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

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

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.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

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!)

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

Labour’s planning policy

Two speeches at this week’s Labour Party conference gave an indication (albeit somewhat vague and lacking in any detail) as to the possible thrust of Labour’s planning policy if they regain power at the 2015 General Election.

Hilary Benn promised that “Labour will get Britain building again.” He frankly acknowledged that we are just not building enough homes, but pointed out that in the last few years, the profits of the big housebuilders have nevertheless soared. Land, he said, is too expensive. Too often developers hang on to it hoping for the price to rise.

Benn rather piously expressed the view that we can’t carry on saying on the one hand “Where are the homes for the next generation?” and on the other “Please don’t build them near me”. But he failed to give any clue as to how NIMBYism might be overcome. In fact he seemed to be going in the opposite direction when he opined that we will not get more homes by top-down targets. Councils and communities, he said, must take that responsibility “but they need more power to be able to do so.” I am bound to say that this does sound to me like typically meaningless political claptrap.

Benn’s approach seems to be based on the assumption that communities actually want house-builders to build homes on the land they own, or over which they hold options. But in all too many places the NIMBYs want no such thing, and they are only too happy that land-banked sites should remain undeveloped. So proposing that developers must register their land banks (including optioned sites) so that “communities should be able to do something about it” is just pie-in-the-sky.

It is difficult to see what would be achieved by requiring developers to implement their existing planning permissions or face (as yet unspecified) financial penalties in respect of unimplemented planning permissions. Benn went on to suggest that if developers, despite being charged some sort of ‘non-development’ tax or penalty, still don’t build on their land, a Labour government “will sell the land on to someone else who will”. Frankly, any politician who thinks that such a mechanism could be made to work or that it would actually have any practical effect in getting homes built is away with the fairies.

Another proposal canvassed by Benn is that where there is insufficient land available for housebuilding within a particular LPA area, that LPA should be given a new ‘Right to Grow’, allowing them, if they wish, to appropriate land for house-building within neighbouring councils’ areas. There would be a requirement for those neighbouring LPAs to work together to achieve this. It sounds like the current ‘duty to co-operate’ but with much sharper teeth. How it would work in practice is anyone’s guess.

Finally, Benn proposed that we should build new communities – new towns and new garden cities. He held up the example of the Attlee Government in this regard, but studiously ignored an abortive initiative by the most recent Labour government to do something similar. A Labour government, he said, will make sure that local authorities get the powers and the incentives they need to acquire land, put in the infrastructure and build new towns. It seems, however, that Benn is expecting the initiative to come from the local authorities, rather than from central government. Funding wasn’t mentioned.

In his leader’s speech, Ed Miliband took up the same themes. In 2010 when the last Labour government left office there was a shortage of one million homes in Britain. If we carry on as we are, by 2020 there will be a shortage throughout the country of two million homes (equivalent in size to two cities the size of Birmingham). So he too said “we’ve got to do something about it”, and repeated what Hilary Benn had said earlier, adding that a Labour government will have a clear aim that by the end of the next parliament (in 2020) Britain will be building 200,000 homes a year, more than at any time in a generation (but still not by any means as many as in the days when Harold Macmillan was the Housing Minister).

The housing crisis to which Mr Millibean referred is of long standing, and was increasingly apparent throughout the 13 years of the last Labour government. This is not intended to be a party political point (and I am certainly no Tory), but the plain fact is that the last Labour government did nothing effective to tackle what was already recognised at the time as a real crisis. This does engender some scepticism as to the ability or willingness of the next Labour government to tackle this issue effectively in view of their failure to address the problem between 1997 and 2010.

What Miliband and Benn were proposing in their party conference is unlikely to make any practical difference to the housing situation in this country. The major problem is a lack of affordable housing, and in particular social housing. 25 years of council house sales have depleted local authority housing stock, and HM Treasury has resolutely resisted the re-investment of the proceeds in new council house building.

The attempt by successive governments, both Tory and Labour, to use or, in reality, to abuse the planning system (entirely without any legislative authority) to produce an element of affordable housing has been an abject failure, and has not produced more than a tiny proportion of the affordable housing that is actually needed. In all too many cases it has simply made proposed housing developments unviable, so that no houses get built at all on some sites unless the affordable housing obligation can be renegotiated. The only reason for this policy being pursued is an almost paranoid fear in government, even within the last Labour government, of funding social housing from general taxation, involving extra government borrowing and an increase in the PSBR. But if we are not prepared to do this, then no other mechanism is going to produce the social housing that is so badly needed.

Tinkering with the private housing market (which is all that was being proposed at the Labour Party conference) will do nothing to resolve the crisis. At worst, the present government’s ‘help-to-buy’ scheme will simply produce another house price bubble in the private sector without in any way tackling the underlying problem. Labour will clearly eschew that approach, but their suggested nostrums are unlikely to be any more effective in solving the housing crisis.

In the post-war period, continuing into the 1950s and 1960s, governments of both political colours recognised the need for substantial public house-building programmes, and funded them from general taxation. Until a future government is prepared to do likewise, the housing crisis will only get worse.

© MARTIN H GOODALL

Yet more interesting times

You may have noticed that blog posts have been a bit thin on the ground recently, due to the continuing pressure of work. Unfortunately, it does not look as though I am going to be able to find the time to write anything further here for at least the next 10 days.

This is rather frustrating, as there has been an awful lot going on recently, which is just begging to be written up here. Among the many recent innovations, the Planning Inspectorate has published a new Procedural Guide to Planning Appeals and Called-in Planning Applications, and the government has announced a faster planning appeals process, leading (it is hoped) to earlier decisions. This will involve ‘front-loading’ the appeals process, including a requirement to submit a full appeal statement with the appeal form, which will make a lot more work for appellants at the outset of the appeal process. The new rules will apply to appeals in respect of applications determined after 1 October, but I shall have to defer discussing these and other innovations to a subsequent post.

Meanwhile, new regulations have been published for applications under section 62A of the Town and Country Planning Act 1990 (introduced by Section 1 of the Growth and Infrastructure Act 2013). This is the provision that enables certain applications to be made direct to the Secretary of State, bypassing the local planning authority.

Three new statutory instruments have been made relating to conservation areas and demolition, which I have not had time to look at yet. These, too, come into effect on 1 October.

In addition to this, we have also had the new web-based planning advice that is set to replace all the old familiar circulars. I confess that at a first glance, I was not impressed, but this too is a topic to which we shall return.

As I mentioned in passing a few weeks back, further changes to planning fees have been introduced by The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 (SI 2013/2153) (2013 Regulations). Yet again, 1 October is the date when these come into force.

Then, of course, there are Chris Grayling’s proposals for further changes to judicial review. I haven’t had time to look at these in any detail yet, but they include the idea of a special planning court, which could be a welcome innovation. But this will depend on how it is implemented. It is a subject to which I will return in due course.

Uncle Eric has not been idle himself, and on 2 September he was boasting to the House of Commons how very busy De-CLoG has been during the summer, when everyone else was away with their buckets and spades. This has included a report on the future of our high streets. (They haven’t got a future, basically.) He also touched on the plans to extend permitted development rights, previously discussed in this blog, and new guidance published on 28 August calling for councils to deliver more town centre parking spaces, to tackle street clutter and to get rid of ‘sleeping policemen’ (road humps). He also wants to encourage residents to rent out parking spaces in their front gardens. (This had already caused apoplexy among some planning officers.)

Uncle Eric also drew attention to powers introduced by the Localism Act 2011 for the listing of assets of community value, including local pubs, to prevent their sale and redevelopment. And then, of course, there was Uncle Eric’s wheelie bin crusade. And so on, and so on.

So, there will be an awful lot of material for planning professionals to digest in the near future, and a lot of changes that are going to happen on 1 October.

One thing Uncle Eric said made me laugh. He reckons that, with these various changes and the ‘simplification’ of ministerial planning advice, there is going to be little or no work left for planning lawyers to do. I think we may find that as result of some of these changes there will be more work for us than ever!

© MARTIN H GOODALL

More restrictions on judicial review?

In an article by the Justice Secretary, Chris Grayling, published in the ‘Daily Wail’ this morning, he calls for further restrictions on the right to apply to the High Court for the judicial review of ministerial decisions in planning and infrastructure cases. [The web version can be found at - http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html ]

He makes no bones about that fact that he is taking a strongly partisan political approach to this issue, seeing it as an avowedly Right-Left struggle. The first four short paragraphs of his article are pure bile, complaining about a growing number of “professional campaigners” who, he alleges, are “taking over charities, dominating BBC programmes and swarming around Westminster” (!) Worst of all, in Grayling’s view, is that they “articulate a Left-wing vision”. He seems to be particularly annoyed that former advisers and politicians are joining the ranks of what he calls “serial campaigners”, and he singles out the charity sector as an area where “advisers from the last Government can be found in senior roles”. He seems to be equally unhappy about moves in the opposite direction, “with campaigners lining up to try to become Labour MPs”.

This very much sets the tone and the background for what follows. Grayling alleges that charities “target the legal system as a way of trying to get their policies accepted”, particularly through the medium of judicial review. He objects to these people being able to challenge the decisions of government and public bodies in the courts, aided and abetted, as he puts it, by “teams of lawyers who have turned such legal challenges into a lucrative industry”.

It is at this point that the real lies start, and as the Nazis’ propaganda and police chief, Joseph Goebbels once observed, the bigger the lie, the more easily it will be swallowed by a gullible public. Grayling casually remarks that there are now thousands of judicial review applications each year, but he carefully omits to mention that, as a proportion of all JR applications, planning and infrastructure-related JR applications account for less than 2% of the whole!

As I have previously pointed out in this blog [Judicial review – the statistics on Tuesday, 20 November 2012 and Judicial review - statistics update on Sunday, 2 December 2012], the numbers of JR (i.e. non-statutory) cases relating to town and country planning and infrastructure cases in recent years have been: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191. (I don’t have the figure for 2012, but it is unlikely to show any really dramatic increase.)

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications in 2011 which ministers are so fond of quoting (or mis-quoting). Most of these were in fact immigration/asylum cases. Even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). Furthermore, it is not possible to discern any indication that there has been any increase in hopeless applications in this area of the law. The notion that ministers have been peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development and infrastructure projects, is clearly nonsense. In most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application.

Grayling’s assertions are based on an outright lie! But that does not deter him from proposing further restrictions on judicial review in addition to those introduced only a couple of months ago.

What these proposals actually are is not vouchsafed to us in his vituperative article in the Mail. According to the Press Association, a consultation paper is due to be published today, and we shall know more of what is afoot when this emerges. However, the PA report suggests that under these new plans, “campaigners will be banned from launching challenges” and that “local councils will also no longer be able to judicially review major infrastructure projects in their area”. It is also suggested that Grayling wants to penalise unsuccessful JR applicants with payment of a greater proportion of the government’s costs. Never mind the Aarhus Convention – a document that Grayling no doubt dislikes as much as he hates all those pesky lefties.

It is difficult to imagine a man less suited to being the Minister of Justice (and Lord Chancellor) than Chris Grayling (unless it might possibly be Michael Gove).

[UPDATE (14.17 6.9.13) : The consultation paper can now be accessed at - https://consult.justice.gov.uk/digital-communications/judicial-review. I may blog on this topic again when I have had the chance to read it in detail.]

© MARTIN H GOODALL

We’re all going to be film stars!

Not to be outdone by the forthcoming second series of ‘The Planners’ on the telly (which, by the way, is going to be re-titled “Not in My Back Yard!”), Uncle Eric has decided that the cameras should be allowed into planning committee meetings and planning hearings and inquiries.

New guidance is to be issued by De-CLoG, which "will make clear the rights for members of the press and public, including local bloggers and hyper-local [?] journalists, to report, film and tweet planning appeal hearings." In a press release, De-CLoG ministers express the hope that “this will open up a previously mysterious and rarely seen side of the planning process”.

The new freedom to record and film proceedings, including the use of digital and social media can be exercised in future in appeal hearings and inquiries, provided that it does not disrupt proceedings. According to the blurb, "Inspectors will advise people present at the start of the event that the proceedings may be recorded and/or filmed, and that anyone using social media during or after the end of the proceedings should do so responsibly."

Pickles is particularly annoyed, because previous guidance he published in June, which was intended to open up planning committee meetings in the same way, has been deliberately ignored by some councils. Unfortunately, he omitted to write this into recent changes to subordinate legislation on the conduct of council meetings, and so he can do no more for the time being other than to huff and puff about it (something Uncle Eric is rather good at doing).

The press release ‘names and shames’ several of the offending councils:

• Wirral Council banned a blogger from filming its planning committee on health and safety grounds, asserting the ban was necessary as they cannot ‘police’ people filming.

• Tower Hamlets stopped a 71 year old resident and OAP campaigner filming a council meeting in June 2013. Council officers asserted that allowing filming could lead to “reputational damage to the authority”

• Keighley Town Council stopped a council meeting when a group of pensioners started to film the meeting and called in the police who escorted the 11 residents from the town hall. Officials argued allowing filming would be a “breach of Standing Orders”

• Blogger Richard Taylor, producing a guide for citizens on how to film meetings, has warned that some councils have demanded identity papers, such as a passport, before allowing filming, and warned “be prepared for the police to be called and the possibility of arrest, especially if you intend to film, photograph, tweet or take notes on a laptop” (Apparently, he was threatened with arrest when he tried to film Huntingdon District Council.)

• Bexley Council has asserted it intends to continue to prohibit audio and visual filming due to its “agreed protocol”

• Stamford Town Council meeting has reaffirmed its ban on a newspaper reporter tweeting from a council meeting, due to “concerns about 140 character snippets of information not accurately portraying a debate”

I have no more sympathy than Pickles with these weak excuses. If meetings are open to the public (as most planning committee meetings must be by law), there can be no reasonable objection to the proceedings being filmed, photographed and recorded, or reported ‘live’ on social media.

On the other hand, if you have attended as many different planning committee meetings as I have, you may well understand the reluctance of elected members to have their ‘deliberations’ broadcast to the great unwashed. The sad fact is that the standard of debate in many planning committees is absolutely dire, and the poor calibre of elected members, their profound ignorance of planning principles and procedures, and general lack of common sense is appallingly obvious. When officers in one authority claimed that allowing filming could lead to “reputational damage to the authority”, their fears may well have been justified!

As for opening up planning inquiries and hearings to the cameras, camera phones and recorders, I rather suspect that interest in recording the proceedings in this way will rapidly wane. It is rare even to see a local print journalist at an appeal hearing or inquiry, and those members of the public who bother to attend mostly drift away by lunchtime on the first day. The plain fact is that for those not directly involved in the process, it is arcane and incomprehensible, and opening it up to the cameras is not going to change that.

Major public inquiries into controversial development proposals might attract the TV cameras, but they will have the same problem as print journalists who have tried to cover these proceedings in the past. The bigger the development scheme, the longer the inquiry, and for journalists and TV crews it is likely to prove as exciting as watching paint dry.

Still, it makes a good silly season story, and Uncle Eric can feel satisfied that he has taken yet another decisive step to improve the planning system. Never mind, that we are still not building more than a tiny proportion of the new homes that are so urgently needed. Never mind that local planning authorities are starved of funds and can hardly cope with their work as a result. And never mind that all Uncle Eric’s previous brave words and stirring deeds have done virtually nothing to make any really significant change to the planning system.
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UPDATE (30 August 2013): I am told that Merton Council has begun webcasting various meetings within the past few months, including its Planning Applications Committee (although I am told that after two meetings no further webcasts have been made due to "technical difficulties"). A correspondent has suggested that readers should watch the first three applications presented on 18 April.

The webcasts can be accessed on:

http://www.merton.public-i.tv/core/portal/webcasts

This is not a link, but if you copy and paste this URL into the address line on your browser, the page should open. Don’t panic when you get no sound at the beginning. The camera was switched on before the meeting began, and the sound only starts when the Chairman opens the meeting, 7½ minutes into the recording. (You can move the cursor along to get to this point without having to watch usual the pre-meeting comings and goings in total silence. Alternatively, the menu on the right of the page enables you to go straight to the start of each item. The first application is reached about 10¾ minutes ibnto the recording.)

The 18 April meeting seems fairly typical to me. One thing you’ll notice is that the proceedings might reasonably be described as ‘unhurried’. It takes over 20 minutes, including the planning officer’s introduction, and public statements, before the members of the committee start to discuss the first application around 33½ minutes into the recording.

Anyway, see what you make of it.


© MARTIN H GOODALL

Office to residential – some interesting examples

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.

There are interesting and encouraging signs that some LPAs are taking a positive and proactive approach to the new permitted development right allowing the conversion of offices to residential use. Furthermore, despite the doubts I expressed initially, it seems that there are no qualms about multiple conversions, involving the creation of a significant number of new flats within a single large office building.

I understand that Birmingham City Council has recently approved a 120-unit conversion in an office building in the city under the prior approval procedure introduced in May, rather than by means of an application for full planning permission. Other large schemes are in the pipeline around the country, but a few authorities are showing a degree of reluctance to accept such conversions, even for single units. As I have observed before, we shall have to await the outcome of a number of appeals before it becomes clear how the issues that arise from the drafting of the legislation are likely to be resolved.

It seems that the LPAs that are responding positively to these prior approval applications are fully prepared to accept that there is no opportunity to seek any element of affordable housing in such schemes and that the scope for securing other benefits from developers is limited. If there are any LPAs that don’t accept this, they may find out the hard way, through the appeals process, what the true limits of their powers are under the new prior approval procedure.

© MARTIN H GOODALL

Uncle Eric’s wheelie bin crusade

Since it’s Friday, I couldn’t resist passing on to you a joke sent to me by Stephen Ibbitson.

The date is some time in 2015 (I suggest before May of that year). Uncle Eric is walking down a new street and sees a collection of wheelie bins standing there.

"I thought we'd made sure new houses had to store their wheelie bins out of sight?" he lamented to his Permanent Secretary.

"Oh, but we did, Minister. Those are the new houses!"

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There is in fact a possibility that Uncle Eric may have moved to pastures new before the next general election. The Westminster rumour mill already has him marked down as the next Tory Chief Whip in the expected cabinet reshuffle during the current summer recess. If this appointment does eventuate, no doubt we can look forward to predictions that he will sit firmly on any Tory MPs who step out of line in the run-up to the general election, and that he will personally squash any backbench rebellions.

© MARTIN H GOODALL