Thursday, 27 February 2014

Permitted development for homes in National Parks and AONBs

In an adjournment debate on National Parks in the House of Commons on Monday 24 February, a number of MPs expressed their concern about the proposed permitted development for barn conversions, on which the government consulted last year, and for which an amendment order to the GPDO is expected within the next few weeks. Members also expressed concern about such developments in AONBs.

In replying to the debate, the planning minister, Nick Boles said that, having set out the broad case for introducing a permitted development right in the country that would make it easier to convert agricultural buildings into homes, it is now entirely legitimate to ask whether it would be appropriate to extend that right to national parks and areas of outstanding natural beauty or, in planning jargon, Article 1(5) land [which, incidentally, also includes Conservation Areas, the Broads and World Heritage Sites].

Boles told the House that De-CloG has undertaken “a genuine consultation” on the issue, and he pointed to the fact that in other areas where the government has introduced an extended permitted development right, they had listened to the concerns raised and modified the original proposals. He said that his department has listened to the very powerful and very persuasive arguments made, and they are genuinely taking them fully into account in reaching their final conclusion on how this permitted development right should work.

In conclusion, the minister hoped that he had explained that the intention behind the proposed permitted development right is to bring forward more housing on land that is already developed, and to make maximum use of the buildings that our ancestors saw fit to build, so that we do not have to put up any more buildings on green fields than is necessary to meet our housing and other needs. The government recognises, however, that national parks and areas of outstanding natural beauty are designated for a reason and have a special status. The government would think hard about this and listen to the arguments put to them about the appropriateness of this measure in those areas. Although the minister could not anticipate the Government’s final position, he re-assured the House that the Government have heard the arguments loud and clear.

This seems to be a fairly clear hint that the PD rights for barn conversions (and the conversion of other agricultural buildings) to residential use may well be excluded in National Parks and AONBs, and possibly also in rural Conservation Areas and other sites covered by Article 1(5) of the GPDO. On the other hand, it seems clear that the government is still intent on proceeding with these permitted development proposals, and so we should know within a few weeks exactly what form this new permitted development right will take.

UPDATE: The amendment order was made on 10 March 2014, laid before Parliament on 13 March and will come into force on 6 April. See now the post I published on 17 March 2014 (“Barn conversions – the new rules”).

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed here (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.


Tuesday, 25 February 2014

Short-term lets in Greater London

Planning professionals whose practice includes dealing with residential property in Greater London will be aware of section 25 of the Greater London Council (General Powers) Act 1973 (as amended), which provides that for the purposes of what is now section 55(1) of the 1990 Act, the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part of them that is used for that purpose. 'Use as temporary sleeping accommodation’ means use as sleeping accommodation which is occupied by the same person for less than 90 consecutive nights and which is provided (with or without other services) either for payment or by reason of the employment of the occupant.

The provision applies whether or not the relationship of landlord and tenant is created by this arrangement. So if used in this way, a residential property is no longer a single private dwelling within Use Class C3, but is a sui generis use. This has two consequences. First, it cannot be claimed in this case that the property should still be treated for planning purposes as a single dwelling, because the 1973 Act takes it out of that category. Secondly, it follows that a breach of planning control comprising this change of use is subject to the 10-year rule, rather than the 4-year rule.

The operation of this legislation was reviewed by the Court of Appeal in Fairstate Limited v. FSS [2005] EWCA Civ 283. The question at issue in this case (as Ward LJ put it in his judgment) was “what if any breach of planning control occurs where the use to which a London flat was put changed over three stages – (1) for more than ten years as temporary sleeping accommodation which made that unauthorised use lawful, but (2) with a change for about five months to longer-term residential occupation, and finally (3) reverting back for the next four years to temporary sleeping accommodation.”

It was common ground between the parties in that case that, at stage (1), use of the flat for temporary sleeping accommodation was a material change of use that had become a lawful use by virtue of section 191(2) of the 1990 Act. Nevertheless, it was held by the Court of Appeal that the change from stage (2) to stage (3) (from permanent back to temporary sleeping accommodation) was a further breach of planning control in respect of which enforcement action could be taken.

Now, according to a report in yesterday’s Evening Standard, ministers are proposing to scrap this provision, so as to allow short-term lets in Greater London (for example “for a few days while the owners go on holiday”). The demand for short-term accommodation during the 2012 Olympics has been cited as the sort of thing that ministers think ought to be catered for. The suggestion is being canvassed by Kris Hopkins, the recently appointed junior minister in De-CLoG who is responsible for housing.

The whole point of this 1973 legislation was to protect much-needed housing accommodation for permanent residents in the capital, and we are all well aware of the huge unmet demand for such accommodation. If a significant proportion of the available housing stock were to be used for holiday accommodation or other short-term lets, which may well prove more lucrative to property owners, this will only exacerbate an already dire shortage of suitable accommodation for workers in London.

No firm proposals have yet been put forward, and it remains to be seen if the government will press ahead with this idea. What do Mayor Bojo and his advisers think about it? I am sure that Shelter and others concerned with housing provision will have plenty to say on the subject. If the government does want to relax the rules in Greater London to some extent, the new rules would no doubt have to be carefully framed to avoid the loss of permanent residential accommodation in the capital. The limited type of temporary letting that Kris Hopkins was talking about might be an acceptable concession, but anything that would result in the permanent loss of residential accommodation should be avoided.

Offhand, I don’t know whether this was simply a kite-flying exercise on the part of Kris Hopkins, or the beginning of a consultation exercise, but if you own residential property in Greater London, don’t get too excited about these ideas for the time being – it may take some time before any definite proposals are formulated, if indeed the idea goes forward at all.


Tuesday, 18 February 2014

Flooding crisis – the blame game and the EA

My recent piece on the flooding crisis elicited the following contribution from David P of Sussex. I don’t necessarily agree with all he says, but I thought that it deserved an airing.

David P writes: -“Your blog post on this topic is most interesting. But have you considered that it is not so much the lack of money or people that is the problem, but more likely the allocation of them? Too many chiefs and not enough Indians? Good and capable people in the wrong jobs? I would suggest as an old farmer who has made his living from the land, that everyone in the EA employ wants an office job - nice and warm, better wages and higher status, so they try to climb up the ladder. Now I would suggest that for every person in an office job there should be 100 manual workers, four of whom should be supervisors or gang masters if you prefer. That’s where it goes wrong in every organisation and it brings them to the point that if it is a business it becomes top heavy and unviable, or if it is a public authority we all have to pay too much for the implementation of the service it provides and the service deteriorates to below an acceptable standard. We need hands on the ground, not in the air when it comes to flooding.

“By the way it’s not only the United Kingdom that has this problem; it’s worldwide in the west, particularly Europe. So I dare to say that, for the benefit of the community running properly, too much education can be a bad thing and a bit more manual graft and guts might just get things in proportion. Only the very best brains should have access to the ladder. A mini ‘cultural revolution’? A few less Lord Smiths and a few more Mr Smiths with old fashioned wheelbarrows and shovels? Perhaps the invention of paper has had some questionable benefits - by allowing more people than is necessary to spend their lives in centrally heated offices and achieving very little.”


My thanks to David P for this contribution.

I have some sympathy with the view that we need more people in the field and fewer in the office. I have long felt that many organisations in the public sector (especially in local government, where I worked for some years in the earlier part of my career) are ‘over-managed’ and under-staffed.

There may be a need to re-balance the EA, and I wonder whether it might be advisable to revive the National Rivers Authority as a separate organisation, putting under it the sewerage and drainage functions currently carried out by the privatised water companies, so that the whole problem of land drainage is put under a single roof, in an organisation that can concentrate exclusively on tackling this issue in all its aspects. I also wonder whether this authority ought to be given powers to direct refusal where development is proposed on flood plains.

This is perhaps the answer to those critics who questioned the relevance to town and country planning of my piece on the flooding crisis. The answer, I suggest, is that it has a great deal to do with planning, and the need to ensure that new properties are not vulnerable to flooding is clearly going to be of increasing importance in the future.

© MARTIN H GOODALL (with acknowledgements to David P)

Friday, 14 February 2014

Office to residential - a ministerial warning

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.

Last week, in a written ministerial statement to the Commons on Thursday 6 February, Planning Minister Nick Boles fired a warning shot across the bows of councils seeking to resist or frustrate office to residential conversions as PD under the new rules introduced last May.

A number of points about which there had previously been some uncertainty were clarified. First, it is clear that the government did envisage multiple conversions in large office buildings; Boles mentioned the potential of some buildings to provide more than 100 homes. A number of such schemes have already achieved prior approval.

Boles criticised the disproportionate use of Article 4 Directions by some councils. He made it clear that the Secretary of State, whilst he no longer has to approve Article 4 Directions, is still prepared to use his reserve power to cancel Directions that are not justified, and several such Directions are currently under review in De-CLoG, and may either be cut down in their geographical scope or cancelled altogether. At the time of Boles’ statement, 8 authorities had made directions preventing office to home conversions under the GPDO. Islington and Broxbourne were singled out as authorities that had applied these directions disproportionately.

De-CLoG is also aware that some LPAs are still unclear on the correct intention of the detailed provisions in the GPDO amendment, and do not appear to have correctly applied the intended tests to determine applications for prior approval, or have sought to levy developer contributions where they are not appropriate (on matters unrelated to the prior approval process). To ensure the permitted development rights are utilised fairly across England, De-CLoG intends to update their planning practice guidance to councils to provide greater clarity on these points. Unjustified financial levies should not be applied in an attempt to frustrate the creation of new homes, Boles said.

The government is clearly determined to ensure that the PD rights for office to residential conversion granted last May are not frustrated by a small minority of councils who are trying to undermine these changes. This can be taken as a clear steer to the Planning Inspectorate as to the way in which any unjustified refusal of prior approval should be dealt with on appeal. Clearly any refusal based on criteria other than the three narrowly defined topics listed in the GPDO are liable to be overturned. I drew attention a short time ago to a decision in Camden which cited every conceivable objection under the sun. It seems very unlikely that Camden stands much chance of defending that refusal on appeal, and an award of costs against the council looks almost inevitable.

Boles’ Commons statement serves not only as a warning to LPAs who may have been seeking to prevent or frustrate office to residential conversions, but should encourage developers to take a robust stance in appealing any refusal of prior approval, especially if it cites spurious reasons for refusal. There would seem to be no legal basis on which affordable housing provision or contributions can be demanded, or any other financial contributions from developers under section 106. There may, on the other hand, be a potential liability to pay CIL (although I don’t pretend to be an expert on that topic). So far as I can see, no conditions can lawfully be imposed on a prior approval of such development, bearing in mind that (subject only to the prior approval process) such developments are Permitted Development, so that the only applicable conditions can be those actually imposed by the GPDO itself.

UPDATE: In case any readers have not noticed, power to impose conditions on a prior approval was given by the 2014 amendment to the GPDO, but they must be strictly confined to the limited matters that are the subject of the prior approval application. The scope for imposing conditions is therefore much more limited than it would be in the case of a planning permission.


Thursday, 13 February 2014

Judicial review – a different solution?

One of the drawbacks of judicial review, as anyone who has ever been involved with the process will be very well aware, is that when a decision is quashed by the court the decision under challenge is not reversed; it is simply set aside, leaving the decision-maker to retake the decision. The decision-maker in redetermining the matter can very easily reach the same decision again, provided that they do so in a way that avoids the legal error that led to the original decision being quashed. There are several examples of which I am aware where there have been successive quashing orders of a retaken decision; but the public body or authority involved will nearly always get their own way in the end. Thus a successful action seeking to judicially review an unlawful action or decision all too often proves to be a pyrrhic victory.

The court cannot substitute its own judgment for that of the LPA or other body whose decision is under challenge, because the court simply does not have before it all the relevant facts that would need to be taken into account and weighed up in retaking the decision, nor does it have the necessary expertise to exercise a technical (as distinct from legal) judgment. But in planning cases, at least, it would be entirely possible to introduce amending legislation (whether primary legislation or, possibly, a simple rule change) to provide that when planning permissions and perhaps certain other planning-related decisions by LPAs are quashed, jurisdiction would then pass to the Secretary of State (in practice, the Planning Inspectorate on his behalf) to redetermine the application as if it had been made to him in the first instance. This might or might not involve a public inquiry, depending on the circumstances of the case. A mandatory order requiring the issue of an enforcement notice (admittedly very rare in practice) might also be transferred to the Secretary of State for implementation.

I am not aware of this suggestion ever having been put forward before, although I would not be at all surprised to learn that something of this sort may have been canvassed at some time in the past. However, I do not expect that it is an idea that government (of any political persuasion) is likely to take up, unless there is a groundswell of opinion resulting from dissatisfaction at the outcome of the current judicial review process in planning cases.


Judicial review - further details of the proposed changes

When I reported last week on the Criminal Justice and Courts Bill, I had not had a chance to look into the other details of the proposed changes to the judicial review process that were set out in the government’s response to their original consultation paper.

It is now clear that the idea of a separate planning review tribunal (as part of the Upper Tribunal) has been abandoned, apparently as a result of opposition by the senior judiciary. Nor does the Government now intend to make any changes to the scope of legal aid for planning challenges under sections 288 and 289 of the Town and Country Planning Act 1990, or to the ability of local authorities to challenge infrastructure projects. The government has also dropped its suggestion that legal standing (locus standi) to bring a legal challenge in planning matters should be restricted.

The government has spun its climb-down in terms that imply that we are still going to have a fast-track Planning Court, but all that is suggested in the first instance is that there should now be a separate listing of planning cases within the Administrative Court list which should be expedited (or ‘fast-tracked’ to use a favourite word in government circles these days), and that the judges assigned to hear cases in this list should be ‘planning’ judges, i.e. judges with specialist knowledge and experience of planning law and procedure. A move in this direction had already been made last year, so this simply confirms a welcome initiative that should lead to a more reliable outcome in planning cases that come before the court. It was a change I had called for in the earlier version of this blog as long ago as June 2006 (under the title “Judicial Lottery”, which can still be found on the internet at ). Incidentally, I see that I also canvassed in that article the idea of transferring legal challenges to planning decisions to something in the nature of the Employment Appeals Tribunal or, in present day terms, a Planning Chamber in the Upper Tribunal. Someone in the MoJ must have been reading the blog!

One source of difficulty where a permission hearing is required before a claim proceeds (either under CPR Part 54 or section 289, and now also under section 288) is the award of the costs of that hearing. The government has now decided that where an oral permission hearing is successful costs will not be awarded against a party at that stage but will fall to be determined at the end of the substantive hearing. The courts will still have a general discretion in this area, to ensure that justice is done. It is suggested that the Civil Procedure Rules should be amended to indicate that the costs of an oral permission hearing should usually be recoverable.

While we are on the subject of permission hearings, there is a long-standing anomaly that whereas the initial application for permission in Part 54 cases is usually on the papers, there has to be a hearing in section 289 cases (and presumably now also in cases under section 288). It would be sensible to change the rules so that an initial application for permission under section 289 (and now also section 288) should be on paper, renewable for oral hearing in the same way as Part 54 cases. In fact, the whole leave procedure should be brought into line, so that all of these cases are treated in the same way. Another anomaly, indeed a source of injustice, is the lack of any right of appeal against a refusal of leave in a section 289 case, whereas there is a right to renew an application under Part 54. These procedures need to be brought into line, especially now that section 288 cases are also going to need permission to proceed.

On the question of costs, I note that it is not proposed to restrict the availability of Protective Costs Orders for judicial review in environmental cases (which would include planning). These are cases that come within the scope of the Aarhus Convention and the Public Participation Directive, and the restriction on the availability of protective costs orders which is proposed in other judicial review cases would be a breach of this country’s obligations under the convention if it were to be applied to cases involving environmental issues. In these cases a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and at £35,000 for the defendant.


Monday, 10 February 2014

Flooding crisis – the blame game begins

I once likened the august figure of Her Majesty’s Secretary of State for Communities and Local Government to Jabba the Hut. I was not thinking of his shape so much as his general manner and demeanour, and the way he deals with people with whom he doesn’t happen to agree. It seems that Jabba the Hut has been at it again this weekend in the remarks he made on the Andrew Marr Show about the Environment Agency and their leader, Lord (Chris) Smith. It was an unedifying display of political bile.

As Chris Smith diplomatically pointed out this morning, the Environment Agency has been operating within very tight financial constraints imposed by this government. They were prevented from dredging the Somerset Levels by the strict limits that had been placed on their spending by their sponsoring department DEFRA, who in turn were constrained by the dead hand of the Treasury. In fact, the EA has been forced to make significant economies by the insane insistence of the Chancellor of the Exchequer on cutting government spending to the bone. Staff numbers in the Agency have been unavoidably cut (and significant further reductions in staffing levels are planned), which was bound to impact on the Agency’s ability to carry out continuing flood defence work and, in particular, ongoing maintenance of existing flood prevention schemes. Ministers have been quick to point to the authorisation of substantial additional capital spending, but it is the cuts in revenue spending – spending that is vital in order to maintain existing facilities and equipment, and the staffing costs of servicing those needs - that has hobbled the EA, and prevented it from doing its job effectively.

So stand up, Osborne!. You, boy, are the miscreant who is ultimately responsible for this debacle. The plain fact is that government has to find enough funds to ensure that essential public services are maintained. If the Treasury feels it necessary to reduce government borrowing (and there are some very eminent and well-respected economists who have told us repeatedly that this is entirely unnecessary – we are in a very different position from some of our European neighbours in this regard), then the obvious answer is to raise more in taxes. We can’t have it both ways; if we want decent public services, we have to pay for them, and that means paying higher taxes. If we are not prepared to pay those taxes, then we shall face deteriorating public services. The extent of the flooding on the Somerset Levels due to the main rivers not having been dredged is just one example of the results of such a policy. Unrepaired roads, even perhaps uncollected rubbish, may well follow.

The trouble is that Bertie Wooster (aka ‘Dave’ Cameron) and his pals from the Drones Club really have no knowledge or experience of the lives of the people affected by their doctrinaire drive to ‘shrink’ the public sector, and reduce taxes (especially for those poor souls who were having to pay 50% on their top slice of income and are still forced to pay a 45% top rate). I rather hope that the recent and, unfortunately, continuing flooding crisis might perhaps persuade people, if not this toffee-nosed government, that we need to spend more, not less, on public services of all kinds, and that the present government is headed in entirely the wrong direction.


Thursday, 6 February 2014

Hours condition dispute could close East End restaurants

A story in yesterday’s Evening Standard made me prick up my ears like an old war horse. It seems that enforcement officers working for Tower Hamlets have decided to have a crusade against the late night opening of various restaurants and take-aways in the colourful Brick Lane area of Spitalfields. I suppose it is because I am always against anything that smacks of a concerted campaign on the part of planning officers that my sympathies were immediately with the restaurant owners.

The action that the officers are purporting to take on behalf of the Council (although it has been criticised by at least one of councillor) is aimed at enforcing hours conditions requiring midnight closure of as many as 60 catering premises in the area. Having acted in a number of similar cases myself, I am aware that many of these businesses do a significant part of their trade after midnight, and they might well be threatened with closure altogether if they were forced to close by 12, especially as planning officers are apparently insisting that no orders should be taken after 11.00 p.m. and that everyone must be out of the premises by midnight.

It should not automatically be assumed that all these restaurants have the midnight closure condition on their planning permission; premises that have been open for a considerable number of years may turn out to have different opening hours specified in their permission. The wording of the conditions may also vary, and the council may not necessarily be able to insist on last orders as early as 11.00 p.m.

A local councillor has pointed out that some of these restaurants have been opening until well after midnight for 15 to 20 years. If that is so, then it would appear that any breach of a condition regulating the opening hours of those particular premises has long since become immune from enforcement and therefore lawful. If continuity of the breach over a period of at least 10 years can be shown, then it would appear that there is very little excuse for Tower Hamlets seeking to take enforcement action in such cases, and the threat of such action is frankly oppressive.

It is not clear from the report in the Standard precisely what form the threatened enforcement action will take, but (as Circular 10/97 makes clear) it is inappropriate to serve a Breach of Condition Notice in a case where there is genuine doubt as to whether there has been a breach of condition or where there is a possibility that its breach may in fact be immune from enforcement. If the Council wishes to test the matter, the appropriate mechanism would be an Enforcement Notice under section 172, which can then be tested on appeal under section 174. By contrast, there is no right of Appeal against a Breach of Condition Notice, and so judicial review would be the only way in which that type of notice could be challenged.

I very much hope that the restaurateurs of Brick Lane will stand up to the bullying tactics of Tower Hamlets Council, but to do so they will have to make good use of the legal remedies open to them.


Wednesday, 5 February 2014

Changes to High Court challenges

As predicted in The Times yesterday, the Criminal Justice and Courts Bill has been published today. I have not yet had time to look at the Bill in any detail, but one change that I noticed immediately is contained in Clause 57, whereby it will be necessary in future to apply for the permission (‘leave’) of the Court before an application under section 288 can be brought before the court.

This will bring section 288 cases (relating to appeal decisions under section 78 in respect of the refusal of planning permission) into line with section 289, where permission has long since been required to appeal to the High Court against decisions in enforcement notice appeals under section 174, and with claims for judicial review brought under CPR Part 54. Thus all these procedures will now be brought into line so far as the need for leave is concerned. This change was foreshadowed in last year’s consultation paper on judicial review, although I am not at all convinced that this change was necessary.

The existing six-week time limit for launching a High Court application under section 288 will apply in future to the time for making the leave application.

It will take several months for the Bill to make its way through parliament, and it will be brought into force by a commencement order (or orders), so this and other changes that the Bill will introduce will not come into effect until nearer the end of the year, maybe even next year. In the meantime, section 288 claims can continue to be launched in the High Court as of right, without the need for leave.

Other clauses in the Bill make further changes to Judicial Review, as proposed in last year’s consultation paper. These include limitations on the extent to which protective costs orders (costs capping orders) can be made in future, provisions for the ‘leap-frogging’ of appeals from the High Court in certain cases to the Supreme Court (by-passing the Court of Appeal) and codifying the court’s discretion as to whether or not to grant relief in cases where no different outcome is likely to be achieved if the decision under challenge were to be quashed. This will no longer be a matter of discretion as such; instead, the court will be required to dismiss a challenge where the court considers the conduct complained about would be likely not to have resulted in a substantially different outcome for the applicant.

Unless I have missed something, this Bill does not contain the promised legislation to set up a fast-track specialist planning court (as part of the Upper Tribunal), but I am not aware of this proposal having been abandoned by the government, and so this may perhaps be dealt with by some other route. No doubt all will become clear shortly.