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