Down among the mince pies

Well, here we are – Merry Christmas! (as the song goes) – the end of another busy year.

We are all still digesting the important changes in planning law and procedure that have taken place in the past year, with more to come in 2014. But those on which I have not yet commented in this blog will have to wait now until the New Year.

Readership of the blog was artificially inflated earlier in the year by ‘bots’ that were designed to plant spam comments (mainly as a means of securing free advertising for other websites) until we reached a ridiculous total of more than 49,000 monthly page views before we pulled the plug on the spammers. Readership has since settled down to between 25,000 and 30,000 page views a month, and this tempts me to consider the possibility of including paid advertising on the site, but it could spoil the page design and has various other disadvantages, so I am not yet convinced that it would be a good idea, although it would certainly generate revenue.

The readership statistics give an interesting insight into the topics that are of major concern to readers, most of whom come to the blog by keyword searching on the internet. By far the largest number of page views is on the subject of ‘curtilage’. The piece I wrote on ‘Curtilage Confusion’ on 25 January 2011 has so far attracted a total of 21,128 page views (and this relates only to that original piece – no doubt many of the readers accessing that item went on to look at the other articles I subsequently wrote on this topic). It is an issue that has also generated more individual queries than any other, which only serves to reinforce my view that we would be a great deal better off if the concept of ‘curtilage’ were to be entirely removed from planning legislation, to be replaced in future by the ‘planning unit’ (a different concept, but one which is much more easily understood and therefore more readily identified in particular cases).

The second most popular blog post is an article I wrote on 11 July 2011 on ‘Agricultural dwellings and other houses in the countryside’, which has been viewed 10,390 times. Clearly there are a lot of people who would like to live in the countryside, and who find themselves frustrated by agricultural occupancy conditions and by the rules that apply to applications for new dwellings in the countryside. I am afraid I can’t offer them much comfort in most cases, but there is clearly a good deal of pent-up demand, the full extent of which may be revealed if the government introduces permitted development rights for barn conversions (and for the residential conversion or replacement of other agricultural buildings by homes) next Spring, as proposed.

This seems to be confirmed by the number of page view there have been for the piece I wrote on this proposal, entitled ‘Barn conversions to be permitted development’, on 13 August 2013, which has received 3,387 page views so far, making it the fifth most popular post on this blog.

The third most popular blog post is a puzzle to me. It is a comment on ‘Powers of entry and RIPA’ posted on 7 February 2012. I have a bizarre vision of members of the criminal fraternity desperately researching this subject on the internet. If that is what is causing the apparent popularity of this item, then I am afraid they are likely to have been disappointed, as the piece simply discussed some of the evidential aspects of planning enforcement.

Another post that has attracted a substantial number of page views (4,418 to date) is ‘Office to residential – the new right to change of use, published on 19 May 2013. The enthusiastic take-up of these new permitted development rights has surprised many, and has alarmed a number of local planning authorities. It remains controversial, and it is clear that some councils are determined to frustrate or delay these residential conversions for as long as they can (bearing in mind that they must be completed before 30 May 2016), but it remains to be seen in light of appeal decisions, the first of which are likely to be issued in the near future, whether these conversions can be successfully resisted.

There is clearly a substantial appetite among the public for general advice and guidance on planning issues, and I hope that this blog will continue to provide useful help on the subject. One or more books may follow, and I am currently working on the first such book, with a view to publication within the next year.

So have a Merry Christmas and a Happy and Prosperous New Year, and I hope you will continue to find material in the blog that is interesting and informative and which helps, to some extent, to explain the mysteries of the planning system.

© MARTIN H GOODALL

Offices to homes – judgment in the High Court

Rather sooner than some of us had expected, Mr Justice Collins gave judgment this morning in the challenge brought by Islington and three other London boroughs against De-CLoG’s handling of the consultation process leading to changes to Part 3 of the General Permitted Development Order being made on 9 May, which came into effect on 30 May.

The result, however, was unsurprising. The claim was dismissed.

In a comparatively brief judgment, Collins J focused solely on the consultation process itself. He pointed out that the consultation letter informed its recipients that in order to achieve an exemption they must demonstrate clearly by reference to supporting evidence that an adverse economic impact would be likely to result from the new right to change the use of offices to residential use as permitted development. They must show clearly how that evidence supported their submissions. The level of adverse impact required was high. It must have been obvious that exemptions were not likely to be granted unless a very convincing case was submitted, supported by evidence shown to be reliable and seen to support the application.

It was made clear in the 24 January 2013 letter that it was for any council seeking exemption to establish its case and to decide on the material it should present and the manner in which it should be presented. That the threshold was to be set at a high level was equally made clear.

It followed that, having regard to the context, his lordship was not persuaded that there was unfairness in either of the ways argued by the claimants. He could understand the concerns which led to these claims and it may well be that in parts of the claimant boroughs the benefits which it is believed will accrue from the amendment to the GPDO will not be felt in those areas. His lordship agreed that the lack of any requirement for affordable housing is worrying. However, those were not matters which could lead to the grant of relief on the claimed basis of unfairness in the process for seeking exemptions.

Clearly, this was enough in itself to defeat the councils’ claim, and so the learned judge presumably felt it unnecessary to discuss any other issues. In my view, the availability of Article 4 directions to address the problems the councils had identified would in any event have militated against the court’s granting the relief the councils sought. Admittedly any Article 4 directions might be vulnerable to the Secretary of State’s power to cancel them, and would give rise to claims for compensation, but I would still see the power to make Article 4 directions as an effective ‘remedy’ as an alternative to the exemptions sought by these four councils.

As I noted on the day of the hearing, the scope of this challenge to the GPDO amendment was very limited (no doubt on legal advice), and did not seek to impugn the actual legislative amendment to the GPDO. So the battleground will now shift to the actual interpretation of the new rules, and in particular the considerations that councils are permitted in law to take into account in assessing the impacts of a proposed change of use from offices to residential. The battle lines have already been drawn, not least by a decision of Camden LBC to which I recently drew attention.

© MARTIN H GOODALL

‘Whitley’ principle to be re-visited

A potentially very interesting case on pre-commencement conditions - R (Ellaway) v. Cardiff CC - is being heard in the High Court today and tomorrow, with judgment expected early in the New Year, following permission having been given by HH Judge Curran QC on 27 September 2013 on a renewed application after initial refusal on the papers.

On 29 June 2010, Cardiff granted a full planning permission for a waste incinerator and associated plant and other works. There were a number of pre-commencement conditions attached to the permission (otherwise known as ‘conditions precedent’) requiring the developer to obtain approvals from the council to certain matters before development commenced under the permission. Applications for such approvals under the pre-commencement conditions constituted “subsequent applications” under Reg. 2(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations.”). There was no challenge by way of judicial review to the actual grant of permission, whether in relation to the EIA Regulations, or in respect of Habitats Directive.

The case raises a point that has been explored on a number of previous occasions, namely the extent to which (and, if so, how) a commencement of development without compliance with pre-commencement conditions can be retrospectively validated. It is clear from what Woolf LJ (as he then was) said in Whitley & Sons v. Secretary of State for Wales and Clwyd County Council (1992) 64 P. & C.R. 296 that it does not matter if development commenced prior to the approval of such matters, provided that application for the necessary approvals was made before the permission would otherwise have expired if it had not been implemented. Furthermore, it does not matter that actual approval of such details is issued even after that date, provided that the works actually carried out do conform with the details as subsequently approved.

It seems that the claimants are seeking to go behind this ruling, and are arguing that a development commenced without compliance with pre-commencement conditions can only be validated by a retrospective planning application under section 73A. They are arguing that the current development is wholly unlawful and are seeking judicial review of the council’s failure or refusal to take enforcement action against the development, which is now well advanced. Leaving aside the fact that the council, in its reasonable discretion, decided that it would be inexpedient to take enforcement action (a decision which, if not wholly unassailable, would be very difficult to overturn on Wednesbury grounds), the claimant would appear to have a very high hurdle to surmount when one looks not only at Whitley but also at various more recent judgments on ‘conditions precedent’, principally Hart Aggregates and also Hammerton and Prokopp. Further support for the proposition that some flexibility should be allowed, so as to avoid an absurd result that runs contrary to the purpose of the legislation, can also be derived from Rastrum Limited v. Secretary of State [2009] EWCA Civ. 1340 and Greyfort Properties Ltd v. Secretary of State [2011] EWCA Civ. 908.

The issue of delay has also been raised in the present case, and may well be significant in view of the advanced stage that has already been reached in the construction of the development.

In giving permission in this case, HH Judge Curran QC had considerable reservations as to the Claimant’s likelihood of success on the first three grounds on which the application for permission was renewed. However, he thought it would be wrong to characterise the case generally as hopelessly unarguable, and the contention, in particular, that the process adopted by the council amounted to an impermissible extension or addition to any previously-recognised exception to the Whitley principle might, he felt, be arguable (although for the reasons forcefully put forward by counsel for the defendants, with which your humble scribe fully agrees, the prospects of success even on this ground must be extremely doubtful).

A fourth ground, in respect of the Habitats Directive, was in His Honour’s view unarguable. The assessment was on its face, and in substance, merely a screening assessment, and not an “appropriate assessment” and for that reason no obligation, statutory or otherwise, arose to consult the public or to give reasons for not doing so. Permission was therefore refused in respect of that ground. His Honour also refused permission to apply for relief in the form of a mandatory order requiring the council to issue an enforcement notice.

It is entirely possible that the current claim could be dismissed on grounds of delay alone, in which case the court might feel it unnecessary to go into the other issues canvassed at today’s hearing. It is equally possible that, even if the substantive issues are dealt with in the judgment, the judge may find it necessary to do no more than apply the well-established principles that can be derived from the judicial authorities mentioned above. There is, on the other hand, an outside chance that the section 73A point (taking a narrow view of Whitley) might succeed, and this would make for a very interesting and potentially far-reaching decision, although a trip to the Court of Appeal would be almost inevitable in such circumstances.

Nonetheless, when one looks at the prospects of the case, one can only hope that the claimant managed to get a protective costs order!

© MARTIN H GOODALL

Offices to residential – an update

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of 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.

As readers of this blog will be aware, the legal challenge brought by the London Boroughs of Islington, Richmond, Camden and Lambeth against the amendment to the GPDO last May allowing change of use from office to residential use (subject to a prior approval process) was due to take place on Wednesday 4 December, and Mr Justice Collins duly presided at the hearing on that day.

What I had not appreciated until now was the very narrow scope of the challenge mounted by these four authorities. They confined themselves to challenging the process that De-CLoG adopted in deciding whether, and if so which, parts of the areas of these authorities should be exempted from the new rules. They have not sought to challenge the amendment order itself by which the new PD rights were inserted in the GPDO. All they are asking for, it seems, is a re-run of the consultation process in their areas. Their complaint is that outside consultants were brought in by De-CLoG to carry out this exercise and applied a points system to score each LPA’s area, using criteria of which the councils were unaware. If the councils had known how the assessment was to be carried out, they might (they say) have presented the case for exemption in a way that could have produced a different result. I must say that this seems to me to be a rather weak argument, but it is up to Mr Justice Collins to make of it what he will.

The consequence of the current High Court action being narrowly confined to the way in which these four authorities’ applications for exemption were dealt with, and the fact that they have not sought to challenge the actual amendment order to the GPDO, is that this new legislation cannot now be struck down by the court, and so even if these four London Boroughs win their case, it will not affect the operation of the new rules in any other area. Even in the areas of the four boroughs concerned, there must be considerable doubt as to how the court could deal with the position in the interim while any re-consultation takes place. This makes it all the more likely, in my view, that the court may not in practice feel able to grant the relief that the four boroughs are seeking.

This was clearly a point that troubled Collins J in the course of the hearing, and he queried whether these four councils could legitimately refrain from determining applications for prior approval until any re-consultation process has been completed. However, there would appear to be no legal basis for doing this. Failure to determine pending prior approval applications could lead to approval by default under the 56-day rule, and counsel for Lambeth did in fact make this point.

As I predicted, judgment has been reserved. It is just possible that judgment could be delivered shortly before the Christmas vacation, but it is more likely to be handed down early in the New Year.

Meanwhile, some observers have recently noted a trend among certain LPAs to refuse prior approval for office to residential conversions on grounds not confined to transport and highway impacts, on-site contamination risks or flooding risks. For example, in a particularly controversial case that had received some attention in the press, Camden LBC recently refused prior approval for reasons that included issues such as lack of affordable housing, lack of a financial contribution towards educational provision or public open space, no ecology and habitat plan, and no means (by way of a planning obligation under section 106) of securing the achievement of level 3 of the Code for Sustainable Homes. This council seems to be spoiling for a fight, and it will be interesting to see the outcome of any resulting appeal, and the possible High Court proceedings that might follow.

Clearly Camden are seeking to rely on the drafting in the amended GPDO to which I have previously drawn attention in this Blog (see “Offices to residential – a further thought” posted on Wednesday, 22 May 2013) that the LPA should “have regard to the NPPF as if the application were a planning application”. I wrote that one might read this phrase as though it is applicable only insofar as the NPPF is relevant to the consideration of transport and highways impacts, contamination risks and flooding risks, but I was not confident that such a narrow interpretation would necessarily be placed on the requirement to have regard to the NPPF, and this recent decision by Camden appears to confirm my fears on this score.

There is no specific requirement in the GPDO amendment to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act (which provides that where the development plan is required to be taken into account in the determination of any application under the planning legislation, the application must be determined in accordance with the development plan unless material considerations indicate otherwise) does not apply. However, the NPPF does refer to the development plan in such a way as to bring its provisions into consideration, even though section 38(6) may not apply as such. In practice, it seems that Camden are seeking to bring their local policies into the equation in reliance on the NPPF in just this way.

Writing in May, I observed that if such considerations were to be taken into account, this would appear to defeat the whole object of this amendment to the GPDO in removing obstacles to development (at least for a three-year period). And yet I had a nagging suspicion that there has been some legislative sleight of hand here, which takes away with one hand what appears to have been given by the other. I speculated as to whether this issue might become the subject of dispute, appeals and even litigation, and now it appears that it will.

At the time of writing, I am not aware of any appeals against the refusal of prior approval of office to residential conversions that have yet been determined, and I would be very grateful if any reader is able to alert me to any such decisions as and when they are issued.

© MARTIN H GOODALL

Planning topics in the Autumn Statement

For reasons that I have never been able to understand, George Osborne loves making announcements about changes in planning law and practice that the government is proposing to introduce. Despite his remit being strictly financial and economic, Gorgeous George has never hesitated to trample on Uncle Eric’s turf, not to mention the territory of various other ministers, whenever he wants to big up his role as Chancellor of the Exchequer and Saviour of the British Economy.

As other commentators had spotted even before the Autumn Statement was formally delivered in the Commons today, quite a lot of what the Chancellor has thrown into his Autumn Statement is what someone aptly described as “warmed-over press releases” - various bright ideas that the government had dreamed up and announced some time ago.

For example, the Autumn Statement contains not one but two mentions (in paragraphs 1.220 and 2.191) of the proposal, previously announced by Chris Grayling, to set up a specialist Planning Court “early in 2014” to hear Judicial Review applications and statutory appeals (e.g. under sections 287, 288 and 289 of the 1990 Act) that currently go to the High Court. There is also an intention to speed up the process between lodging the claim and the hearing, plus a proposal for appeals from the Planning Court (part of the ‘Upper Chamber’) to leapfrog the Court of Appeal and be taken direct to the Supreme Court. All of this was in Grayling’s original consultation paper, but today’s announcement suggests that the government intends to press ahead with these proposals, irrespective of what responses have been received from consultees – a common approach on the part of this government, who see consultation as a purely nominal bit of window dressing before they can get on with what they were going to do in the first place. I still haven’t found the time to look at Grayling’s consultation paper, and must make a point of doing so before these changes come into effect. It looks as though we can expect the changes to be introduced early in the New Year, although it occurs to me that this may require primary legislation, in which case the changes may not come into actual effect until much later in the year.

It seems that the government intends to go on fiddling in a piecemeal way with the planning system. Further changes that they seem to be contemplating (although the Autumn Statement was distinctly short on details) include further steps in an effort to reduce delays at various stages in the planning process, coupled with various ‘incentives’ for improved performance and a promised reduction in the costs incurred by developers (but I bet that doesn’t include a reduction in application fees!). Among these ideas are proposed measures to improve plan making, including introducing a statutory requirement to put a Local Plan in place (I was under the impression that LPAs were already under that duty); also legislating to treat planning conditions as approved where a planning authority has failed to discharge a condition on time, and using legislative measures to strengthen the requirement for planning authorities to justify conditions that must be discharged before building can start. This seems to presage a welcome reduction in the imposition of so-called ‘conditions precedent’, which seem to be spooking quite a few builders and developers these days.

The government is clearly frustrated and disappointed that its cunning plan (worthy of Baldrick at his best) to put ‘under-performing’ local planning authorities into special measures, so that developers can apply for planning permission in those areas directly to De-CLoG (or in practice to the Planning Inspectorate), has netted only a single fish, and that was a Tory-controlled authority - much to the chagrin of the council leader, who has fired off a furious complaint to Uncle Eric about his lack of commitment to localism. So now ministers are going to move the goal-posts by allowing developers to bypass the LPA where it makes fewer than 40% of its decisions on time, in the hope that more authorities will be swept into the ministerial net. The problem is that, on recent form, at least half of them may turn out to be Tory-controlled, and these councils are likely to be just as upset by this as Blaby Council was.

Another little wheeze is to withhold the New Homes Bonus where planning permissions are granted on appeal rather than by the authority itself. So yet more grief for NIMBY-loving Tory councillors in the green and pleasant land of Middle England. This is part of a general review of the New Homes Bonus, which is intended to be completed by Easter 2014.

Some possible sugaring of the pill for NIMBYs is offered by a suggestion that the ‘bribes’ to accept new development offered to councils (in the form of the New Homes Bonus and the neighbourhood funding element of the Community Infrastructure Levy) might be extended to individual households in the affected areas. The government clearly hasn’t figured out yet how this might work, but it conjures up the intriguing possibility that NIMBYs might be directly bribed (officially and above-board, of course) not to object to development in their own backyard.

One particular bone of contention for developers is the very low threshold that some councils have been seeking to introduce for triggering a requirement for affordable housing contributions. In some authorities in Wales this has been set as low as 2 units! Wales, of course, is now beyond the reach of ministers in Whitehall, but in England it is proposed that there should be a nationally imposed minimum threshold of 10 units below which an LPA cannot demand any affordable housing or financial contributions in lieu. I fear, though, that this will prompt those LPAs that currently have higher thresholds to reduce them to the ‘default’ figure of 10 units, thus imposing an affordable housing obligation on an even larger number of housing developments than is the case now.

Further tinkering with the regime for major infrastructure projects is on the cards, but I don’t propose to go into these details here. (Another time, perhaps.)

Finally, the government is still thinking in terms of further widening the scope of Permitted Development. It is surprising, bearing in mind the predilection of ministers to repeat previously–made announcements whenever possible, that there was no mention of barn conversions and other previously proposed changes to the GPDO which are currently slated for next Spring. However, there was one additional proposal. This is for change of use from retail to restaurant or assembly and leisure uses (A1 to A3 or D1) to become permitted development. At the same time, it is also proposed to reverse the legislation (in 2008, or was it 2004?) that extended the definition of development in section 55 to include the insertion of a mezzanine floor in certain retail premises.

So we have here quite a rag-bag of further miscellaneous ideas from the government, which will only add even more complication to an already byzantine planning system (despite the government’s claims to be doing the opposite). It is disappointingly clear that the government still has no coherent strategic vision for planning and development, but remains hopelessly addicted to ad hoc gimcrack ‘quick fixes’, which will do little to sort out the chaotic mess into which the planning system has descended under successive governments. God save us from all these dreadful politicians!

© MARTIN H GOODALL