Tuesday, 12 June 2018

Unless otherwise agreed

Paragraph W (12) in Part 3 of the Second Schedule to the GPDO provides that the development permitted under Part 3 must be carried out in accordance with the details approved by the LPA. Where prior approval is not required (or where the 56-day period has expired without the applicant having been notified of the LPA’s determination of the prior approval application) the development must be carried out in accordance with the details provided in the prior approval application. In both cases, the requirement for the development to comply with these details applies “unless the local planning authority and the developer agree otherwise in writing”.

The question has arisen as to what formalities, if any, are required in order to obtain the LPA’s agreement to any variation. The reference to such agreement simply being “in writing” seems to me to indicate that a formal application, such as a fresh prior approval application or a planning application (for example under section 73) is not required. However, some LPAs seem to have taken a different view.

My own view is reinforced by a parallel provision in Part 16 (relating to telecoms development). Paragraph A.3(8) in Part 16 provides that the development must, except to the extent that the local planning authority otherwise agree in writing, be carried out in accordance with the details approved in the prior approval, and in any other case, in accordance with the details submitted with the application. Paragraph A.3(9) then goes on to explain that “The agreement in writing referred to in sub-paragraph (8) requires no special form of writing, and in particular there is no requirement on the developer to submit a new application for prior approval in the case of minor amendments to the details submitted with the application for prior approval”.

Now, I appreciate that Inspectors have resisted attempts to import the provisions of one Part of the Second Schedule into another Part by analogy, but if no formality is required in seeking agreement to minor variations under Part 16, then I see no reason why any formality should be required in seeking similar agreement under Part 3.

If the GPDO had been properly drafted, the wording I have quoted from paragraph A.3(9) in Part 16 should also have appeared in paragraph W(12) in Part 3, and this is not the only example of a failure to ensure uniformity in the provisions in different Parts of the Second Schedule to the GPDO. The opportunity should be taken to correct such anomalies in the drafting of the Order. In the meantime, it is to be hoped that common sense will prevail, and that LPAs will not be difficult about accepting informal requests for the variation of approved or submitted details. The only requirement is that the actual agreement between the LPA and the developer should be “in writing”.


Friday, 4 May 2018

Implied conditions – Court of Appeal backs High Court

On Wednesday 1 November 2017, I drew attention to the case of Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin). The case concerned a permission granted under section 73 which, in allowing a relaxation of one of the conditions in the original planning permission, had failed to reimpose one of the restrictions that had been contained in the original planning permission. It is well settled law that a permission under section 73 takes effect as a fresh permission, so that where this occurs any conditions that were not reimposed fall away.

The problem for Lambeth in this case was that, although in the section 73 permission they had referred in the description of the development to variation of the condition so as to allow a wider range of non-food retail uses, they had not included a condition in this new permission that expressly ruled out the retail sale of food. The landowner sought an LDC under section 192 that it would now be lawful to sell an unrestricted range of retail goods (including food). The LPA refused to grant the LDC, arguing that the section 73 permission was not intended to have this unrestricted effect, but an appeal was allowed against that refusal. The LPA sought to challenge this appeal decision in the High Court, but their claim was dismissed as noted in my previous blog post on this topic. The council then took the case on to the Court of Appeal, which gave judgment on 20 April - [2018] EWCA Civ 844.

Lambeth, in attempting to establish that the relevant restriction still applied, could not challenge the well-established legal effect of section 73, and were therefore driven back on seeking to interpret the section 73 permission more restrictively than appeared on its face.

I don’t propose to go into this case in any detail. Briefly, the council’s arguments were that the section 73 decision notice itself should be interpreted in a restrictive manner and, second, that a condition preserving the restrictive effect of the original planning permission could be implied in the permission. The LPA’s argument was that the section 73 permission should be interpreted as if it contained the missing condition, to the effect that “the use shall be carried on in accordance with the conditions attached to the 2010 permission as stated to have been varied by this permission.” My interest in this case lies solely in this argument over implied conditions.

It has always been my view that the obiter remarks of Lord Carnwath JSC in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 do not allow the implication of an entirely new condition in a planning permission which had been entirely omitted from that permission, as opposed to the implication of a term in a condition which the permission already contains so as to give effect to the true intention of that condition. This argument was put to the Court of Appeal by Christopher Lockhart-Mummery QC in Lambeth. The Court accepted this submission, and agreed with the judge at first instance that a new condition cannot be implied as the LPA had argued.

This judgment is therefore further confirmation (if it were needed) that the effect of what was in any event an obiter observation in Trump International is limited to ‘correcting’ an existing condition, so as to give proper effect to its intention. The obvious example is a condition requiring approval of certain matters by the LPA which does not in terms require that, upon such approval being given, the development must then be carried out in accordance with those approved details. Clearly, in light of Trump International, a term can be implied in this condition requiring compliance with these approved details. Without such an implied term, the condition would not achieve its intended purpose.


Monday, 30 April 2018

Musical chairs

Following Amber Rudd’s resignation as Home Secretary yesterday evening, Sajid Javid has been appointed as her successor. The resulting vacancy at MHCLG has been filled by James Brokenshire, who returns to the cabinet after a short period out of office due to ill health. He had previously been Northern Ireland Secretary. Now aged 50, James Brokenshire has been in the Commons since 2005. He is a solicitor, who (before he ceased to practice on pursuing his political career) specialised in company and corporate law. So far as I am aware, he has had no experience relating to housing or planning.

Whatever one may think about his suitability for the post to which he has now been appointed, I am sure we all very much hope that he has now put behind him the health problem that forced his resignation at the beginning of the year, and wish him a full and permanent return to good health.

James Brokenshire says he is honoured to have been asked by the Prime Minister to serve as Secretary of State at the Ministry of Housing Communities & Local Government, and has stressed his determination to pursue the Ministry’s tasks, especially the building of new homes. No doubt his performance, and that of the Ministry will be judged primarily by the extent to which the government’s house-building targets are achieved (or by what margin those targets turn out to have been missed by 2020).

The reshuffle of cabinet posts does not appear to have led to any changes in the ranks of ministers below cabinet level, and so it remains to be seen whether any changes will be made in the MHCLG ministerial team. So, at least for the time being, it looks as if Dominic Raab will remain in post as the Housing & Planning Minister, having been in his current post only since January. He too is a qualified solicitor, but practised as a solicitor for only a short time before pursuing a diplomatic career, with a particular interest in human rights. He entered parliament in 2010.

The latest change in the leadership of the Ministry is very unlikely to bring about any change in the policies and projects on which MHCLG is already embarked, so what we have just seen is simply a game of musical chairs, the only difference being that the game started with Amber Rudd giving up her seat at the cabinet table, rather than being left out after the music stopped.


Thursday, 19 April 2018

Going behind a prior approval

If an LPA in determining a prior approval application under a relevant part of the Second Schedule to the GPDO decides either that their prior approval will not be required or grants such prior approval, can the authority later resile from that decision on the basis that the development does not in practice qualify as PD, or (alternatively) can a third party successfully challenge the LPA’s decision on the same ground?

I have been meaning to return to this topic ever since the judgment of the High Court in R (Marshall) v E Dorset DC [2018] EWHC 226 (Admin), in which judgment was given on 13 February.

In a blog post on Monday, 16 January 2017 (Can an LPA override a prior approval?), I drew attention to the little-known judgment in R. v. Sevenoaks DC, Ex p Palley [1994] E.G. 148 (C.S.), which appeared to suggest that when an LPA gives its prior approval (or decides that its prior approval is not required), it is inherent in that determination that the authority necessarily accepts that the proposed development does qualify as PD, so that the council cannot thereafter resile from that position.

Until my attention had been drawn to Ex p Palley, it had been my view that if the proposed development does not in fact comply with the criteria for permitted development under the relevant Class in (for example) Part 3 or Part 6 of the Second Schedule to the GPDO, either because a requisite pre-existing use did not qualify under that Class of PD, or because the proposed development is not within the limitations, restrictions or conditions that apply to the relevant Class of PD, then an application for prior approval, even if the approval is given (or if the application is simply not determined within the 56-day or 28-day period – whichever is applicable) cannot make the proposed development lawful, and so it cannot be carried out as PD.

The basis for my earlier opinion was that the actual planning permission for the development is granted by Article 3(1) of the GPDO and it is this permission that is dependent on the qualifications in the GPDO being met. The LPA is not itself granting planning permission, nor in giving its prior approval is it approving the development as such; it is merely approving the specified matters that require prior approval. It follows (I had originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD.

During the course of discussion in comments that were posted in response to the revised view that I expressed in light of Ex p Palley, a correspondent raised with me the effect of the Court of Appeal’s decision in Keenan v Woking BC and SSCLG [2017] EWCA Civ 438. At the time, I felt that Keenan did not affect the position, because it simply seemed to me to confirm that if the development does not qualify as PD, the 56-day rule [or the 28-day rule in that case] will not operate so as to allow the proposed development to go ahead in the absence of the prior approval application having been determined within the statutory time limit. There had previously been several appeal decisions to the same effect, and I stressed this point in my book, A Practical Guide to Permitted Changes of Use (see page 201 in the Second Edition, and for good measure, I repeated it at the bottom of page 210).

However, it seems that the effect of the decision in Keenan is of slightly wider effect than that (at least so far as PD under Part 6 is concerned), and Mrs Justice Lang’s judgment in Marshall has prompted me to look more carefully at Keenan.

In Marshall, Lang J drew attention to the disqualification in paragraph A.1 of Part 6, whereby development is not permitted by Class A if it would consist of, or include, the erection or construction of, or the carrying out of any works to, a building, structure or an excavation used or to be used for the accommodation of livestock or for the storage of slurry or sewage sludge where the building, structure or excavation is, or would be, within 400 metres of the curtilage of a protected building, but in this case the proposed building was within 400 metres of several dwellings (including the Claimant’s home) which were “protected buildings” as defined. Furthermore, paragraph A.2 makes it a condition of permitted development under Part 6 that where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development are not used for the accommodation of livestock (except in certain defined circumstances).

Notwithstanding this, the LPA issued a decision notice in response to the developer’s prior approval application under Part 6, which stated that “The development, therefore, constitutes permitted development in accordance with the provisions of Part 6 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and is subject to the standard conditions.” In dealing with this point, Lang J followed the judgment of the Court of Appeal in Keenan, and in particular the words of Lindblom LJ that, in order to be lawful, the development proposed had to fall squarely within the description of “permitted development” in the relevant Class.

In particular, Lindblom LJ observed in Keenan that the GPDO did not impose on the LPA a duty to decide whether or not the development in question was, in fact, permitted development under Class A of Part 6, albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the LPA to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not, of course, with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.

As Lang J put it in Marshall (referring to Keenan), the ‘prior approval’ conditions do not even come into play unless the proposed development falls “squarely within the description of Permitted development” in the relevant Class, and she emphasised that Keenan also decided that the LPA, when deciding a prior approval application under the terms of the GPDO [at least under Part 6, but see below], is not empowered, either expressly or implicitly, to decide whether or not the proposed development comes within the description of the relevant Class in the GPDO.

This confirms the view which I had originally expressed myself as to the effect of the legislation. Clearly, therefore, in the context of Part 6, Ex parte Palley can have no application.

Whilst I accept the logic of both the Keenan and Marshall judgments, I still have a niggling doubt at the back of my mind, which those two judgments do not entirely resolve. Both of these cases involved agricultural development under Part 6, and I fully accept Lindblom LJ’s views, quoted by Lang J in her judgment in Marshall, so far as Part 6 applications are concerned. However, the actual legislative wording of Part 3 does seem to imply that in the case of prior approval applications under that Part of the Second Schedule to the GPDO, the LPA when deciding a prior approval application under the terms of Part 3 is empowered, either expressly or impliedly, to decide whether or not the proposed development comes within the description of the relevant Class in Part 3.

In relation to Part 3, paragraph W. –(1) provides that the following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required. Under paragraph W. -(3), the LPA may refuse a prior approval application where, in the opinion of the authority, the proposed development does not comply with (or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with) any conditions, limitations or restrictions specified in this Part as being applicable to the development in question.

I think I would have to concede that paragraph W. –(3) empowers the LPA only to refuse the prior approval application if the development does not qualify as PD but, arguably, this might reasonably be taken to imply that if the LPA either grants its prior approval or determines that its prior approval of the specified matters is not required, then the authority may be taken to have accepted that the development does qualify as PD, and in those circumstances Ex p Palley (as discussed in the earlier blog post to which I have drawn attention above) would come into play.

Ex p Palley was, of course, decided some years before the House of Lords’ decision in R v East Sussex CC ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, in which it was held that the clear terms of the modern legislation (sections 191 and 192 of the 1990 Act in their currently amended form) provide the only means of confirming the lawfulness of an existing or proposed use or development. Such a determination cannot be construed from the outcome of other procedures, nor can a finding of lawfulness be made or implied informally. However, that is a rather different point from the one raised here. We are dealing here with a planning permission granted by Art. 3(1) of the GPDO, subject only to prior approval of certain matters by the LPA (or their determination that their prior approval is not required), rather than with an informal opinion or implied certificate as to the lawfulness of the proposed development in connection with which prior approval has been granted.

In principle, the qualification of a proposed development as PD would appear to be an issue that is entirely separate from the grant of prior approval (and this was the view I initially expressed). However, it appears on closer examination (particularly bearing in mind the wording of paragraph W -(3)) that the prior approval could reasonably be taken, for the reason advanced above, to involve a determination by the LPA that the restrictions, limitations and conditions applicable to that Class of PD in Part 3 are met, and that the proposed development accordingly qualifies as PD.

It is in light of this factor that the judgment in Ex p. Palley may become relevant where prior approval has been given under Part 3, because the determination by the LPA is arguably a judgment by them (in accordance with paragraph W. –(3)) of a matter of fact and degree that can only be challenged on Wednesbury grounds by way of an application for judicial review. The point of the judgment in Ex p. Palley is that, because (having regard to the wording of paragraph W -(3)) the LPA may be taken to have considered and determined whether the development does in fact qualify as PD, this issue is not merely “a matter of precedent fact".

I cannot guarantee that this argument would necessarily be accepted if it were to come before the High Court or the Court of Appeal, but in view of the fact that this argument rests on a legislative provision in Part 3 (which is absent from Part 6), rather than relying on a reference to ministerial practice guidance, as was the case in Keenan, it would appear that a Part 3 case might well be distinguishable from the judgments in Keenan and in Marshall (concerned as they were with the differently worded provisions of Part 6). I suspect we shall just have to sit back and wait for someone to take a punt on this point.


Monday, 9 April 2018

Isolated houses in the countryside

Readers will recall that I deferred commenting on this issue until the case of Braintree BC v SSCLG had been to the Court of Appeal. The appeal was heard on 14 March, and judgment was handed down on the 28th - [2018] EWCA Civ 610. The judgment of the High Court rejecting the LPA’s challenge to an inspector’s appeal decision was upheld, although the Court of Appeal’s reasons differed slightly from those given by Mrs Justice Lang at first instance - [2017] EWHC 2743 (Admin). The case turned on the interpretation of ministerial guidance in paragraph 55 of the NPPF, which advises that “local planning authorities should avoid new isolated homes in the countryside” unless there are special circumstances (of which examples are cited in that paragraph). The point for the court was therefore a short one, in relation to the use of the word “isolated” in this context.

In rejecting the original planning application, the LPA had made the point that, in accordance with paragraph 55, housing in rural areas should be located where it will enhance or maintain the vitality of rural communities. The site in this case, the LPA said, is located in the countryside beyond any defined settlement boundaries and in a location where there are limited facilities, amenities, public transport links and employment opportunities. They asserted that the proposal would introduce new housing development beyond the defined settlement limits and would be contrary to the objectives of securing sustainable patterns of development and the protection of the character of the countryside. Development at this location, they said, would undoubtedly place reliance on travel by car.

In an appeal against the refusal of planning permission, the Inspector listed among the four principal issues “…….. whether the appeal proposal constitutes sustainable development in the countryside”. On this issue, the Inspector concluded: “Accessibility to services, facilities and employment from the site other than by car would be poor. On the other hand, the development would make a modest contribution to meeting housing need. In addition, subject to appropriate conditions, there would not be material harm to the character and appearance of the surrounding area or to the setting of listed buildings. A minor economic benefit would arise from developing the site and the economic activity of those occupying the dwellings. There would be conflict with policies CS5 and RLP2 but those policies are out-of-date and are worthy of limited weight. Applying the test set out in [NPPF] paragraph 14, I find that there are not adverse impacts of granting permission which would significantly and demonstrably outweigh the benefits, when assessed against [NPPF] policies as a whole. Nor are there specific policies in the [NPPF] which indicate that the development should be restricted. The proposal would amount to sustainable development. Permission should be granted in accordance with the [NPPF’s] presumption in favour of sustainable development.”

In light of this, the Court considered whether the inspector misinterpreted and misapplied the policy in paragraph 55 of the NPPF. However, Lindblom LJ stressed that in considering the interpretation of planning policy, whether in the development plan or in statements of national policy, the court must avoid the mistake of treating the policy in question as if it had the force or linguistic precision of a statute – which it does not – and must bear in mind that broad statements of policy do not lend themselves to elaborate exegesis. The court’s task is simply to discern the objective meaning of the policy as it is written, having regard to the context in which the policy sits. On the other hand, the application of policy is for the decision-maker, on a true understanding of what the policy means, but with freedom to exercise planning judgement as the policy allows or requires – subject to review by the court on Wednesbury principles alone. The court will not lightly accept an argument that an inspector has proceeded on a false interpretation of national planning policy or guidance. Nor will it engage in – or encourage – the dissection of an inspector’s planning assessment in the quest for such errors of law. Excessive legalism in the planning system is always to be deprecated. The Court therefore agreed with the respondents’ submission that its task is to construe the words of the policy itself, reading them sensibly in their context. This is not a sophisticated exercise, and it need not be difficult. It is, in fact, quite straightforward. Planning policies, whether in the development plan or in the NPPF, ought never to be over-interpreted. As this case showed, over-interpretation of a policy can distort its true meaning – which is misinterpretation.

Lindblom LJ made three important points. First, paragraph 55 is expressed in general and unprescriptive terms. It does not dictate a particular outcome for an application for planning permission. It identifies broad principles and indicates a broad approach. LPAs are advised what “should” be done. The policy is not expressed as containing a “presumption”, and the paragraph should not be read as creating one. Rather, it indicates to authorities, in very broad terms, how they ought to go about achieving the aim stated at the beginning of paragraph 55: “[to] promote sustainable development in rural areas”. It does not set specific tests or criteria by which to judge the acceptability of particular proposals. It does not identify particular questions for a local planning authority to ask itself when determining an application for planning permission. Its tenor is quite different, for example, from the policies governing the protection of the Green Belt, in paragraphs 87 to 92 of the NPPF. The use of the verb “avoid” in the third sentence of paragraph 55 indicates a general principle, not a hard-edged presumption.

Second, the policy explicitly concerns the location of new housing development. The first sentence of paragraph 55 tells authorities where housing should be “located”. The location is “where it will enhance or maintain the vitality of rural communities”. The concept of the “vitality” of such a community is wide, and undefined. The example given in the second sentence of paragraph 55 – “development in one village” that “may support services in a village nearby” – does not limit the notion of “vitality” to a consideration of “services” alone. But it does show that the policy sees a possible benefit of developing housing in a rural settlement with no, or relatively few, services of its own. The third sentence of the paragraph enjoins authorities to avoid “new isolated homes in the countryside”. This is a distinction between places. The contrast is explicitly and simply a geographical one. Taken in the context of the preceding two sentences, it simply differentiates between the development of housing within a settlement – or “village” – and new dwellings that would be “isolated” in the sense of being separate or remote from a settlement. Although certain special exceptions are mentioned, what is perfectly plain is that, under this policy, the concept of concentrating additional housing within settlements is seen as generally more likely to be consistent with the promotion of “sustainable development in rural areas” than building isolated dwellings elsewhere in the countryside. In short, settlements are the preferred location for new housing development in rural areas. That, in effect, is what the policy says.

The third point is that the adjective “isolated”, which was the focus of argument before the Court, is itself generally used to describe a location. It is not an unfamiliar word. It is commonly used in everyday English. It carries the ordinary sense of something that is “… [placed] or standing apart or alone; detached or separate from other things or persons; unconnected with anything else; solitary” (see Oxford English Dictionary, second edition). In Lindblom LJ’s view, in its particular context in paragraph 55 of the NPPF, the word “isolated” in the phrase “isolated homes in the countryside” simply connotes a dwelling that is physically separate or remote from a settlement. Whether a proposed new dwelling is, or is not, “isolated” in this sense will be a matter of fact and planning judgment for the decision-maker in the particular circumstances of the case in hand.

What constitutes a settlement for these purposes is left undefined in the NPPF. The NPPF contains no definitions of a “community”, a “settlement”, or a “village”. There is no specified minimum number of dwellings, or population. It is not said that a settlement or development boundary must have been fixed in an adopted or emerging local plan, or that only the land and buildings within that settlement or development boundary will constitute the settlement [Emphasis added]. In Lindblom LJ’s view, a settlement would not necessarily exclude a hamlet or a cluster of dwellings, without, for example, a shop or post office of its own, or a school or community hall or a public house nearby, or public transport within easy reach. Whether, in a particular case, a group of dwellings constitutes a settlement, or a “village”, for the purposes of the policy will again be a matter of fact and planning judgement for the decision-maker. In the second sentence of paragraph 55 the policy acknowledges that development in one village may “support services” in another. It does not stipulate that, to be a “village”, a settlement must have any “services” of its own, let alone “services” of any specified kind.

The Court was satisfied that this reading of the policy in paragraph 55 fits the broader context of the policies for sustainable development in the NPPF and guidance in the PPG. In Lindblom LJ’s opinion, the language of paragraph 55 is entirely unambiguous, and there is therefore no need to resort to other statements of policy, either in the NPPF itself or elsewhere, that might shed light on its meaning. In particular, the Court did not accept the appellant’s argument that the word “isolated” in paragraph 55 must be understood as meaning either (a) “physically isolated” or (b) “functionally isolated” or “isolated from services and facilities”; that the decision-maker must therefore address two questions – first, whether the proposed new dwelling would be physically separate or remote from any other dwelling, and secondly, whether it would be isolated from services and facilities; and that if the proposed development would be either separate or remote from other dwellings or separate or remote from services and facilities, it offends the policy. This would be a strained and unnatural reading of the policy. In Lindblom LJ’s view, it is neither necessary nor appropriate to gloss the word “isolated” by reading an additional phrase into paragraph 55 whose effect would be to make the policy more onerous than the plain meaning of the words it actually contains. No such restriction is apparent in the policy, or implicit in it.

In the circumstances, there was no need for “special circumstances” to be identified to justify a development of “new isolated homes in the countryside”. This was not such a development. The Court therefore concluded that the inspector did not misinterpret or misapply the policy in paragraph 55 of the NPPF. His understanding of the policy was accurate, and his application of it impeccable.

It is clear from this judgment that the prescriptive and restrictive interpretation that some LPAs have sought to put on paragraph 55 of the NPPF is inappropriate, and that a more ‘broad brush’ approach is required when considering the application of this policy. Lindblom LJ’s observations on the boundaries of a settlement are particularly interesting, and clearly envisage a more flexible approach in this regard than the rigid adherence to designated settlement boundaries that LPAs commonly seem to adopt. This guidance from the Court of Appeal on the approach to be taken to the interpretation of paragraph 55 is extremely helpful, and it is to be hoped that it will put an end to sterile disputes about the acceptability of developments that are outside a designated development boundary.


Tuesday, 3 April 2018

More shroud advertisements

Those of you who have followed this blog over a long period will be aware that from time to time I have published examples of shroud advertisements displayed on buildings that are undoubtedly major heritage assets in cities such as Venice, Paris and Brussels. The point of publishing these views is to demonstrate that our European friends do not share our squeamishness about erecting temporary shroud advertising around buildings that are undergoing major refurbishment.

I was in Paris again last week, and found several more examples of shroud advertising displayed on such buildings while major building works are being carried out. The first example is on the South Front of the Palais du Louvre.

Next, we have shroud advertisements displayed on the buildings facing onto the Place de la Concorde, and also on the return frontage to the Rue Royale.

Only a few metres further north, at the end of the Rue Royale, is the Church of the Madaleine, where this shroud advertising is displayed:

As it says on the advertisements themselves, En application de l’article L621-29-8 du code du patrimoine, les recettes perçues par le propriétaire du monument pour cet affichage sont affectées au financement des travaux, which seems an eminently sensible arrangement.

The essential point is that these shroud advertisements are purely temporary, and are displayed for only so long as the works continue. To take a previous example, on Wednesday, 16 April 2014, I illustrated a shroud advertisement at the north-east corner of the Place des Vosges.

The works covered by that shroud have long since been completed, and so this important historic building can now be seen in its fully restored state, after the advertisement had made a significant contribution to the restoration works. This is what it looked like last week (and no doubt for the past several years):

If such advertisements can be displayed on the shrouds around important historic buildings in World Heritage Sites like these while they are under repair, there is no reason whatsoever why we should not allow similar advertising in this country.

There was an encouraging example of an advertisement control appeal being allowed recently for precisely this type of advertising, but having to rely on obtaining advertisement control consent, possibly on appeal, is too chancy and too time-consuming for most advertisers to contemplate. What is required instead is an amendment of the Control of Advertisements Regulations to give deemed consent for this type of advertising. The deemed consent would be purely temporary, limited to the duration of the works or 12 months (whichever is shorter), and would be subject to the advertisement not being wider or higher than the building covered by the shroud. For the avoidance of doubt, it should perhaps be provided that this deemed consent would not authorise the erection of any separate hoarding or other structure, and the deemed consent would require the immediate removal of the advertisement upon the expiry of the temporary period of that consent. To avoid LPAs making difficulties, there should be no requirement for prior approval, nor should the subject matter or design of the advertisement or advertisements be subject to any control under the terms of this deemed consent.

So come on, Raab; let's get on with it! This government prides itself on sweeping away red tape, so let’s see an appropriate amendment to the Control of Advertisements Regulations to give deemed consent for shroud advertisements in these circumstances without further ado.


Class Q revisited

It always seems to take a little time for the dust to settle after an amendment to the GPDO has been made before people begin to get their heads around the changes and what they really mean.

I have now had the chance to review the changes to Class Q in more detail, and have also read some intriguing comments on the Planning Jungle website which suggest that a significant loophole has been created as regards the cumulative total of development that is now permitted under this class.

First, there is an issue that has been a subject of discussion in this blog recently, as to whether a prior approval application can be made under Class Q which relates only to Class Q(a), while postponing to a subsequent application any prior approval application in respect of necessary building operations. Class Q was reworded in the 2015 GDO as made, compared with the wording of Class MB in the 1995 Order, and in my view this was intended to make it clear that a prior approval application could no longer be made under Class Q(a) alone, except in those cases (if any) where no building operations affecting the external appearance of the pre-existing building would be required in order to carry out its residential conversion [or where such building operations will be dealt with by a separate planning application, if they go outside the permissible limits of Class Q(b)]. It seems, however, that some inspectors were nevertheless persuaded that a prior approval application could be made under Class Q(a) alone, even where a subsequent prior approval application would be required under Class Q(b).

One aspect of the further re-wording of Class Q in the latest amendment order, on which I have not previously commented, is a change to the definition of the permitted development that can be carried out under this Class. This now provides that the development permitted is EITHER (a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses), OR (b) development comprising BOTH the change of use permitted by paragraph (a), AND building operations reasonably necessary to convert the building to residential use. Thus Class Q(b) is no longer confined to building operations alone, but embraces the change of use as well as necessary building operations.

A prior approval application under Class Q(a) will therefore serve no useful purpose, except in those rare cases where all the necessary conversion works are purely internal [or where more extensive building operations, beyond the scope of Class Q(b), are intended]. If building operations affecting the external appearance of the property will be required under the terms of Class Q(b), the Class Q(b) application will necessarily include consideration of all the matters listed in paragraph Q.2(1) relating to the change of use, and not simply the one item in sub-paragraph (f) (the design or external appearance of the building). It is therefore clear that an application must be made under Class Q(b) [not Class Q(a)] where building operations within the scope of Class Q(b) will be required, and in accordance with paragraph W(2) this prior approval application must in any event be accompanied by a written description of the proposed development, which must include any building or other operations. It is only if no building operations within the scope Class Q(b) will be required, or if the intended building operations are outside the scope of Class Q(b), so as to require a separate planning application for those works, that a prior approval application under Class Q(a) will be appropriate.

Turning to the number and floorspace limits in the newly substituted paragraph Q.1(b), (c) and (d), the cumulative number of separate larger dwellinghouses (i.e. between 100 sq m and 465 sq m each) developed under Class Q must not exceed 3 within a single agricultural unit. However, the cumulative floorspace of the existing building or buildings changing use to a larger dwellinghouse or dwellinghouses under Class Q must not exceed a total of 465 sq m. So you can’t build three 465 sq m dwellings on the same agricultural unit. The average size of the larger dwellinghouses (if the maximum of three were to be converted) could be no more than 155 sq m, but they might comprise perhaps one at 110 sq m, one at 140 sq m and one at 215 sq m, or any other combination not exceeding 465 sq m in total, and not exceeding a total of three in number.

In the case of smaller dwellinghouses (i.e. not exceeding 100 sq m each) the cumulative number of these developed under Class Q must not exceed 5. But it is important to bear in mind that the total of all dwellinghouses converted under Class Q on the same agricultural unit cannot in any event exceed five. Thus the absolute maximum floorspace that can be converted to residential use is going to be 465 + 400 = 865 sq m, comprising no more than 5 dwellings in total, of which no more than three can exceed 100 sq m in size, and none of them can individually exceed 465 sq m. You can cut the cards whatever way you like, but you cannot create more than 865 sq m of residential floorspace in total (including mezzanine floors) and the maximum number of dwellings you can create cannot exceed five in total. In practice, it seems unlikely that there would be just one large dwelling of 465 sq m and four of 100 sq m; a more likely scenario would be three dwellings totalling 465 sq m in aggregate plus 2 x 100 sq m = 665 sq m.

I don’t think there can be much doubt that this was what was intended by the revised legislation, but I have not addressed the intriguing drafting error that has apparently been identified by Planning Jungle. The way that Part 3 works is that each Class first defines what the permitted development consists of, and then goes on (in paragraph Q.1, in the case of Class Q) to define the circumstances in which development is not permitted. So far so good, and my paraphrase above summarises the provisions of that paragraph. However, at the end of Class Q, there is now a new paragraph, Q.3 - “Interpretation of Class Q”. This defines “larger dwellinghouse” as a dwellinghouse developed under Class Q “which has a floor space of more than 100 sq m and no more than 465 sq m.” It follows that a dwellinghouse with a floorspace greater than 465 sq m falls outside the definition of a “larger dwellinghouse” entirely. But the provisions of paragraph Q.1 refer only to “a larger dwellinghouse or dwellinghouses” [as so defined] and do not place any limitation on the floorspace of any dwellings that do not fall into the definition of either “a smaller dwellinghouse” or “a larger dwellinghouse”. There remains an overall limit of five dwellings in total (not limited or defined by reference to their size), but it is argued by Planning Jungle (and I do not disagree with this, even though I am sure it was not intended by the draftsman) that Class Q as now revised appears to permit up to five dwellings of unlimited size on a single agricultural unit, subject (of course) to their being converted from pre-existing agricultural buildings, within the terms of Class Q.

In fairness, it is acknowledged that there is paragraph Q.1(d), which provides that development is not permitted “if the development under Class Q ……… would result in …….. a larger dwellinghouse or larger dwellinghouses having more than 465 square metres of floor space”. However, as pointed out in Planning Jungle, the reference in paragraph Q.1(d) to “a larger dwellinghouse or larger dwellinghouses” brings us back to the difficulty of the definition in paragraph Q.3, which on the face of it clearly confines the definition of “a larger dwellinghouse” to “a dwellinghouse developed under Class Q which has a floor space of ………. no more than 465 square metres”. Watch out for a further amendment order correcting this anomaly in the fairly near future!


Wednesday, 21 March 2018

Amended application fees

I imagine that most of my professional readers will be aware by now of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 (SI 2017 No.1314) which came into effect in mid-January.

Article 2 has increased application fees generally by 20% (rounded up to whole pounds) as the government had previously announced.

Article 5(2) of these amendment regulations has removed the fee exemption previously contained in Article 5 of the 2012 fee regs which had relieved applicants of any liability to pay an application fee where they were applying for planning permission due either to the removal of a permitted development right by an Article 4 Direction or to its removal by a condition attached to a planning permission.

The fee increase in respect of applications for prior approval under the GPDO is dealt with separately by Article 5(3) of the new regulations (as it was by the previous version of these regulations when prior approval applications were introduced). The recent amendments to these fees generally do no more than increase the fees by 20%, but the fee for prior approval under Part 4 (temporary buildings and uses) is the same [now £96] whether or not any building operations are involved (under Class E, in connection with temporary film-making). Unless I had previously mis-read the original fees regulations, this is in contrast to the earlier rule that a fee of £172 was payable for a combined application for both operational development and building operations under Part 4, Class E.

The £96 fee is now also payable for applications under Part 7 (non-domestic extensions, alterations etc), and Part 14 (renewable energy) in addition (as before) to those made under Part 6 (agricultural and forestry) and Part 11 (heritage and demolition).

Having waded through these amendment regulations, as well as various other amendment regulations on other subjects recently, I am bound to say that it would make life far easier for everyone who has to interpret, apply and operate under this detailed subordinate legislation if, instead of simply amending the earlier statutory instrument by reference, the government were to replace the previous version entirely. Whilst this might involve reprinting large wodges of text which had not in fact been amended, it would make the exercise of understanding the regulations as a whole a great deal easier for all concerned.


Monday, 12 March 2018

STOP PRESS :::: PD rights for residential conversions extended

There has been much speculation as to whether the government would extend the PD right under Class P (for the residential conversion of buildings used for storage within Use Class B8). An absolute deadline for the commencement of residential use required all developments of this type to be completed no later than 15 April 2018, failing which this PD right would lapse.

However MHCLG has now announced a one-year extension of this deadline. I don’t know yet whether the government has laid an amending Order to give effect to this extension, or if not how soon they expect to do so, but they have left this extension of time extremely late, and have no doubt caused much anxiety and inconvenience to property owners and developers by failing to make up their minds earlier about extending this deadline.

In the same announcement, the Ministry has confirmed their intention (which they had previously canvassed) to extend the PD right under Class Q to enable either up to three dwellings to be created on a single agricultural unit (as now), but subject to a slightly increased cumulative floorspace limit of 465 square metres (compared with the previous cumulative limit of 450 sq m), or alternatively up to five dwellings, each of which would be limited to no more than 100 sq m. Within these limits, it seems that developers will be allowed to ‘mix and match’ their development, provided that no more than three of the new dwellings exceed the 100 sq m limit (but still subject to the overall limit of five dwellings).

I think we shall need to see the actual wording of the amendment order to understand exactly how these new limits will work, especially in relation to a combination of larger and smaller dwellings.

The government has also announced a proposed enlargement of PD rights for the erection of agricultural buildings on larger agricultural holdings under Part 6, which will enable buildings of up to 1,000 sq m to be erected (in place of the current limit of 465 sq m). Again, precise details will need to be checked when the amending order to the GPDO is made.

UPDATE (13.3.18): I am grateful to Steve Jupp for pointing out that the amending order is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018 (SI 2018 No.343), which was made on 8 March and takes effect on 6 April.

I haven’t had time yet to get my head round the detailed drafting amendments but, for the purposes of Class Q, a “larger dwellinghouse” is defined as a dwellinghouse developed under Class Q which has a floor space of more than 100 square metres and no more than 465 square metres, and a “smaller dwellinghouse” is defined as a dwellinghouse developed under Class Q which has a floor space of no more than 100 square metres.

Subject to this definition, in the case of a larger dwellinghouse within an established agricultural unit the cumulative number of separate larger dwellinghouses developed under Class Q must not exceed 3; nor must the cumulative floor space of the existing building or buildings changing use to a larger dwellinghouse or dwellinghouses under Class Q exceed 465 square metres. Similarly, in the case of a smaller dwellinghouse within an established agricultural unit, the cumulative number of separate smaller dwellinghouses developed under Class Q must not exceed 5; nor must the floor space of any one separate smaller dwellinghouse exceed 100 square metres.

The development under Class Q (together with any previous development under Class Q) within one and the same agricultural unit must not result in either or both of the following—
(i) a larger dwellinghouse or larger dwellinghouses having more than 465 square metres of floor, and/or
(ii) the cumulative number of separate dwellinghouses exceeding 5.

So far as Class P is concerned, this is now amended so that the PD right under this class is only disapplied if the prior approval date falls on or after 10 June 2019 (so the deadline has been extended for around 14 months) and there is now also a condition that the development must be completed within a period of 3 years starting with the prior approval date.


Friday, 9 March 2018


I quite frequently receive queries from correspondents that could very easily be answered by referring to one or other of my two books - A Practical Guide to Permitted Changes of Use (currently in its Second Edition) and The Essential Guide to the Use of Land and Buildings under the Planning Acts, and I often answer these questions by drawing the enquirer’s attention to the relevant passage in one or other of these two books.

This suggests to me that there are still some of you out there who haven’t yet bought either or both of these two books, who would benefit greatly by having access to them, either on your bookshelf, or by accessing the electronic version on your computer. I have been told by readers that they have found these two books a huge help in guiding them through the law and practice relating to the use of land and buildings and changes of use. At least two correspondents told me that the book paid for itself within a week of their receiving it, by providing the answer to particular problems that they had encountered and to which they had been unable to find the answer from other sources.

The two books are complementary to each other, and together they provide a very full explanation of the issues that affect the use of land and buildings and changes of use. Having the electronic version of the books is clearly the modern way of accessing the text quickly and conveniently, and so Bath Publishing are currently making a special offer, which will give you a free copy of the electronic version of both books when you buy the printed editions of the two books together. This offer therefore gives you £200-worth of conveniently accessible and extremely valuable information on these important subjects for a combined price of only £100 (compared with a total cost of £150 if you were to buy the print/digital bundle for each book separately).

If you click on the Down arrow on the right-hand side in either of the drop-down lists below each book title which you can see in the left-hand margin of this page, you will find the details of this offer, and can order online through that link. Don’t miss out; you will find these two books an invaluable resource, which will save you much time and frustration in discovering the answers to the problems and conundrums that so frequently arise in this area of planning law and practice.


Tuesday, 27 February 2018

Convertibility of agricultural buildings – revised advice

The Housing Ministry (formerly De-CLoG) has at last revised its advice on the convertibility of agricultural buildings under Part 3, Class Q, in the Second Schedule to the GPDO.

Readers will recall that paragraph 105 of the online PPG, as revised in March 2015, stated rather starkly that It is not the intention of this permitted development right to allow rebuilding work which “would go beyond what is reasonably necessary for the conversion of the building to residential use”, so that “it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right”, but did not enlarge on this gnomic utterance, leaving it open to some rather imaginative interpretation by LPAs.

I had always been clear, and I think it was generally accepted even before this revision to paragraph 105 was made in 2015, that the works permitted under Class Q(b) are restricted to what is reasonably necessary for the building to function as a dwellinghouse, and any partial demolition must also be limited to the extent reasonably necessary to carry out the building operations that are permitted by this class. This imposes a practical constraint on the convertibility of some buildings, especially if they are of rather insubstantial construction. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted. (See paragraph 9.7 in Chapter 9 of my first book, A Practical Guide to Permitted Changes of Use - page106 in the Second Edition.)

Unfortunately, quite a few LPAs seized on the revised guidance in March 2015 as an opportunity to refuse prior approval for various residential conversions of agricultural buildings which, in my view, did not involve such extensive work as to take the development outside the scope of Class Q(b), even taking into account that revised guidance.

Internal works were one particular bone of contention, and I argued strongly that such works should be seen as being entirely removed from the definition of development by virtue of section 55(2)(a) in the 1990 Act, so that they did not in any event form part of the development that was permitted by Class Q(b), and were thus not caught by the restrictive wording of paragraph 105 of the PPG.

The Housing Ministry has now at last conceded this point in the following wording, added to paragraph 105 on 22 February: “Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls.” These are not prohibited by Class Q

In the revised wording of paragraph 105, the Ministry has also referred to the High Court judgment in Hibbitt v SSCLG [2016] EWHC 2853 (Admin) as an example of a discussion of the difference between conversions and rebuilding. However, I have always taken the view that Hibbitt simply confirmed the well understood principle mentioned above. As I put it in a blog post on the convertibility of agricultural buildings on 14 November 2016, it was not even necessary to call in aid the wording of the PPG, as revised in March 2015, in order to interpret the plain words of the GPDO. But I warned that we should be wary of reading more than this into the Hibbitt judgment. What I called “the structural issue” has in effect two limbs. The first is the fundamental point, which was dealt with by Hibbitt (i.e. Does the development consist simply of necessary building operations, or does it comprise substantial demolition and reconstruction of the previous structure?).

The second aspect of this structural issue - the question of how much internal work can be carried out inside the building within the scope of Class Q, which has now been clarified by the latest revision of paragraph 105 last week, was one that I had found it necessary to discuss in great detail, and at great length, in Appendix D to the Second Edition of A Practical Guide to Permitted Changes of Use, but the latest revision of paragraph 105 has now made most of that debate unnecessary.

It is still my view that the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

It is very much to be hoped, however, that the latest revision to paragraph 105 of the PPG will finally put a stop to any further arguments about internal structural works carried out to agricultural buildings before or during their residential conversion under Class Q.


Tuesday, 23 January 2018

Going to appeal

On Wednesday 1 March last year, I reported on the High Court decision in Winters v. SSCLG [2017] EWHC 357 (Admin), on the premature commencement of development that required a prior approval application under the relevant part of Schedule 2 to the GPDO. However, this case went on to the Court of Appeal on 5 December. I have not yet caught up with the CA judgment, but will report on it as soon as I have had a chance to read it. I felt that the first instance judgment was entirely in line with the current understanding of the law relating to ‘jumping the gun’ on permitted development, but at least one judge has clearly been persuaded that there is an arguable point to be made in favour of a contrary view. My money would nevertheless have been on the High Court judgment being upheld, but we shall see whether I was right or wrong about this.

On Wednesday 1 November, I drew attention to the judgment in Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin), in which the issue of implied conditions arose again. This is another judgment which seemed to me to demonstrate an entirely correct application of the law on this topic as it is currently understood (taking on board the observations of Lord Carnwath JSC in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74). The Lambeth case also went up to the Court of Appeal on 1 December, and when I get hold of the judgment it will be interesting to see what they have made of it.

Finally, on Friday 8 December, I mentioned the High Court judgment in Braintree DC v SSCLG [2017] EWHC 2743, as to the meaning of "isolated" in paragraph 55 of the NPPF. However, I understand that this too is going on to the Court of Appeal, and so I will postpone comment on that case until we see what the Court of Appeal has to say on this issue.

UPDATE (3 March 2018): I am informed that the appeal to the Court of Appeal in the case of Winters has now been withdrawn, and so the High Court judgment in this case stands unchallenged.


Tuesday, 9 January 2018

Whither De-CLoG?

One of the really big and important announcements yesterday in the course of Theresa May’s masterly and authoritative re-shuffle of her cabinet was that Sayid Javid, in addition to keeping his current job, is to be known in future as the Secretary of State for HOUSING, Communities and Local Government, and his department will be similarly renamed. The whole world stands back in amazement at this revolutionary and epoch-making change.

Voters who don’t follow these matters as closely as planning anoraks (planoraks?) like me may not be aware that Housing has in fact been one of this ministry’s major responsibilities for the past 70 years. But now this closely-guarded state secret has been revealed to the whole world.

My immediate problem is that I will no longer be able to refer to the Department as “De-CLoG” (a name, incidentally, which I did not coin myself - one of my friends in the Planning Inspectorate told me that this is the name by which the Department is known within PINS). “De-HoCLoG” just doesn’t work, and even if we use an updated variant on the department’s own preferred moniker, so that it becomes HCLG, this doesn’t exactly trip off the tongue.

I know; I’ve just had an idea. We should call it the Ministry (or Department, if you prefer) of Housing and Local Government. Brilliant! I wonder why nobody ever thought of such an obvious name before. In practice, now that Housing is the first element in the Department’s name, the popular press will probably refer to it simply as “the Housing Department”, and to the Secretary of State as “the Minister of Housing”. In public relations terms, this spotlight on the Department’s housing brief may not be to the government’s advantage.

There is still a junior housing minister, and Dominic Raab (MP for Esher and Walton) has today replaced Alok Sharma in this role. Raab was previously a junior minister in the Department of Justice. The PM had already set Housing as a major priority for De-CLoG, and so the name change simply underlines the fact that Javid will be held personally responsible if the Department fails to deliver, both literally and metaphorically, on the housing front.

He will have an uphill struggle, however. Thanks to the enthusiastic welcome given by Eric Pickles (‘Uncle Eric’, remember him?) to entirely unnecessary austerity cuts imposed by the Treasury under the Tory-dominated coalition government, De-CLoG took a particularly hard hit in terms of staff numbers, with the result that it is now woefully short of the staff resources it needs to beef up housing delivery, or to perform its various other functions effectively.

Early last year I expressed scepticism following publication of the government’s Housing White Paper. To use one of Theresa May’s favourite mantras – “Nothing has changed. Nothing. Has. Changed.” The White Paper re-stated the government’s aim of building a million new homes by 2020. As I pointed out last year, this would require an annual completion rate as high as, if not higher than, the building rate achieved under the dynamic leadership of Harold Macmillan as Minister of Housing and Local Government in the early 1950s, which included a substantial proportion of publicly funded social housing [yes, “council houses”]. Does the government seriously expect the private sector now to match that building rate without such a significant public sector input? We are already a quarter of the way through the period within which their ambitious housing target was to be achieved. Were there a quarter of a million housing starts or housing completions in 2017? If not, then the build rate will have to accelerate to an even higher annual figure if the government is to stand any chance of meeting its 1 million-home target by the end of 2020.

The basic problem is the same across all areas of government - housing, the NHS, social care, education, and many others. Despite empty words from the Prime Minister, austerity continues apace, and more spending cuts are in the pipeline. Our public services are crying out for extra spending and urgent capital investment. Raising the pathetically low rate of standard rate income tax (and, for the sake of fairness, also raising higher rates of tax going well above 50%) is the only way that this can be achieved. This is, of course, against the Conservative Party’s religion, and so it won’t happen under this government. Not surprisingly, the government’s efforts to appeal to younger voters and to a wider social spread of voters are unlikely to yield the electoral dividends they seem to expect. This government (like all its predecessors) will be judged by its record, not by public relations 'spin'.