Cost-cutting proves costly

My travels took me to Tunbridge Wells last week, where I learnt that the Borough Council is being forced to spend “hundreds of thousands of pounds” (I think the figure is actually £150,000) to extricate themselves from a partnership they had entered into in 2014 with two neighbouring authorities to set up a joint planning service. The new service has been described as “a fiasco”. It was intended to save money, but had cost Tunbridge Wells £70,000 more in its first year of operation than it would have cost them to run their own planning department independently, and these extra costs were set to rise further. The plug was finally pulled on the doomed scheme on 5 November.

Not only did costs rise as a result of merging the planning services of the three authorities, but overall performance also suffered. In 2012-13 TWBC was managing to validate 87% of planning applications within 5 working days. After the merger, it went down to 34%. (The new service had been heralded as “a high performing planning support service that delivers high quality, accurate and timely support to customers”!) One of the fears that may have led to Tunbridge Wells’ decision to break way from the joint arrangement was the possibility that the decline in performance could have led to the council being placed in ‘special measures’ by the government.

As one local councillor pointed out, this serves as a warning to any other local planning authorities thinking of entering into a joint arrangement with their neighbours for the provision of services that have previously been dealt with in-house. Not only have there been all the on-costs of setting up the new service, but in order to bring planning back in-house TWBC will now have to budget for redundancies, extra computer and software costs and legal expenses, as well as compensation to their neighbours Maidstone and Swale for breaking up the joint arrangements.

The decision to pull the plug on the joint service was no sudden whim on the part of TWBC; the writing had been on the wall for some time. The three councils had brought in Mid Kent Audit last summer when rising costs and deteriorating performance were becoming a cause for increasing concern. The auditors’ report identified major failings in the project, one of which was that the new service had been put under a manager with no previous knowledge or experience of planning. A lack of resources being allocated to the project was another factor that had undermined the effectiveness of the service and had led to a spiral of delays, inefficiency and rising costs. Needless to say, staff morale went through the floor.

This debacle is all the more embarrassing for Tunbridge Wells and its MP, as the council was conscientiously attempting to set an example to other authorities in doing exactly what the Secretary of State for Communities and Local Government has been urging local authorities to do, by merging services with neighbouring authorities. And who is the MP for Tunbridge Wells? It is Greg Clark who is, erm, the Secretary of State for Communities and Local Government.

No doubt the good citizens of Tunbridge Wells would be justified in describing themselves as “Disgusted”.

© MARTIN H GOODALL

Mr Fidlers’ castle

I gave a brief interview this morning on BBC Radio Surrey about the house (or 'castle’) that Robert Fidler built on his farm in Surrey behind a massive pile of straw bales. This case has raised some interesting planning issues over the years, and I have written about it on several occasions in this blog.

Mr Fidler was in court again yesterday, when Reigate and Banstead Council applied to a High Court judge to have him committed to prison for contempt of court. Mr Fidler’s offence is a civil one – failing or refusing to comply with a court order to knock down this unlawful development. A local planning authority has a number of weapons in its enforcement armoury, and in this case (having failed to secure compliance with the enforcement notice they served on him) the Council took out a High Court injunction under section 187B of the 1990 Planning Act ordering Mr Fidler to knock down his castle.

Mr Fidler still failed to comply with the law, and so yesterday Mr Justice Dove ordered that he should go to prison for three months, unless the offending building and associated works are demolished and the site cleared by 6 June next year. The prison sentence is suspended in the meantime, to give Mr Fidler one last chance to comply with the law.

Mr Fidler so nearly got away with his cunning plan. As the law stood (or appeared to stand) when he carried out his unlawful development, the “four-year rule” was very straightforward. If you erected a building without planning permission, the development would become immune from enforcement, and therefore lawful, four years after it was substantially completed. A case in the House of Lords (Sage v. SSETR [2003] UKHL 22) had clarified what is meant by “substantially completed”, and a decision of the Court of Appeal in FSS v Arun DC [2006] EWCA Civ 1172, held that the deliberate concealment of the development did not prevent the four-year rule from operating. However, things were about to change.

While Mr Fidler had been building his castle behind a large wall of straw bales in Surrey, a Mr Beesley had hit upon a different ruse in Hertfordshire. He obtained planning permission to erect an agricultural building. What he built looked outwardly like the building for which planning permission had been granted, but it was built and equipped as a dwelling, and it seems that this was his intention all along. Like Mr Fidler, Mr Beesley moved his family into his newly completed home and lived there quietly and unobtrusively for four years. Then he applied for a Lawful development Certificate, relying on the 4-year rule.

Welwyn Hatfield Council refused to grant the LDC, on the grounds that Mr Beesley had deliberately deceived them as to the true nature and purpose of his development. So Mr Beesley appealed to the Planning Inspectorate against this under section 195. Unsurprisingly (bearing in mind the Court of Appeal decision in Arun), his appeal was allowed. However, the Council wasn’t prepared to take this lying down, and they challenged the appeal decision in the High Court, on the grounds that Mr Beesley’s deceit invalidated his reliance on the 4-year rule. Mr Justice Collins agreed with them, and quashed the appeal decision.

Collins J’s judgment really could not be reconciled with the clear Court of Appeal decision in Arun, and Mr Beesley therefore appealed to the Court of Appeal, who reversed the High Court decision. In light of the decision in Arun, they rejected the Council’s contention that Mr Beesley’s deception prevented the operation of the 4-year rule.

If matters had rested there, not only would Mr Beesley have ‘got away with it’, but so would Mr Fidler down in Surrey, whose case had proceeded by a slightly different route. Mr Fidler’s appeal against Reigate and Banstead’s refusal of an LDC was dismissed by an Inspector on the basis that the development had not actually been completed until the pile of straw bales around the house had been removed, revealing Mr Fidler’s castle in all its glory. So the four-year period did not begin until that date. I felt then, and still feel, that this decision was too clever by half, but the High Court upheld the Inspector’s decision that the development had not been substantially completed (in accordance with the criterion laid down by the House of Lords in Sage) until the straw bales hiding the development were removed. The straw bales were seen by the Inspector (and apparently by the High Court) as being an integral part of the development. I thought this decision was likely to be overturned by the Court of Appeal, which is where Mr Fidler duly went. Permission to appeal was granted, but it then became clear that the Beesley case was going on to the Supreme Court, and so Mr Fidler’s appeal was stayed by the Court of Appeal to await the Supreme Court’s decision in that other case.

Unfortunately, both for Mr Beesley and for Mr Fidler, the Supreme Court, instead of following the Court of Appeal decision in Arun, invoked ‘the Connor principle’. This is a general rule of public law that no one should be allowed to profit from his own wrong. The ‘Connor principle’ actually derives from R v Chief National Insurance Commissioner, ex p Connor [1981] QB 758, in which a widow’s claim for a widow’s allowance failed, despite her apparently absolute statutory entitlement, because her widowhood derived from the manslaughter of her husband, of which she had been convicted.

Lord Mance in giving judgment in Welwyn Hatfield observed that Mr Beesley's conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. Mr Beesley would be profiting directly from his deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language could not in Lord Mance’s opinion contemplate or extend to such a case. He did not therefore consider that sections 171B(2) and 191(1)(a) were applicable to the facts of that case.

Lord Rodger added that in that situation, where Mr Beesley deliberately set out to conceal the true nature of the development during the whole four year period, with the aim that the council would be prevented (as happened) from taking enforcement action within the four-year period, there is no justification for cutting off the council's right to take enforcement action. To hold otherwise would be to frustrate the policy, indeed the raison d'être, of section 171B(2) of the 1990 Act; in short, it is unthinkable that Parliament would have intended the time limit for taking enforcement to apply in such circumstances.

In light of the Supreme Court’s decision in Welwyn Hatfield, the Secretary of State then applied to the Court of Appeal to set aside the permission to appeal which they had granted in Mr Fidler’s case. In his case, the deception was not the making of a false planning application, but the deliberate hiding of building operations behind a shield of straw bales, the top of which was covered by a tarpaulin. On the appellant's own evidence, the bales were deliberately erected to conceal the construction of the dwelling. This was not a case of someone merely refraining from drawing attention to themselves by, for example, not applying for building regulations approval. Here, there was positive conduct, and the avowed intention of that positive conduct was to deceive the local planning authority so that it would not realise building operations had been carried out until after the four-year period had expired.

It was on this basis that the Court of Appeal decided that Mr Fidler’s conduct was a case of deception which disentitled an appellant from relying upon the four-year rule; it simply did not lie in this appellant's mouth to say that the local planning authority should have spotted the building which he had so carefully concealed at some earlier stage. Were he to do so, it would indeed frustrate the underlying statutory purpose. In this case, it was therefore of no consequence whatsoever whether the bales were or were not part of the building operations; the short point was that this was a deliberate deception which plainly falls within the principles set out in the Welwyn Hatfield case, the consequence of which was that Mr Fidler’s appeal had no prospect whatsoever of succeeding. It was for this reason that the Court set aside the permission to appeal that had been granted by Jacob LJ before the position was clarified by the Supreme Court in Welwyn Hatfield.

This was in effect the end of the road for Mr Fidler, so far as reliance on the 4-year rule is concerned. He has spent another four years battling against an enforcement notice (and a subsequent injunction) requiring the demolition of his castle in the Green Belt, but all to no avail. He did try one last argument in the High Court yesterday, invoking the suspected presence of bats and newts as an excuse for his inability to comply with the court’s injunction. Unfortunately, there is a clear decision of the Court of Appeal in South Hams DC v. Halsey [1996] J.P.L. 761 which is against him on this point. That case established that where compliance with an enforcement notice would require some other licence or consent to be obtained (Listed Building Consent in Mr Halsey’s case), this is not an excuse for non-compliance with the enforcement notice; the owner must obtain that licence or consent in order to enable them to comply with the enforcement notice. Only if the requisite licence or consent is denied would the owner then have a lawful excuse for their non-compliance with the enforcement notice.

Only time will tell whether Mr Fidler will now obey the High Court injunction and demolish his castle in accordance with the requirements of the enforcement notice, or go to prison next June for contempt of court. Common sense surely suggests that, having given the council a really good run for their money, the time has now come to accept that the game’s up, and that the building must now at last come down. The council has the power to demolish it themselves (under section 178), and this might be a step they will be forced to take, if the building is still there by mid-summer.

© MARTIN H GOODALL

Guide to Permitted Changes of Use published

My book, A Practical Guide to Permitted Changes of Use has now been published, and pre-ordered copies are now being distributed by post. The digital version of the book will also be available this week. We are holding the pre-publication price for direct orders for a further week, until 13 November. After that, the price will be £40.

Advance orders have exceeded all expectations, and about two-thirds of the original print run has already been sold. An early reprint is on the cards.

Readers who have not yet made up their mind to buy a copy of the book may find it helpful to have a note of the book’s contents, and so I am reproducing below the complete Table of Contents.

CHAPTER 1
GENERAL INTRODUCTION

1.1 Development orders – an overview
1.2 Loss or removal of permitted development rights
1.3 Changes of use under Part 3
1.3.1 The physical extent of changes of use permitted by Part 3
1.3.2 Commencement and completion of the permitted development
1.4 Temporary uses under Part 4
1.5 Caravan sites and recreational uses under Part 5
1.6 Saving provisions in respect of the 1995 Order
Table 1: Changes of use permitted by Part 3
Table 2: Changes of use permitted by Part 4
Table 3: Changes of use permitted by Part 5

CHAPTER 2
CHANGES OF USE TO / FROM SHOPS OR ‘RETAIL’ SERVICES

2.0 Preliminary note

2.1 Changes of use to and from use as a shop

2.1.1 Change of use from a catering use to use as a shop
2.1.2 Change of use from ‘retail services’ to use as a shop
2.1.3 Change of use of an agricultural building to use as a shop
2.1.4 Change of use from a shop to other uses

2.2 Changes of use to or from ‘retail services’

2.2.1 Change of use from catering use to ‘retail services’
2.2.2 Change of use of shop to ‘retail services’
2.2.3 Change of use of betting office / pay day loan shop to ‘retail services’
2.2.4 Change of use of agricultural building to ‘retail services’
2.2.5 Changes of use from ‘retail’ services to other uses

2.3 Flats above shops or ‘retail services’

2.3.1 Change of use to shop plus flat(s)
2.3.2 Reversion of part residential use to shop
2.3.3 Change of use of shop to ‘retail services’ plus flat(s)
2.3.4 Partial residential conversion from ‘retail services’
2.3.5 Change of use of shop and flat(s) to ‘retail services’
2.3.6 Reversion of part residential use to ‘retail services’
2.3.7 Conditions applying to changes of use under Class G
2.3.8 Development not permitted by Class H

CHAPTER 3
CHANGES OF USE TO AND FROM CATERING USES

3.1 Change of use of pub, bar or hot food take-away to café or restaurant

3.1.1 Change of use involving a pre-2005 A3 use
3.1.2 Change of use involving a post-2005 A3 use
3.1.3 Restrictions on changes of use from Use Class A4

3.2 Change of use from Use Class A1 or A2 (etc.) or Casino to Café or Restaurant

3.2.1 The development permitted
3.2.2 The qualifying use
3.2.3 Exclusions
3.2.4 Floorspace limit
3.2.5 Prior approval
3.2.6 Commencement

3.3 Other changes of use to café or restaurant

3.4 Changes of use from catering uses to other uses

CHAPTER 4
CHANGES OF USE TO AND FROM OTHER COMMERCIAL AND INSTITUTIONAL USES

4.1 Changes of use to and from a business, industrial or storage use
4.2 Changes of use to and from use as a hotel or guest-house, etc.
4.3 Changes of use to and from use as a residential institution
4.4 Changes of use to and from Use Class C2A
4.5 Change of use from Casino or Amusements to other uses
4.6 Temporary changes of use
4.7 Changes of use between flexible uses

CHAPTER 5
CHANGES OF USE TO AND FROM RESIDENTIAL USE

5.0 Preliminary note

5.1 Changes of use between single dwelling and house in multiple occupation

5.2 Residential conversion of a shop or from financial or professional services

5.2.1 The development permitted
5.2.2 The qualifying use
5.2.3 Exclusions
5.2.4 Floorspace limit
5.2.5 Limits on building operations
5.2.6 Prior approval
5.2.7 Commencement and completion
5.2.8 Exclusion of permitted development under Part 1
5.2.9 Other permitted development that may be possible

CHAPTER 6
RESIDENTIAL CONVERSION OF AMUSEMENT ARCADE OR CENTRE OR CASINO

6.1 The development permitted
6.2 The qualifying use
6.3 Exclusions
6.4 Floorspace limit
6.5 Limits on building operations
6.6 Prior approval
6.7 Commencement and completion
6.8 Exclusion of other permitted development

CHAPTER 7
RESIDENTIAL CONVERSION OF COMMERCIAL OFFICES

7.1 The development permitted
7.2 Qualifying office use
7.3 Exclusions
7.4 Prior approval
7.5 Commencement and completion
7.6 Permitted development within the curtilage under Part 1
7.7 Proposed changes to Class O

CHAPTER 8
RESIDENTIAL CONVERSION OF ‘STORAGE OR DISTRIBUTION CENTRE’

8.1 The development permitted
8.2 Restricted curtilage
8.3 Qualifying storage use
8.4 Exclusions
8.5 Floorspace limit
8.6 Prior approval
8.7 Commencement and completion
8.8 Exclusion of other permitted development

CHAPTER 9
RESIDENTIAL CONVERSION OF AN AGRICULTURAL BUILDING

9.1 The development permitted
9.2 Restricted curtilage
9.3 Qualifying agricultural use
9.4 The definition of “agriculture” and “agricultural use”
9.5 Exclusions
9.6 Limits on numbers and floorspace
9.7 Limits on building operations
9.8 Prior approval
9.9 Commencement and completion
9.10 Exclusion of other permitted development

CHAPTER 10
CHANGE OF USE TO USE AS A STATE-FUNDED SCHOOL OR REGISTERED NURSERY

10.1 Change of use of various commercial premises

10.1.1 The development permitted
10.1.2 Exclusions
10.1.3 Restrictions on further changes of use
10.1.4 Prior approval
10.1.5 Operational development
10.1.6 Commencement and completion
10.1.7 Change of use back to previous use

10.2 Change of use of an agricultural building

10.2.1 The development permitted
10.2.2 Restricted curtilage
10.2.3 Qualifying agricultural use
10.2.4 Exclusions
10.2.5 Floorspace limit
10.2.6 Prior approval
10.2.7 Commencement and completion
10.2.8 Restrictions on further changes of use
10.2.9 Operational development
10.2.10 Exclusion of permission for further agricultural buildings

CHAPTER 11
CHANGES OF USE TO AND FROM USE FOR ASSEMBLY AND LEISURE

11.1 The development permitted
11.2 The qualifying use
11.3 Exclusions
11.4 Floorspace limit
11.5 Prior approval
11.6 Commencement and completion
11.7 Operational development
11.8 Changes of use from use for assembly and leisure

CHAPTER 12
FLEXIBLE USES

12.1 Changes of use within the terms of a flexible planning permission

12.2 Change of use of an agricultural building to a flexible use

12.2.1 The development permitted
12.2.2 Restricted curtilage
12.2.3 Qualifying agricultural use
12.2.4 Exclusions
12.2.5 Limits on floorspace
12.2.6 Exclusion of building operations
12.2.7 Prior approval
12.2.8 Commencement and completion
12.2.9 Exclusion of other permitted development

CHAPTER 13
PRIOR APPROVAL APPLICATIONS

13.0 Introductory note
13.1 The nature of a prior approval application
13.2 Form of application
13.3 Application in respect of building or other operations
13.4 Written description of the development
13.5 Plans and other drawings
13.5.1 Drawings of proposed building works
13.6 Other information
13.7 Application fees

CHAPTER 14
PROCESSING AND DETERMINING THE PRIOR APPROVAL APPLICATION

14.1 Request for further information
14.2 Invalid applications
14.3 Consultations
14.4 Determining the prior approval application
14.4.1 Transport and highways
14.4.2 Contamination risks
14.4.3 Odour impacts
14.4.4 Impacts of waste storage and handling
14.4.5 Opening hours
14.4.6 Air quality
14.4.7 Noise
14.4.8 Light impacts
14.4.9 Flooding risks
14.4.10 Retail and similar impacts
14.4.11 Rural development policy
14.4.12 Design issues
14.4.13 Consideration of responses to consultations
14.4.14 The National Planning Policy Framework
14.4.15 The Development Plan
14.4.16 Other considerations
14.4.17 Human rights
14.5 Conditions
14.6 Planning obligations
14.7 Community Infrastructure Levy
14.8 Appeals
14.9 Lawful Development Certificate
14.10 Carrying out the development

CHAPTER 15
THE 56-DAY RULE

15.0 Preliminary note
15.1 General approach
15.2 Commencement of the 56-day period
15.3 Extending the 56-day period
15.4 Has the application actually been determined?
15.5 Notifying the applicant of the authority’s decision
15.6 Commencement of development in default of notification of a decision

CHAPTER 16
TEMPORARY USE OF OPEN LAND

16.1 The scope of the temporary use permitted
16.2 The temporary nature of the permitted change of use
16.3 Reversion to normal use of the land
16.4 Moveable structures

CHAPTER 17
TEMPORARY CHANGES OF USE OF VARIOUS BUILDINGS

17.1 Temporary use as a state-funded school

17.1.1 The development permitted
17.1.2 Exclusions and other conditions
17.1.3 Operational development

17.2 Temporary use of various business premises

17.2.1 The development permitted
17.2.2 Exclusions, restrictions and other conditions

CHAPTER 18
TEMPORARY USE OF BUILDINGS OR LAND FOR FILM-MAKING

18.1 The development permitted
18.2 Exclusions and restrictions
18.3 Prior approval

CHAPTER 19
TEMPORARY USE AS A CARAVAN SITE

19.1 The scope of the temporary use permitted
19.2 The definition of “caravan site” and “caravan”
19.3 Cessation of the temporary use
19.4 Caravans within the curtilage of a dwellinghouse
19.5 Temporary caravan camping on a small site
19.6 Temporary caravan camping on larger sites
19.7 Temporary caravan camping by exempted organisations
19.7.1 Certification of exempted organisations
19.8 Temporary accommodation for agricultural or forestry workers
19.9 Temporary accommodation for workers on building and engineering sites
19.10 Travelling showmen’s sites
19.11 Power to withdraw certain exemptions

CHAPTER 20
OTHER CAMPING AND RECREATIONAL USES

20.1 Use for camping and recreation by certain organisations
20.2 Other camping uses

APPENDIX A
LOSS OR REMOVAL OF PERMITTED DEVELOPMENT RIGHTS

A.1 The pre-existing use
A.2 Loss or abandonment of the pre-existing use
A.3 Continuation of the pre-existing use
A.4 Unlawful buildings and uses
A.5 Removal of permitted development rights by condition
A.6 Planning obligations under section 106
A.7 Restrictive covenants
A.8 Article 4 Directions
A.9 Revocation or amendment of a development order
A.10 Exclusion of permitted development by the GPDO itself
A.11 Development requiring an Environmental Impact Assessment
A.12 Change of use after only a brief period of existing use

APPENDIX B
THE PLANNING UNIT AND THE CONCEPT OF ‘CURTILAGE’

B.1 The Planning Unit

B.1.1 The planning unit created by a planning permission
B.1.2 The rule in Burdle
B.1.3 The ‘agricultural unit’

B.2 The ‘curtilage’ of a building and its significance in planning terms

B.2.1 The definition of ‘curtilage’
B.2.2 The curtilage of a listed building
B.2.3 Other buildings attached to a listed building
B.2.4 Extension of the curtilage
B.2.5 References to ‘curtilage’ in Parts 3, 4 and 5 of Schedule 2 to the GPDO

APPENDIX C
THE USE CLASSES ORDER

C.1 Specific exclusions from the Use Classes Order
C.2 Mixed uses
C.3 Physical and legal extent of uses within the UCO
C.4 The Use Classes


I fear this blog has become rather narrowly focused on permitted changes of use in recent weeks but, now that my book has been published, I hope to get back to other aspects of planning law in future posts. I will start by taking a look at the Housing and Planning Bill in the near future.

© MARTIN H GOODALL