Planning Court will open for business on April 7

The Planning Court, which (like the Administrative Court) will be part of the Queen’s Bench Division of the High Court, is due to open for business on Monday 7 April. So far as the actual applications are concerned, this is just a paper change, although we are promised that specialist planning judges will be assigned to hear cases in this list. This is perhaps the most important and most welcome change brought about by this reform.

The Civil Procedure Rules 1998 have been amended to cater for the new arrangements, and the changes are set out in the Civil Procedure (Amendment No. 3) Rules 2014, which will come into effect on 6 April.

An application which will in future be known as “a Planning Court claim” is defined as a judicial review (under CPR Part 54) or statutory challenge (e.g. under sections 287, 288 or 289 of the 1990 Planning Act, among other statutory rights of challenge) which involves planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes; applications under the Transport and Works Act 1992; wayleaves; highways and other rights of way; compulsory purchase orders; village greens; European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control; national, regional or other planning policy documents, statutory or otherwise; or any other matter the Planning Liaison Judge [may determine]. (There is a misprint in the Rules, and the words in square brackets, or words to similar effect, are missing.)

These claims must be issued in future in the Planning Court, and there is power to transfer matters to that court under Part 30 of the CPR. The Planning Court claims will form a specialist list. A judge nominated by the President of the Queen’s Bench Division will be in charge of the Planning Court specialist list and will be known as the Planning Liaison Judge. There is a Practice Direction (54E) that deals with procedure in more detail, but I don’t propose to trouble readers with this.

The new rules will apply to all claims issued on or after 7 April 2014, but I understand that claims in the categories listed above which are issued before that date (in the Administrative Court) will also be transferred to the Planning Court after that date.

The only point which remains unclear is whether the Planning Court, like the Administrative Court, will sit in trial centres outside London. In view of the intention that judges sitting in the Planning Court should be planning specialists, it may not be practicable for the Planning Court to sit in other centres. I don’t see that as a problem. Specialist counsel from London chambers will be briefed in the vast majority of cases, and so it will no doubt be convenient for these cases to be heard in the RCJ in the Strand.

It only remains to wish success to the new Planning Court and to all who sail in her.

© MARTIN H GOODALL

Town centre uses – new Permitted Development rights

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 I indicated when writing a short time ago on the new permitted development rights for agricultural buildings, the same amendment order to the GPDO (coming into effect on 6 April) also provides additional PD rights for shops (A1) and High Street offices (A2).

The Order introduces a new Class CA into Part 3. This new class consists of a change of use of a building and any land within its curtilage currently in use within Use Class A1 (shops) to use as a bank, building society, credit union or friendly society. However, this PD right is excluded in the unlikely event of the premises being within a site of special scientific interest, a designated safety hazard area or military explosives storage area, or if the site is, or contains, a scheduled ancient monument. However, unlike some of the other recently introduced PD rights, change of use under Class CA is not excluded on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site).

This change of use is subject to a condition that a site which has changed to one of these uses is not to be used for any other purpose (i.e. other than one or other of these purposes – referred to in the order as a ‘deposit taker’), except to the extent that the other purpose is ancillary to the primary use as a deposit-taker.

No prior approval is required in this case, but as soon as reasonably practicable after a change of use under Class CA the LPA must be notified of the change of use, and evidence must be provided that the site is being used for this purpose. A further change of use can only take place within this category (i.e. between a bank, building society, credit union or friendly society) and, again, the LPA must be notified of this further change of use as soon as reasonably practicable after the change together with evidence that the site is still being used for the purposes of a ‘deposit taker’.

Next, the Order introduces a new Class IA into Part 3. This authorises the residential conversion of a building falling within Class A1 (shops) or A2 (financial and professional services), or which is in combined use as a dwelling and a use falling within Class A1 or A2 (whether that use was previously granted permission under Class F of Part 3 or otherwise). In contrast to Class 3, Part J (introduced last May), this new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

There are several restrictions on the permitted development authorised by Class IA. It only applies where the building was used for a purpose within Use Classes A1 or A2 on 20th March 2013 or, if the building was not in use on that date, when it was last in use. A further change of use under this class cannot be made where permission to use the building within Class A1 or A2 arises only from a change of use already made under Part 3 of the GPDO. Furthermore, this change of use cannot be made if the cumulative floor space of the existing building changing use under Class IA exceeds 150 square metres, or if the development (together with any previous development under Class IA) would result in more than 150 square metres of floor space in the building having changed use under Class IA.

In relation to the building works permitted by Class IA, the external dimensions of the building as a result of such works must not exceed the external dimensions of the existing building at any given point. In addition, the works must not consist of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As with some of the other recently introduced PD rights, change of use under Class IA cannot be made if the building is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class IA is also excluded if the building in question is a Listed Building.

Where development is permitted under Class IA, there are various conditions attached to this PD right. To start with, it is subject to a prior approval procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(i) transport and highways impacts of the development,
(ii) contamination risks in relation to the building,
(iii) flooding risks in relation to the building, and
(iv) whether it is undesirable for the building to change to residential use because of the impact of the change of use —
(aa) on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (but only where there is a reasonable prospect of the building being used to provide such services), or
(bb) where the building is located in a key shopping area, on the sustainability of that shopping area,

I have put the last of these in italics, because it seems to me that this gives the LPA considerable scope for resisting such changes of use, although this discretion is subject to the proviso that in order to justify a refusal of prior approval based on the need to ensure the adequate provision of services of the sort provided by that building, the LPA must be able to demonstrate that there is a reasonable prospect of the building still being used to provide such services, or (where it is located in a key shopping area) that the loss of this unit would have an adverse impact on the sustainability of the shopping area.

The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. As I noted in relation to the residential conversion of agricultural buildings recently, this point was previously discussed in an earlier post on this blog on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). The inclusion in Class IA of the sub-paragraph I have put in italics [(iv) above] might tempt some LPAs to seek to apply the NPPF to these residential conversions in a wider context, not necessarily confined to the criteria listed above, although the scope for this may perhaps be limited by the proviso as to the likelihood of an alternative retail (or A2 office) use in this case, or the retail impact of the loss of the retail/A2 unit if the building is in a key shopping area.

As regards building operations permitted by Class IA, these are subject to a separate (or additional) condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant insofar as it addresses design issues (in paragraphs 56 to 68).

Finally, there is a condition that a building which has changed use under Class IA is to be used as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as such a dwellinghouse.

Other conditions in the amendment order provide that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

I referred in a previous post on this amendment order to various consequential amendments which it makes to the GPDO. I have already drawn attention to the power of the LPA to impose conditions on the grant of prior approval under Part 3. I ought also to mention the removal or restriction of PD rights for extensions and enlargements to the dwelling under Part 1 where the dwelling is created by a change of use under either Class IA (from agricultural use) or Class MB (from A1 or A2 use). I will try to find time to look at these consequential amendments in a future post, as they could prove to be a trap for the unwary.

A couple of further thoughts occur to me. First, as regards Class CA, this appears to be another instance of this government taking up and putting into practice the ideas canvassed by ‘James Hacker MP’ in his imaginary speech four years ago (see ”REAL reform of the Planning System”, published here on Tuesday, 20 April 2010. Sorry - we still don’t do internal links on this blog. To access this item, click in the side bar on the arrow next to ‘2010’, then click on the arrow against ‘April’, and click on the tile to open that post.)

As regards Class IA, this is a further example of ‘permitted’ development that may not in fact be permitted. It is rather like a double illusion. Rather than puling a rabbit out of the hat, the conjuror only appears to produce it, then with the other hand immediately whips it away again. There was in fact no rabbit, only the illusion of one.

The practical effect could be limited if LPAs are robust in using the power they will have when dealing with prior approval applications under Class IA to refuse approval if they consider that it is undesirable for the building to change to residential use, because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (where there is a reasonable prospect of the building being used to provide such services), or in those cases where the building is located in a key shopping area, on the sustainability of that shopping area. These are very much the sort of reasons that may well have been given for refusing planning permission before this new PD right was created, so arguably the new PD right may not change very much.

© MARTIN H GOODALL

Conditions that fail to prevent Permitted Development

In a blog post published here on Friday, 18 October 2013 (“Can conditions preclude Permitted Development?”) I drew attention to a type of condition attached to planning permissions along these lines : - “ 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)” (or words to that effect). The question is whether a condition framed in these terms can prevent the operation of the permitted development right granted by Part 3, Class J of the GPDO, as amended in May 2013.

In my original piece, I expressed the view (for the reasons set out there) that this wording does not have the effect of precluding permitted development under Part 3 of the Second Schedule to the GPDO. But I was unable at that time to put my finger on any specific authority to back this up. Since then, our planning law team at Keystone Law has had to get to grips with this question ‘for real’, and I am grateful to my colleague Ben Garbett for having dug out the judicial authority that backs up the view I expressed last October.

In the meantime (as noted in an update to my original post), Steve Jupp had kindly drawn my attention to paragraph 86 of Circular 11/95 which, after making it clear that conditions of this type are officially discouraged, added that a condition restricting changes of use will not restrict ancillary or incidental activities unless it so specifies, and the paragraph ended with this sentence: “Similarly, a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition also specifically removes those rights as well.” Circular 11/95 has now been cancelled, but this sentence was not a statement of ministerial policy; it was a general statement of the law, which continues to be applicable.

The author of Circular 11/95 no doubt had in mind judicial rulings to that effect. The first of these was delivered by Sir Douglas Franks QC in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806, where he said:

“This case turns on the proper construction of the planning permission. As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.

The Court of Appeal reached a similar conclusion in Dunoon Developments Ltd -v- SSE [1992] JPL 936 (although the judgment in Carpet Decor does not appear to have been drawn to the attention of the court in that case). Article 3(4) of the GPDO had been called in aid by the LPA, but Farquharson LJ held that :

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

He concluded that he recognised that it is necessary to examine the condition with care, bearing in mind the appellants’ submission that that if the LPA were correct in their interpretation, it would deprive the appellants of a development right granted by statute. “It is clear that that the condition makes no express exclusion of the effect of the General Development Order. The question, therefore, is whether it is to be implied from the words themselves, in the context in which they are used, to so exclude them. As already indicated, the condition does not have that wide effect.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more. In the present case there is nothing more. Condition 1 delimits or circumscribes the ambit of the permitted use. The condition is not apt to achieve more. It is not apt to achieve more because it is not fairly apparent from the language of the condition, or the document [the planning permission] read as a whole, that Condition 1 is intended to do more than this. If the condition is fairly read, its purpose is, but is only, to define the ambit of the permission granted. There is not explicit or implicit an intention to negative development pursuant to any existing or future Use Classes Order or General Development Order.”

I am aware of an earlier decision in City of London Corporation v. SSE (1971) 23 P&CR 169 that appears to have gone the other way but, in light of the more recent judgments in both Carpet Decor and Dunoon Developments, I do not believe that any reliance can now be placed on that earlier decision.

The best that might be said for this type of condition is that it may (if appropriately worded) exclude the operation of section 55(2)(f), i.e. other uses within the same use class (as the condition quoted earlier would appear to do), although the judgments in Carpet Decor and Dunoon Developments make it clear that even the operation of section 55(2)(f) by reference to the Use Classes Order cannot be taken to have been excluded in the absence of clear words specifically referring to the UCO.

However that may be, it is abundantly clear from these judgments that (as was confirmed by paragraph 86 of Circular 11/95) a generally worded condition of the type under discussion here cannot prevent the operation of the General Permitted Development Order, and in particular Part 3, Class J in the Second Schedule. Local Planning Authorities who try to resist permitted development on the basis of such a condition are going to be on a hiding to nothing. Where time and effort had to be expended, we have found, is in persuading them that they are wrong in thinking otherwise and, if they still don’t accept the position, in taking the necessary legal and procedural steps to confirm our clients’ right to carry out the development. We are already working on several such cases, and no doubt more will follow.

NOTE: This topic is discussed more fully 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

Subdividing a planning unit

Ben Wharfe recently raised a query with me as a comment on an early post I wrote on “curtilage confusion”. I thought that rather than shunting this, together with my reply, into the comments section of that post, it would justify a wider airing in the main part of the blog.

Ben drew my attention to the Court of Appeal’s judgment in Wakelin v. SSE 1978 JPL 769. His query actually related to the subdivision of a single dwellinghouse, but I don’t think that Wakelin is directly in point here, as the position is clearly governed now by section 55(3)(a) of the 1990 Act, which specifically declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part which is so used.. As the later decision of the Court of Appeal in Arun established, it is the 4-year rule that applies here, even if the breach of planning control is in fact and a breach of condition. To that extent, Wakelin has been superseded, because that case involved just such a breach of condition, and this point was lightly dismissed as a consideration by Lord Denning.

Thus section 55(2)(f) has no application so far as the subdivision of a house is concerned, because the position is entirely governed by section 55(3)(a). However, there is a slight doubt as to the precise effect of section 55(2)(f) in other cases. On one reading of the wording of this sub-paragraph, it may not necessarily apply to subdivision of a planning unit as such, although it certainly covers any change of use within the same use class. So for example, change of use from a butcher’s shop to use as a post office (both within Use Class A1) is not to be taken for the purposes of the Act to involve development of the land. But subdivision or amalgamation of planning units may nonetheless amount to a material change of use if it has the effect of changing the character of the use. The Court of Appeal’s judgment in Wakelin is one example, and the more recent High Court judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 (involving the amalgamation of seven dwellings so as to re-convert the building to use as a single dwelling) is another example, where the change in the size of the planning unit was held to affect the character of the use in planning terms (in a broad sense, not confined to its possible environmental effects) and was thus a material change of use amounting to development, notwithstanding the fact that the earlier and later uses were all within one and the same use class.

This may come as a surprise to many people, as there seems to be a general assumption that section 55(2)(f) covers subdivision of a planning unit, so long as the use of all of the new planning units created by this subdivision remains within one and the same use class. Richmond clearly established that this is not necessarily so with regard to the amalgamation of two or more planning units, but it seems that the same could equally apply to the sub-division of a planning unit. A material change of use does not necessarily occur upon the sub-division of a planning unit, but if this changes the character of the use (in planning terms) then this may amount to a material change of use, notwithstanding section 55(2)(f). It is quite frankly a ‘grey’ area, and I suppose that, as in so many other cases, it will be ‘a matter of fact and degree’, dependent of the precise circumstances of each such change to the planning unit.

© MARTIN H GOODALL

Budget statement – more GPDO changes

As I have noted before, George Osborne loves to include planning announcements in his budget statements. Today’s written budget statement (published to coincide with the Chancellor’s budget speech in the Commons) promises a review of the General Permitted Development Order. After so many amendments over almost 20 years since it was first published in 1995 it certainly needs it. Dare one hope that some of the more opaque drafting to be found in parts of the Order might at last be clarified?

A number of us have noted that recent additions to the GPDO do not grant an automatic right to carry out permitted development, but involve a prior approval procedure which I described the other day as “planning permission-lite”. It seems that the government has recognised this, and intends to make what amounts to a three-tier system of planning consents a permanent feature of the planning system.

As the budget statement puts it, there are already and will continue to be, first, simple permitted development rights for small-scale changes, then prior approval rights for development requiring consideration of specific issues, and then planning permission for larger scale development. I am not convinced that there is likely in practice to be any significant difference between the second and third kind of consent so far as the applicant is concerned. There will still be hoops to jump through and the possibility of applications being turned down, with the consequent time and expense of going to appeal. I drew attention the other day to the wide discretion that LPAs would appear to have in practice to refuse prior approval of barn conversions, even though they now come (at least in theory) under the category of ‘permitted development’.

In addition, further extensions of permitted development rights are proposed. The government is going to consult on further changes of use to residential use, for example from warehouses (B8) and light industrial structures (B1(c)). They are also considering extra PD rights for commercial premises to allow the expansion of facilities such as car parks and loading bays within existing boundaries (although only “where there is little impact on local communities”, which suggests that this will be one of the changes that will be subject to a prior approval procedure).

One other idea that emerged from the Budget Statement was the suggestion that for people who want to build their own home, the government will consult on creating a new ‘Right to Build’, giving custom builders a right to a plot from councils, and a £150 million repayable fund to help provide up to 10,000 serviced plots for custom build. It will be interesting to see how what appears in effect to be a ‘reverse-compulsory purchase’ concept will work.

© MARTIN H GOODALL

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 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.


The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 was made on 10 March, laid before Parliament on 13 March and will come into force on 6 April. This is the long promised amendment to the GPDO that will allow the conversion of agricultural buildings to residential use (‘barn conversions’), and also some additional changes of use of A1 (shops) and A2 office premises. The Order applies to England only.

I will deal in a later post with changes of use of premises currently in use or including a use within Class A1 or A2, and go straight to the one you have all been waiting for – barn conversions.

Among other changes, the Order introduces a new Class MB into Part 3 of the Second Schedule to the GPDO. This new class authorises change of use of a building and any land within its curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). This new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

As predicted, however, this new PD right is hedged around with important exceptions, limitations and conditions. First, development is not permitted by Class MB where the site was not used solely for an agricultural use, as part of an established agricultural unit on 20th March 2013 or, if the site was not in use on that date, when it was last in use before that date. Other agricultural buildings may qualify for residential conversion in future if the site was brought into use after 20 March 2013, and is used for that purpose for ten years before the date the development begins.

The cumulative floor space of the existing building or buildings changing use under Class MB within an established agricultural unit must not exceed 450 square metres, and no more than three separate dwellinghouses can be developed within an established agricultural unit. The 450 sq m limit is absolute, so that once any residential conversions carried out under Class MB have reached the 450 sq m limit, there can be no further such developments within the same agricultural unit.

Furthermore, this change of use is not permitted if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained To avoid ‘winkling’ of agricultural tenants by rapacious farm owners, change of use is also precluded if less than one year before the date development begins an agricultural tenancy over the site has been terminated, and the termination was for the purpose of carrying out development under Class MB, unless both the landlord and the tenant have agreed in writing that the site is no longer required for agricultural use.

The amendment order also prevents this change of use where the erection or extension of agricultural buildings has been carried out under Part 6, Classes A(a) or B(a) of the Second Schedule to the GPDO on the established agricultural unit since 20th March 2013, or within 10 years before the date development under Class MB begins, whichever is the lesser. So you can’t put up new agricultural buildings or extend them and then convert them soon afterwards to residential use.

Although Class MB permits building operations reasonably necessary to convert the building to residential use, it does not allow development that would result in the external dimensions of the converted building extending beyond the external dimensions of the existing building at any given point; so it has to be wholly contained within the envelope of the original building. The type of building operations that are allowed under this heading are listed as the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse; and partial demolition to the extent reasonably necessary to carry out these building operations.

The inclusion of the two items I have put in italics in the preceding paragraph (roofs and exterior walls) seems to allow scope for some significant rebuilding or replacement of the existing fabric, although the reference to partial demolition would seem to indicate that wholesale demolition of the building and its entire replacement is not contemplated by this amendment to the GPDO. It would seem that there is potential here for disputes with LPAs as to the scope of ‘partial’ demolition that can be carried out within this class, and also the extent to which any such partial demotion and rebuilding is “reasonably necessary to carry out these building operations”. I would, however, suggest that it is very unlikely that the new PD right can be exploited in such a way as to build houses on the site of glasshouses or flimsily clad dutch barns and the like. But we shall see.

As confirmed in the Commons a couple of weeks ago, the development permitted by Class MB is specifically excluded on any site that is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class MB is also excluded if the building in question is a Listed Building.

As expected, the new PD right is subject to a prior notification procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to residential use.

I have put the last of these in italics, because it seems to me that this gives the LPA a very wide discretion to resist such changes of use, without having to resort to an Article 4 Direction. The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. I discussed the practical effect of this requirement in relation to office conversions (B1(a) to C3) in a blog post on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). In relation to those conversions, there was some doubt as to whether this requirement had to be read in the context of the three criteria that were to be specifically applied to office conversions, but the inclusion in Class MB of the paragraph I have put in italics [(e) above] suggests to me that the NPPF can be applied on a much wider basis to these barn conversions. In fact, it would seem to turn the whole process into just another type of planning application – a sort of ‘planning permission-lite’.

As regards the building operations permitted by Class MB, this is subject to a separate an additional condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant to the extent that it addresses design issues (in paragraphs 56 to 68).

There is no requirement to have regard to the development plan, so section 38(6) of the 2004 Act does not apply as such, but I have previously discussed, in the blog post mentioned above, the extent to which the reference to the NPPF may to some degree bring the development plan into the equation (due to the references to the development plan contained in the NPPF itself).

Other conditions in the GPDO amendment provide that this class of development is subject to the condition that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or beginning with the date on which the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

There are some consequential amendments to various existing provisions in the GPDO, which I may discuss on another occasion (including information requirements in connection with prior approval applications), but one point of clarification which resolves an issue that has been the subject of discussion, both in this blog and elsewhere, relates to the ability of an LPA to impose conditions on a prior approval (not only under Class MB, but on the other prior approvals under Part 3 governed by paragraph N). A further sub-paragraph has been added:

“(11) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.”

This confirms that an LPA does have power to impose conditions on a prior approval under Part 3, but the scope of such conditions is limited. Any such conditions must be reasonably related to the subject matter of the prior approval, and cannot therefore be more wide-ranging. There would appear, however, to be some scope for dispute on this issue, and it may become necessary to pursue a section 73 application in some cases, and (if necessary) a section 78 appeal against the refusal of any such an application, coupled with an application for costs where appropriate.

FOOTNOTE (added on 7/8/14): The ‘barn’ (or other agricultural building) does not qualify for conversion under this provision if the site was not used solely for an agricultural use, as part of “an established agricultural unit” on 20th March 2013, or (if the site was not in use on that date) when it was last in use (or, if the site was brought into use after that date, for ten years before the date the development begins).

A correspondent has queried the fact that nowhere in my articles on this and related topics is the definition of an “agricultural unit” mentioned. I am happy to repair that omission.

By Paragraph 3(N)(7) of the Second Schedule to the GPDO (as substituted by Article 5(8)(c) of the 2014 Amendment Order) “established agricultural unit” means agricultural land occupied as a unit for the purposes of agriculture - (i) for the purposes of Class M, on or before 3rd July 2012 or for ten years before the date the development begins; or (ii) for the purposes of Class MA or MB, on or before 20th March 2013 or for ten years before the date the development begins.

By Paragraph 3(O) of the Second Schedule to the GPDO (inserted by the 2013 Amendment Order), “agricultural building” means a building used for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse, and “agricultural use” refers to such uses. Note particularly that, in order to qualify as an agricultural building, it must have been used for the purposes of a trade or business. Non-commercial use of the building is a disqualification.

However, “agriculture” itself is not defined by the GPDO, and so the definition in section 336(1) of the 1990 Act prevails in the absence of any indication to the contrary. [viz: “Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.”]

[NOTE: If you scroll down to the comments, only 200 are displayed on the page. We are (as of 9 March 2016) up to 202 on this post! If you want to see the latest comments, you will have to click on "Newer comments" at the bottom right-hand corner of the page. The commments on the second page start with an interesting discussion on the 450 sq m floorspace limit.]

© MARTIN H GOODALL

Permitted Development changes – shops and barns

As several readers have noted, Nick Boles’ written Commons statement last week announcing the launch of the National Planning Practice Guidance (NPPG) also referred to the proposed changes to permitted development rights that are expected to be made within the next few weeks, including the right to convert agricultural buildings to residential use (barn conversions) and the conversion of shops and High Street offices to dwellings.

As regards change of use from retail to residential use, Boles confirmed that the proposed changes to the GPDO will allow change of use from shops (A1) and financial and professional services (A2) to houses (C3). However, this change of use will not apply to land protected by Article 1(5) of the GPDO (National Parks, the Broads, areas of outstanding natural beauty, conservation areas or World Heritage Sites).

It is also clear from Boles’ statement that there will be a prior approval procedure that will enable councils to resist a change of use where they consider it important to retain adequate provision of services that are essential to the local community, such as post offices. It would appear that LPAs will be able to take account of the impact on local services when considering the potential loss of a particular shop. The onus will be on the LPA to establish that the proposal would have a detrimental impact on the sustainability of a key shopping area or on local services, should they wish to refuse the conversion, but this makes it clear that this new permitted development right will be far from automatic, and may well be strongly resisted by some authorities, either generally or in particular locations. When considering the effect on local services LPAs will be expected to take into account whether there is a reasonable prospect of the premises being occupied by another retailer, and they will need to have robust evidence to justify any decision not to permit a change of use using these prior approval tests. Nonetheless, aspiring developers may well have to take their prior approval applications to appeal where the LPA is resisting change.

In addition, the new permitted development rights will include change of use from shops (A1) to banks, building societies, credit unions and friendly societies, within Use Class A2 (but this would not allow a change of use to use as a betting shop or payday loan shop).

Turning to change of use from agricultural to residential use, up to 450 square metres of agricultural buildings on a farm will be capable of being changed to provide a maximum of three houses. However, Boles has confirmed the restriction foreshadowed in the adjournment debate on 24 February, whereby this change of use will not apply in Article 1(5) land, which (as noted above) will have the effect of excluding such development not only in National Parks and Areas of Outstanding Natural Beauty, but also in the Broads, conservation areas and World Heritage Sites.

As in other cases, these developments will be subject to a prior approval process, and among the issues to be considered in that context will be the risk of flooding.

These changes will also extend the existing permitted development rights for change of use to state-funded schools to additionally cover registered nurseries. Agricultural buildings up to 500 square metres will also be able to change to state-funded schools and registered nurseries.

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.

© MARTIN H GOODALL

Demolition exemption direction amended (at last)

I am very grateful to Richard Harwood QC of Thirty Nine Essex Street Chambers for drawing our attention to The Town and Country Planning (Demolition – Description of Buildings) Direction 2014. This replaces the 1995 Direction, omitting the categories of demolition that the Court of Appeal declared to be unlawful in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334. (See my piece in this blog under the title “EIA required for demolition”, dated Tuesday 29 March 2011). It has only taken De-CLoG three years to get around to this!

Except as mentioned below, the Direction provides that the demolition of any building with a cubic content not exceeding 50 cubic metres and the demolition of the whole or any part of any gate, fence, wall or other means of enclosure is not to be taken for the purposes of the 1990 Act [section 55(1A)] to involve development of land.

The exceptions to the Direction reflect one or two other minor changes that have taken place since 1995. Thus the exemption promulgated by the Direction does not extend to the demolition of the whole or any part of any gate, fence, wall or other means of enclosure in a conservation area. Nor does the Direction extend to the demolition of part of a building, other than part of any gate, fence, wall or other means of enclosure.

Partial demolition would in any event amount to a structural alteration of the building and so would be a building operation within the meaning of Section 55(1A) on that basis alone, as paragraph 3 of Circular 10/95 (now cancelled following the publication of the NPPG) confirmed. Partial demolition (except the partial demolition of any gate, fence, wall or other means of enclosure anywhere other than in a conservation area or within the curtilage of a listed building) is therefore development requiring planning permission, although it may be permitted development under other parts of Schedule 2 to the GPDO, for example, Parts 1, 6 and 8, among others.

As I noted when reporting on the judgment in the SAVE case, the Direction is now very limited in its effect, although of course most demolition which is not exempted by this Direction from the definition of development is in fact permitted development under Part 31 of the Second Schedule to the GPDO.

In this connection, it is worth noting that the exclusion from the definition of a “building” in Article 1(1) of the GPDO of any gate, fence, wall or other means of enclosure does not apply to Class B of Part 31. So (other than in a conservation area and within the curtilage of a listed building) the demolition, in whole or in part, of any gate, fence, wall or other means of enclosure was in any event permitted development under Part 31, Class B, and this was not subject to any exclusions or conditions, and no prior notification under Part 31 is required in this case, in contrast with the prior notification requirement that applies to the demolition of other structures.

So far as concerns the demolition in whole or in part of any gate, fence, wall or other means of enclosure in a conservation area, the new direction simply reflects the provisions of the(Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013), whereby, with effect from 1 October 2013, the demolition of the whole or part of a gate, fence, wall or other enclosure to buildings in a conservation area requires planning permission.

As a result of the judgment in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481, partial demolition of a listed building amounts to alteration of that building rather than demolition. It will nevertheless require Listed Building Consent under sections 7 and 8 of the Listed Buildings Act if this would affect its character as a building of special architectural or historic interest, as it almost certainly will.

Finally, by section 1(5) of the Listed Buildings Act, any object or structure within the curtilage of a listed building which, although not fixed to the building, forms part of the land and has done so since before July 1 1948, is to be treated as part of the building. It follows that the demolition of any such feature, including the demolition of any gate, fence, or wall within or forming the boundary of the curtilage of the listed building (if it has done so since before July 1 1948) will constitute an alteration of the listed building. Depending on its effect on the character of the listed building, such demolition may require Listed Building Consent.

Thus the rules relating to the control of demolition are still unnecessarily complex, and the new Direction has done nothing to reduce that complexity. It simply resolves an anomaly that arose in relation to the 1995 Direction, due to its illegality in light of the judgment in the SAVE case.

© MARTIN H GOODALL

Useless new planning guidance

Those of us working at the planning coal face will be well aware that the government’s on-line planning guidance finally went live yesterday (replacing the ‘beta’ version), and rejoices in the name of “National Planning Practice Guidance” (NPPG), not to be confused with the “National Planning Policy Framework” (NPPF). The two documents need to be read together (assuming you can actually find your way around the on-line version of the NPPG!).

There is a long 13-page table of withdrawn circulars and other publications, which have been cancelled with effect from 6 March 2014. The list is far too lengthy to summarise here, but a quick glance down the list indicates that among the withdrawn circulars are some old favourites, including some which, in my professional opinion, it was folly to scrap. These include Circular 11/95 - The Use of Conditions in Planning Permissions (1995) - an absolutely vital source of guidance on this topic, Circular 10/97 - Enforcing planning control: legislative provisions and procedural requirements and annexes (1997) - another absolutely crucial guide to policy and procedure in this area of planning law, as well as the accompanying Enforcing Planning Control: Good Practice Guidance for Local Planning Authorities (1997), also Annex E to PPG7 on Agricultural PD (1997) – not perhaps so important, but it was still a useful guide to that topic, Circular 03/09 - Costs Awards in Appeals and other Planning Proceedings (2009) - another document that had proved to be of great help in dealing with costs in planning appeals, as well as Planning and other appeals, and the award of costs (2013). We must also mourn the passing of Letter to Chief Planning Officers (2012): Liberalising the regime for flying flags (a personal favourite), and so the list goes on. Many other documents and useful ‘letters to chief planning officers’ have bitten the dust, including Protected Trees: a guide to tree preservation procedures (2012) and Main changes to the tree preservation order system in England from 6 April 2012 (2012).

This is where I get really annoyed. The 11 sections of the new guidance are no substitute for the procedural advice and guidance in the replaced circulars. To take an example, Part 6 of the document (“Use of Planning Conditions”) is hopelessly inadequate as a replacement of Circular 11/95. It does not even begin to answer many of the points that will inevitably arise in practice, and will leave the many users of the planning system, not to mention LPAs and the Planning Inspectorate, without any guidance as to how such issues should be resolved. This will lead to doubt and uncertainty on this important topic; the outcome of appeals (for example against the refusal of section 73 applications) will become increasingly unpredictable, and the number of legal challenges to appeal decisions is likely to increase.

In the same way, Part 10 of the document “Ensuring effective enforcement” hardly scratches the surface of important areas of enforcement practice and procedure that were covered by Circular 10/97. Try, for example to find in the NPPG any material that would replace Annex 8 of the circular. I tried searching “Gabbitas”, a crucial case on the evidential requirements in respect of a section 191 application, which had been helpfully explained in paragraph 8.15 of the circular. Result: Nothing. So I tried searching “balance of probability”, and amongst a lot of irrelevant references to flood prevention(!) found a paragraph that simply said: “ Article 35 of the Town and Country Planning (Development Management Procedure) Order 2010 (as amended), specifies the contents of an application and how it must be submitted................An application needs to describe precisely what is being applied for (not simply the use class) and the land to which the application relates. Without sufficient or precise information, a local planning authority may be justified in refusing a certificate. This does not preclude another application being submitted later on, if more information can be produced.”. Hopeless! OK; as a very experienced planning professional, I really don’t need to be told how to make an LDC application, but there are a good many planning officers who have a completely erroneous idea of the need for ‘corroborative’ evidence. Paragraph 8.15 put them right on this, but I have been able to find nothing similar to guide them in the NPPG. Nonetheless, the High Court judgment in F W Gabbitas v. SSE is still of binding authority on this issue, and woe betide the LPA that gets it wrong in a case with which I am dealing.

The shiny new “National Planning Practice Guidance” is precisely the opposite of what the government purportedly intended, yet they have brought this about by the sheer folly of their blinkered determination to “reform” the planning system by removing the very ministerial guidance that has underpinned the operation of the planning system for the past 65 years. Far from “making it simpler, clearer and easier for people to use”, this change will have precisely the opposite effect. Those of us who are thoroughly familiar with the planning system are well aware of the way the system works, but pity the poor layman who has only the NPPG to go on!

I have no intention of discarding my copies of circulars such as 11/95 and 10/97, among other very useful summaries of practice and procedure, and I intend to go on referring to them in applications and appeals, even though they have been cancelled. The principles that they explained continue to be relevant and applicable, and so it seems entirely proper to refer to them as a reliable guide to the correct approach to be taken to the many issues that crop up in the course of dealing with planning cases.

I predict that the government (perhaps a future government, but that may be no more than 14 months away) will be forced to revisit this practice guidance and to beef it up substantially, by restoring much of the detail that has been so wantonly discarded. Meanwhile, be prepared for a bumpy ride while LPAs and Planning Inspectors attempt to grapple with the wholly inadequate procedural guidance that they are now to be expected to rely on.

© MARTIN H GOODALL

Nuisance and Planning revisited

The Supreme Court has recently handed down an important decision on the tort of Nuisance (Coventry v. Lawrence [2014] UKSC 13) (26 February 2014). The case is of interest in the planning context, because the claim related to the use of a stadium built under a planning permission that had been granted in 1975. The permission authorised the construction of the stadium and permitted its use for “speedway racing and associated facilities” for a period of ten years (and this permission was renewed permanently in 1985, although subject to a condition making its use personal to the applicant).

The scope of the use of the stadium was in fact significantly extended, in breach of planning control, to include stock car and banger racing from 1984, but these additional uses became immune from enforcement under the 10-year rule, and a Certificate of Lawfulness of Existing Use or Development (a “CLEUD”) was issued by the LPA in 1995. A further CLEUD was issued in 1997 confirming that, for a period of ten years, there had been 20 stock car and banger racing events at the stadium each year, so that this use had become lawful. Furthermore, greyhound racing had been going on at the stadium since 1992.

In addition to this, at the rear of the stadium there is a motocross track, constructed and used under a personal planning permission for motocross events, granted in May 1992 for a year, and renewed from time to time thereafter, subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during those events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the track to a specified number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the track.

The stadium subsequently came into different ownership, and the trial judge had found that, between 1975 and 2009, the stadium had been used for speedway racing between 16 and 35 times per year, except for six years between 1990 and 2000 when it was not used at all for speedway racing. As for stock car racing, the judge found that it had occurred at the stadium between 16 and 27 times a year between 1985 and 2009 (although there was no stock car racing in 1991 or 1992). The judge also found that the track had been used for motocross to the full extent permitted by the relevant planning permission. In 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings.

The claimants (the appellants in this appeal) lived in a bungalow about 560 metres from the stadium, which they bought in 2006 from the previous owners, who had lived there since 1984. The claimants first complained to the local council about noise from the stadium and the track about three months after moving in, as well as complaining to the owner and operators of the stadium. Noise abatement notices in respect of this statutory nuisance were served by the council, and were eventually complied with by the completion of noise attenuation measures in 2009. A more general complaint of private nuisance was also pursued by the claimants, resulting in the present proceedings, which were commenced early in 2008, but seem to have taken rather a long time to come to trial.

The trial judge found that a nuisance had been committed, and granted an injunction to restrain and control the activities that were causing the nuisance. The Court of Appeal overturned this judgment, finding that what had occurred did not amount to a nuisance at common law, but the Supreme Court has now overturned the Court of Appeal’s decision and restored the decision of the judge at first instance, including the injunction that he had granted.

This was a unanimous decision of a strongly constituted 5-judge court. In five closely reasoned judgments, Lords Neuberger, Mance, Clarke, Sumption and Carnwath delivered what can only be described as a veritable tour de force in comprehensively reviewing the law of Nuisance. In doing so, they effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. This case will undoubtedly be seen as the locus classicus on the tort of Nuisance for many years to come.

It would be impossible to do justice to this decision in a single blog post, so I propose to concentrate solely on the relationship that planning law bears to the law of Nuisance, as confirmed by this decision. This was discussed in detail by both Lord Neuberger and Lord Carnwath, and I will try briefly to summarise the relevant observations of the latter on this topic. He identified this as the most difficult problem raised by the present appeal.

The issue has attracted particular attention over the last 20 years, since the judgment of the High Court in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343), and it has been considered by the Court of Appeal in two cases before the present action (Wheeler v J J Saunders Ltd [1996] Ch 19 and Watson v Croft Promosport [2009] 3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd [1997] AC 655). In the Gillingham Docks case, planning permission had been granted to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24-hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents.

The council subsequently had a change of heart, and brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. (Modifying the planning permission to achieve the same effect would have involved the payment of compensation.) The judge rejected the claim. Although he accepted that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance, an LPA can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of making various activities, which prior to the change would have been an actionable nuisance, immune from any such claim. The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, the judge thought, be realistic to attempt to limit the amount of trade at the port.

That judgment was considered by the Court of Appeal, some three years later, in Wheeler v J J Saunders Ltd [1996] Ch 19. In 1988 and 1989, a company had obtained planning permission to construct two buildings on an existing pig farm to house some 800 pigs. One of these buildings was only 11 metres from a holiday cottage owned by the claimants in that case. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling. The claimant succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. It was held by the Court of Appeal that the reasoning in Gillingham Docks had no application to the facts of the Wheeler case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it.

In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf [1997] AC 655. A claim for nuisance was brought by local residents based on interference with television signals due to the construction of a tower (One Canada Square, which has become a well-known feature of the London skyline) as part of the Canary Wharf development. This development had been carried out under planning permission granted by the London Docklands Development Corporation. The House of Lords was unanimous in rejecting the nuisance claim so far as it related to TV reception. The case turned largely on other authorities, but it was also accepted that the situation at Canary Wharf was very similar to that in the Gillingham Docks case, where the character of the neighbourhood had been substantially changed by the development that had been authorised in the area, including the construction of One Canada Square.

More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the level of activities, its use was relatively limited until 1994 (involving no more than 10 meetings a year between 1982 and 1994), and this appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the LPA in July 1995.

In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into a Section 106 agreement to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and it prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held.

Planning permission was granted by the inspector on this basis. He accepted that “the Development Plan policies weigh heavily against the project” and that the noise had at times “been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled”; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind “the very wide planning use rights which the site now enjoys”, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit.

Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. The judge at first instance, having noted the level of activity and the noise that it could generate, held that the character of the locality had been “essentially rural”, and that the circuit “could be, and was, run in a way that was consistent with its essentially rural nature”. He held that there was an actionable nuisance.

The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance, but whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could the planning permissions be regarded as “strategic” in their effect.

Having reviewed these cases, Lord Carnwath commented that they suggest that a planning permission may be relevant in two distinct ways – first, it may provide evidence of the relative importance of the permitted activity as part of the pattern of uses in the area and, secondly, where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.

Lord Carnwath respectfully disagreed with reservations that had been expressed by Lord Neuberger as to the potential utility of planning officers’ reports as evidence of the reasoning of the planning authority itself. Judged by his own experience in practice and on the bench over some 40 years, he had found that a planning officer’s report, at least in cases where the officer’s recommendation is followed, is likely to be a very good indication of the council’s consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the council’s thinking. That was illustrated by some of the planning reports in this case. In any event, in so far as the focus is on the evidence before the planning authority, rather than the decision itself, the planning officer’s report is likely to offer the most comprehensive summary of the relevant material.

On the issue of the relative importance of public and private interests in such cases, Lord Carnwath thought there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation (see Wheeler – cited above). The public interest comes into play in a limited sense, in evaluating the pattern of uses “necessary… for the benefit of the inhabitants of the town and of the public at large”, against which the acceptability of the defendant’s activity is to be judged. Otherwise its relevance generally in Lord Carnwath’s view should be in the context of remedies rather than liability.

He accepted ,however, that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged. He read Staughton LJ’s use of the word “strategic” as equivalent to Peter Gibson LJ’s reference to “a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted”.

For this reason, in Lord Carnwath’s view (differing respectfully from Lord Neuberger on this point), the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and in the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders nor in Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and, for the reasons he had noted in his judgment, neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests.

Apart from such strategic cases, Lord Carnwath suggested that a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authority’s view, with the benefit of its expert advisers, of the acceptable limits.

Lord Carnwath pointed out that Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. This did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control what had previously been the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of what was acceptable, and by the Court of Appeal in framing the limits of their injunction.

Where the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting-point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, Lord Carnwath would put the onus on him to show compliance (see by analogy Manchester Corporation v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.

The present case, Lord Carnwath observed, is illustrative of the opposite case, where the conditions attached to the planning permissions were of little help to the judge. It was perhaps unfortunate that the LPA did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The Lawful Development Certificate limited as to the hours that were lawful, but it was unclear how if at all these hours could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence the court was shown of compliance was in a planning report of December 2001.

In the circumstances, Lord Carnwath held that the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendant’s activity.

Earlier in this article, I wrote that in this case the Supreme Court effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. Other aspects of the law on this topic, which have not been discussed in this article (such as the acquisition of a prescriptive right to commit what would otherwise be a nuisance, the defence of ‘coming to a nuisance’, whether the defendant’s own activities should be taken into account in assessing the character of the area, and whether damages would be a sufficient remedy rather than an injunction) have indeed been substantially upset by this decision. However, so far as the effect of planning permission on an allegation of nuisance is concerned, this decision largely confirms the position that had been established by the cases that were discussed in Lord Carnwath’s judgment, but his further remarks on this topic represent a helpful commentary on the subject, and it is for that reason that I have reported them at some length.

It is to be hoped that, following this authoritative and definitive Supreme Court decision, it will not be necessary to revisit the principles governing the relationship between the grant of planning permission and the commission of the tort of nuisance for a good many years to come.

© MARTIN H GOODALL