Whitley revisited - the result

In a post on Tuesday, 17 December 2013, I drew attention to an application for judicial review in the High Court ( R (Ellaway) v. Cardiff CC ) which had the potential, if it had succeeded, to bring about a significant change in the accepted position regarding pre-commencement conditions, otherwise known as ‘conditions precedent’.

I had hoped to be alerted when judgment was handed down, but in the event this judgment escaped my attention when it was given on 27 March 2014 ( [2014] EWHC 836 (Admin) ). As I had rather expected, the claim was dismissed.

It was not disputed that by the time development commenced on site, the developer had applied for the discharge of all the pre-commencement conditions, although the Council had not yet determined those applications. There was some argument as to the procedural propriety of the means by which the Council dealt with the applications for discharge of the conditions, but the work undertaken on site was carried out in strict conformity with the details provided by the developer in support of the applications for discharge of the conditions. This was exactly in accordance with what has long been accepted as an ‘exception’ to the general rule in Whitley, and this exception is derived from the Whitley judgement itself. There was clearly no basis on which the Council’s action could be challenged on this ground.

The claimant had sought to argue that a matter of this kind ought not to be dealt with in that way, but should be the subject of an application for retrospective planning permission under section 73A. However, Wyn Williams J did not consider that there is any basis to conclude that the Whitley principle and the exceptions to that principle cannot co-exist with Section 73A of the 1990 Act. There is no authority which begins to suggest the contrary. Further, there can be no doubt now, if there ever was following the judgment in Whitley, that the Whitley principle itself is regarded as “a clear legal principle of general application” – see Greyfort Properties Limited v SSCLG [2011] EWCA Civ 908. It is equally clear that the acknowledged exceptions to the principle are also founded upon clear principles of general application.

The possible difference of approach required in this case, as argued by the claimant, arose from the fact that this was EIA development, and (so it was argued) the need to comply with European directives required a more rigorous procedure to be adopted. Nonetheless, it was accepted on behalf of the claimant that European law does not prohibit the grant of retrospective planning permission – i.e. the grant of planning permission after the proposed development has been initiated prior to the discharge of pre-commencement conditions. (See the decision of the Court of Appeal in R (Ardagh Glass Ltd) v Cheshire West Council [2010] EWCA Civ 172.) However, the claimant submitted that European law demands that such a grant should be made only exceptionally and, in effect, only in the context of an application made under Section 73A of the 1990 Act.

Both the Council and the developer strongly disputed that a grant of retrospective planning permission must be made only in the context of section 73A of the 1990 Act. Furthermore, they both submitted that neither the Council nor the developer had acted inconsistently with the relevant principles of European law.

To put it shortly, Wyn Williams J found that the Whitley principle is entirely consistent with the aims and objects of the Directive. The rationale of the exception is to avoid unnecessary formality and wasted time and expenditure. The terms of the exception are clear and self-contained. It is obvious when the exception will apply. The fact that this exception is the product of judicial decision-making, as opposed to Parliamentary enactment, does not mean that it is unpredictable, unclear, imprecise or uncertain. In truth both the Whitley principle itself and the exception relied upon by the Council are clear and their application in individual cases is entirely predictable. The fact that the Court of Appeal has acknowledged that the exceptions to the Whitley principle may not be closed does not mean that the acknowledged exceptions are unpredictable or uncertain.

In the circumstances, the court did not consider it necessary to deal with the issue of delay, which might very well have prevented the grant of relief in this case if the claimant had made out the legal grounds to support her claim.

So we can all breathe a sigh of relief, and continue to rely on the Whitley principle and its acknowledged exceptions. The added ‘European’ dimension made no difference in this case, and there would seem to be no basis for arguing that the discharge of conditions should be dealt with differently in such a case compared with normal procedure. The time for an EIA assessment (where this is required) is much earlier, at the planning application stage. It has been established that the approval of reserved matters after a grant of outline permission can also give rise to a requirement for a separate EIA at that stage, but it is difficult to envisage circumstances in which an application for the discharge of pre-commencement conditions (‘conditions precedent’) could give rise to such a requirement, even where the discharge of those conditions is retrospective following the commencement of development.

© MARTIN H GOODALL

Uses restricted by condition - some further thoughts

In two previous blog posts (“Can conditions preclude Permitted Development?” on Friday, 18 October 2013, and “Conditions that fail to prevent Permitted Development” on Monday, 24 March 2014) I discussed the circumstances in which a condition attached to a planning permission may preclude the operation of section 55(2)(f) of the 1990 Act and Article 3(1) of the Use Classes Order and/or Article 3(1) and Part 3 of the Second Schedule to the General Permitted Development Order – in other words, the right to use the land or building in question for other purposes within the same Use Class and/or to make any of the changes of use that are (or would otherwise be) Permitted Development.

Since then, I have been considering some other judicial decisions on this issue that may shed further light on the topic, although I am bound to say that these judgments have left the position far from clear.

First of all, as I have previously pointed out, a condition that expressly refers to either the UCO or the GPDO can certainly prevent the operation of those Orders. It is perhaps worth noting in this connection that the model conditions that were previously recommended (in Circular 11/95) read:

"The premises shall be used for......…and for no other purpose (including any purpose in Class........… of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

and

“Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification) no....[specified development]........shall be [carried out].”

A problem only arises where those words, or very similar words have not been used.

In my first article, I argued that a condition which simply prohibited other uses without referring to either or both of these two pieces of subordinate legislation could not be taken to preclude their operation. My view (particularly with regard to the GPDO) was based on the proposition that a condition could not prevent an application for and grant of a fresh planning permission for a change of use to any of the uses that the original condition sought to prevent. If granted, the planning permission would supersede the previous permission (and its conditions) and this is exactly what Part 3 of the Second Schedule to the GPDO does; i.e. it grants planning permission (subject to certain requirements being met) for a further change of use. It was on this basis that I argued that a condition that does not expressly preclude the operation of the GPDO cannot therefore have the effect of preventing this permitted development.

Judicial support for this proposition, and for a similar approach to the operation of section 55(2)(f) and Article 3(1) of the Use Classes Order, can be found in the High Court judgment in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806 and in the subsequent decision of the Court of Appeal in Dunoon Developments Ltd -v- SSE [1992] JPL 936, as discussed in the second of my two previous articles.

However, I am aware of two or three other judgments that have gone the other way, and the purpose of this third article is to examine these, and to attempt to form a view as to their effect on this issue.

The first of these was City of London Corporation v. SSE (1971) 23 P&CR 169 (which predated both Carpet Decor and Dunoon Developments). In that case, the wording of the condition was that "the premises shall be used as an employment agency and for no other purpose." This was held to operate effectively to exclude the operation of the Use Classes Order.

In Rugby Football Union v SSETR [2001] EWHC 927, the court considered a condition relating to stands at Twickenham Rugby Football Ground, which was worded that the stands "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected by the court on the ground that the words 'for no other use' were clear. They had no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission, for example under the Use Classes Order (by virtue of section 55(2)(f)). The judge was satisfied that those words met the test of being sufficiently clear for the exclusion of the Use Classes Order.

A more recent decision - R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin) - related to planning permission for the construction of a non-food retail park comprising 5 units. This permission contained a condition which provided that: "The retail consent shall be for non food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing." The stated reason for the condition was to ensure that the nature of the scheme would not detract from the vitality and viability of the nearby town centre.

The appellant sought a Lawful Development Certificate to confirm that they were entitled to use these retail units for any purpose within Use Class A1 of the UCO (i.e. not limited to the categories specified in the condition). On appeal against the council’s refusal of a certificate, the Inspector found that, on a fair interpretation, the use of the word 'only' was effectively the same as the phrase 'and for no other purpose', especially when the condition was read in its entirety. When read alongside the reason and in the context of the permission as a whole, the Inspector found that the condition prevented the exercise of rights under the Use Classes Order (i.e. to use the premises for other purposes falling within Use Class A1).

When the matter came before the High Court, it was held that the reason for imposing a condition is important in understanding the objective of the condition. It is publicly available as part of the planning permission. To ignore it or to fail to have regard to the reason would operate as an unnatural and unnecessary constraint on an interpretation of the condition. This condition was intended to provide an on going mechanism to maintain the retail health of the town centre. In the Court’s judgment, that is what a reasonable reader of the condition would discern - namely, a non food retail consent only, with sales permitted of bulky goods within certain main sectors so as not to cause any material harm to the retail health of the town centre.

The Court specifically considered whether the wording of the condition might be insufficiently clear and unequivocal in its terms as to exclude the operation of the Use Classes Order. However, the judge regarded the use of the word "only" as emphatic. It meant solely or exclusively. That was its plain and ordinary meaning. This would prevent any retail sales other than those stipulated of a non food nature.

The Court did not agree that the absence of the words 'for no other use' (in contrast with the Rugby Union case) made any difference in this regard. The condition before the court in the Royal London Insurance case could also be distinguished from Dunoon Developments, where there was nothing more than a restrictive description of the use in the relevant condition that might potentially (but did not in practice) exclude the Use Classes Order.

In Royal London Insurance there was a planning permission which, read as a whole, including Condition (3), set out what was permitted. Condition (3) restricted the ambit of Class A1 uses. It would be logically inconsistent to construe Condition (3) as carefully limiting A1 uses on the one hand, but then to argue that A1 use is unrestricted and permitted on the other. The condition only made sense if there was an implied exclusion of the Use Classes Order and Class A1 rights. In the Court’s judgment, this was achieved by the words used in the condition.

The first comment I would make in light of these judgments is that the decision of the Court of Appeal in Dunoon Developments should not be lightly set aside. I drew attention in my second article, on 24 March, to the clear words of both Farquharson LJ and the Vice-Chancellor, Sir David Nicholls. These words must be taken as an authoritative statement of the legal position in this regard. It follows that the other cases to which I have referred must, to a greater or lesser extent, have been dependent on their facts.

If any further refinement of the general proposition can be derived from these other cases it is perhaps that if, read as a whole and in context, the clear words of the condition (including the stated reasons for its imposition) leave no doubt that the planning permission that is being granted is only for a strictly limited use, then it may be effective to preclude the operation of either or both of the UCO and the GPDO, even though these are not expressly referred to. So, for example, in the Royal London Insurance case, the condition was explicitly intended to ensure that the development would not detract from the vitality and viability of the named town centre.

By contrast, I suggest that a vaguely worded reason (for example, “to enable the local planning authority to retain control over such uses in future” or some similar rubric) is unlikely to cut the mustard, especially bearing in mind that the procedural advice from ministers (as set out in the NPPG) continues to be firmly against conditions that purport to preclude the operation of section 55(2)(f) and Article 3(1) of the UCO or Article 3 and the Second Schedule to the GPDO. The very fact that there were until very recently model conditions (in Circular 11/95) that recommended explicit wording for such conditions is another persuasive factor which indicates that the general rule in Dunoon Developments should be applied in the absence of a very clear intention (backed up by a clearly stated and specific planning reason for the imposition of the condition) to preclude the operation of the statutory provisions.

[UPDATE: I noticed after writing this piece that "Annex A" to Circular 11/95 (model conditions) was not cancelled along with the rest of the circular. This was presumably meant to refer to APPENDIX A, where the model conditions quoted above (48 and 50 respectively) are to be found. This further strengthens the point that I sought to make.]

NOTE: This topic is more fully discussed in the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

More banner adverts on shrouded buildings

(Fourth in an occasional series)

As I have pointed out on several previous occasions in this blog, there seems to be an unreasoning prejudice in this country against outdoor advertising. Whatever one may think of the overall control of advertisements regime, one aspect that particularly irritates me is the extreme reluctance of some local planning authorities (in fact, I suspect, a majority) to countenance large banner adverts on shrouded buildings while they are in course of demolition, reconstruction or repair.

I have in the past acted for one or two of the companies engaged in this type of advertising, but I am not currently retained by these clients and so I have no professional or commercial axe to grind. I simply think that this type of advertising can be beneficial, both as a means of hiding an eyesore while the building work is in progress and in helping to finance the restoration of the fabric, not to mention brightening up the townscape for a time.

Other countries do not seem to have the same hang-up with this type of advertisement display that we have in the UK. I have previously illustrated examples from both Paris and Venice, where large banner adverts have been erected around outstandingly important buildings in the most sensitive of settings – the point being that if such temporary advert displays are accepted by the authorities in those locations, then there can be no justification for resisting such displays on Grade I listed buildings located in a World Heritage Site in this country or in the most outstanding of conservation areas, and of course on many less important buildings in less sensitive environments.

I previously drew attention to a shroud advert in the Place Vendôme in Paris, and I found several further examples on my latest visit to Paris this year. The first of these is in the Place des Vosges (originally the Place Royale) in le Marais (the 4ème Arrondissement), one of the earliest town squares in Europe (if not the earliest) – completed in 1612. Cardinal Richelieu lived here from 1615 to 1627, and Victor Hugo’s house in the south-east corner of the square is open to the public.

The banner advert here is at the north end of the eastern side of the square, next to the junction with the rue du Pas de la Mule. As the rubric on this and the other advertisements illustrated here clearly states: “Cet affichage contribue au financement de la restauration de l’immeuble.” Précisément!


At night this advert is externally illuminated, as seen in the next shot.

An even larger banner advert is to be seen on the south front of the range of public buildings that house le Palais de Justice, le Conciergerie and Sainte-Chapelle on l’Île de la Cité (in the 1er Arrondissement). This advert fronts onto Quai des Orfèvres and le Pont Saint-Michel.

A third example can be seen at the junction of rue Auber and rue Scribe (in the 9ème Arrondissement) immediately opposite the monumental Opéra Garnier. There is a good view of it from the roof terrace of les Galeries Lafayette (as shown in a second photo below).

In these various shroud displays, the advertising material does not cover the whole of the shroud, so there is also a representation of at least part of the building façade in these displays, which gives an indication of the structure of the building lying behind the shroud.

The three examples illustrated here are representative of the type of banner adverts on shrouded buildings that are clearly acceptable in such cases, even where heritage assets of the highest value are involved, in very sensitive locations. The essential point is that these displays are by their nature temporary and, as the displays illustrated here explicitly state, they contribute to the funding of the restoration of the building (as was clearly also the case in the examples from Venice to which I drew attention in earlier posts).

It seems that LPAs (and even the Planning Inspectorate) remain very reluctant to grant advertisement control consent for such displays, and so the only sensible course of action would be to amend the Control of Advertisements Regulations so as to grant deemed consent to these displays. Planning ministers have shown great enthusiasm for cutting through red tape in the planning system, particularly through the medium of extended permitted development rights, and so an amendment of the Control of Advertisements Regulations ought perhaps to commend itself to Eric Pickles and Nick Boles.

© MARTIN H GOODALL

We apologise for the interruption...............

We have reached one of those frustrating periods again when pressures on my time prevent my keeping up-to-date with this blog. I fear that by the time I can post the next entry on this blog, more than a fortnight is likely to have passed since the previous item was posted at the end of last week. Regrettably, the same applies to the moderation of comments, and so here too there is likely to be a hiatus.

Meanwhile, there have been further developments on which I wish to report when I have the opportunity to do so. My attention has been drawn to a couple of recent judgments that are relevant to the issue of conditions removing permitted development rights and/or removing the right (under section 55(2)(f)) to use a planning unit for purposes falling within the same use class as the existing use. Unfortunately, these judgments are not as clear as might have been hoped and do not really help in clarifying the position.

I have not forgotten that I promised to look at the small print in the recent GPDO amendment order, which limits or restricts some of the development potentially permitted by these changes. There is also an unresolved issue as to the validity of conditions attached to prior approvals issued by LPAs before 6 April 2014. Are these, as some have suggested, ultra vires, or is the provision in the latest amendment order confirming that LPAs have power to impose conditions on prior approvals under Part 3 retrospective in its effect as regards conditions imposed before 6 April 2014? I am rather inclined to doubt this, but the position is not all that clear-cut.

So there is plenty to talk about, but it may have to wait at least another 10 days, before I can get back to posting further entries on this blog.

© MARTIN H GOODALL