An Interesting New Year

In wishing readers a Happy New Year, I am well aware that after 2016’s double disaster of the European Referendum and then the election of President Trump, the New Year promises at best to be an uncertain one.

I honestly believe that our country currently has the most incompetent government since Lord North’s administration managed to lose the American colonies in the 1770s. When the PM tells us that “Brexit means Brexit”, and then clarifies this by pronouncing that what she wants is “A Red, White and Blue Brexit”, this can only be translated in plain English as “I’m sorry; I haven’t a clue.” This is hardly surprising, when managing Brexit is in the hands of the Three Stooges (Boris the Clown, ‘Dangerous’ Davis and Dr Liability Fox MD, all of whom appear to be equally clueless).

Unfortunately, we have an equally incompetent Loyal Opposition, which seems incapable of opposing anything, let alone calling the government to account for its manifest errors and omissions.

Anyway, enough of politics; this year is also likely to be interesting on the legal front. Very early in the New Year we shall have the Supreme Court’s decision on the procedure required to invoke Article 50 of the Lisbon Treaty. Although this case is solely focused on this question (and is not concerned with the referendum result, or with how Brexit is to be managed once Article 50 has been activated), it is a case of immense juridical importance, because it goes to the heart of the constitutional relationship between Parliament and the Executive.

Montesquieu was probably wrong when he wrote about the separation of powers. There has always been an element of common membership and interaction between Parliament, the Executive and the Judiciary, although the independence of the judiciary remains of paramount importance, and has been reinforced in recent years by a change in the person and functions of the Lord Chancellor, and the creation of the Supreme Court to take over the judicial function formerly exercised by the House of Lords.

Another fundamental constitutional principle, which continues to be of the greatest importance to the protection of our liberties, is the sovereignty of Parliament over the Executive. It is this essential principle which lies at the heart of the case on which the Supreme Court is currently deliberating.

No-one who has ever studied Constitutional and Administrative Law will have been the least bit surprised by the judgment of the High Court in this case (handed down by the most strongly constituted Divisional Court that I can ever remember). I find it hard to believe that the government stands any chance whatever of overturning that decision in the Supreme Court, and the only remaining question is whether it will be an 11-0 decision in favour of the Respondents (which seems most likely), or whether there could possibly be just one, or maybe two, dissenting judgments.

I am bound to say that David Pannick had four centuries of overwhelming judicial authorities on his side, by contrast with which the Attorney General’s case seemed largely to consist of bluff and bluster. On the other hand, it seems to me that the respective cases for the Scottish and Northern Irish governments, whilst persuasively argued, stand much less chance of being accepted by the court, because the law would not appear to be on their side so far as their constitutional relationship with the UK government is concerned. I have a great deal of sympathy with both of these regional governments; they have a strong moral case in favour of a separate settlement with the EU for their own countries. But it will have to be argued in the political arena, rather than through the courts.

One final point before we get back to Planning Law. I mentioned above the crucial importance of the independence of our judiciary; it is an essential component of the Rule of Law in this country. It is therefore immensely damaging when ill-informed newspaper editors print scurrilous allegations that senior judges are “Enemies of the People”, and question their integrity and their personal character. As I have observed above, the decision of the Divisional Court was inevitable; it flowed naturally from the law that the Court had to apply. There is no question of the judges having allowed their personal opinions, political affiliations or leanings or any other extraneous factors to influence their judgment; they were under a duty to apply the law as it exists to the facts before them, and they did so fearlessly and fairly. I am in no doubt that what the Daily Mail subsequently printed was a gross contempt of court, and the Editor and others concerned in writing and publishing this scurrilous material can count themselves lucky that they were not hauled before the Court and committed to prison until they had purged their contempt, by making a grovelling apology in person to the Court and printing an unqualified retraction of their statements. There must certainly be no repetition of this conduct in the wake of the Supreme Court judgment. In the event, however, that it were to be repeated, the journalists concerned should be swiftly proceeded against for any such contempt of court.

After the expected excitement of the Supreme Court judgment on Article 50 in January, there are two other cases that may well prove interesting. In February, the High Court is expected to hear the case of East Herts DC v. SSCLG. If judgment is reserved, we may expect to get the result by early March. This is a challenge by the LPA to ministerial advice in the online PPG that ‘sustainability of location’ should not be taken into account in determining a prior approval application under Class Q in Part 3 of the Second Schedule to the GPDO. The legal people at East Herts got rather hot under the collar when I suggested in a blog post a few months ago that they appeared to be ‘spoiling for a fight’ on this issue, but this case seems to suggest that this is precisely the exercise on which they were embarked. However, I have to say that if I were a gambling man, my money would be on the Secretary of State to win this one.

Then in mid-March, the Court Appeal is due to hear the appeal in Dunnett Investments v. SSCLG. This concerns preclusive conditions in planning permissions which may, or may not, have the effect of preventing either changes of use within the same use class (under section 55(2)(f)) or permitted development under the GPDO (or both). There is no doubt as to the preclusive effect of a condition that contains a clear reference to one or other of these statutory provisions; the difficulty arises where the condition is prohibitively worded, but without clearly referring either to section 55(2)(f) [or Art. 3(1) of the UCO] or to the GPDO.

I won’t rehearse the issue in any more detail here; I blogged on it a few months ago in light of the High Court decision in Dunnett Investments, and I have also discussed this case in detail in Appendix A to the Second Edition of A Practical Guide to Permitted Changes of Use (see paragraph A.5). I don’t know how counsel intends to argue his case before the Court of Appeal, but one point that appears to me to be relevant (and possibly determinative) is the distinction to be made between the legal effect of section 55(2)(f), compared with the legal effect of Art. 3(1) of the GPDO. Previous judgments, including the first instance judgment in Dunnett Investments, seem to have conflated the effect of allegedly preclusive conditions in relation to these two separate and rather different statutory provisions.

In light of later judgments, the proposition put forward in the judgment in Carpet Décor may have been too sweeping in embracing both section 55(2)(f) as well as the GPDO. However, it seems to me that the proposition accepted by the court in Royal London Mutual Insurance should be construed only as precluding the operation of section 55(2)(f), but not as such to precluding the operation of the GPDO in accordance with Art. 3(4) of that Order. In my view, the Court of Appeal decision in Dunoon Developments remains the leading authority, so far as the GPDO is concerned.

I imagine that a reserved judgment in Dunnett Investments can be expected before (or perhaps just after) Easter. No doubt other judgments will be forthcoming on a number of planning topics during the next twelve months. The flow of cases never stops.

Meanwhile, the Neighbourhood Planning Bill will continue its passage through parliament, and can be expected to receive royal assent this spring (and certainly before the current parliamentary session ends in May). Early amendment to the DMPO can then be expected to give effect to the government’s intention to bring the use of conditions in planning permissions under more effective legal control.

It remains to be seen what further amendments may be made to subordinate legislation. Further amendment of Part 3, Class O in the GPDO cannot be ruled out, although I remain sceptical about this (as previously explained). The possible consolidation of the Use Classes Order was canvassed when the UCO was further amended during 2015. It is certainly overdue for consolidation in view of the many amendments it has undergone in the past 30 years. I have a more than passing interest in this, as the writing project on which I am currently engaged deals extensively with the UCO, and we naturally do not want to go to press later this year, only to find that the UCO is then extensively overhauled.

Further primary legislation is also in prospect. A planning bill (whatever its title) seems to have become an annual event in recent years, and one wishes that ministers would resist the temptation of endlessly tinkering with the planning legislation. The Planning Acts are also arguably overdue for consolidation, having suffered a plethora of amendments since 1990, starting as early as 1991 when the ink was hardly dry on the principal Act. We shall just have to wait and see, although with so much else going on in government, it would be understandable if consolidation of the primary legislation remains on the back burner for the time being.

So, Happy New Year (even, dare we hope, a prosperous one). We’ll just have to keep our heads down and keep on with the work in hand, despite whatever nonsense the politicians and the press are getting up to.

© MARTIN H GOODALL

Reforming the use of planning conditions

One really good piece of news in the Neighbourhood Planning Bill is that ministerial guidance on the use of planning conditions, which has been so widely ignored by local planning authorities for many years, is at last to be given statutory force.

While the Bill is continuing on its passage through parliament (currently awaiting Second Reading in the House of Lords on 17 January, having already completed its passage through the Commons), the government is wasting no time in preparing the subordinate legislation that will be put in place as soon as possible after the Neighbourhood Planning Bill comes into force following Royal Assent, probably in the Spring. The government has consulted on these proposals and has published their response to the consultation with commendable speed.

The first major subject of the consultation is the issue of pre-commencement conditions. Whilst the government recognises the importance and value of certain pre-commencement conditions in ensuring that necessary safeguards are put in place for important matters, including heritage and the natural environment, they remain determined to ensure that the principles in their Planning Practice Guidance (formerly set out in Circular 11/95) are observed by LPAs, and this will include agreeing proposed conditions with an applicant before a decision is taken, and as early in the planning application process as possible.

The Government remains of the view set out in the consultation paper that it should be the responsibility of the LPA to choose the most appropriate time to seek agreement of the applicant to any pre-commencement conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. Nonetheless, the government agrees that there should be a default period to avoid undue delay in the process where there is no response from the applicant. They therefore propose a default period of 10 working days (although there will be an option for LPAs to agree a longer timescale with the applicant).

The intention is that the default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and has sought the agreement of the applicant. The default period would then elapse 10 working days (two weeks) later, unless a longer period had been agreed between the LPA and the applicant.

The alternative of introducing a dispute resolution procedure (such as a fast-track mechanism for appeals) would only add a further formal step to the process which would be likely to cause delays, and could actually discourage effective discussions between applicants and local authorities, who might simply wait to use the mediation route as an alternative to meaningful engagement early in the process.

The government expects that the new approach will reduce the workloads of authorities following the issue of a planning permission, by reducing the number of pre-commencement conditions that then have to be discharged.

The second main issue dealt with in the consultation document is the proposed prohibition of conditions that infringe the principles laid down in the ministerial guidance on the use of conditions. Planning officers predictably asserted in response to the consultation document that the guidance is already sufficient without further provision being made in legislation, but experience over many years has shown that in practice this guidance is widely ignored. The government believes (and I entirely agree) that it is necessary to ensure that conditions applied by local planning authorities meet the six policy tests in the NPPF. The government has therefore confirmed its intention to do this through secondary legislation, expressly prohibiting each of the following types of condition:

1: Conditions which unreasonably impact on the deliverability of a development - e.g. disproportionate financial burden;
2: Conditions which reserve outline application details [i.e. details that should have been specified as reserved matters at the outline permission stage];
3: Conditions which require the development to be carried out in its entirety;
4: Conditions which duplicate a requirement for compliance with other regulatory requirements - e.g. the Building Regulations;
5: Conditions requiring land to be given up; and
6: Positively worded conditions requiring payment of money or other consideration

The second of these prohibitions will not restrict the ability of local authorities to impose conditions on outline applications requiring the submission of details of reserved matters for approval at a later date. What it is aimed at is conditions attached to a full permission or to consent to details (i.e. the approval of matters that should have been reserved by an outline permission) which require the subsequent approval of further details. The latter type of condition should be entirely unnecessary.

However, what the government’s proposals do not appear to address is the unnecessary requirement in many conditions for certain details to be approved before the commencement of development, when the condition could simply require that certain matters be approved at a later stage in the development; it could indeed to be adequate that the approval of a few matters should simply be required “prior to the first occupation of any part [or of the relevant phase] of the development.

With regard to the prohibition of conditions requiring the completion of a development in its entirety, there is no reason why a developer should be under a legal obligation to carry out the whole of a development that has been approved. LPAs already have the ability to serve completion notices, to encourage the completion of partially-built development. The Government has therefore confirmed its intention to prohibit this type of condition.

As regards conditions that duplicate other regulatory requirements (in particular the Building Regulations), this is an issue on which many of us feel strongly. There is no excuse for trying to drag into the development management process matters that are properly the subject of compliance with the Building Regulations or other legislation. The government, however, does seem to have conceded (inadvisedly, in my view) that a condition might legitimately impose a requirement over and above the minimum standards stipulated by the Building Regulations. The answer, surely, if there are circumstances where a higher standard of construction is required, is to vary the Building Regulations themselves. There has been an unfortunate tendency in recent years to attempt to regulate through the planning system matters that should not properly feature in the development control process. The government really ought to set its face firmly against this trend.

Responses to the consultation exercise included a number of other conditions which it was suggested should be prohibited. These included:

- Conditions which duplicate or split conditions across different regulatory regimes;
- Conditions which restrict hours/methods of working on a building site;
- Conditions which require a completion date;
- Conditions which require material samples to be agreed up front before development can commence;
- Conditions which require pre-approved drawings to be duplicated and re-submitted for approval; and
- Conditions attached to temporary permissions, when the development has a short lifespan.

Some of these suggested prohibitions fall within the conditions that the government intends to prohibit in regulations, including conditions added upon the approval of reserved matters, conditions that duplicate other regimes and conditions requiring a completion date, all of which are covered by the government’s proposed prohibitions mentioned above.

There is perhaps just one other type of condition that requires specific prohibition. This relates to conditions attached to a prior approval under a relevant part of the Second Schedule to the GPDO (particularly Part 3) if it purports to deal with issues that go outside the scope of the specific matters requiring approval under the relevant Class of permitted development. Section 100ZA (which will be added to the 1990 Act by the Neighbourhood Planning Bill) makes it clear that the permissions referred to include development permitted by a development order, and so this provision will include conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended accordingly. However, the subordinate legislation ought specifically to prohibit such conditions, in order to reinforce the provision in paragraph W(13) in the GPDO that the conditions must be “reasonably related to the subject matter of the prior approval”.

© MARTIN H GOODALL

Demolition and replacement of offices still on PD agenda

I have previously expressed some scepticism as to delivery of the government’s avowed intention (dating originally from 2014) to add the demolition and replacement of office buildings to Class O in Part 3 of the Second Schedule to the GPDO.

I referred a few weeks ago to a footnote in an obscure press release that came out during the Tory party conference in October, where this proposal was repeated; but the fact remains that the proposal, if it were to be pursued, would be fraught with all sorts of practical difficulties, and would require the consideration of a whole raft of additional matters in any prior approval application relating to such development. In the circumstances, it seems to me that little, if any, advantage would be gained by this means as compared with a straightforward application for planning permission.

Notwithstanding my scepticism, the government’s intention to pursue this proposal has been repeated in their response to the report of the House of Lords Select Committee on the Built Environment, published in November 2016 [CM 9347], which contains this passage in paragraph 198:

“We are to extent [sic] permitted development rights even further, to allow for demolition of offices and replacement with housing on a like-for-like basis. This could provide around 4,000 new homes by the end of 2021.”

This comment was added, perhaps rather irrelevantly, to the government’s response to an observation by the House of Lords committee (quoted in paragraph 194) that “the Government should also consider strengthening the priority given to brownfield development, including considering the reintroduction of a ‘brownfield first’ policy at national level.”

The 4,000 figure was originally quoted in the October press release referred to earlier, although on what evidence (if any) is unclear. It looks very much like an unsubstantiated guess of the “think of a figure and double it” variety.

At our very successful seminar at the RIBA in November, launching the Second Edition of A Practical Guide to Permitted Changes of Use, Arita Morris, Director of Child Graddon Lewis, architects & designers, delivered an interesting paper on the practicalities of office conversions under Class O, which made it clear that many office conversions require planning permission for physical alterations and extensions in any event, bearing in mind that such operational development is excluded from the development permitted by Class O, so that the only physical alterations that can be carried out to the building without a separate planning permission are internal works not affecting the external appearance of the building, and which do not therefore constitute development by virtue of section 55(2)(a) of the 1990 Act.

In the past 30 years or so, it has been the practice to erect ‘deeper’ office buildings, which do not easily lend themselves to residential conversion, due to the lack of natural daylighting towards the centre of the building. It is presumably these more recent office buildings that would potentially be candidates for demolition and replacement if Class O were to be extended to allow this. There would nevertheless remain a question mark over the commercial viability of such a scheme, and the practicalities of this type of development might, as I have suggested, make a planning application a simpler way of dealing with a development of this sort.

So I am not expecting a further extension of permitted development rights under Class O any time soon. We shall have to see what 2017 brings, but don’t hold your breath.

© MARTIN H GOODALL

Basement excavation may not be permitted development

I have been extremely busy for the past few weeks, and so there has been an inevitable hiatus in posting items on this blog. The blog is concerned with the whole range of legal issues affecting town and country planning, but today I find myself returning once again to the issue of permitted development under the GPDO, this time under Part 1 of the Second Schedule to the Order.

Basement developments (especially in London) have been the subject of controversy for a number of years. As a general rule, it has been assumed that many such developments are permitted development (as discussed below), although some LPAs have made Article 4 Directions, so that in those areas a planning application will be required for basement extensions.

The legal background is theoretically straightforward, but it is in the detail that difficulties have arisen. Section 55(2)(a) of the 1990 Act is often cited as authority for the proposition that building operations which affect only the interior of a building or which do not materially affect the external appearance of the building are not to be taken to involve development of the land. As originally enacted, the predecessor of this section would have had the effect of exempting from the definition of development building operations to provide additional living space by forming or extending a basement under an existing house. However, section 55(2)(a) does not exempt works begun after December 5, 1968 involving the provision of additional space in the building underground. So digging a basement does constitute ‘development’ for the purposes of section 55.

The necessary planning permission for basement works is provided in most cases by Part 1, Class A of the Second Schedule to the GPDO. This permits the enlargement, improvement or other alteration of a dwellinghouse and, in principle, none of the exclusions or limitations in that Class would prevent the excavation or enlargement of a basement as permitted development. However, an interesting judgment was delivered in the High Court on 2 December in the case of Eatherley v. Camden LBC [2016] EWHC 3108 (Admin), which indicates that there may be practical limitations on such developments.

This was an application for the judicial review of a Lawful Development Certificate issued by Camden LBC, whereby they had confirmed that it would be lawful to carry out proposed works comprising the excavation of a basement beneath the footprint of the existing dwellinghouse. The proposed depth of the basement was approximately 2.85m, with the width (side to side of the house) a maximum of 4.5m and length (front to back of house) a maximum of 7.5m. A single internal staircase was proposed to link the existing ground floor with the proposed basement.

One issue that the council had considered was whether the engineering activities associated with basement construction were within Class A. Local residents had claimed that the proposals involved excavation works which, as a matter of fact and degree, constituted “an engineering operation” which did not benefit from any permitted development right under Class A. The council’s officers had concluded that the basement works would, by necessity, involve temporary engineering works associated with protecting the structural stability of the house and neighbouring building. However it was considered that these works would be entirely part of the basement works to the house, and that they would not constitute a “separate activity of substance” which would not be ancillary to the activity that benefitted from permitted development rights.

However, this issue was the basis of the legal challenge to council’s decision in the High Court, namely (1) that the proposed development included a substantial engineering operation which was not within the permitted development right relied upon in the LDC, (2) that the Council misdirected itself in concluding that the engineering works proposed were not a separate activity of substance, and (3) that the interpretation of the Class A permitted development right as including the engineering works proposed in this case frustrated the legislative purpose of section 59 of the 1990 Act [the enabling power under which the GPDO was made] and of the GPDO itself, and was therefore ultra vires. In the event, only the second of these submissions was accepted by the Court, although this was sufficient in itself to require the quashing of the LDC.

I haven’t got time to summarise Cranston J’s very interesting and instructive discussion of the background to these permitted development rights, but it is well worth reading in its entirety. In Cranston J’s view, the crucial issue was the meaning of the plain words of the planning permission granted by Article 3(1) of the GPDO for the Classes of development described as permitted development in Schedule 2. In relation to Part 1, Class A the issue revolves around the meaning of “the enlargement, improvement or other alteration of a dwellinghouse”.

The difficulty with a basement development, his lordship observed, is the absence of any boundaries to the permission. Yet there must be a point where the excavation, underpinning and support for a basement for a dwellinghouse becomes an activity different in character from the enlargement, improvement and alteration of that dwellinghouse. For that reason, engineering operations for the basement are at some point different in character to those involved in the preparation of foundations for a house.

The answer, drawn from the legal authorities, is whether, as a matter of fact and degree, the single process of making the basement amounts to different activities, each of substance, so that the one is not merely ancillary to the other. The principal authority relied on was : West Bowers Farm Products v. Essex CC (1985) 50 P & CR 368, as applied in Wycombe DC v. SSE [1995] JPL 223 and this was the law that Cranston J applied.

The first of these cases was concerned with agricultural PD under Part 6. The proposal in that case was for an irrigation reservoir on a farm of some 18 acres in extent and 6.5 metres in depth. The construction of the reservoir necessitated the extraction of large quantities of sand and gravel, which were to be sold. The Court of Appeal (upholding the judgment at first instance) held that if the development involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission. In that case, the Court was in no doubt that the construction of the reservoir would involve two activities, each of substance. The extraction of so much gravel would not merely be ancillary to the carrying out of the engineering operations under Part 6. This was a question of fact and degree.

In the Wycombe case, the front garden of a dwellinghouse in an elevated position above the adjoining road was almost totally excavated, leaving a hard standing for vehicles level with the road - 6.8 metres wide, 4.5 metres deep and 2 metres in height at the rear. The Secretary of State decided on appeal that there was no breach of planning control because what was done was permitted under Part 1, Class F. However, the High Court held that the Secretary of State had not determined what was incidental to the provision of a hard surface. He had referred to the “sole purpose of the excavations” and went on to find that “the removal of the necessary quantity of earth to achieve that aim took place as an integral part of the operation”. However, the Secretary of State was fatally in error in omitting to consider the correct test, and in applying tests which were not appropriate.

In the present case, Cranston J held that in the context of an original “two up two down” terrace house in suburban London, the development of a new basement, when there is nothing underneath at present, could well amount, as a question of fact and degree, to two activities, each of substance. There is the enlargement, improvement and alteration aspect, but there is potentially also an engineering aspect of excavating a space and supporting the house and its neighbours. That is the position, even though the latter is necessary to achieve the developer’s aim; indeed is indivisible from it. If there is this separate aspect in the development, it requires planning permission. The Class A right grants planning permission for one of the two activities of the development but not for the engineering aspect.

The officer’s report, advising the Council to grant the certificate, accepted that the basement works would, “by necessity”, involve temporary engineering works associated with protecting the structural stability of the host and neighbouring buildings. However, it added, these would be “entirely part of the basement works”, and did not constitute a separate activity of substance which would not be ancillary to the activity that benefitted from permitted development rights. In Cranston J’s judgment, the planning committee asked itself the wrong question with its focus on the works being “entirely part” of the overall development, which would “by necessity” involve engineering works. It concluded that because this was the case it followed that the works did not constitute a separate activity of substance.

That is not the approach laid down in the authorities. The Council’s conclusion that the engineering works were not a separate activity of substance followed from a misdirection. It should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance. The Council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.

In other words, if the planning committee had asked itself the right question, it would have needed to assess the additional planning impacts of the engineering works to decide whether they amounted to a separate activity of substance. It would have been in a somewhat difficult position in undertaking that task without any description of the engineering works required in support of the application, although it may have been able to draw on its own experience of the common and predictable ramifications of this type of basement development with this type of terrace house in this area. The issue was one of planning judgment, but since the planning committee misdirected itself as to the issue, it never got as far as properly exercising that judgment.

The LDC was therefore quashed on this ground.

© MARTIN H GOODALL