Tuesday, 29 October 2013

Blowing our own trumpet

Some readers may possibly be under the impression that, because I write this blog as a personal project, I am just a one-man band, but I am in fact just one member of Keystone Law’s Planning Law Team, an integral part of our Commercial Property department. Keystone Law is a full-service commercial law firm, with its main office in London but practising throughout the whole of England and Wales. It currently has 142 senior lawyers and is continuing to expand at a rate of approximately 30 lawyers per annum, so there is every prospect that we shall have 200 lawyers in the firm by the end of 2015. Our client base is predominantly made up of private companies, although we also offer some private client services, and quite a few of our planning clients are individuals or small businesses.

There is a saying that if you don’t blow your own trumpet no-one else will blow it for you, so I make no excuse for passing on news of our firm’s further expansion. On 21st October 2013, Keystone became an Alternative Business Structure (“ABS”), a new law firm model regulated by the UK’s Solicitors’ Regulation Authority. The ABS is a more flexible corporate structure.

The firm began its international roll-out in July 2013 with the establishment of its off-shore office in Guernsey. Three additional jurisdictions are currently in the pipeline. Keystone Law is now launching its Australian practice, and aims to attract an initial team of 25 senior solicitors in that country before client work commences in March 2014. Thereafter Keystone expects to recruit an additional 50 solicitors in Australia. The head office will be in Sydney, from where Keystone’s legal practice will cover the whole of Australia. I can’t say yet whether our Australian operation will include planning law, but there’s no reason why it shouldn’t.

Despite Keystone Law’s increasing size and stature in the provision of legal services, we pride ourselves on personal service, and will continue to maintain the same high standard of client care for which we have a well-deserved reputation. Keystone has won a plethora of legal and business awards during the past 10 years, most recently a Law Society Award for Excellence which it received on 22nd October 2013.

Our central admin team have recently taken a lease of another floor of the building they occupy in central London, thus providing a much-needed doubling of the accommodation for our back office operation, and on 1st November we shall be moving our Bristol office into smart new premises in the city centre – another welcome development.

That’s the end of the commercial break. This blog was never intended to be a marketing exercise. It has admittedly generated a great deal of planning work for us (and I am fond of referring to this as “marketing by mistake”), but it really is written only for fun, and I am hoping that I may be able to post items here more regularly in future than I have managed in the recent past. The readership seems to have settled down at around 30,000 page views a month, and so my aim will be to maintain the interest of these readers in the months and years to come.


Thursday, 24 October 2013

More banner adverts

(Third in an occasional series)

I drew attention in two previous posts to large banner adverts displayed in Venice (Monday, 13 February 2012) and in Paris (Tuesday, 7 August 2012). The point of those two posts was that even in very sensitive locations, in terms of the historic townscape, the authorities in those cities are prepared to allow the display of banner adverts on buildings which are shrouded during the execution of repairs and maintenance. Bearing in mind that such advertising displays are, by their very nature, temporary, there can be no serious objection to such advertising to hide the paraphernalia of building work and scaffolding. Where the work comprises conservation of the historic fabric, the advertising revenue could even contribute to the cost of restoration.

The essential point I was seeking to make, is that if the city authorities in Venice are prepared to allow such temporary banner adverts in a World Heritage Site, such as the Piazza San Marco or, if the City of Paris is happy to allow them in the Place Vendôme, then there really can’t be any objection to similar short-term adverts in this country, even in conservation areas or World Heritage Sites, where they serve to hide the detritus of building work. And there certainly can’t be any objection to such advertising in the average and often undistinguished town centres of many English towns and cities.

I visited Venice again a month or so ago and, as I had expected, the Doge’s Palace is now visible in all its glory, sans advertising, as is the Bridge of Sighs, which had been similarly hidden from view on my last visit. The east front of Sansovino’s Library, facing onto the Piazzetta is also now free of advertising, but restoration work is continuing on various other parts of the Palazzo Reale, and so banner adverts are currently displayed over the shrouding on the south front of the Zucca (facing onto the Mole) and also at the west end of the Piazza San Marco (the range added to the palace by Napoleon, and now forming part of the Museo Correr). The accompanying photos illustrate these adverts.

[The “Caro” adverts on the façade of the Museo Correr would probably have been there anyway, as they were advertising a display in the museum of sculptures by the British artist, Anthony Caro, which was part of the Biennale.]

I doubt whether we will ever overcome the precious attitudes of town planners in this country to outdoor advertising, and so the only practical way of ensuring that banner adverts can be displayed in future on buildings under repair (or awaiting demolition, such as the late unlamented Tollgate House in Bristol), without being obstructed or frustrated by over-zealous town planners, is to amend the Control of Advertisements Regulations to give deemed to consent to such adverts.

Uncle Eric has demonstrated his enthusiasm for flying flags; so perhaps he should now embrace the joys of outdoor advertising in the same way.


Monday, 21 October 2013

The duty to co-operate

My former colleague, David Brock (who is only ‘former’ because he has now retired from active legal practice – lucky chap) posted an extremely interesting item on his blog last Friday, which I suggest that those interested in strategic planning and in the provision of strategic housing land would find it well worthwhile to read. A direct link to David’s blog will be found in the left-hand margin on this page.

I don’t propose to repeat or précis David’s piece, as you will no doubt read it yourself, but it does point up in very clear terms the complete failure of the ‘duty to co-operate’ (introduced by the Localism Act) to replace the gaping hole in strategic planning that has resulted from Uncle Eric’s ill-advised abolition of the Regional Strategies.

It reminds me of that well-known line in the Laurel and Hardy films – “Here’s another fine mess you’ve got me into, Ollie.” (No prizes for guessing which members of our wonderful coalition government could be cast in the respective parts of Laurel and of Hardy!)


Friday, 18 October 2013

Can conditions preclude Permitted Development?

The immediate answer to this question is that of course they can, and such conditions are quite common. They are usually along the lines that “Notwithstanding [the GPDO – variously referred to] no development shall take place under Part 1, Classes A or E [etc. etc.]” (or as the case may be). Some conditions even exclude all types of PD under the whole of Parts 1 and 2. There is no doubt that if the condition is worded with sufficient precision (and most are) the type of permitted development specified by the condition cannot be carried out, and a planning permission would have to be sought instead. There must, of course, be an objective justification for such a condition, and I have come across rather too many examples of these conditions which were imposed without any such justification. The remedy in such a case is an application under section 73 (and, if necessary, an appeal against a refusal to remove the condition). I have even won costs against the LPA in such appeals.

However, I have recently been asked by a correspondent about the effect of a rather differently worded condition in relation to the recently introduced right to convert an office (Use Class B1(a)) to residential use. In this case, a duly implemented planning permission which had authorised a change of use of premises to office use contained a condition that read: “The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof).” Does this preclude a change of use to Use Class C3 under the new GPDO provisions (subject to the qualifying criteria and compliance with the prior approval procedure)?

At first sight, it appeared to me that this condition does have that effect – if you simply take the words : “The premises shall be used as an office (Use Class B1a) and for no other purpose. But second thoughts suggested otherwise. It seems to me that this condition does not (and cannot) preclude an application for planning permission for a further change of use. It was designed solely to prevent the use being changed within Use Class B1 in reliance on the terms of section 55(2)(f) of the 1990 Act (whereby such a change of use within the same use class would not constitute development within the meaning of the Act). Any other change of use, to a use outside the scope of Class B1, would have been development in any event, and would have required planning permission. Thus, if planning permission were to be granted for such a further change of use, it would supersede the previous permission (and its conditions). What Part 3 of the Second Schedule to the GPDO does is exactly the same; it grants planning permission (subject to certain requirements being met) for a further change of use. The condition in question cannot therefore have the effect of precluding this.

There are several reasons for reaching this conclusion. First, the condition referred specifically to the Use Classes Order and contained no reference at all to the GPDO. I do not consider that the quoted wording could be stretched to include the GPDO or to be construed so as to do so. Furthermore, if permitted development was intended to be precluded by this condition, this should have been stated in clear terms. It is well settled law that conditions must be clear in their intention and effect; their purpose cannot be implied. Permitted Development cannot be precluded by implication. If an LPA wishes to preclude PD, it must word the condition in such a way as expressly to remove specific PD rights.

I mentioned above that if planning permission were to be granted for a further change of use, it would supersede the previous permission (and its conditions). As I have pointed out, what the GPDO does is to grant planning permission for a further change of use. This is the primary reason for my taking the view that this condition in the previous permission does not preclude the further change of use now authorised by Part 3. For the same reason, I do not consider that the condition would prevent the other change of use permitted by Part 3 (subject to a floorspace limitation) from B1 to B8.

I recall that there used to be some doubt as to whether development carried out as permitted development would be free of conditions under an existing planning permission. The conclusion (although I can’t recall offhand the relevant authority for this) was that the conditions continued to apply to the property as a whole. However, I don’t see that rule as being applicable in this context, where planning permission is given by the GPDO for an entirely different use of the property, at least so far as concerns conditions that were specifically addressed to the actual use of the property. Where the GPDO authorises a change of use under Part 3, it seems to me that any such conditions attached to the earlier permission would no longer apply. The position as regards other conditions (for example as regards car parking) may, however, be more doubtful.

No doubt there are those who would take a different view, and I cannot pretend that the answer I have given above to the question that was posed to me is the last word on this subject. But for what it’s worth, and subject to any contrary statutory or judicial authority that might be brought to my attention, I don’t believe that a condition like the one quoted above would preclude a change of use under the GPDO.

UPDATE: In case anyone didn’t see Steve Jupp’s helpful contribution to this discussion among the comments posted below this item, I thought it might be useful to follow him in drawing attention to paragraph 86 of Circular 11/95 (recently cancelled, I know, but in my view the statements it contained are still relevant and should continue to be applied). This paragraph stated in clear terms that “a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well.” Q.E.D.

NOTE: This topic is more fully discussed in the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.


Monday, 7 October 2013

Permitted development excluded in an AONB

There is so much material awaiting posting that it is difficult to know where to begin, but I thought I would start with a recent query I received about the extent to which Permitted Development is excluded in an Area of Outstanding Natural Beauty. The question arose because the AONB in question encompasses a great number of towns and villages, most of which contain undistinguished housing far removed from anything that could possibly be described as being of outstanding natural beauty.

My correspondent therefore asked me whether the LPA is correct in asserting that permitted development rights are excluded in respect of development within the curtilage of a dwellinghouse (under Part 1 of the Second Schedule to the General Permitted Development Order) because this is a settlement that is ‘washed over’ by the AONB designation, and is not excluded from it. The site in question is not in a conservation area.

[What follows applies in England only, not in Wales, which has different rules.]

In most AONBs, the designation covers a wide area, and towns and villages within the area are not excluded, although the boundary may be drawn around the outside of a large town if it is on the periphery of the area. The limited contribution (if any) that even the most undistinguished part of any settlement within an AONB makes to the natural beauty of the area does not affect the position in any way.

Permitted development rights are slightly reduced (but are not wholly removed) in relation to Part 1 of the Second Schedule to the General Permitted Development Order (development within the curtilage of a dwellinghouse) in certain areas (“Article 1(5) land”) which include any property anywhere within an AONB. I have confined this note to AONBs, as there is a very subtle distinction in respect of these areas, compared with other “Article 1(5) land (such as conservation areas).

Under Class A, the temporary right (until 30 May 2016) to build larger domestic extensions is excluded in an AONB. Other excluded development within Class A comprises the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles, any extension beyond a wall forming a side elevation of the original dwellinghouse and any extension of more than one storey beyond the rear wall of the original dwellinghouse. But, with these exceptions, other extensions and alterations within Part A can still be built within an AONB.

The enlargement of a dwellinghouse consisting of an addition or alteration to its roof (under Class B) is also excluded in an AONB, but minor alterations to the roof under Class C are not excluded. The erection or construction of a porch outside any external door of a dwellinghouse (under Class D) is not excluded either.

As regards Class E (the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure; or a container used for domestic heating purposes for the storage of oil or liquid petroleum gas), development is not permitted in an AONB by Class E if the total area of ground covered by buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwelling-house would exceed 10 square metres, but devlopment closer to the house is OK. In an AONB, development under Class E is also excluded if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.

Development under Class F (the provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such, or the replacement in whole or in part of such a surface) is not affected.

In the case of Class G (the installation, alteration or replacement of a chimney, flue or soil and vent pipe on a dwellinghouse) this development is not permitted within an AONB if the chimney, flue or soil and vent pipe would be installed on a wall or roof slope which fronts a highway, and forms either the principal elevation or a side elevation of the dwellinghouse.

Development under Class H (the installation, alteration or replacement of a microwave antenna on a dwellinghouse or within the curtilage of a dwellinghouse) is permitted in an AONB, but not if it would consist of the installation of an antenna on a chimney, wall or roof slope which faces onto, and is visible from, a highway, or on a building which exceeds 15 metres in height.

If you look at Part 1 of the GPDO, you will see that this still leaves quite a wide variety of permitted development that can be carried out within an AONB, subject to the usual limitations and conditions set out in the Order. It is certainly not the case that permitted development rights are wholly or substantially removed within an AONB. On the other hand, local planning authorities have the power to exclude permitted development rights by means of an Article 4 Direction, and also by means of a condition attached to a planning permission, and this is perhaps more likely within an AONB (and on other “Article 1(5) land”, such as a Conservation Area) than elsewhere.

So the LPA in question was correct up to a point in the case that was put to me, but the effect of the exclusion of certain permitted development rights should not be over-stated.