of the House of Lords in Coleshill that the term is not to be construed ejusdem generis with the other items in the list - “building”, “engineering” and “mining”. This latest judgment could have wide implications in bringing within the definition of ‘development’ a number of operations which might not previously have been thought to be development.

As I observed in passing, this judgment also appears to bring within the scope of ‘development’ a number of portable, mobile or temporary items that are moved about a site from time to time, and which had previously been thought successfully to escape the definition of development by virtue of that device. This is a case which appears to me to sweep into the net a wider category of ‘non-structures’ (which must now be regarded as buildings or structures) than had previously been understood to come within that category.

There must inevitably be the possibility that the developer may seek to appeal to the Court of Appeal. However, on a first reading, I found Mrs Justice Lang’s reasoning compelling. This judgment could prove to be a new benchmark for determining the issue of whether operations of this type come within the definition of development under section 55.

I am grateful to counsel for drawing my attention to this judgment.


Friday, 27 July 2012

Some random thoughts

There’s nothing worth watching on television this evening, so I thought I would take the opportunity to do a bit of catching up on the blog. In fact the television schedules look pretty dire for the next few weeks, and even the TV news has suddenly become utterly boring. Everyone is off on their hols, parliament is in summer recess, and so there is nothing much at all going on within these shores.

I am hoping that we shall get news at some time in the next month or two of a cabinet reshuffle, although we shall presumably have to wait until the prime minister has finished ‘chillaxing’ or whatever it is he is doing at the moment. I am eagerly looking forward to the departure of Eric Pickles from De-CLoG, although there can be no guarantee that this will happen.

There are several other ministers who are well past their sell-by date and who really ought to be put out to grass, but I get the impression that this prime minister does not have the sheer guts of Harold Macmillan, who exactly 50 years ago had a ‘night of the long knives’ in which a hitherto unprecedented number of ministers (including the Chancellor of the Exchequer) were summarily dispatched to the back benches.

Goodness knows we need a fresh start, and the Chancellor of the Exchequer would be a prime candidate for selection as a sacrificial victim again this time. However, political loyalties being what they are, I would be very surprised if ‘Dave’ can steel himself to sacrifice his old pal. Someone commented on Super-Mac’s purge – “Greater love hath no man than this; that he laid down the lives of his friends for his party.” I don’t think Cameron is in the same league.

Meanwhile, in case you hadn’t noticed, De-CLoG has published some rather important consultation documents recently, which I will cover in a separate post. No doubt they figured that with no-one having very much to do in the next few weeks, these consultation documents would be intensely studied in the absence of anything better to distract people’s attention. We have until mid-September to respond to these papers.

Finally, to end this rather random train of thought, a question - How many council houses could you build for between, say, 9 and 11 billion pounds? Or, if you were to split your 9 to 11 billion pound fund into several parts, how many school buildings could you refurbish or upgrade in addition to the new public housing, not to mention other much needed projects? Not that the government has ever had that sort of money to throw around, of course, but it’s just a thought.


Thursday, 26 July 2012

Pre-NPPF advice that survived the bonfire

[Updated 27 July 2012]

Liz Beth from the Centre for Sustainable Energy, in Bristol, recently asked me precisely which pre-NPPF policy documents survive from the wanton attack by ministers on all the previous ministerial policy advice earlier this year. This is something that has puzzled many people, and I was glad to have the opportunity to sort this out.

The list of withdrawn ministerial policy documents is set out in Annex 3 to the NPPF. If a document is not listed there, it is still extant, and its advice still applies (unless it had previously been withdrawn – e.g. PPS6, PPS11, PPS15 and PPS16. PPS6 had been replaced by PPS4, and both PPS15 and PPS16 had been replaced by PPS5; both PPS4 and PPS5 are now withdrawn).

PPS7 was withdrawn in its entirety. Where confusion has arisen is that in the Planning Encyclopedia, a document identified as ‘Annex E’ was printed after Annex A to PPS7, but ‘Annex E’ was never a part of PPS7. Annex E was a saved part of an earlier version of PPG7. It therefore remains extant, although it is of little practical assistance, because all it does is to state the obvious with regard to agricultural permitted development.

However, PPS10 (on Sustainable Waste Management) was not withdrawn. It is still in force.

I was confused initially about PPG21/PPS21 Tourism. The answer is that PPG21 was withdrawn in 2006, and was replaced by ‘A Good Practice Guide to Planning for Tourism’ published on 1 September 2006. This document remains extant. (There never has been a PPS21.)

PPS22 is item 17 on the list of withdrawn policy documents in Annex 3 to the NPPF, so it has gone, but Liz Beth told me that there had been a separate Practice Guide or Note relating to the subject matter of PPS22, which I had been unable to find. I am grateful to Joe Ridgeon MRTPI for subsequently drawing my attention to “Planning for Renewable Energy: A Companion Guide to PPS22” published on 16 December 2004, which can still be found on the De-CLoG website. This guide discusses the planning and development of renewable energy schemes across England. The findings and recommendations in this report are those of the consultant authors and do not necessarily represent the views or proposed policies of the Department for Communities and Local Government. It does not therefore have authority as minsiterial policy, although it is published on the De-CloG website.

PPS25 is item 20 on the list of withdrawn policy documents in Annex 3 to the NPPF, and PPS25 Supplement: Development and Coastal Change is item 21 on the list. However, it would appear that the two corresponding Practice Guides have not been withdrawn (possibly an oversight?) and so remain extant. They are still on the De-CLoG website.

The same anomalous position may have arisen with the withdrawal of MPS1, possibly leaving the Planning and Minerals Practice Guide 2006 in place, although it was intended to be read alongside MPS1.

On the other hand, the following minerals policy documents definitely remain in being “until such time as they are cancelled or replaced” (to quote De-CLoG) - MPG4, MPG8, MPG9 and MPG14. In addition, National and regional guidelines for aggregates provision in England 2005-2020 (published in June 2009) and the Letter to Chief Planning Officers: National and regional guidelines for aggregates provision in England - 2005-2020 (published at the same time) both remain in being.

A new policy document – “Planning Policy for Traveller Sites” – was published as a free-standing document on the same date as the NPPF. So even on the day that ministers were making a bonfire of existing policy advice, they were publishing new guidance in addition to the NPPF! Like the Technical Guidance document (dealing with Flood Risk and Minerals Policy) which accompanies the NPPF, this advice on traveller sites was no doubt kept separate from the NPPF simply in order to enable ministers to boast that they have cut policy guidance down to around 50 pages - a specious claim when all the other extant documents are taken into account.

As noted earlier, the only circular to bite the dust was Circular 05/2005: Planning Obligations, but De-CLoG are currently combing through all the existing circulars to see which of them should be withdrawn. I would suggest that they should be a great deal less gung-ho about this exercise than they were in relation to the Planning Policy Statements. As I have previously pointed out, there is some useful (and even crucially important) technical and procedural advice in the circulars, notably in Circulars 11/95, 10/97 and 03/2009, among others.


Wednesday, 25 July 2012

In praise of the Planning Inspectorate

In his occasional column in Planning magazine, on 13 July, Chris Shepley (a former Chief Planning Inspector) mounted a spirited defence of the Planning Inspectorate in light of recent sniping from the parliamentary sidelines by some of the more antediluvian members of the Tory right wing.

Needless to say, I strongly agree with the views that Chris Shepley expressed, and I have set down similar views in this blog on several occasions. We need a robust appeals system and a strong Planning Inspectorate to make independent objective decisions on controversial planning issues. That is exactly what we’ve got, and have had for over 60 years (in fact for over a century if you trace the origins of the Planning Inspectorate back to its roots in the 1909 Act).

As Chris Shepley observed, the inspectorate has built an unrivalled reputation for fairness and impartiality. He is absolutely right in pointing out that inspectors’ decisions, often on highly contentious matters, are almost universally respected and in most cases are readily accepted. Successful High Court challenges of appeal decisions are fairly rare as a percentage of all the appeals which are decided each year, and the inspectorate regularly achieves a level of ‘customer satisfaction’ that other organisations would die for.

Those back-bench Tories who are whingeing about some appeal decisions seem to be pursuing the rotting remnants of the Conservatives’ pre-election ‘localism’ agenda. This stems from grass-roots resentment that silly decisions made by local councillors are liable to be overturned on appeal, and (forsooth) that local councils can even have costs awarded against them if they are considered to have behaved unreasonably in refusing planning permission, or in deciding to take enforcement action. How dare an inspector have the cheek to tell elected councillors that they have behaved unreasonably!

Ministers appear at last to have abandoned pre-election intentions to emasculate the planning appeals system – an idea that arose from this same backwoods resentment of an independent procedure for reviewing local planning decisions, which in the meantime has led to the very unwise decision to scrap strategic planning at the regional level. The alternative to a strong appeals system would be a large increase in the number of applications to the High Court for judicial review of planning decisions, coupled with increasing resentment of the planning system among those unable to afford such an expensive procedure. This would undermine public respect for the planning system and would erode the largely consensual basis on which it is founded.

As Chris Shepley observed, it is difficult to see how the planning system could function without the underpinning of quality and rigour that it derives from the work of the Planning Inspectorate. One can only hope that ministers will continue to ignore the bleating from the Stupid Tendency in the Tory Party, and will give the Planning Inspectorate the support and resources it needs to carry on the vital work it performs.


Monday, 23 July 2012

Financial consequences as a material consideration (Update)

I have updated my blog entry under this heading posted on Wednesday, 18 August 2010 to record the Supreme Court’s decision in this case.

The Court of Appeal's decision has been upheld by a unanimous decision of the Supreme Court, confirming that when considering whether to revoke or modify a planning permission, a local planning authority can take into account as a material consideration the amount of any compensation which the authority might potentially be liable to pay to the landowner consequent upon that revocation or modification. The reference to the Supreme Court judgment is Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34.


Sunday, 22 July 2012

EIA requirements clarified

In a judgement delivered on 29 June, in R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869, the Court of Appeal has confirmed the scope of the test to be applied in deciding whether an Environmental Impact Assessment is required. This first stage in the process is known as a ‘screening opinion’; it tells applicants whether or not they need go to the trouble and expense of submitting an EIA. The Secretary of State also has power under these provisions to make a screening direction. His decision is governed by the same rules.

In this case, the claimant had sought to quash a decision of the Secretary of State giving a screening direction by which he stated that a proposed residential development (for retirement homes) was not likely to have "significant effects on the environment" for the purposes of the Environmental Impact Assessment Regulations 1999. It followed that the proposed development was not a development requiring an Environmental Impact Assessment and so did not require the EIA procedure under the 1999 Regulations to be followed before a planning permission could be granted.

Development requiring an EIA is either:

"(a) Schedule 1 development (i.e. projects specifically listed in that schedule); or

(b) Schedule 2 development - likely to have significant effects on the environment by virtue of factors such as its nature, size or location."

Circular 02/99 Environmental Impact Assessment gave guidance on the application of the Directive and Regulations, and explained that EIA will be needed for Schedule 2 developments in three main types of case:
a. for major developments which are of more than local importance;
b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations; and
c. for developments with unusually complex and potentially hazardous environmental effects.

The circular went on to say that the number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment.

The Court reviewed the previous judgments on this topic, and held that what emerges is that the test to be applied is: "Is this project likely to have significant effects on the environment?" That was clear from European and national authority, including the guidance issued by the European Commission. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance, and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the ECJ intervene.

The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.

Applying that approach to facts of the instant case, the Court had no doubt that the Planning Inspectorate (acting on behalf of the Secretary of State) was entitled to conclude that the proposed redevelopment would not have significant effects on the environment. A checklist was completed and no complaint is made about its contents. Judgment was exercised and reasons given for the decision, which justified the conclusion reached. The Court pointed out that the application for planning permission in this case did not involve the uncertainties which had presented difficulties of analysis in some cases in the past. Moreover, judgment was exercised, not at the early stage of the procedure when such decisions are often made, but after full consideration of the planning issues by the local planning authority and also by an Inspector appointed by the Secretary of State. Full information as to the nature of the proposal and its likely effects was available.

So, to summarise, the test is not whether the effect of a development is one that will have an influence on the decision as to whether planning permission should be granted, but whether it is a project likely to have significant effects on the environment. Third party objectors, like the claimant in this case, will not easily overturn planning permissions or planning appeals on the grounds that there should have been an EIA unless the “significant effects” test is met.


Sunday, 15 July 2012

Could your decking be ripped up by the Council?

Several newspapers have picked up on the story of Lesley Cherry from Stockport, Greater Manchester, who had failed to get planning permission for raised wooden decking at the back of her house, and came home from holiday to find that council workers had destroyed the decking while she was away.

The papers would like us to believe that this came ‘out of the blue’, but it undoubtedly had a history. An Enforcement Notice does not get served without some sort of prior warning. You will get a letter or a call from an enforcement officer and/or you will receive a Planning Contravention Notice (‘PCN’). That is the point at which alarm bells should start ringing, and this is the time to engage an experienced planning lawyer to act for you. Timely intervention may even persuade the council that no breach of planning control has occurred, or that a retrospective planning application might be considered.

In the Stockport case, the first thing to do would have been to see if the decking could in fact come within the definition of Permitted Development within Part 1 of the Second Schedule to the General Permitted Development Order. In practice, it appears that it would not have done so, due to the exclusion from the categories of permitted development authorised by Classes A and F of the construction or provision of a veranda, balcony or raised platform. However, an appeal against the Enforcement Notice could still have been run under Ground (a), namely that planning permission ought to be granted.

However, Mr and Mrs Cherry appear not to have done this, and so the Enforcement Notice took effect without being appealed. In those circumstances, the property owner is completely stuck, and has no choice but to comply with the notice, failing which an offence is committed. In the Stockport case, it seems that the Council was getting no response at all, and the defendants did not even attend court when summonsed, so it may well have seemed that an injunction under section 187B or direct action under section 178 were the only practical options. Non-appearance to the charge in the magistrates' court may have suggested that getting an injunction would be a waste of time and costs, so direct action under section 178 may have looked like the best bet.

It might seem to the casual observer that the LPA was a bit heavy-handed, but enforcement action should not be ignored. The owners should have got a good planning lawyer on board right from the start and let him or her run a section 174 appeal for them. Having failed to do that, and having failed to respond in any way to the enforcement action, they really only had themselves to blame for what happened.


Saturday, 14 July 2012

Contacting local authorities (2)

An anonymous contributor has been prompted by my original piece to comment on this topic. Their comment was too long for the software to cope with, but it is well worth printing, so I have posted it here:-

“My goodness---where to start! I agree with you Martin, but I think it’s even worse than you suggest. There's a general flavour of treating the public/applicants as a bit of a nuisance (but not their money of course.)

Councils ad Whitehall need to realise that development and growth does not COST them, it PAYS them. Anything and everything they do---process, policy whatever---that inhibits, delays or impedes development comes at a COST to their local economies and harms prosperity, growth, employment etc.

The solution, I believe, is to abolish application fees entirely. [I entirely agree – MG.] Fee income--and more recently HPDG (PDG)---have become ends in themselves, which distort and even pervert the regular operation of the law.

The latter has been particularly damaging: LPA's now manipulate applications (in a variety of ways) to prioritise qualifying for grant over the rather boring business of actually lawfully processing an application. This has just happened to me - four weeks to even get the application registered (hidden delay) followed by an attempt to summarily and unlawfully refuse the application under delegated powers with the result that a committee meeting deadline was missed and the application ran out of time. What they tried to get me to do was withdraw the application, amend plans for pre-app advice (given by post---no direct contact with the officer), probably re-amend again and finally re-submit: a process which could take three months.

And the reason for all this? To disguise the delay and quality for grant; delay which has been CAUSED by the LPA in the first place and exacerbated by pursuit of grant. Great. So the LPAs get to keep their inbuilt delays AND the extra money from grant! Trebles all round then! But seriously, is this not wholesale fraud on the general taxpayer who's stumping up the grant?

Hand in hand with this there's far too much pernickety attention to minor details, often petulantly applied - along the lines of "Well, you didn't obtain pre-app advice, so even if the proposal is actually OK, I'm going to refuse it 'cos you didn't ask me first. So there." That type of thing.

Back in the '80's the government wrote a policy document which, amongst other things, observed that LPA's/officers exercise a degree of discretionary power "that would not be tolerated in general legislation". How true. Far too much discretionary power is exercised by officers simply imposing their own tastes on an applicant; often it is just the flavour of the month. The identification of "demonstrable harm to interests of acknowledged importance" takes second place, if it’s given any weight at all.

My own view is that these problems will not---cannot---be solved by top down diktat from Westminster and Whitehall. What's needed is abolition of application fees and full and robust re-instatement of Ministerial Circulars to their proper importance and status in the system. No lesser person than Sir Desmond Heap himself, the doyen of planning lawyers, observed that the single most important documents in the system are Circulars.

Without fee income, LPAs will have no choice but to stop gold plating their processes and attitudes and learn to prioritise. At present, large numbers of applications are pushed into insignificant and minor amendments that have no importance whatsoever. An officer may be right that a little tweak of detail here and there would be an improvement, but does it matter in the public interest context? Would the man in the street or neighbour even see the difference?

Back in 1949, when introducing the first GDO, the then Minister for Housing stated that the purpose of the regulations was to "...remove from control developments which have hitherto occupied an amount of time out of all proportion to any importance to planning.". And that's about the nub of it. LPA's have simply lost sight of what's important and more significantly what's not.

Lastly, I don't know about the experience of others, but I've formed the impression over the last few years than PINS has gone to pot. This is not unconnected to departure from a robust set of Circulars. [I don’t agree with this point. I think the Inspectorate still does an excellent job. They remain our only defence against unreasonable and sometimes downright stupid LPAs - MG]

PS. You've only got to contrast planning with building control to see how bad the former has become. Not only will you be able to contact your BCO, but if there's a job going on you'll probably have his/her mobile number too. So a quick call to a mobile saying 'I've got a bit of a technical here, could you come and have a look' will elicit a response like 'Sure. As it happens, I'm just round the corner at the moment, I'll be with you in, say, 20 mins. Is that OK?'

And let’s remember, too, that planners are now trying to muscle in on Building Control's territory. God help us.

Oh, and finally---really---re your point about info buried in a website, what about this: Once I had unearthed a deeply buried original Scheme of Delegation, from which I discovered that summary refusal under DG, as they were attempting, was unlawful and I made the LPA aware of this last Friday. By Monday the file had mysteriously disappeared from the website! The same url---I'd bookmarked it---came up with our old friend "Page Not Found". Just fancy that.”

Clearly this is a heart-felt cri de coeur, and one which many would no doubt echo, so I thought it was worth an airing. I observed some months ago that, by their behaviour in handling planning applications, planning officers are giving ministers and their political supporters far too much ammunition with which to attack the planning system. It is clear that the ministerial appetite for radical change to the planning system is not yet sated. The possible results may be to no-one’s advantage. It is in the interests of everyone involved in the planning process to make the existing system work, for fear of having something far worse foisted on us.


Saturday, 7 July 2012

Nuisance caused by development

Two cases decided last year have drawn attention to the issue of Nuisance (i.e. the tort of Nuisance) in the context of development or uses which are authorised under statutory powers. Such authorisations may include planning permission, waste management licences and various other environmental permits. One of these cases, Davis v. Tinsley, involved alleged noise nuisance from wind turbines. The claimant had sought an injunction against the operation of the turbines, plus substantial damages, based on the common law tort of Nuisance. This was a case which had been closely followed by all those interested in the issue of noise nuisance from wind farms, and judgment in the case had been eagerly or anxiously awaited (depending on various parties’ points of view).

In the event, the case was resolved at the beginning of December last year by an out of court settlement, the terms of which were strictly confidential. We may surmise, however, that on the basis of existing case law, there was a reasonable chance that this case would have succeeded if it had gone to trial, and it was this which no doubt prompted the defendants to settle.

The other case concerned a waste management licence under which an operator was running a landfill site. This was the case of Barr & others v. Biffa Waste Services Ltd (No.3) [2011] EWHC 1003 (TCC) in which judgment was given by Coulson J on 19 April 2011. This case did not involve a planning permission as such, but the relevant principles to be derived from earlier cases were reviewed by the court, and the judgment is useful in providing further clarification of the basic rules.

Discussing planning permission, the judge pointed out that it is settled law that the grant of planning permission does not of itself sanction or otherwise endorse an activity which is causing a nuisance to neighbouring properties. In Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923 at 934, Buckley J had said that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, that case established an important exception to this rule, where the grant of planning permission had altered the character of the neighbourhood.

By contrast, in Wheeler v AJ Saunders Ltd [1996] Ch 19, the court found that, on the particular facts of that case, the permission could not be said to have altered the character of the neighbourhood, and the claim in nuisance (caused by a piggery) was therefore upheld.

We can see, therefore, that the grant of planning permission can be relevant in nuisance cases, at least to the extent that it can change the character of a neighbourhood for the purposes of evaluating the nuisance. In Gillingham, Buckley J said that "where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously". In Wheeler, the same point was also considered, but the change of use affected only a small piece of land and could not, therefore, effect a change in the character of the neighbourhood.

In the Court of Appeal in Watson v. Croft Cromo-Sport Ltd [2009] EWCA Civ 15, the Chancellor rejected the submission that what may properly be regarded as 'strategic planning decisions' affected in principle the private rights of the citizen to complain of a common law nuisance. However, he stressed that the implementation of such planning permission "may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the questions of nuisance or not". In support of that principle he referred to the judgments in Wheeler and in Hunter v Canary Wharf Ltd [1997] AC 655.

Thus a grant of planning permission will not of itself sanction the nuisance (Wheeler). However it may be relevant to issues surrounding the character of the neighbourhood (Gillingham, Watson).

From these various decisions it can reasonably be inferred that a major infrastructure project which has changed the character of a neighbourhood may more easily resist claims founded in nuisance than a development which does not have so great an impact. There is perhaps something slightly illogical about this, in the sense that major nuisances might not be actionable (if they arise from a development that has changed the character of the neighbourhood), whereas lesser nuisances could still be open to a legal claim. For what it's worth, I would very much doubt whether the erection of a wind farm could be said to have 'changed the chgaracter of the neighbourhood' for these purposes, although this may be open to argument, if the point is ever contested before the courts.

One other issue which has occasionally been raised in such cases is the possible breach of Article 8 of the European Convention on Human Rights (the right to respect for a person’s private and family life). To take just one example, in R (Downs) v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664; [2010] Env LR 7, the claimant had succeeded at first instance in a claim for breach of Article 8 in connection with crop-spraying. However, the defendant's appeal was allowed. The Court of Appeal held that, in order to constitute a breach of Article 8, there had to be "severe environmental pollution" and this test had not been met in that case. (The European case which proposed the test of 'severe environmental pollution' is Lopez Ostra v Spain (A/303-C) (1995) 20 EHRR 277.)

Reverting to the planning permission cases, the courts have been careful to guard against a situation in which, merely because planning permission had been given for the carrying out of a particular activity, the defendant was at liberty to perform that activity in any way that he chose, regardless of his neighbours. The courts have repeatedly held that the mere grant of planning permission does not give the recipient the right to undertake the permitted operation in such a way as to cause a Nuisance. But as we have seen, this is subject to the exception established by Gillingham.

In the Biffa case, Coulson J held that the defendant did not have a defence of statutory authority to the nuisance claims that were before the court. However, he concluded that the permitted use of the landfill site meant that the carrying out of permitted activities of waste disposal, performed in accordance with the detailed terms of the permit and without negligence, amounted to a reasonable user of land. In those circumstances, whilst claims in nuisance that involved allegations of negligence against Biffa would have been open to the claimants, claims in nuisance alone were not. Since the claims which proceeded to trial were in nuisance alone, they were bound to fail. These claims were accordingly dismissed.


Tuesday, 3 July 2012

A plethora of guidance and advice

One of my main objections to the replacement of all the old Planning Policy Guidance Notes and Planning Policy Statements by the NPPF was the loss of a very useful body of practical assistance on all sorts of procedural issues in addition to the exposition of policy. Arguably, the policy is still there in the NPPF, although considerably abbreviated and lacking in detail. Ideally, the NPPF should have been a more substantial document, but the crazy ministerial insistence on keeping it down to around 50 pages has resulted in a somewhat laconic document with some regrettable, and potentially damaging, lacunae.

Clearly the lack of explicit guidance on many practical issues previously dealt with in the body of published ministerial advice has been keenly felt in many quarters, and so we have seen the publication of an increasing quantity of advisory material, both official and unofficial, which attempts to fill the gap. There are several problems arising from this. First, because of the ad hoc and totally uncoordinated nature of these publishing exercises, there is no means of knowing with any certainty what has or has not been published and where to find it. Secondly, where such material comes from an unofficial or only semi-official source, it is impossible to know what weight can be placed on it. Many of these documents, I suspect, if cited to inspectors at inquiries would not necessarily be accepted as authoritative. So one is left to ponder what use such documents may be in practice.

What finally prompted me to put these thoughts in writing was the publication last month of guidance on housing viability, local plans and the national planning framework, aimed at helping planners decide whether development plans satisfy the requirements of the NPPF in terms of housing viability. I understand that at the same time a document has been published on local standards in new housing development. These two documents have been published by the Local Housing Delivery Group, which has official backing from Housing Minister, Grant Shapps.

The advice is very much the sort of thing one would have expected to see in a Planning Policy Statement before these were all summarily withdrawn upon the publication of the NPPF. For example, it recommends that planning authorities should take the residual land value approach (where the difference between the value and costs of development are compared with land values) in assessing policies in development plans. LPAs should assess policies for the first five years of the plan based on current costs and values and use a more flexible approach for the 6-15 year period of a plan, recognising that economic cycles and policy change over time. It also recommends that councils should use a threshold land value based on a premium over current use values to determine the viability of sites, with the precise figure being determined locally. All very sensible, but what bothers me is the multiplicity of different sources from which these miscellaneous publications are coming.

There needs to be a serious re-think about this in government. Until March of this year there had been a continuous series of ministerial policy documents since at least the 1960s, if not before, originally in the form of Development Control Policy Notes, subsequently replaced by a series of Planning Policy Guidance Notes and latterly by an uncompleted series of Planning Policy Statements. Documents such as the two recently published by the Local Housing Delivery Group ought to be published by ministers as official guidance, and form part of a co-ordinated series of technical and procedural guidance on various aspects of the plan-making and development management process. If this would look too much like a U-turn, in view of Eric Pickles’ very public criticism of the volume of ministerial guidance that had previously been published, then a less embarrassing expedient would be to publish the material in the form of departmental circulars – a type of ministerial guidance which mercifully escaped the ill-considered withdrawal of other policy statements.


Contacting local authorities

There is a worrying trend I have noticed among local authorities of failing to reveal the identities and contact details of senior officers on their websites. Some local authorities do not even name their Chief Executive on their website.

Whilst they would no doubt wish to channel initial contacts with the Council through some kind of sorting system (much as one would process incoming mail through a post room), so as to ensure that emails are forwarded to the right person in the organisation, it effectively prevents legitimate contact with a particular officer when this is reasonably required.

The same problem arises nowadays in contacting individual officers by telephone. They rarely answer their direct dial lines, but have them permanently diverted to their voicemail. But more often than not, you won’t even get that far, but will get some infuriating push-button answering system, until you finally get through to yet another answering machine.

Admittedly it is rather a long time since I worked in local government, but we would certainly not have been allowed to avoid the public in this way. It was drummed into us that we were there to provide a public service, and that included being available on the telephone and taking calls when they were put through.

I have been dealing with one local planning authority recently which has taken non-communication to such extraordinary lengths that, despite repeated emails and telephone calls, I was unable to ascertain whether or not an application I had lodged with them on behalf of a client had been registered. I eventually learnt that it had been when I got a letter from a local builder offering his services to do the building work! After a bit of ferreting about, I was able to extract the bare details from a far from user-friendly website. To this day, I have had no direct communication from the authority, and would be slightly surprised if they meet their target date for determining the application.

And planners wonder why they get criticised by the government and by developers and business organisations!