Minor amendments

Professional readers of this blog are no doubt aware of section 96A of the 1990 Act, which came into force on 1 October 2009. This allows LPAs to make a change to any planning permission relating to land in their area if they are satisfied that the change is not material.

I have always had reservations about section 96A, on the basis that if a proposed change to an authorised development is not material, then no further permission or consent is required, and it cannot realistically be said in those circumstances that the slightly amended development as executed is not the development that was authorised by the planning permission, or was not within the scope of that permission. On the other hand, if the alterations are material in planning terms, then this (by definition) would appear to take them outside the scope of section 96A, which allows a local planning authority in England to make a change to any planning permission relating to land in their area only if they are satisfied that the change is not material.

There is just one possible situation in which it might be appropriate to make an application under section 96A. It might be advisable to make such an application if there is a condition attached to the planning permission that requires the development to be carried out strictly in accordance with the approved drawings. Arguably, minor variations that are not material in planning terms might still represent a breach of this condition, and so an application under section 96A(4) might be appropriate in those circumstances, so as to avoid any risk of breaching a condition that requires strict compliance with the approved drawings. However, absent such a condition, I cannot see any need to apply under section 96A in respect of minor changes to the design, so long as these are not material in planning terms. If the changes are material, on the other hand, it would not appear to be open to the developer to make use of section 96A, and a fresh planning application for the whole development would have to be made.

In summary, it seems to me that section 96A is yet another example of inept legislative drafting, which does not do what was intended, namely to allow modest amendments to planning permissions without the need for an entirely fresh permission. It is the words "if they are satisfied that the change is not material" that is the source of this problem. Some other formula should have been devised, which would have allowed a greater degree of flexibility, while ensuring that this section could not be exploited as a loophole to achieve a wholly different development compared with that which had originally been authorised.

This train of thought was prompted by a correspondent, who asked me whether this section is relevant to a permission granted before 1 October 2009. The first point to make is that section 96A can only be used if the original planning permission remains extant (either because it was an outline permission followed by the approval of reserved matters, with a 3-year plus 2-year time limit, and the latter that has not yet expired, or because the permission has been implemented by making a start on site, but the development remains substantially uncompleted). Assuming that the original permission remains extant, I do not see that it makes any difference that the permission pre-dated section 96A coming into force. Section 96A allows an LPA to make a change to any planning permission relating to land in their area. This must apply to pre-October 2009 permissions as much as to those granted after that date.

Finally, bearing in mind my reservations about the practical effect of section 96A, I would not accept the proposition that the position has changed since the introduction of s96A, so that non-material amendments now require consent, and that lack of such consent would therefore mean that the development is unauthorised. The section is not phrased in such terms; it simply gives the LPA power to make a change to any planning permission relating to land in their area (if they are satisfied that the change is not material), but only only if an application is made by or on behalf of a person with an interest in the land to which the planning permission relates (see sub-section (4)). The section is purely permissive in its wording and effect, and does not require an application to be made for alterations that are not material.

© MARTIN H GOODALL

Planning by appeal

The natives are getting restless. NIMBYs in the Tory shires, their councillors and now back-bench Tory MPs in Middle England are getting upset about the number of planning appeals for significant housing developments that are being allowed on greenfield sites after they have been rejected by councillors.

This is the inevitable effect of the NPPF in the absence of up-to-date local plans that identify at least 5-yearsworth of housing land in their areas which is genuinely available for development within that time-span. If enough housing land is not allocated in adopted or emerging plans, then planning appeals on suitably located sites that could or should be allocated are very likely to succeed, whether the locals like it or not. Merely asserting that there is a 5-year housing land supply is not enough; appeal inspectors have been persuaded to view the figures critically and have decided in some cases that the council’s estimate cannot be relied upon.

No-one should be surprised by this. I wrote in this blog as long ago as November 2011:

“In the absence of regional housing targets or similar centrally imposed policies, planning by appeal is the only means by which the reluctance of local planning authorities to allow sufficient development in their areas can be overcome. This approach might arguably be an unsatisfactory way in which to deliver much-needed development, but the government has left themselves little option, having abandoned a more structured policy-based approach.”

Attempted High Court challenges to some of these appeal decisions have mostly failed, and so the ‘score’ of housing developments allowed on appeal is steadily rising. Much the same happened in the 1980s, when a similar requirement was imposed by Circular 9/80. The chorus of dissent gradually grew to a crescendo, until Maggie Thatcher was persuaded to throw the levers into reverse in 1987, and we then got ‘plan-led development’ instead.

I would not like to predict if or when the coalition government might be persuaded to pull back from its present policy on this issue, but the approach of a General Election in May 2015 could prove to be a persuasive factor. The performance of UKIP in local and European elections in May 2014 could have a strong influence on the government’s thinking on this issue (among several others). Videbimus.

© MARTIN H GOODALL

The mountain has laboured, and.......

Bearing in mind all the brouhaha on the part of ministers over their proposals to put under-performing LPAs into special measures, so that developers can bypass them and apply for planning permission direct to the Planning Inspectorate, the outcome of just one council (Blaby, Leicestershire) being caught in the net is somewhat underwhelming. In the circumstances, there doesn’t seem to be much point in poring over the detailed regulations that were brought into effect on 1 October for dealing with these applications under section 62A of the 1990 Act.

Some county authorities were also in the frame over their handling of minerals and waste applications, but De-CLoG has been forced to delay any action in these cases due to doubts over the statistics on which a decision to put these authorities into special measures would have been based. This is not to say that one or more authorities at county level may no longer be in line to have their minerals and waste applications handled under section 62A, but it may be some time before we know whether any and if so which of these authorities will be told to go and sit on the naughty seat.

© MARTIN H GOODALL

Judicial Review of office to residential changes

The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

Inappropriate development in the Green Belt

One of the concepts carried through into the NPPF from the former PPG2 is that those types of development that are ‘inappropriate’ in the Green Belt should not be permitted. Paragraphs 89 and 90 of the NPPF indicate types of development that are inappropriate in the Green Belt, and those that may be appropriate in the Green Belt, provided that the openness of the Green Belt is preserved and there is no conflict with the purpose of including the land in the Green Belt.

In Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin) the High Court was called upon to consider whether the prohibition on ‘inappropriate’ development extended not only to built development of the types listed in paragraph 90 but also to changes of use to any of the uses within those same categories. The developer challenged an appeal decision on the grounds (among others) that the inspector was wrong to conclude that a change of use from agricultural use to outdoor sport and recreation was inevitably inappropriate development and thus not to be permitted in the absence of very special circumstances, and that the Inspector was wrong to conclude that Paragraph 89 of the NPPF did not apply to changes of use.

The first point that the Deputy Judge made is that “development” as used in the NPPF has the same meaning as the definition of that term in section 55 of the 1990 Act, and this relates not just to operational development but also includes a material change of use. It follows that a material change of use is capable of being inappropriate development within the meaning of Paragraph 87 of the NPPF.

The policy set out in paragraph 3.12 of PPG2 in relation to Green Belt development has not been carried through into the NPPF. The effect of Paragraphs 87, 89 and 90 of the NPPF, when read together, is that all development in the Green Belt is inappropriate unless it is either development falling within one or more of the categories set out in Paragraph 90 or is the construction of a new building or buildings that comes within one of the exceptions referred to in Paragraph 89.

Paragraph 90 contemplates not merely the construction of buildings but other development as defined by section 55 of the 1990 Act falling within the identified categories. Thus a change of use falling within one of the categories identified in Paragraph 90 is in principle capable of being not inappropriate. That being so, the Deputy Judge did not agree with the Inspector that no material changes of use fall or are capable of falling within Paragraph 90. The concept of development includes a material change of use and therefore a change of use for example to permit mineral extraction is capable of being not inappropriate providing that the change of use preserves openness and does not conflict with the purposes of including land in the Green Belt.

The real issue, therefore, is whether development in the form of a material change of use outside the categories identified in Paragraph 90 must by definition be inappropriate development or whether such a change of use has to be considered on its merits, with a decision to be taken as to whether it is inappropriate or not inappropriate development, as was the position under PPG2.

As noted above, the structure of the Green Belt policy has changed compared with the former PPG2, as a result of which there is no general exception for changes of use that maintain openness and do not conflict with the purposes of the Green Belt. Paragraph 90 contains a closed list of classes of development that are capable of being not inappropriate and Paragraph 89 contains a closed list of classes of new building construction not falling within Paragraph 90 that are not or may be not inappropriate by way of exception to the general rule that the construction of new buildings is to be regarded as inappropriate in the Green Belt. The Deputy Judge observed that, whilst it is true to say that the reference to "other forms of development" and the use of the word "other" in Paragraph 90 suggest that there are forms of development other than those listed in that paragraph that are capable of being not inappropriate, he considered that those words and phrases refer back to the exceptions listed in Paragraph 89.

Paragraph 89 is exclusively concerned with the construction of new buildings. It does not apply and is not expressed to apply to any other form of development. The word and phrase in the opening lines of Paragraph 90 that were relied on by the developer do not undermine this analysis, and do not lead to the conclusion that other forms of development not listed in Paragraph 90 and not capable of coming within the scope of Paragraph 89 are nonetheless capable of being development that is not inappropriate. If that was so then Paragraph 90 would not have been drafted in the way it has been drafted (as a closed list of classes of development that is not inappropriate). Contending otherwise, his lordship held, applies an over legalistic approach to the construction of a policy statement. When Paragraph 87, 89 and 90 are read together, as they should be, the meaning is clear. Development in the Green Belt is inappropriate (and thus can be permitted only in very special circumstances) unless it falls within one of the exceptions identified in Paragraphs 89 and 90.

On the second ground of challenge, the developer submitted that the Inspector failed correctly to construe Paragraph 89 because he decided that the word "it" in the second bullet point was a reference to the facilities element of any proposal when it should have been construed as applying to the relevant use relied on – i.e. outdoor sport or recreation or cemeteries. The Deputy Judge did not agree. The purpose of the exceptions to the general rule set out in the first sentence of Paragraph 89 is to distinguish between those types of new buildings which would be inappropriate if built in the Green Belt from those that are not. Some types of building are not further qualified. A new building for agriculture or forestry is not inappropriate. The provision of facilities for outdoor sport, outdoor recreation and cemeteries on the other hand is only potentially not inappropriate. Such a facility will only be not inappropriate development if it "… preserves the openness of the Green Belt and does not conflict with the purposes of including land within it…". If these further requirements are not made out then the proposed buildings will not fall within the exception and will fall within the general rule.

The Deputy Judge relied on the analysis of Ouseley J in Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) where he said:

"Secondly, as Green Belt policies NPPF 89 and 90 demonstrate, considerations of appropriateness, preservation of openness and conflict with Green Belt purposes are not exclusively dependent on the size of the building or structures but include their purpose. The same building, as I have said, or two materially similar buildings; one a house and the other a sports pavilion, are treated differently in terms of actual or potential appropriateness. The Green Belt may not be harmed necessarily by one but is harmed necessarily by another. The one is harmed by because of its effect on openness, and the other is not harmed by because of its effect on openness. These concepts are to be applied, in the light of the nature of the particular type of development."

Thus in each case it will be for the decision maker to apply this approach in order to decide whether a particular building which is claimed to provide appropriate facilities for outdoor sport or recreation to decide whether what is proposed preserves openness and does not conflict with the purposes of including land within the Green Belt. applying these principles. If it does, then what is proposed will come within the potential exception created by the second bullet point in the list in Paragraph 89. If it does not, then it will fall within the scope of the first sentence of that paragraph and can be permitted only if very special circumstances are made out.

The Deputy Judge considered that very special circumstances will have to be shown for a change of use to Green Belt land not falling within one of the classes identified in Paragraph 90 of the NPPF. If that is so, there is no logic in requiring very special circumstances to be shown, for example, for a change of use from agricultural land to an open sports ground (where the impact on openness is likely to be less than the facilities to be constructed in connection with the changed use) but not applying the same constraint to facilities to be constructed at such a site if a change of use is permitted, as long as the requirement in the second bullet point within Paragraph 89 that a facility should preserve the openness of the Green Belt and not conflict with the purposes of including land within it is read in the way referred to by Ouseley J in Europa Oil and Gas. Merely because Green Belt land is used for outdoor sport or recreation does not justify permitting the construction of a building or buildings that fail to preserve the openness of the Green Belt or conflict with the purposes of including land in the Green Belt, applying the approach to these concepts identified by Ouseley J in Europa Oil and Gas.

The Deputy Judge added that there is another obvious reason for adopting this approach. If a promoter of a scheme was able to obtain permission to change the use of agricultural to an open sporting ground he might well wish to construct or add to facilities in subsequent years. There would be great danger in not requiring very special circumstances to be demonstrated for future applications for the provision of facilities at existing outdoor recreation or sporting sites in the Green Belt. The construction which his lordship considered is appropriate eliminates that risk as long as the requirements imposed by the second bullet point in Paragraph 89 to preserve the openness of the Green Belt and avoid conflict with the purposes of including land in the Green Belt are read subject to the qualifications referred to by Ouseley J in Europa Oil and Gas.

© MARTIN H GOODALL

Uncle Eric stays put

As I mentioned in a post a few weeks ago, there’s rather a lot of catching up to do after a very eventful month in the planning world. The government reshuffle on 7 October left Eric Pickles in place for the foreseeable future as De-CLoG’s Secretary of State. Planning minister Nick Boles also remains in post, and so the two key figures on the planning front are still in charge.

Most of the other changes among the ministerial team at De-CLoG don’t impact directly on planning, but among new junior ministers who also have some involvement in town planning in its wider sense there are (in no particular order) Kris Hopkins, who is the housing minister and has also been given specific responsibility for planning policy and casework relating to wind farms, Stephen Williams, who will cover (among other things) localism, decentralisation and community rights, building regulations and standards, empty homes, climate change and sustainable development, and Brandon Lewis, whose remit includes high streets, town centres and markets, travellers and community assets (such as pubs).

Although no further primary legislation on planning seems to be in the pipeline, De-CLoG still has an ambitious programme of ‘deregulation’, the nature and effect of which may prove to be a bit patchy. Some of the changes that have recently been introduced (in a slough of statutory instruments that came into force on 1 October) or are in the offing will be welcome, but others may cause difficulties for users of the planning system that might best have been avoided. I really must find time to get my head round these changes and get properly to grips with them, not least the recent changes to appeal procedures. I’ll blog on all these topics when I get the chance.

© MARTIN H GOODALL