Friday, 29 April 2016

Time marches on

I am acutely aware of the hiatus in posting material on this blog in the past couple of weeks. As longer-standing readers will be aware from previous experience, this happens from time to time when I am really busy.

There are several topics on which I intend to blog “when I get a round tuit”. One of these is (or was) the important Court of Appeal decision in Suffolk Coastal DC v Hopkins Homes [2016] EWCA Civ 168, which clarified the interpretation of paragraphs 47 and 49 of the NPPF in relation to how the requirement to demonstrate that the LPA has a 5-year housing land supply is to be dealt with, and the consequences that follow where such a 5-year supply cannot be shown.

I have written “was” above, because both Cheshire East DC (who were involved in a similar case) and Suffolk Coastal DC are seeking permission to appeal to the Supreme Court. They have first to surmount the hurdle of actually getting permission to go to the Supreme Court, but I would guess that they stand a reasonable chance of getting that permission in view of the importance of the issues that this and other related cases have thrown up. If so, then the two councils are hoping that the case will be heard by the Supreme Court later this summer.

In the circumstances, I may delay for the time being commenting on the Court of Appeal decision in Suffolk Coastal, until we know whether this case will in fact be going to the Supreme Court.

In addition to this, there are several issues arising from the amendments to the GPDO that came into effect earlier this month which I still want to cover (not to mention some points that arise from the 2015 Order itself).

There are also some other judgments that deserve attention, involving the non-applicability of the ejusdem generis rule in construing a planning permission and, in another case, the issue of agricultural buildings in the Green Belt. There has also been an interesting appeal decision on concealed development, and one or two other appeal decisions which readers and colleagues have drawn to my attention.

Finally, the Housing and Planning Bill is close to completing its passage through parliament, and should receive Royal Assent before the end of the parliamentary session next month. I have refrained from commenting on the Bill while it was still subject to amendment but, once it is on the statute book, it would clearly merit attention.

So watch this space in the coming weeks and months.


Tuesday, 12 April 2016

Eye in the Sky

I wonder whether it is the imminent release of the film of this name (a thriller starring Helen Mirren and the late Alan Rickman) that prompted the Daily Torygraph’s Chief Political Correspondent, Christopher Hope, to pen a piece in Monday’s paper on the use by local authorities of drones for various purposes, including planning. It seems that some 10 or more councils have bought or hired these machines (correctly referred to as “unmanned aerial vehicles” – UAVs). No doubt more local authorities will do so in the future.

The Telegraph spoke to Epping Forest DC, who explained that theirs would be used for various photographic purposes, not just planning control. Other authorities are believed to be using them for a wide variety of functions, including looking at coastal erosion, examining dangerous structures and surveying the state of repair of council buildings (where it obviously saves the expense of erecting scaffolding). The use of drones for planning purposes seems to be fairly limited at the moment. For example, Moray Council in Scotland say they can help them get a better impression of application sites where permission is being sought for wind turbines.

The use of drones nevertheless raises concerns about the possibility of ‘snooping’ for the purposes of planning enforcement. The Lib Dems seem to be particularly exercised by this possibility, and their spokesman is reported by the Telegraph to have said that councils should not be spending tax-payers money on owning or renting drones. “It is busy-body government at its worst”, he is reported to have said, and went on to suggest that there should be a code of practice on the use of UAVs by councils.

Others have expressed concerns, including the intrusion on privacy and possible safety issues if these machines are to be flown over built-up areas. The Information Commissioner is also said to be concerned, and is reported to have suggested that local authorities should consider whether the use of drones is “necessary and proportionate”.

The use of drones for the purposes of planning enforcement will require careful consideration. As a general rule, notice ought to be given to owners and occupiers of property which it is intended to overfly and/or photograph. Any covert surveillance would be governed by the legislation in RIPA.

There are no reports so far of drones having been used in connection with planning enforcement, as opposed to ordinary development management, and they are unlikely in practice to be able to yield any useful information that could not be gained by an orthodox site inspection. (It does occur to me, on the other hand, that they might be used to photograph illegal advertisements mounted on farm trailers, which one frequently sees stationed on farmland near motorways.)

One area in which aerial photography has proved to be helpful is in establishing whether particular buildings, structures or other objects were present on land either before or after a particular date. Aerial photographs (both vertical and oblique) are available from several sources, both public and private, although their coverage is not always complete. This source has been supplemented in recent years by satellite imagery, although there have been issues about the reliability of the recorded dates of satellite images, which have proved to be inaccurate in some cases.

Using drones to supplement this existing information may be a helpful tool in future, not only for councils but for the owners and occupiers of land and buildings. If drones were used for this purpose, as distinct from ‘spying’ on any one property, I cannot see any serious objection to their use for that purpose.

Nevertheless, the use of drones by local authorities is likely to remain controversial until some clearer ground rules are established that will specify the precise purposes and the circumstances in which they may be used, and also the procedures for giving notice to property owners who could potentially be affected by their use. Several different bodies are likely to be involved in this, including the Civil Aviation Authority, the Information Commissioner, and also the Home Office in relation to the operation of RIPA and other legislation governing the use of investigatory powers. It may be necessary to convene a working party, possibly under the auspices of De-CLoG as the department primarily responsible for planning and local government, to hammer out these issues.


Monday, 4 April 2016

Mr Fidler’s castle comes down

The BBC reported on Thursday that Mr Fidler has begun to demolish the house he built in the Green Belt, in order to comply with the High Court injunction requiring him to do this by early June. According to the BBC, Mr Fidler has now confirmed that demolition has begun, after initially denying this.

UPDATE: (6 June). Today’s the day. Mr Fidler had to comply with the court order by today’s deadline, or face jail. In fact, it had become clear last week that demolition was already well advanced. At this morning’s scheduled hearing, the council itself asked the judge to give Mr Fidler more time to complete the demolition and clear the site. Today’s hearing (which the judge had fixed when the matter was last before him) was therefore adjourned for four weeks to give Mr Fidler time to finish the job.