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

16 comments:

  1. Thank you Martin, an excellent example with concise explanation.

    ReplyDelete
  2. Dominic Heath-Coleman2 October 2017 at 09:06

    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?

    ReplyDelete
  3. 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).

    ReplyDelete
  4. Dominic Heath-Coleman4 October 2017 at 09:00

    Thank you Martin. That is very clear.

    ReplyDelete
  5. Thank you Martin.

    Have to say though that having now seen several sites which were prior notified and NOT subsequently converted I don't think I can agree with your proposition that "a prior approval application would clearly be positive evidence of an intention to develop, and would certainly put the fall-back position beyond doubt."

    ReplyDelete
  6. Hello there i believe i fall in to this category,

    I have a prior approval under class Q to convert a barn that is 300m2, I was going to develop it to sell however I have decided i am going to have it as my family home. I have submitted a full Planning Application to add a 200m2 second storey which the planner has basically said if I continue with she will throw it out and refuse it. So i worked with her and i decided to take the 1st floor off and add a basement to which she said she would consider. She told me today that she thinks its too big but she needs to seek advise from her senior.
    one thing i will add she said i could increase the size by 30% which i have and also the changes are that I'm adding a grass sedum roof rather than the approved aluminium sheeting roof, and we are having sustainable energy GSHP and solar, which weren't required on the GPDQ. the design and shape stays exactly the same albeit we want the basement.

    do you know where I stand, I know I have a fallback position and if she says no I will develop and move on

    ReplyDelete
  7. I would say to Russell Wright that planning permission for additional development will not automatically be granted.

    So far as a ‘fall-back’ position is concerned, the basis for this is that there is already planning permission for a development that would have as much impact in planning terms as, or possibly greater impact than, the consented or permitted development, and that there is a realistic prospect that the developer will go ahead with that development if planning permission for the alternative development is not granted. This is therefore an argument that planning permission should be granted for the alternative development.

    There is also some support for the proposition that planning permission may be granted in certain circumstances for additional development associated with the permitted development, even though the additional development would take the totality of the development outside the limits of what could be carried out as PD.

    I would stress, however, that the usual planning considerations would apply in determining such an application, and so a developer should obtain expert professional advice before promoting such additional development. Any planning application would have to be carefully framed and presented, and success cannot be guaranteed (even on appeal).

    ReplyDelete
  8. Hello - I have been following this aspect with much interest. Our 'LPA' seems to be using the "Mansell" case and it's "fall-back" principle as some kind of special rule to allow anyone who has Class Q (mainly agricultural change of use) permission to immediately come back with a full planning application. The applications are being treated favourably even though they are, more often than not, ignoring any of the stringent measures in place for the "Q" permissions - particularly - demolish and rebuild, additional works, excavations, new outbuildings etc. These are in areas that would never normally allow building but because there is "fall back" it seems anything now goes on the site.

    Would appreciate thoughts.

    Many Thanks

    ReplyDelete
  9. In answer to my anonymous correspondent of 14 November, I drew attention in the Second Edition of A Practical Guide to Permitted Changes of Use (in paragraph 9.7 on pages 108 to 109) to an appeal decision in Shropshire where planning permission for an extension of the curtilage and erection of a car port was granted on appeal, where there was already a prior approval under Class Q for the residential conversion of an agricultural building. The Inspector pointed out that there is no principle that requires additional development for which planning permission is sought to be confined within the limits of Class Q, although the usual planning considerations would apply.

    Planning permission is likely to be granted where there is an existing planning permission (including the permission granted by Article 3 of the GPDO) which is reasonably likely to be implemented if no alternative permission were to be granted, and where the impact in planning terms of the alternative development would not be significantly greater than the development for which permission already exists. This is a question of planning judgment, but there is no reason to confine such a development within the strict limits of Class Q.

    ReplyDelete
  10. Hi martin, Class Q has been established on a site for a single dwelling and a full application to replace with a lower impact unit is proposed. The area has recently had a neighbourhood plan adopted which includes a principle residency condition to be applied to all new housing development. Wondering how reasonable it is to impose such a condition given the fallback of an open market dwelling. The argument for the condition could be that this is a revised and new proposal; the Q building works haven't started and the intention is to build something else rather than complete the Q. Any thoughts welcomed.

    ReplyDelete
    Replies
    1. My preliminary view (without liability!) is that whilst one might be able to claim a fall-back position based on the permitted development right under Class Q, a planning application must (subject to any fall-back position that may be established) be determined in accordance with the development plan unless material considerations indicate otherwise.

      It is true that PD under Class Q could not be made subject to an occupancy condition. However, I am not confident that this would necessarily be a clinching argument against the imposition of such a condition on a planning permission for a replacement dwelling. On the other hand, such an argument should not, perhaps, be dismissed out of hand.

      So I suppose I have ended up ‘sitting on the fence’ on this one (!)

      Delete
  11. I am a parish Councillor and the Parish Council that I represent has been consulted on a planning application for a replacement dwelling in the Green Belt. The applicant bought the site last year and applied to erect a 2 storey side extension which was approved. A few weeks later he applied to erect an orangery. Again this was approved. Then he applied to add on the full PD rights to the rear. This was accepted. The applicant then applied to replace the dwelling with the volume of the original dwelling plus what he calls the 3 fall back applications, which would result in the new dwelling being 100% larger than the original. Local Plan policy has a guideline of 30%. We have argued that the fall back, which would have significantly less impact on the Green Belt than the proposed should be given limited weight not substantial weight as a special circumstance. The planning department have said case law supports accepting the fall back position as the 3 extensions could be built. Can you advise please even though this doesn't involve Class Q.

    ReplyDelete
    Replies
    1. I can’t comment in any detail, as it all depends on the precise facts. The PC should make its view known to the LPA, who must then reach a planning judgement in accordance with the Development Plan (unless material considerations indicate otherwise). There are no doubt policies about replacement dwellings in the countryside, which will be relevant here. Whether or not the existing planning permissions (and PD rights) genuinely represent a fall-back position will need careful consideration on the part of the council’s planning officers.

      Delete
    2. Thank you for commenting. I can imagine how busy you are, so really appreciate you spending the time replying. You last sentence fills me with some hope.

      Delete
  12. Dear Martin - the court in Mansell v Tonbridge spell fall-back as "fallback" 42 times (11 as a noun and 31 as adjective) but do not use "fall-back" at all. "fall back" occurs 4 times and tends to be from quotes from lesser courts. I noticed that you prefer to use "fall-back" (13 times) but also used fallback (11 times) above. Is it one of those words that needs correct spelling or can we carry on spelling it like we like. I write this is in a break from a long planning response so please forgive my attempts to be light hearted. Regards,

    ReplyDelete
    Replies
    1. As you point out, this term has been rendered in at least three different ways, and frankly it's a matter of personal taste. I tend to use either "fallback" or "fall-back" indiscriminately (but not, so far as I can recall, "fall back").

      I don't think there is likely to be a clear consensus as to the correct way to put this term in writing, and so I shall happily go on using any of these variants as the mood takes me.

      (This isn't the only example of words that can be written in more than one way. Take, for example, "judgement" and "judgment". As a lawyer, I am in the habit of using "judgment" when referring to the decision of a court, but "judgement" when referring generally to the exercise of one's critical faculties. There is no logic in doing this, and I cannot absolutely guarantee that I have always been consistent in my usage of the two different spellings. I am not aware of any lexicological support for this practice, and so I am certainly not in a position to assert that my habit, which is widely (but not unanimously) shared by other lawyers, represents 'correct' usage.)

      In my two books, (in agreement with my editor) I have generally attempted to be more consistent in the orthography, although I suspect that this may not necessarily have been the case with "fallback" and "fall-back". I must check with my editor what decision we have reached on this point in preparing the Third Edition of A Practical Guide to Permitted Changes of Use.

      Delete

NEW COMMENTS ON THIS BLOG ARE NOW CLOSED.

Note: only a member of this blog may post a comment.