Friday, 29 September 2017

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

4 comments:

Evan Owen - Snowdonia said...

Thank you Martin, an excellent example with concise explanation.

Dominic Heath-Coleman said...

Hello Martin,

I am interested in your comment:

"[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.]"

Surely the development is only permitted development "...subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required..." Without having gone through this procedure there is no permitted development right at all. If the developer carried out the development without going through this procedure it would not be permitted development and could only be regularised with an application for express planning permission. If the LPA declines to grant prior approval due to, for example, flooding risks on the site, the developer would not actually have a permitted development right at all. Surely, on this basis, to establish a proper fallback position a prior approval application is essential?

Martin H Goodall LARTPI said...

I appreciate the point that Dominic Heath-Coleman makes, but what he is referring to is simply a condition which must be complied with prior to the PD being carried out. It is analogous to any other pre-commencement condition (or ‘condition precedent’). As I pointed out, the relevant planning permission is actually granted by Article 3(1). The requirement for prior approval is simply a condition attached to that planning permission. Clearly this is a condition that “goes to the heart of the permission” (as per R (Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin)), so that implementing the permission granted by Article 3(1) without first applying for prior approval where it is required, and obtaining either prior approval or a determination that LPA’s prior approval will not be required, would render the whole development unlawful.

The position would be exactly the same where there is an express planning permission that contains a pre-commencement condition which is a ‘true’ condition precedent. That planning permission would clearly be capable of establishing a fallback position in relation to a planning application for some other development on the site, and there would be no requirement, in order to establish that fallback position, to comply first with the pre-commencement condition (e.g. by applying for approval of the slab level or some other essential detail, as required by the condition). Although the existing planning permission could not lawfully be implemented without compliance with the condition precedent, this does not affect the fallback position where there is nevertheless a realistic prospect of the consented development going ahead if planning permission for the alternative development that is now sought were to be refused.

In relation to permitted development under the GPDO, the judgment of Lindblom LJ in Mansell makes the position perfectly clear: “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.”. Prior approval is not therefore a necessary pre-requisite for establishing a fallback position, provided that other evidence establishes a clear intention to proceed with the PD if PP is not granted for the alternative development (as it did in that case).

Dominic Heath-Coleman said...

Thank you Martin. That is very clear.