Can PD rights represent a fall-back position?

There have been disputes for a number of years as to whether permitted development rights, such as those for the residential conversion of agricultural buildings under Class Q in Part 3 of the Second Schedule to the GPDO, can be called in aid as a fall-back position where a planning application is submitted for other development on the same site. On 8 September, the Court of Appeal upheld a judgment of the High Court that such PD rights can properly be taken into account as a fall-back position where some alternative form of development is then proposed.

The case in question is Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314, in which the leading judgment was given by Lindblom LJ. The LPA had granted planning permission in this case for the demolition of an existing agricultural barn and of a bungalow on the application site and to construct four detached dwellings, with garages and gardens. In recommending the LPA’s committee to grant planning permission, the planning officer had advised them that, in practical terms, the permitted development rights under Class Q meant that the existing agricultural barn could be converted into three residential units up to a limit of 450 sq m. Furthermore, the existing bungalow within the site could be replaced in accordance with an adopted policy in the Local Plan with a new residential building, provided that it was not materially larger than the existing building. He advised that, taken together, these factors could, in effect, give rise to the site being occupied by a total of four residential units (albeit of a different form and type to that proposed by this application). This, the officer observed, provided a realistic fallback position in terms of how the site could be developed.

The claimant sought to challenge the grant of planning permission on several grounds. He alleged that the planning officer (and hence the council) had misinterpreted the provisions of Class Q; they had wrongly accepted that there was a real prospect of the fallback development being implemented; and they had also misunderstood or misapplied the “presumption in favour of sustainable development” (as defined by paragraph 14 of the NPPF).

Part of this argument turned on the interpretation of the 450 sq m floorspace limit (which, the claimant argued, applied to the entirety of the building in question, and was not confined to the actual floorspace that is actually converted). This argument was rejected both at first instance and by the Court of Appeal. The argument was that an interpretation of the relevant provisions that confined the floorspace limit to the floor area actually converted would render sub-paragraph Q.1(b) of Class Q redundant, because sub-paragraph Q.1(h) already limits the residential floor space resulting from the change of use under Class Q to a maximum of 450 square metres. I confess that I was originally confused myself by the relationship between paragraph Q.1(b) and paragraph Q.1(h), but I then explained the distinction between these two provisions in the Second Edition of A Practical Guide to Permitted Changes of Use (in paragraph 9.6 on page 103).

At first instance, Garnham J. accepted that the council was entitled to conclude that there was a “realistic” fallback. The evidence had established that there had been prior discussions between the council and the planning consultant acting for the site owners. It was crystal clear from that contact that the owners were intending, one way or another, to develop the site. Alternative proposals had been advanced seeking the council’s likely reaction to planning applications. It was in the judge’s view wholly unrealistic to imagine that were all such proposals to be turned down the owner of the site would not take advantage of the permitted development provided for by Class Q to the fullest extent possible. It was not a precondition to the Council’s consideration of the fall back option that the owner had made an application indicating an intention to take advantage of Class Q. There was no requirement that there be a formulated proposal to that effect [my emphasis]. The officer was entitled to have regard to the planning history which was within his knowledge, and the obvious preference of the owners to make the most valuable use it could of the site.

The claimant sought to criticise this approach by reference to Samuel Smith Old Brewery (Tadcaster) v SSCLG [2009] J.P.L. 1326 (at paragraph 21) and R. v SSE, ex p. P.F. Ahern (London) Ltd [1998] Env. L.R. 189 (at p.196). However, Lindblom LJ could not accept that argument. In his view, the officer did not misunderstand any principle of law relating to a fallback development. His advice to the members was sound.

[I would simply add the observation that a prior approval application is not a necessary pre-requisite to establishing a fall-back position, because planning permission is granted in any event by Article 3(1) of the GPDO. In granting prior approval an LPA is not even approving the permitted development as such, but only those matters that specifically require their attention. On the other hand, a prior approval application would clearly be positive evidence of an intention to develop, and would certainly put the fall-back position beyond doubt. In this case, however, there was other evidence that entitled the LPA to conclude that there was a realistic prospect that the PD rights would be exercised if planning permission was not granted for the alternative development that was now proposed, and so a fall-back position had clearly been established.]

The remaining issue was the presumption in favour of “sustainable development”, as interpreted by paragraph 14 of the NPPF. The decision of the Court of Appeal in Barwood Strategic Land LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 provides the answer (and supersedes all previous judgments on this issue). The “presumption in favour of sustainable development” did not apply to the proposal in this case, and the council’s officer did not advise the committee that it did. The instant case was clearly and materially different from Barwood, and the officer’s report had correctly advised on the application of the NPPF as a material consideration in the determination of this application.

The Court of Appeal unanimously upheld Garnham J’s judgment at first instance and dismissed the claimant’s appeal.

© MARTIN H GOODALL

The Stripey House – the end of the saga?

Apart from noting the litigation relating to the painting of the ‘stripey house’ in Kensington & Chelsea (which involved a section 215 Notice, later quashed by the High Court in April of this year – see House-painting not within the scope of section 215, posted here on Tuesday, 2 May 2017), I have not attempted to follow in any detail the long and convoluted battle between Mrs Lisle-Mainwaring and her neighbours, who had recruited the assistance of the LPA in their struggle to thwart her plans to redevelop the site. It was this that had led to the painting of the house with red and white vertical stripes by way, in effect, of protest against the neighbours’ unrelenting campaign.

I did, however, report the quashing of Mrs Lisle-Mainwaring’s intended development plans in the High Court last November (Stripey house – another twist in the tale, posted here on Wednesday, 2 November 2016). That decision has now been overturned by the Court of Appeal. I do not yet have a note of the neutral citation number of the Court of Appeal’s decision, but the court was clear in their decision to restore the Inspector’s original appeal decision allowing Mrs Lisle-Mainwaring’s appeal against the refusal of planning permission by RBKC for demolition of the house (which had actually been in use as an office) and its replacement by a new dwelling, with the now obligatory double basement without which one simply couldn’t bear to live in London nowadays.

The office use had ceased, and the Inspector had found that there was no realistic prospect of the building being returned to office use. There was therefore no sustainable policy objection to the proposed development. Lindblom LJ, in allowing the appeal, held that the Inspector was entitled to reach such a conclusion, and that his decision was not legally flawed (contrary to the view expressed by the High Court).

The Court of Appeal’s judgment does not impinge in any way on the other High Court decision in which it had been held that the paint scheme applied to a house cannot properly be the subject of a section 215 notice, and so that decision stands. In practice, however, the days of the stripey house are now numbered, because it will disappear on being demolished to make way for its replacement.

Dare we hope that this finally puts an end to this long and convoluted legal saga?

© MARTIN H GOODALL

THE USE OF LAND AND BUILDINGS - the Essential Guide

I am sure that readers have noticed that there has been a longer interval than ever before since I last published a post on this blog, on Wednesday 19 July. The sole reason for this was that I was very fully engaged in completing my next book – The Essential Guide to THE USE OF LAND AND BUILDINGS under the Planning Acts. The book is expected to be published early in November.

My publishers, Bath Publishing describe the new book as the definitive handbook on this subject. It explains the legal rules governing the use of land and buildings as well as material changes of use. The text first sets out the rules that apply to the use of land generally and to material changes of use. It then explains the provisions of the Use Classes Order in detail. Chapters are also included on Permitted Changes of Use, Unlawful Uses and Lawful Use Certificates, including how to apply for a certificate as well as the procedure for appealing against the refusal of an LUC application. The book brings all this together in a convenient and accessible work of reference that will prove invaluable for everyone who needs to know the rules that govern the use of land and buildings and changes of use.

Bearing in mind that my previous book already covers the subject of permitted changes of use very fully, the chapter on this topic in the new book is a fairly brief summary, and so the new book should be seen as a companion volume to that earlier book.

The scope of the book can be appreciated by a glance through the list of chapter headings:

1. General introduction
2. The planning unit and the concept of ‘curtilage’
3. Changes of use - an overview
4. Change of use or operational development?
5. Changes of use prescribed or excluded by statute
6. Restrictions on uses or on changes of use
7. Legal effect of various changes affecting a use
8. The Use Classes Order - an overview
9. Shops and retail services
10. Catering uses
11. Business and industrial uses
12. Non-domestic residential accommodation
13. Dwellinghouses
14. Houses in multiple occupation
15. Non-residential institutions
16. Assembly and leisure uses
17. Agriculture, horticulture and forestry
18. Permitted changes of use
19. Unlawful uses
20. Lawful use certificates
21. LDC appeals

You have probably noticed already the link in the left-hand margin of this page showing the front cover of the new book. This enables readers of this blog to pre-order the book, and to avail themselves of an excellent bargain. The cover price is only £50 (the same price as the Second Edition of A Practical Guide to Permitted Changes of Use), and for this price you will get not only the new book itself, but a copy of the digital edition of the new book as well. But don’t delay. This bargain will only be available until the publication date; after that, it will cost £50 for the book and another £50 if you also want the digital edition.

We are organising another seminar in connection with the publication of the new book, which will be held in London at the RIBA on Friday 17 November. I’ll publish details of the seminar shortly.

© MARTIN H GOODALL