Tuesday, 18 December 2018

Eye-watering confiscation orders

I drew attention more than eight years ago in this blog (in June 2010) to the confiscation orders that can be made by the Crown Court under the Proceeds of Crime Act 2002 (‘POCA’). The Act was primarily intended to enable the confiscation of the proceeds of drug-dealing and similar organised crime, and it took LPAs some time to appreciate that the Act was not limited to that type of criminal activity, but could be used in any case where a criminal offence has continued for more than six months and where the offender has ‘benefitted’ from the conduct which constitutes the offence, to the tune of not less than £5,000, provided that they are either convicted in the Crown Court, or sent to the Crown Court for sentencing.

The case which originally prompted me to blog on this topic was Basso & anor v. R. [2010] EWCA Crim 1119, which established that the proceeds of crime in respect of which a confiscation order can be made are the gross proceeds, and not simply the ‘profit’ which the offender made (net of any overheads, expenses, etc.).

Despite this and other examples to which I drew attention in this blog in 2010 and 2011, it seemed to take LPAs a long time to make full use of confiscation orders under POCA in the Crown Court. However, when they began to do so more frequently, some spectacularly large confiscation orders began to be made. Noting this trend, I have been meaning to write the present blog post for some time, because anyone who is tempted to ignore an enforcement notice that has taken effect (either in the absence of an appeal or following the dismissal of an appeal) should be warned that non-compliance could become extremely expensive for them if they are deriving significant income from the unlawful development.

It is not unusual nowadays for confiscation orders in respect of failing to comply with an enforcement notice to run into hundreds of thousands of pounds. Orders of over a million pounds are not unknown, and the highest amount of an order of which I am currently aware totalled more than £4,330,000! (This confiscation order was backed by a threat of 8 years’ imprisonment if the sum was not paid.)

These cases are usually concerned with unauthorised residential conversions or extensions, which have then been let out, and the amount of the confiscation order simply reflects the gross receipts from that illegal activity, calculated from the date by which the enforcement notice should have been complied with. Airport parking is another activity which might well be vulnerable to a confiscation order, and there are no doubt other developments which yield a significant income and which could therefore be the subject of an application to the Crown Court under POCA.

I have no sympathy with the offenders who have been on the receiving end of these confiscation orders. They knew that what they were doing was a breach of planning control, they knew that once the enforcement notice took effect they had to comply with it, and they knew (or should have known) that from the date on which the compliance period expired they were committing a criminal offence for which they were likely to be prosecuted.

There is, however, one little word of warning for LPAs, in the form of the decision of the Court of Appeal in R. v Knightland Foundation and another [2018] EWCA Crim 1860. This was a case where planning permission had been granted for a 14-bed HMO, but an 18-bed HMO had been created. However, officers of the LPA (Islington LBC) indicated that an 18-bed hotel might be acceptable in planning terms, notwithstanding that an enforcement notice against the unauthorised development had taken effect by this time. The council’s enforcement team were nevertheless determined to press on with a prosecution in respect of non-compliance with the enforcement notice and to apply for a confiscation order under POCA, whatever the result of the planning application for the alternative development that had by now been awaiting determination for some considerable time.

When the application for a confiscation order came before the Crown Court, the judge found that the council’s enforcement team had not given material consideration to the pending 2016 planning application in their decision to prosecute and to press for a confiscation order. The judge accepted that the defendants may not have had a legitimate expectation that their planning application would be granted, but they did have a legitimate expectation that it would be determined on its merits measured against relevant criteria. The evidence indicated to him that, despite the enforcement officer’s efforts to influence members of the Planning Team against giving permission, the recommendation of the team would have been to grant permission.

It seems that the Planning Team were then persuaded to refuse permission, irrespective of its merits, solely or mainly due to the potential impact that a grant of planning permission might have on the prosecution and associated POCA proceedings. The judge concluded that the basis of the decision-making process was that nothing should hamper the prosecution or the POCA proceedings. The judge described the way in which the 2016 application had been handled as "improper". He found that it tainted the whole process, both as regards the planning decision and the initiation and continuation of the prosecution. The prosecution had as its focus maximising the returns to the authority from a POCA order.

It was this decision that the LPA sought to challenge in the Court of Appeal, but their appeal was dismissed and the judge’s refusal to entertain an application for a confiscation order under POCA in this case was upheld.

Offenders who have failed to comply with an enforcement notice can take little comfort from this case, which clearly turned very much on its own facts, but Knightland nevertheless serves as a warning to LPAs not to get carried away by their determination to obtain a confiscation order under POCA. They must maintain an objective approach, and deal with each matter on its merits, taking all material considerations into account, including any pending planning application if there is some likelihood that this might be granted.


Monday, 10 December 2018

Article 50 – Final judgment of the ECJ

Because of its importance in constitutional law, it is appropriate to widen the scope of this blog (which is usually confined to issues of planning law) to take note of the Final Judgment of the Court of Justice of the European Union (the ECJ, or CJEU) in the case of Wightman and Others v Secretary of State for Exiting the European Union (Case C-621/18).

This was the case referred to the ECJ by the Scottish Court of Session in the teeth of strenuous legal opposition from the UK government (who took their resistance to it all the way to our own Supreme Court – and lost). The judgment of the Full Court was handed down this morning. It answers in clear terms the question that was put to the court as to whether a member country (in this case the UK), having started the process of leaving the EU by means of the procedure set out in Article 50 of the Lisbon Treaty, can withdraw from that process unilaterally, without requiring the consent of the EU itself or of other member states.

The Court has concluded that the United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU, and that such a revocation would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State. This means that the UK could remain a member of the EU without losing the valuable rebates and various opt-outs that were negotiated under the premierships of Mrs Thatcher and of John Major respectively. Thus, if we decide to remain in the EU, we shall not have to join the Euro, we will not have to enter the Schengen Area, and will not have to comply with other EU rules from which we are currently exempt.

This possibility exists until a withdrawal agreement concluded between the EU and the Member State has entered into force, or (in the absence of such an agreement having been reached) until the expiry of the two-year period from the date of the notification of the intention to withdraw from the EU (starting from the date of the Article 50 letter written by Theresa May in March 2017, which is due to expire at 23.00 hrs GMT on Friday, 29 March 2019), plus any possible extension of that period that may be agreed, has then expired.

In giving its judgment, however, the Court made it clear that the Article 50 revocation must be decided following “a democratic process in accordance with national constitutional requirements” and that this unequivocal and unconditional decision must be communicated in writing to the European Council. This simply puts the requirements for withdrawal from the Article 50 process on the same legal footing as the requirements for initiating the Article 50 procedure. (As to this, see the judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.)

As the Miller case established, the government cannot rely solely on the Royal Prerogative in doing this, but must seek parliamentary approval. The section in the ‘Withdrawal Act’ specifying that the UK is to leave the EU on 29 March 2019 would also have to be repealed. The two could be conveniently dealt with in a single Act amending the previous Act. Parliamentary approval alone would suffice for the purpose of withdrawing from the Article 50 process, and in view of the shortness of time (barely three months), a decision to introduce a Bill to this effect will need to be made very soon, in the event of the House of Commons rejecting the draft withdrawal agreement that is currently before them.

This, followed by the delivery of a letter unequivocally notifying the Council of the EU of our withdrawal from the Article 50 process, would formally bring to an end the current Brexit process. However, I am not suggesting that this would bring an end to the internal political debate surrounding Brexit, and the government (of whatever complexion, and whoever is then Prime Minister) may well wish to take further steps to bring a final end to the long-running dispute over Brexit, possibly by means of a Referendum or a General Election (or both).

It is important to understand, however, that a Referendum is not a formal legal requirement, either before or after our bringing an end to the current Article 50 process. The Referendum in June 2016 was purely advisory and had no binding legal effect; it was purely a political choice of the Cameron government, and subsequently of Mrs May’s cabinet, to give effect to the outcome of that Referendum by initiating the process of leaving the EU by means of the Article 50 process. As the Supreme Court ruled, there was a legal requirement for parliamentary approval, but that is as far as the formal legal requirements go.

[I promise that my next post will be on a planning law topic!]

UPDATE (18 December 2018): I have taken the opportunity to re-read the ECJ’s judgment of 10 December. Contrary to a statement made recently by ministers, there is nothing to prevent the UK’s withdrawing its Article 50 notice, but then (at any time) submitting a fresh Article 50 letter, if the country subsequently decides that it wishes to resume the Brexit process. The objection to this course of action to which ministers referred was voiced by the European Commission in their submissions to the ECJ but was firmly rejected by the Court. Withdrawal of the UK’s Article 50 notification, thus bringing the current Brexit process to an end, would not prevent the country from reviving its intention to leave the EU, if (after further consideration) it were to decide to do so. Convinced Brexiteers need not therefore have any anxiety that withdrawal from the Article 50 process within the next three months would represent a final and irretrievable end to Brexit; it would not prevent or inhibit in any way a subsequent resumption of the Brexit process. It would, on the other hand, remove the threat of a ‘no-deal’ Brexit on 29 March and the catastrophic economic and logistical crisis that would ensue from such a ‘car-crash’ Brexit.


Friday, 7 December 2018

Brexit – Where on earth do we go now?

I make no apology for returning to the subject of Brexit in a second successive blog post. At the moment “it’s the only show in town”, and the planning topics that are in my pending tray for future discussion are rather technical and, to me at least, somewhat tedious.

After three days of debate in the Commons, parliament is now taking a breather and has three days off over this weekend to take stock, and to try to work out what will happen when the Brexit debate is due to resume on Monday and Tuesday.

The full court of the ECJ (aka the CJEU) is due on Monday to deliver its judgment on the case referred by the Scottish courts as to whether the UK is legally able unilaterally to withdraw the Article 50 letter which formally initiated the current Brexit process, and so bring it to an end (at least for the time being). The Advocate General’s opinion is that we can, and whilst the Court is not bound to follow that opinion, there is a reasonable prospect that they will do so.

The importance of this decision (if the Court does share the view of the Advocate General) is that this will provide a clear alternative to ‘crashing out’ of the EU with no deal, if Theresa May’s flawed withdrawal agreement is thrown out by the Commons on Tuesday.

That said, it is clear from the speeches in the Commons over the past few days that, whilst there is a substantial majority of MPs in favour of avoiding a ‘no deal’ Brexit, there is no consensus as to what alternative course should be pursued. There remains, therefore, a distinct danger that the UK could crash out of the EU on 29 March simply by default.

Having thought about this over the past few days, I had reached the conclusion that the only safe course of action would be for the government (of whatever complexion, and whoever is Prime Minister) to withdraw the Article 50 letter in good time before 29 March, so as to give the country sufficient breathing space to review the whole issue of Brexit and all its ramifications, and to decide, without being under the pressure of a deadline, whether (and, if so, how) to proceed with Brexit.

I feared that I would be in a minority of one in putting this idea forward, but I was heartened yesterday to learn that the Mayor of London has reached precisely the same conclusion, and for the same reasons. The object of doing this would simply be to “stop the clock” and allow enough time to seek a resolution of what has turned into a major governmental and political crisis.

No doubt this will be met with shrieks of “Betrayal!” from the loony right of the Tory Party and from a ragbag of the other usual suspects (such as Nigel Farage and the Daily Excess), but what is being suggested is not a final end to Brexit, but simply a pause long enough for mature reflection on the way forward, which would otherwise be a practical impossibility in the present febrile atmosphere with the deadline of 29 March looming.

A General Election or a Referendum (maybe both) may be necessary in order finally to resolve the issue of Brexit, but these processes and procedures will require time, which we do not currently have with the fixed deadline of 29 March rapidly approaching. Simply extending the Article 50 deadline by two or three months, assuming this could be agreed with the EU, (and amending the ill-advised provision which enshrined that date in UK legislation) would not be enough to ensure that we could sort things out freed from the sort of time constraint which would inevitably skew decision-making.

I appreciate that only the government could take the step of withdrawing the Article 50 letter, and that Theresa May absolutely refuses (at least at present) to do anything other than steer the Titanic at full steam ahead straight at the iceberg, with the object of ramming it head-on. However, doubt and dissent about the course she is pursuing is no longer confined to the Tory back benches; it seems to have spread to most of her cabinet. Even members of her team inside No.10 seem now to be among the doubters. By one means or another, May must be stopped from pursuing her present suicidal course. This could take any one or a combination of steps – a cabinet revolt, a ‘no confidence’ motion among Tory MPs, and a large and decisive Commons vote not only against the ‘deal’ currently on offer but also against a ‘no deal’ Brexit.

We can only live in hope that we shall be delivered from the utter catastrophe that a ‘No Deal’ Brexit would cause. I believe that the course I have suggested above is the safest way of achieving that, whilst keeping future options open.

UPDATE (11 December 2018): I was interested to note today that Sir John Major has also joined those who are calling for the UK's Article 50 notice to be revoked. As I have explained, and as both the Mayor of London and Sir John have also observed, this is now essential in view of the very real risk of our running out of time, and 'crashing out' of the EU with no deal, purely by default. The problem has been greatly exacerbated by the crass decision of the PM to pull today's 'meaningful vote' and to jet off round Europe in a time-wasting and hopeless bid to save her political skin. It seems that the government has no intention of rescheduling the vote on the withdrawal agreement until mid-January (if then), which will leave the revocation of her Article 50 letter as the only practical alternative to a car-crash Brexit. This would not, of course, prevent a fresh Article 50 letter being sent in the future to re-start the Brexit process, if that is then the will of parliament (backed, if they think it necessary, by a confirmatory referendum).

UPDATE (18 December 2018): To coin a phrase, “Nothing has changed. Nothing-Has-Changed!” since my previous update. We are exactly where we were when I last wrote on this issue. Meanwhile, I have taken the opportunity to re-read the ECJ’s judgment of 10 December. Contrary to a statement made recently by ministers, there is nothing to prevent the UK’s withdrawing its Article 50 notice, but then (at any time) submitting a fresh Article 50 letter, if the country subsequently decides that it wishes to resume the Brexit process. The objection to this course of action to which ministers referred was voiced by the European Commission in their submissions to the ECJ but was firmly rejected by the Court. Withdrawal of the UK’s Article 50 notification, thus bringing the current Brexit process to an end, would not prevent the country from reviving its intention to leave the EU, if (after further consideration) it were to decide to do so. Convinced Brexiteers need not therefore have any anxiety that withdrawal from the Article 50 process within the next three months would represent a final and irretrievable end to Brexit; it would not prevent or inhibit in any way a subsequent resumption of the Brexit process. It would, on the other hand, remove the threat of a ‘no-deal’ Brexit on 29 March and the catastrophic economic and logistical crisis that would ensue from such a ‘car-crash’ Brexit.

For a considered and objective review of the whole Brexit process, I would strongly recommend readers to listen to (or read the transcript of) a lecture given by Sir Ivan Rogers last week. It can be found here : https://news.liverpool.ac.uk/2018/12/13/full-speech-sir-ivan-rogers-on-brexit/


Monday, 26 November 2018

Brexit, even bluer

I have been tempted several times in recent weeks to comment again on Brexit, but the position was becoming so chaotic that it was difficult to make sense of the constantly shifting situation as negotiations came to a head. But now that the PM has cobbled together a compromise deal with the EU (which seems to satisfy almost no-one) things really are moving towards the final crunch, when the Commons votes on it on Tuesday 11 December, after a 5-day debate.

I took some time out today to watch May’s statement in the House of Commons. The Honourable Member for the Eighteenth Century, Jacobus Rees-Mogadon, congratulated May on another ‘Boycottian’ innings at the dispatch box (the third in 10 days), but like her cricketing hero, she played nothing but blocking shots and, in yet another laborious innings scored very few runs, simply hanging on to her place at the crease, at least for a little longer. Like many a timid batsman, she let a number of balls go past her, if the questions raised by MPs were simply too awkward to answer.

As the session dragged on, there was a pathetically small measure of support for the ‘deal’ which the PM had brought back from Brussels. I counted very few Tory MPs who were prepared to give an uncritical welcome to the draft withdrawal agreement (and the first did not come until at least an hour into the 2½ -hour session). There were, on the other hand, numerous members on all sides of the House who urged the PM to hold a People’s Vote in light of the terms that have now been agreed, which bear little resemblance to what was promised on the ‘Leave’ side before the referendum of 2016.

There are many people, both inside and outside parliament, who cannot understand what the PM and others have to fear from a properly conducted referendum on the basis of the terms that have only now, at the end of long and weary negotiations, become clear. It is obvious that no-one wants to crash out of the EU with no deal, and that neither the government nor the Commons as a whole would seriously contemplate such a possibility. Veiled threats by the PM that this is a real risk if her deal is rejected are not to be taken seriously. The true alternative to the present deal is for the country to remain in the EU. This is the question which should now be put to the electorate as a whole, not least because it may be the only practical means by which the apparent impasse in parliament could be resolved.

The PM desperately clasps the result of the 2016 referendum to her bosom like a fig-leaf, entirely ignoring the indications from several different strands of research that there has been a change in public opinion, not least in the areas that voted for Brexit in 2016, now that the manifold disadvantages of Brexit compared with our continued membership of the EU are becoming clear to them. The inescapable fact is that there is no possible deal that could be more advantageous than our existing membership of the EU.

It was none other than the former Secretary of State for Exiting the EU, David Davis (the first of no fewer than three of them in a little over two years!), who once observed, specifically on the subject of a European referendum, that democracy is not democracy if people do not have the freedom to change their minds. If that were not so, why should we have any more General Elections? If May were right in her assertion that she is bound to give effect to the will of the people as expressed in a referendum more than two years ago, then it could equally be said that the ‘People Have Spoken’ in the General Election of June 2017, and the present hung parliament should be allowed to sit for the indefinite future, because that was what the People decided in 2017. Merely to state this proposition is to expose the absurdity of the Prime Minister’s position.

It is now becoming urgent to stop Brexit. The European Court of Justice will hear a referral from the Scottish Court of Session tomorrow, which seeks to establish that a country which invokes Article 50 of the Lisbon Treaty can withdraw from the Article 50 process if it so chooses. The UK government went all the way to the Supreme Court in an unsuccessful attempt to stop this. Why? What were they afraid of?

Theresa May is implacably determined not to be deterred or diverted from the course she has so doggedly pursued for the past two years. But for the sake of the country, she must be stopped – first by the Commons on 11 December, then by irresistable pressure from the public, applied through their Members of Parliament. MPs must be told by their constituents that they must vote for a Referendum on either supporting May’s deal, or abandoning Brexit, in order to settle the issue once and for all.

[And in case you are wondering what ‘Remoaners’ (or ‘Remainiacs’) like me would do if the vote in this first and only referendum on the terms that have now been negotiated is still to leave the EU, the answer is that at that point we would have to admit defeat, and leave the country to its fate. But then, if Brexiteers are confident that they would still win, then what objection could they possibly have to a People’s Vote being held to determine whether we should leave the EU on the basis that has now been negotiated, or whether we should after all remain in the EU?]


Friday, 9 November 2018

Interpreting the NPPF

I didn’t have time to blog on it at the time, but I imagine that most readers of this blog are well aware that the revised version of the National Planning Policy Framework was published on 24 July 2018. This is the first revision of the National Planning Policy Framework since 2012. Users are already referring to the document as “NPPF2” to distinguish the current version from the earlier version which it has replaced.

Since the first version of the NPPF was published, numerous problems of interpretation and practical application of the policies that it contained have had to be determined by planning inspectors, and some of these have inevitably reached the courts, so much so that quite a body of judicial rulings has been built up over the past six years. We now have the added task of making sense of the new version of the NPPF, and of determining to what extent previous judgments apply to this new version.

It is a formidable task for planning professionals who are concerned with day-to-day development management issues. But help is at hand. Bath Publishing have recently published an extremely useful guide under the title Interpreting the NPPF written by planning barrister Alistair Mills of Landmark Chambers. Alistair is a rising star in the planning law firmament, and had already established a reputation as an expert on the NPPF before his current book was published.

This brief blog post is not intended to be a review of the book as such, but I can strongly recommend this guide as a useful, indeed essential, tool in understanding and applying the ministerial policy set out in the NPPF. There is no waffle or padding in the text; it summarises the various points it discusses concisely, but with great clarity.

After discussing the nature and status of National Planning Policy, the author goes on to explain the interpretation of policy, the concept of ‘sustainable development’ and the principles of Plan-making and Decision-taking. There then follow ten chapters on specific areas of policy, including residential development, the Green Belt, the Natural Environment, the Historic Environment, and Minerals, among several others. The book then concludes with a chapter on challenging planning decisions involving interpretation of the NPPF.

This is a book that planning professionals in both the public and private sectors will want to have on their bookshelves, and I am willing to bet that it will get very well-thumbed.

You can obtain further details of the book, and buy a copy, by visiting Bath Publishing’s website at www.bathpublishing.com


Consultation on further expansion of PD rights

Coinciding with the Autumn budget, MHCLG published a detailed consultation paper which proposes various extensions to existing PD rights, plus some new ones, some of which may prove to be extremely controversial. It is for this reason that I am not getting too excited about these suggested changes at the moment.

Local planning authorities have never been happy with the significant widening in the scope of permitted development under the GPDO since 2013, particularly those provisions that permit various residential conversions. However, as the government points out, in 2016/17 alone, permitted development rights provided nearly 18,900 new homes, 8.5% of the total number of net additions delivered.

Perhaps the two most contentious proposals in the consultation paper are those that relate to the upward extension of existing buildings to create additional new homes, and the suggested creation of a PD right to allow the demolition of existing commercial buildings, so that their sites can be redeveloped for housing.

Upward extensions
What the government is proposing is a new PD right, subject to prior approval by the LPA, to allow additional storeys to be built above certain buildings, in particular those in commercial or residential (C3) use. A number of issues would need to be considered, including height limits. For example, this PD right could apply to the airspace above premises in a terrace of two or more joined properties where there is at least one higher building in the terrace. The roof of the premises extending upward would be no higher than the main roofline of the highest building in the existing terrace. This would have the advantage of providing a fixed local point against which any proposal could be considered and offer greater certainty on what is permitted. An alternative approach would be to permit upward extensions more widely to a height no higher than the prevailing roof height in the locality. While this may extend the proposed right to a greater number of properties, it would not be possible to define prevailing roofline in regulations; it would be a matter to be considered by the local authority as part of the prior approval. In doing so, the local authority would be able to define what it considered to be the prevailing roofline taking account of the local building types and heights and the extent of the area over which it should be determined. But his may offer less certainty to the applicant.

Local amenity impacts would have to be considered when reviewing a proposal to construct additional storeys. The government is therefore proposing that there should be a maximum limit of 5 storeys from ground level for a building once extended, with anything higher requiring a planning application. (This would be based on an additional storey not exceeding 3 metres in height.) There would also be potential issues where premises are not on level ground. The impact of adding additional storeys in these cases could be significantly greater on the amenity of neighbouring premises, for example from overlooking and overshadowing and on the character of the area.

The government would also like a permitted development right to apply to purpose built, free-standing blocks of flats (within Use Class C3) over 5 storeys in height would provide an opportunity to deliver additional new homes through upwards extensions, but it would have to be determined whether there should be a limit on the number of additional storeys that could be added.

The government proposes that upward extensions should be permitted on premises in a range of uses that are compatible with C3 residential use. These could include existing C3 residential premises, those high street uses that can already change use to housing under a permitted development right (shops (A1), financial and professional services (A2), restaurants and cafes (A3), betting shops, pay day loan shops and launderettes (which are sui generis), offices (B1 (a)), and buildings in mixed use within these uses. The government also wants to explore whether there may also be other buildings whose use is compatible with the introduction of new homes. Given that they are usually located in residential areas or high streets, would premises such as health centres and buildings used for community and leisure purposes be suitable for inclusion in the permitted development right? It is suggested that out-of-town retail parks with a mix of shopping and leisure uses may also be suitable for upward extensions to provide additional homes.

The permitted development right would need to allow for the physical works required to construct or install additional storeys on a building. These could include works to strengthen existing walls, engineering works to strengthen existing foundations to support the additional storeys and works to provide safe access and escape for any additional new homes within the building’s footprint. Separately it could also allow for works within the curtilage where it is necessary for access to the additional new homes. The government does not propose to define particular physical works to allow for the varied nature of what might be required. There would, however, be a prior approval in relation to the nature and impacts of the works. (There would still, as always, be a requirement to comply with other legislation, and with the Building Regulations and Fire Regulations, the Party Wall Act, etc.)

Prior Approval would be required for these upward extensions. These would include matters such as flooding and contamination risks, transport and highways and the impact of additional new homes on existing occupiers and businesses, especially those that create noise and odours which may be a statutory nuisance. Prior approval would apply the “agent of change” principle, set out in paragraph 182 of the NPPF, to ensure the introduction of housing could be integrated effectively with existing business and community uses, and to consider mitigation measures for the potential impacts on new residents and existing businesses. The prior approval would also assess the impacts of any works external to the building and within the curtilage, including fire escapes. Prior approval would also require consideration of the design, siting and appearance of the upward extension and its impact on the amenity and character of the area, taking account of the form of neighbouring properties. This may include considering whether the proposed development is of good design, adds to the overall quality of the area over its lifetime, is visually attractive as a result of good architecture, responds to the local character and history of the area and maintains a strong sense of place, as set out in paragraph 127 of the NPPF. But the government expects prior approval on design to be granted where the design is in keeping with the existing design of the building (a warning shot across the bows of planning authorities!).

Prior approval would also consider the impact of the development on the amenity of neighbouring premises, for example, from obscuring existing windows, reducing access to light or resulting in unacceptable impact on neighbours’ privacy from overlooking. It would also consider measures to mitigate these impacts, and enable the neighbours, including owners and occupiers of premises impacted, to comment on the proposal.

There would be an application fee calculated per extra dwelling created, to recognise the range and complexity of issues for local authority consideration.

An additional idea, which seems to have been almost afterthought, is that the proposed right to build upwards might possibly be drafted so as to allow householders to extend their own homes. However, the consultation simply throws the idea open for discussion and asks whether the PD right for upward extension of a dwelling should allow for the enlargement of an existing home and, if so, what considerations should apply.

Demolition of commercial buildings and replacement with housing
In the Autumn Budget of 2017 the government committed to consulting on introducing a permitted development right that would allow the demolition of commercial buildings and their replacement with residential development.

The government now suggests that a PD right focused on smaller sites may be more practical. For example, in formulating such a PD right it might be necessary to consider the size of the site; the height and density of new buildings; the existing use of the site, the relationship with local plan policies for key sites and areas where the right should apply.

This would be subject to prior approval (possibly requiring the wider range of matters mentioned above to be considered than under current PD rights, including any necessary mitigation measures). Higher application fees would probably be payable. There may well be a demand from LPAs that this extended PD right should include a requirement for the provision of, or contributions towards, affordable housing in such cases.

Change of use from storage or distribution (B8) to residential
Class P in Part 3 introduced a PD right for change of use from storage or distribution (within certain limits) to residential use in 2015 for a period of three years. The right was extended in April 2018 for a further 14 months. At present Class P allows applicants to secure prior approval on or before 10 June 2019, and gives those with prior approval three years from the prior approval date in which to complete the change of use. The government now proposes that this PD right should be made permanent and that the existing conditions, including the matters requiring prior approval, should remain unchanged.

The consultation document does not, however, mention any intention to extend or make permanent the current PD right under Class PA for the residential conversion of light industrial buildings. This PD right is currently due to expire on 30 September 2020. Maybe this will be something for consideration by the government next year (assuming they are still in office by that time).

Larger extensions to dwellinghouses
The permitted development right for larger extensions to dwellinghouses, introduced in 2013, was originally intended to be purely temporary, but in 2014 this PD right was extended for three years, to May 2019. In view of its continuing popularity, the government now proposes that the right should be made permanent. The existing conditions would remain unchanged, but where prior approval of larger extensions is required under these rules, the government proposes to introduce an application fee of £96.

Public call boxes and advertisements
This is a subject that has proved to be controversial, and so the government is now consulting on the possibility that the right to erect phone boxes as PD might be ended. There is also a closely connected issue regarding advertising displayed on these boxes, and so an amendment of the Control of Advertisement Regulations is also on the cards.

I don’t propose to discuss this topic further here, as it is highly technical and I suspect it is unlikely to be of interest to most of my readers.

Changes to the Use Classes Order?
Almost as an aside, the government suggests once again in this consultation paper that the UCO might be amended in relation to the various Class A uses. This might involve the amalgamation or adjustment of some of the existing town centre uses (A1, A2, A3, A4 and A5). It isn’t a new idea, and has been mentioned several times in the past. The lack of any definite suggestions in the consultation paper, and the fact that it gets no more than a passing mention, suggests that it is still not at the forefront of ministerial thinking. As long ago as 2015, the government also noted that they really ought to do something about consolidating the much-amended 1987 Use Classes Order but, what with one thing and another, they still haven’t got a Round Tuit.


So the overall reaction to the consultation paper must be “Watch this space” - we shall have to wait and see what emerges next year following the end of the current consultation period on 14 January. Some of the less controversial proposals could come forward as early as next Spring, but my guess is that the really contentious ones, involving the upward extension of existing buildings and the demolition of commercial buildings to make way for residential development may take rather longer to come forward, and may be quietly dropped if they are greeted with loud booing from LPAs and conservationists. I can’t really see what advantage is to be gained from making such developments PD. The issues that would have to be considered in relation to a prior approval application for these developments would be substantially similar to those that would apply to a planning application, so why make the change? Widening permitted development rights to the extent that is now canvassed by the government makes rather a nonsense of the whole concept of “permitted development”.


Friday, 5 October 2018

Defective prior approval applications

As those familiar with the GPDO are well aware, the rules laid down in those parts of the GPDO that require a prior approval application to be made are very clear as to the documents and other information that must accompany the prior approval application. These requirements, however, vary quite considerably as between one part of the Second Schedule and another.

If an LPA receives a prior approval application which is incomplete, or is not accompanied by all of the information that the GPDO itself requires the applicant to provide (together with any application fee that is payable), the application cannot be treated as a valid prior approval application. The LPA has two choices in such a situation. They can ask the applicant to supply the missing items (but the application will not be complete, and will not therefore become valid, and time will not begin to run under the relevant Part of the Second Schedule, until all of the missing items are received by the LPA). Alternatively, the LPA could simply treat the application as invalid and reject it, or take no action on it. The first of these two options would appear to me to be more user-friendly, and less risky in legal terms, but an example of the latter course being taken by the LPA, and being backed up both by the Planning Inspectorate and by the High Court was provided by the case of Maximus Networks Ltd v SSCLG [2018] EWHC 1933 (Admin), in which judgment was given on 25 July.

This was a case under Part 16 (relating to PD by telecoms code operators), involving no fewer than 367 prior approval applications in respect of public telephone boxes proposed in various London boroughs. The claim before the court related to 53 outstanding appeals in relation to these applications in Southwark and in Hammersmith & Fulham. I don’t propose to discuss the facts of the case in any detail, because they were specific to the requirements of Part 16, but the general principle that the case illustrates is of wider application. Before a prior approval application is made for such development under Part 16, the owner of the land must be notified by the applicant. [There is no such requirement in respect of changes of use proposed under Part 3, which requires only that the LPA itself should notify neighbours.] In the Maximus case, the landowner was the highway authority, which happened to be one and the same authority as the LPA. The developer failed to notify the highway authority of the proposals before submitting the prior approval application to the planning department.

Southwark had validated its applications, but Hammersmith & Fulham had not, because they did not accept that the applications were valid. When appeals against the non-determination of these applications reached PINS, the Inspectorate concluded that the applicant’s failure to give notice to the landowners rendered all of the applications invalid so that PINS therefore had no jurisdiction to determine these appeals and were unable to take any action on them.

Maximus nevertheless argued that PINS had a discretion to re-consider the validity of the applications and therefore to entertain these appeals. PINS, however, responded that section 327A of the 1990 Act [expressly forbidding the entertainment of an application that does not comply with a legislative requirement as to the form or manner in which the application must be made] prevented their consideration of these appeals. Furthermore, PINS pointed out, by virtue of section 79 of the 1990 Act, the fact that some LPAs may have accepted the applications as valid does not preclude the Secretary of State from making his own decisions as to the validity or otherwise of the applications, which can only be made following receipt of related appeals. It was this latter point (rather than section 327A) on which the Secretary of State primarily relied. Maximus nevertheless maintained their position that the Secretary of State had a discretion as to whether to consider the appeals, and had failed (or had failed properly) to exercise this discretion.

Having reviewed the relevant judicial authorities, Dove J concluded that (as the Secretary of State had claimed), by virtue of section 79 of the 1990 Act, the fact that some LPAs may have accepted the applications as valid does not preclude the Secretary of State from making his own decisions as to the validity or otherwise of the applications, which can only be made following receipt of related appeals. if it is appropriate to do so. Plainly, he observed, when exercising the discretion under section 79 the question of whether or not prejudice might arise from the failure to comply with the statutory requirements may very well be a factor in play. The extent and nature of the breach concerned will also be very likely to be a factor. Beyond that it is difficult to be prescriptive as to the considerations which may be material to the exercise of the discretion as it will inevitably be a fact sensitive exercise, varying in its considerations from case to case. It was against the background of that analysis that the submissions in this case fell to be evaluated.

It was on this basis that Dove J reached the conclusion that the contentions advanced by Maximus were without substance. It needed to be borne in mind that this was an administrative decision, and thus an overly forensic scrutiny of its terms would be inappropriate. He was unable to accept that PINS’ decision involved a complete negation of the exercise of discretion under section 79. The decision explained the view that had been formed that there had been a failure by the applicant to comply with the formal requirements in relation to notice under Part 16 , and in his judgment this was not evidence of PINS’ assuming that they only had power to conclude that there was no jurisdiction to entertain the appeals; it simply explained their justification for concluding, in applying section 79 of the 1990 Act, that the applications had not been valid and therefore the appeals should not be entertained. It was a concise analysis of the basis upon which PINS were declining to accept jurisdiction in respect of the appeals, rather than an assertion that PINS had no power at all to do anything other than refuse to accept the appeals.

The court also rejected Maximus’ second ground of challenge, that even if PINS had in reality recognised there was a discretion to be exercised under the legislative framework, this discretion was in fact exercised irrationally. The claimant’s submission that no prejudice could conceivably arise where the LPA and the landowner were one and the same organisation. In Dove J’s judgment, however, that contention depended upon a considerable over-simplification. Part of the claimant’s contention in this regard had been that that no prejudice had arisen from their failure to give notice to the highway authority as landowner, because it was one and the same authority as the LPA, and the knowledge of one department may reasonably be taken to be the corporate knowledge of the body as a whole. [Digressing for a moment, I have a vague recollection that there was judicial authority from at least 30 years ago that was precisely to this effect, but no reference seems to have been made to any such authority in the instant case.]

Dove J had no hesitation in dismissing this argument, on the basis that a local authority may have a variety of interests in terms of its functions, not all of which can be assumed to be represented by its functions as a local planning authority. He observed that a local authority as a land owner may have very different interests and concerns to take account of in exercising its powers to own and control land, and it cannot be assumed that when a planning application is made to an LPA that the planning department will automatically or of necessity consult the department concerned with protecting the authority’s interests as a land owner or automatically be aware of all matters of which that other department would wish to be made aware. [This does seem to me, however, to ignore the rather obvious point that the other department involved in the instant case was the highways department, who would almost certainly have been consulted on the prior approval application by the planning department in any event.]

Maximus did succeed on one point. One of the LPAs had refused to refund the application fees when the appeals had finally been rejected by PINS on the basis of their invalidity. Maximus relied on their right to a refund of the fees in these circumstances, by virtue of Reg 14(3) of Fees Regs. The court accepted this, and made a declaration confirming the applicant’s right to a full refund of the applications fees.

As explained above, I do have some reservations about this judgment in relation to the question of corporate knowledge of information received by one department of a local authority without express notice having been given to another department of the same authority (at least so far as this case was concerned), but the real importance of the case is to confirm the importance of complying with the legislative requirements applying to particular applications, whether for full planning permission or for prior approval in respect of permitted development under the GPDO. An LPA, and also PINS upon receipt of an appeal, would clearly be within its rights in declining jurisdiction to determine the application or the appeal in these circumstances. It is notable, however, that the Secretary of State did not rely on the mandatory requirement in section 327A, but based their defence instead on section 79 and their exercise of their judgement as to the validity of the appeals in accordance with that section.


Wednesday, 26 September 2018

Pre-commencement conditions

The legislation governing the imposition of pre-commencement conditions (often referred to as ‘conditions precedent’) comes into force next week, on the first day of October.

As from that date planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition (other than in the circumstances described below, which are set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 - 2018 No. 566).

A pre-commencement condition for this purpose is one which is imposed on a grant of full planning permission (but not an outline permission) and which must be complied with either before any building or operation comprised in the development is begun, or (in the case of change of use) before the material change of use occurs.

The government’s hope is that LPAs and applicants will discuss conditions (including any pre-commencement conditions) during the processing of the application and before a final decision is made. They expect the LPA to share with the applicant any draft pre-commencement conditions at the earliest possible opportunity. If the applicant confirms their agreement to a pre-commencement condition in writing, then the pre-commencement condition can be imposed, and the procedures set out in the Regulations do not apply.

Where an LPA has not been able to obtain written agreement to a pre-commencement condition it wishes to impose, it may serve a notice under the Regulations, which must include the text of the proposed pre-commencement condition, the full reasons for the proposed condition (which must be set out clearly and precisely), the full reasons for its being made a pre-commencement condition (which must also be set out clearly and precisely), and finally, a notice that any substantive response must be received by the LPA within 10 working days from the date on which the notice is given.

In the absence of a substantive response from the applicant, the LPA may impose the pre-commencement condition without the written agreement of the applicant. (The process is set out in the Regulations and also in the online Planning Practice Guidance.)


Back to work

Readers will have noticed the very long break in postings on this blog, although I have managed in the meantime to keep reasonably up to date with the comments that readers have continued to post on a wide variety of topics. But I have no excuse for the hiatus in adding new material to the blog, other than that during the Long Vacation there didn’t seem to be a lot going on on the planning front, and so I didn’t feel motivated to write anything.

Despite the lengthy parliamentary vacation, on the other hand, the political situation has continued to deteriorate, and hardly a day has gone by without some fresh disaster befalling the government in its inept conduct of the Brexit negotiations. Perhaps they should ship over the barbary apes from Gibraltar to take over from the existing negotiating team.

It is becoming increasingly clear that if we are to avoid an utter disaster befalling this country next year, we must STOP BREXIT!

I may not be able to resist returning to the topic of Brexit in the future. But for now, let’s get back to town and country planning.


Monday, 6 August 2018

Brexit blues

This blog is concerned with planning law and practice, but there is no escaping the fact that there is a far more important subject that is hanging over all of us, and I make no apology for returning to it now.

In these dog days of August, I cannot help brooding on the utter mess that the government has got itself into over Brexit. This prompted me to re-read the items I have previously written on this subject. The first two of these, dated 7 March and 17 June 2016, were on planning and environmental issues, but in view of the importance of the subject, I have allowed myself to stray into the general political arena on a further five occasions so far, on 1 July and 31 December 2016, and on 4 and 30 May and 30 December 2017. Nothing that has occurred in the interim has led me to change any of the views that I expressed in those brief articles.

As I observed in the immediate aftermath of the referendum, After last Thursday’s result, there is a great deal of head scratching going on, in an effort to understand the mind-boggling ramifications of the decision to leave the EU. As many of us were well aware, this is going to be far more complicated than the Brexiteers pretended, and the effects will include more than a few unintended consequences. The task of unravelling all these complexities is daunting, and I suspect may even prove to be impossible. Don’t be surprised if the government (of whatever composition or complexion) eventually decides that the only practical solution is for the UK to remain a full member of the European Union after all!

In May 2017, I observed that Theresa May seemed to have no idea of what negotiation actually involves, nor any realistic understanding of the relative strengths and weaknesses on both sides (a fundamental prerequisite for anyone entering into any form of negotiation). One has to understand that Brexit potentially presents an existential threat to the European Union. If Britain is seen to get an advantageous deal enabling us to keep significant benefits that derive from our current membership of the EU, this could conceivably encourage similar moves in some of the other member countries. The EU (and its collective membership) cannot countenance such a risk, and so they are bound to resist any such settlement. This is not an unreasonable stance. If a member of a Golf Club no longer wishes to pay the subscription and be bound by the club’s rules, then they must simply leave; they cannot expect to have continued access to the bar and restaurant, or to be allowed to retain any of the other benefits that they have previously enjoyed as members.

It is daft to complain that the EU is being ‘intransigent’ or ‘inflexible’ in taking this stance, and it is even more ridiculous to suggest that they should be seeking ‘imaginative solutions’ to allow Britain to retain many of the advantages we currently enjoy as members of the EU. As Theresa May has observed on more than one occasion, “Brexit means Brexit.” But it will bring with it all the consequences that flow from our no longer being members. This is why the recent peregrinations of Mrs May and other members of her cabinet around Europe in a futile effort to beg and cajole national leaders such as Merkel and Macron to change the collective position of the EU on this issue have been so pathetic. These efforts were obviously doomed to failure from the start, and they only serve to emphasise the weakness of the UK’s negotiating position.

It is even more unrealistic for ministers such as Dr Liability Fox or the rookie Foreign Secretary, Jeremy Hunt, to seek to warn or threaten the EU that they may be forcing us to leave without a deal. It’s rather like a bank robber rushing into a bank, holding a gun to his head, and shouting “Hand over the money, or I’ll shoot myself”. It is not likely to be very persuasive. The argument goes that the UK’s crashing out of the EU without a deal would be damaging to the EU as well as to us. This is true, but the economic damage for the EU would be limited, and would be spread among 27 nations, whereas the damage to the UK is likely to be catastrophic. The argument that German car manufacturers won’t want to lose their British market is unlikely to sway them, when they export so much more to the rest of the world. You may recall that Boris Johnson tried the same argument with regard to Prosecco, until the Italians pointed out that they cannot even meet existing demand, and so could face the potential loss of their British market with equanimity.

Incidentally, while we are on the subject of international trade, various EU members do a vast amount of trade with the rest of the world outside the EU, under advantageous trade agreements which the EU has negotiated on behalf of its members. This makes a complete nonsense of the Brexiteers’ parrot cry that they want Britain to be free to make its own trade deals, and to trade freely throughout the world. Britain as an EU member is already free to trade around the world on very advantageous terms. It is improbable that the UK could negotiate better terms individually with other countries than we currently enjoy by virtue of our membership of the EU. Any replacement trade agreements will take years to negotiate, and are very unlikely to be on terms as good as those that the EU has already negotiated on our behalf as members. (And no; we couldn’t just expect to carry on trading with other nations on the same terms. It would be back to the negotiating table to start talks with those other nations from scratch). The same applies to the suggestion that we could “just trade on WTO terms”. The clue is in the name (“World Trade Organisation). We are not currently members, and would have to apply to join; membership is not automatic. And we would have to abide by a fairly detailed rule book, in much the same way as we do with the EU. So much for “recovering our sovereignty” and “taking back control”!

Even May and most her cabinet recognise that crashing out of the EU with no deal would be disastrous for us. What lay behind the half-baked Chequers ‘agreement’ was the government’s slow motion collision with reality, as they gradually realised that a Hard Brexit would be too awful to contemplate. Only the Loony Right – the Brextremists on the Tory backbenches - are still maintaining the pretence that everything would be fine in these circumstances.

The fact remains, however, that the possibility of our crashing out of the EU with no deal at all is now becoming a real risk, and the government seems to be a hostage to political forces which it is in no position to resist or control. The Moggites of the ERG realise that, whilst they could probably muster enough letters to the Chairman of the 1922 Committee to force a Tory Party confidence vote in the Prime Minister, they wouldn’t get enough votes in the resulting ballot to unseat her. However, they do have enough votes in the Commons to defeat or amend government legislation more or less at will, and we saw this in the votes on the Trade and Customs bills last month, where the government was forced to accept damaging amendments to this legislation which significantly undermined the Chequers agreement (as the ERG intended it should), as well as significantly weakening the UK’s negotiating position in continuing discussions on a ‘post-Chequers’ deal with the EU. In September, it is to be hoped that the House of Lords will remove these amendments, and insert the amendments seeking membership of the Single Market and Customs Union which were defeated in the Commons in July, and battle will once again be joined this Autumn when the bills return to the Commons from the Lords.

I had hoped by now that enough Tory MPs would finally have woken up to the damage that a ‘No deal’ Brexit would do to the national economy, that they would at last take their political courage in their hands and force the government to accept a more sensible approach to Brexit; but the 12 or 15 Tory ‘rebels’ have repeatedly been pusillanimous in the face of threats and blandishments from the whips, and have failed to follow up their stated opposition to the government’s approach to Brexit by votes in the lobby. Whether they will do so in the coming months must be doubtful on past performance, unless the looming disaster finally impresses itself on them and on enough of their more conformist colleagues to persuade them to defy the government whips, and put a stop to the headlong rush towards the edge of the cliff.

I very much fear that we are in fact in a complete impasse, with the government unable to go forward or back, and with the official opposition equally conflicted in the absence of any proper leadership from Jeremey Corbyn. The Labour Party is self-absorbed in its own internal struggle, of which the current crisis over alleged anti-semitism in the party is only a symptom. It is, in effect, a proxy war in which the extreme Left is fighting to consolidate its complete hold over the party. If they succeed, it does not bode well for the electoral prospects of the party in a future General Election. Nor does it offer much hope of opposing a Hard Brexit. The Labour Left has always been Eurosceptic, seeing the EU as a capitalist plot against the workers, continued membership of which would prevent the “Socialism in One Country” of which they dream.

The Left is in fact wrong on both of these points. Workers’ rights are more effectively protected by the EU than they would be in a post-Brexit Britain, and there is nothing whatsoever in EU rules that would prevent Labour from carrying out the programme proposed in its last election manifesto if we were to remain members of the EU. There is every possibility, on the other hand, that a car-crash Brexit would have such a dire effect on our economy that it would be financially impossible for Labour to carry out its planned programme. Labour’s true interests lie in opposing Brexit, if only the party’s present leadership had the gumption to see this.

All of which leaves me profoundly depressed over Brexit and over the political position in this country generally. I have absolutely no idea how things will work out in the coming months, but I fear that the summer recess is merely the calm before the gathering storm. Whether this will lead to an early General Election, or even to a second referendum, is anybody’s guess. The only prediction that I would hazard is that if there were to be a General Election this Autumn, the result would very likely be another hung parliament, the arithmetic of which would be utterly unpredictable. But I don’t hold out much hope for the mooted ‘Government of National Unity’. Its acronym inevitably reminds me of the old Flanders & Swann song (“…….And I wish I could g-nash my teeth at you……..”)

Ah well, it’s back to the boring business of town and country planning, and maybe if the heat were to subside a little we could enjoy what’s left of the Summer.


Thursday, 19 July 2018

Setting of a listed building – CA overturns Steer

On Monday, 26 June 2017, I reported on the judgment of the High Court (Lang J) in the case of Steer v SSCLG [2017] EWHC 1456 (Admin), in which a very wide interpretation of the “setting” of a listed building was adopted by the Court for the purposes of section 66 of the Historic Buildings Act. However, that decision has now been overturned by the Court of Appeal sub nom. - Catesby Estates Ltd v Steer [2018] EWCA Civ 1697. The Secretary of State also appealed in a conjoined appeal, and Historic England was heard in the appeals as an Intervener. Judgment in the Court of Appeal was given by Lindblom LJ, with whom the other two judges agreed without comment.

The original High Court judgment led to some concern among planning professionals, and one correspondent in this blog observed that while Historic England would be pleased, virtually the whole land surface of the England could be argued to be the setting of some heritage asset or other, including buried archaeology! He suggested that a balanced and proportionate approach is required, but was not entirely sure this was it.

Lindblom LJ summarised the point at issue in a single sentence, namely whether the Inspector whose decision was challenged erred in law in his understanding of the concept of the “setting” of a Grade I listed building.

The site is farmland, about 1.7 kilometres to the south-east of Kedleston Hall, which is a Grade I listed building, and about 550 metres from the Grade I listed Kedleston Hall registered park and garden and the Kedleston Conservation Area, whose boundary on its south-eastern side extends to the edge of the park. About 1.5 kilometres to the north of the site are the Grade II* listed Kedleston Hotel and the Quarndon Conservation Area. The site itself was part of the manorial land owned by Sir Nathaniel Curzon, the first Lord Scarsdale, when, in 1761, he set about reconstructing his house and laying out the park. The land was beside the main road from Derby, by which most visitors to Kedleston Hall would arrive. From it one could see the park. And from the park there were views of the house. Kedleston Hall is widely acknowledged to be of exceptional historic and architectural interest, and is described in Pevsner as “one of the most magnificent apartments of the C18 in England” and “the most splendid Georgian house in Derbyshire, in extensive grounds”. The park was largely the creation of the architect Robert Adam.

In an effort to summarise this briefly, I will not quote from the materials cited by the court, but reference was made to the definition of the “Setting of a heritage asset” in the “Glossary” to the NPPF and to the guidance document entitled “The Setting of Heritage Assets – Historic Environment Good Practice Advice in Planning: 3” (“GPA3”), a revision of which was published in July 2015. (A second edition was published in December 2017, but it was the first edition that was current at the time of the original appeal.)

At the inquiry, there was a significant body of evidence, from Historic England, the National Trust, the Gardens Trust, the Development Control Archaeologist at Derbyshire County Council, and the experts called on behalf of the local community, Kedleston Voice, that the appeal site was part of the setting of both the Grade I listed Hall and the park, as well as the conservation area, even though the proposal would not intrude upon views to and from the Hall. The thrust of that evidence was that the appeal site was part of the setting of the Hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use, with hedges and mature trees characterising the field boundaries. From the Hall and the park, the surrounding rural context was important in preserving a sense of a parkland landscape at the centre of a managed rural estate, rather than in a suburban context. The site was on the primary visitor route to the Hall and Park and so visitors would experience the historical narrative, and the concentric influence of the Hall on its landscape, as they traversed the agricultural estate, then entered the enclosed, designed park and gardens, enjoying the drama of anticipation as a great English country house was revealed to them.

In approaching this main issue, the Inspector found it “difficult to dissociate landscape impact from heritage impact”. He observed that it was “not unreasonable to look at landscape quality and impact in purely physical or visual terms and to consider historical value and significance separately, in the context of the impact on the Hall and Park”. He concluded that (“setting aside for the moment the historical association with the Hall and Park”), the appeal site exhibited no features that could qualify it as a valued landscape in the terms of paragraph 109 of the NPPF. There was, he said, “no reason why, in physical or visual terms, harm to the landscape should compel dismissal of the appeals”, and “[the] question of its historical value may be addressed in relation to the settings of Kedleston Hall and its registered Park and Garden”.

Turning to “The settings of the heritage assets and the statutory and policy context”, the Inspector addressed himself to the definition of setting in the NPPF (the “surroundings in which a heritage asset is experienced”) and observed that the extent of a setting “is not fixed and may change as the asset and its surroundings evolve”. Setting is not itself a heritage asset but elements of a setting “may make a positive or negative contribution to the significance of an asset”. The Inspector pointed out that paragraphs 126-141 of the NPPF make it clear that, in considering a development proposal, what has to be assessed is the effect there would be, not on the setting, but on the significance of the heritage asset concerned.

Again, for the sake of brevity, I shall not attempt to summarise the Inspector’s observations upon considering the setting of each heritage asset, in turn. In his overall conclusions on the main issue, the Inspector acknowledged that “Kedleston Hall and its Park are heritage assets of the greatest importance” and that “[any] harm to their significance must carry very great weight in the balance against the public benefits of the appeal proposals required by paragraph 134 of the NPPF”. He held, however, that there was “no harm to the significance of the Hall and only very modest harm to the significance of the Park and Conservation Area”. There was a substantial tree screen planted in the 1960s and since substantially extended, but even if this tree screen were to be removed or opened out,“the harm to the significance of the Hall would be very limited indeed and the harm to the Park still no more than modest”. Against that harm the Inspector considered that there was “the very great public benefit of market and affordable housing which is much needed, especially in Amber Valley but also in Derby City”. This was, said the inspector, “more than sufficient to tip the balance in favour of the appeal proposals”. Applying the policy for the “presumption in favour of sustainable development” in paragraph 14 of the NPPF, the Inspector concluded that there was “no doubt that the adverse impacts of either development would not significantly and demonstrably outweigh the benefits from providing much-needed housing”.

Putting it briefly, the judge at first instance felt that the Inspector had taken too narrow a view of the “setting” of the listed building. However, Lindblom LJ observed that, although the “setting” of a listed building is a concept recognized by statute, it is not statutorily defined. Nor does it lend itself to precise definition (see R. (Williams) v Powys CC [2017] EWCA Civ 427, at paragraphs 53 to 58). Implicit in section 66 of the Listed Buildings Act, however, is that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision is not a matter for the court, but will always be a matter of fact and planning judgment for the decision-maker. And as Sullivan L.J. said in R. (Friends of Hethel Ltd.) v S Norfolk DC [2011] 1 W.L.R. 1216, “the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority”.

In Williams Lindblom LJ, in the visual context that applied in that case, had distinguished between the “site” of a scheduled monument and its “setting”, which, he said, “encompasses the surroundings within which the monument may be experienced by the eye”. He went on to say that the circumstances in which the section 66(1) duty has to be performed for the setting of a listed building will vary with a number of factors – typically, “the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography, and the presence of other features – both natural and man-made – in the surrounding landscape or townscape”, and possibly “other considerations too”, depending on “the particular facts and circumstances of the case in hand”. To “lay down some universal principle for ascertaining the extent of the setting of a listed building” would, he thought, be “impossible”. But – again in the particular context of visual effects – Lindblom LJ had observed in that case that if “a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape”.

Lindblom LJ stressed, however, that this does not mean that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams. But it is clear from the relevant national policy and guidance to which he had referred, in particular the guidance in paragraph 18a-013 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places”. Historic England’s advice in GPA3 was broadly to the same effect.

It has also been accepted by the Court of Appeal in previous cases that the effect of development on the setting of a listed building is not necessarily confined to visual or physical impact. As Lewison L.J. said in R. (Palmer) v Herefordshire Council [2016] EWCA Civ 1061, “[although] the most obvious way in which the setting of a listed building might be harmed is by encroachment or visual intrusion, it is common ground that, in principle, the setting of a listed building may be harmed by noise or smell”. In that case the potential harm to the setting of the listed building was by noise and odour from four poultry broiler units.

Lindblom LJ identified three general points which emerge. First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision-maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it. Otherwise, the decision-maker may find it hard to assess whether and how the proposed development “affects” the setting of the listed building, and to perform the statutory obligation to “have special regard to the desirability of preserving … its setting …”.

Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision-maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next. It may be that the site of the proposed development, though physically close to a listed building, has no real relationship with it and falls outside its setting, while another site, much further away, nevertheless has an important relationship with the listed building and is within its setting. Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker has to concentrate on the “surroundings in which [the heritage] asset is experienced”, keeping in mind that those “surroundings” may change over time, and also that the way in which a heritage asset can be “experienced” is not limited only to the sense of sight. The “surroundings” of the heritage asset are its physical surroundings, and the relevant “experience”, whatever it is, will be of the heritage asset itself in that physical place.

Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance”.

Applying those points to the Inspector’s decision in this case, Lindblom LJ did not find that the Inspector had erred in any of the ways that had been alleged. The Inspector recognised the relevance of those considerations to the setting of the listed building, to the impact of the development upon that setting, and its impact on the “significance” listed building as a heritage asset. He did not concentrate on physical and visual factors to the exclusion of everything else. It was clear from his decision letter that the Inspector was aware of the need to take into account not merely the visual effects of the development but also its effects on the historic value of the Hall, the park and each of the other heritage assets he had to consider.

Lindblom LJ therefore differed from the judge’s view that the inspector “adopted a narrow interpretation of setting … inconsistent with the broad meaning given to setting in the relevant policies and guidance … before him”. In his opinion the Inspector understood the relevant policies and guidance correctly, and applied them lawfully in assessing the likely effects of the development on the setting of each heritage asset. The appeal was therefore allowed, and the Inspector’s original decision was restored.

On reading this detailed and carefully reasoned judgment, it does not appear to me that Lindblom LJ was taking a significantly different view of the legal principles governing the “setting” of a listed building than those developed in previous cases. Clearly, a variety of factors are capable of being taken into account in assessing the setting of a listed building and the impact of proposed development on that setting, and not just physical or visual factors. However, if the first instance judgment may have given the impression to some people that the setting of a listed building is potentially limitless, then this decision of the Court of Appeal will serve to correct that impression. This judgment confirms that it is a question of balance, having regard to all the circumstances. The most important point is that this is ‘a matter of fact and degree’, and is thus a matter for the decision-maker, rather than the court. It would seem to me, therefore, that an Inspector’s decision with regard to the setting of a listed building would have to be Wednesbury unreasonable before it can be impugned as representing an error of law.


Tuesday, 10 July 2018

More musical chairs

It was only at the end of April that I was reporting the appointment of the new Housing & Planning Minister, Dominic Raab, and yet here we are, not yet half way through July, noting his departure for pastures new to become Brexit Secretary [surely a thankless task in the current circumstances!] in place of David Davis, following Davis’s dramatic resignation late on Sunday night.

Dominic Raab’s replacement at MHCLG is Kit Malthouse (whom I confess I had not heard of until now). He is a comparative new boy, having been elected to parliament as recently as 2015 as the member for North-west Hampshire. He has recently been serving as a junior minister in the Department of Work and Pensions.

Prior to becoming an MP, Malthouse had been one of Boris Johnson’s appointed Deputy Mayors, where he was responsible for the development of business and enterprise in Greater London. He had also been a councillor in the City of Westminster, rising to Deputy Leader as well as holding the finance brief in the council’s cabinet.

As for his professional background – yes, he was one of the living dead; he became a chartered accountant.

So what does Malthouse know about housing and planning? Your guess is as good as mine. And maybe it doesn’t matter, as MHCLG’s civil servants will just get on with what they’ve always done, no matter who their ministers are. With a ministerial revolving door like this, it hardly matters who actually holds the various ministerial briefs in the office, or whether they know anything about the subjects for which they have nominal ministerial responsibility.


Monday, 9 July 2018

Further guidance on Class Q

Readers may recall that I drew attention on Tuesday, 3 April (“Class Q revisited”) to changes to Part 3 (Class Q) of the Second Schedule to the GPDO (residential conversion of agricultural buildings) that were made by the latest amendment order, with effect from 6 April 2018.

These changes included the amendment of the definition of development permitted by Class Q which still seem to have passed some people by. The objective of this amendment seems to have been to reinforce those provisions in Class Q that were intended to make it clear that where the residential conversion of an agricultural building involves building operations, the prior approval application must include those building operations.

The drafting of Class Q in the 2015 GPDO differed from the corresponding provisions in Class MB in the 1995 Order, and was obviously intended to make it clear that a prior approval application should embrace both the change of use under Class Q(a) and the building operations under what was then Class Q(b).[

I originally drew attention in a blog post on Tuesday, 21 November 2017 (“Prior approval application under Class Q(a) only”) to a continuing misunderstanding of the 2015 Order that seemed to be widespread, and was even shared by some Planning Inspectors. But quite clearly there was a significant number of readers who were not prepared to accept that applications could no longer be made under Class Q(a) alone, unless no building operations would be required (or, even more unlikely, unless the building operations would fall outside Class Q(b) altogether and would therefore be the subject of a separate planning application).

Since April of this year, there are two alternative prior approval applications – Class Q(a) for change of use only, or Class Q(b) which now embraces both the change of use and associated building operations. Prior approval applications under Class Q should no longer be made under both Class Q(a) and Class Q(b), because this would now involve pointless duplication. Where an application under both Q(a) and Q(b) was required in the past, only a prior approval application under Class Q(b) is now required.

I also explained in my blog post on 3 April the other amendments to Class Q which make it clear that an application under Class Q(b) (but not Q(a)) must be made where building operations relying on permitted development rights will be required. In these circumstances, making an application under Class Q(a) is no longer an option.

This is confirmed by a further revision of Paragraph 105 of the online PPG on 15 June, in light of the changes brought about by the 2018 amendment order in April of this year. The beginning of this paragraph now explains that the permitted development right under Class Q allows either the change of use (a), or the change of use together with reasonably necessary building operations (b) [emphasis supplied].

I won’t re-rehearse the arguments I have put forward earlier in support of my interpretation of the revised wording in Class Q, but it seems that this latest revision to ministerial planning practice guidance does say more or less the same thing.

While we are looking at the PPG, Paragraph 106 (which explains that the PD rights under Class Q are precluded where works to erect, extend or alter a building for the purposes of agriculture under agricultural permitted development rights have been carried out on the established agricultural unit since 20 March 2013) has been corrected by deleting the words: “or the installation of additional or replacement plant or machinery". The intention of the legislation, which paragraph 106 seeks to explain, is to preclude PD under Class Q where permitted development has been carried out since 20 March 2013 under either Class A(a) or Class B(a) in Part 6 of the Second Schedule the GPDO.

The inclusion in previous versions of paragraph 106 of a reference to the installation of additional or replacement plant or machinery was a mistake, because those items fall within the PD allowed by Part 6, Class B(b), which (unlike Classes A(a) and B(a)) is not precluded.

As one reader observed - “and this is meant to represent a simplification of the planning system ?(!!!)


Friday, 29 June 2018

Planning appeals inquiries review

DHCLG has embarked on a review of the use and operation of the planning appeal inquiries procedure, claiming to make it quicker and better [pause here for collective groan]. The review will examine the process in its entirety and is expected to make recommendations that DHCLG hopes will significantly reduce the time taken to conclude planning inquiries, while maintaining the quality of decisions. [Well, it might, or it might not.]

The review will examine the rules and processes of the entire process involving inquiries, particularly focusing on major housing schemes, which for obvious reasons the government is very anxious to speed up. The role of the various players (developers, LPAs and objectors, etc.) in influencing the progress of the appeal process will be part of this. Whilst the avowed objective of the review is simply to examine whether the inquiry procedure can be made more ‘efficient’ and therefore quicker, so as to improve the handling by PINS of appeal processes generally, there is inevitably a potential threat that an attempt may be made to restrict the ability of parties to put their cases as fully and fairly before the inspector as they might wish. Issues of procedural fairness could arise.

The Review is intended to involve all parties in the inquiry processes, including appellants, local planning authorities, third parties including statutory consultees, lawyers, Planning Inspectors, and other PINS staff. It is intended to focus on the role of inquiries in major housing applications, with wider application to all inquiries. Comparisons may be made with other appeal and review processes.

In particular, ministers intend that the review should consider the circumstances in which the public inquiry procedure is favoured by appellants and whether a different procedure may be more appropriate [a further attempt to restrict the availability of the inquiry procedure?], the purpose of the inquiry procedure and whether current practice fulfils this purpose, the rules and procedures governing inquiries, the custom and practice during inquiries (including making recommendations for improvements, in particular what it would take to halve the total time currently taken from start to finish) and, finally, the specific implications for the Planning Inspectorate and appellants of any recommendations to change the inquiries procedure, including implications for other appeal procedures.

The review is being led by Bridget Rosewell OBE, and will report to the Secretary of State by the end of this year. It has not yet been made clear how participants will be involved in the review, but interested parties should begin thinking how to respond to the review. Early representations by planning professionals and others would no doubt be advisable, in view of the fact that the report is expected to be in the hands of the Secretary of State in barely six months from now.

UPDATE [9.7.18]: I am grateful to Tony Thompson MRTPI, MRICS, Head of the Planning Appeal Inquiries Review Team at MHCLG for some further information on this review.

In terms of engagement, as a first step, they plan to issue a call for evidence later this month and would welcome responses from all those who are interested, particularly from those who have first-hand experience of the inquiry process.

Any planning professionals who would like to be added to the list of those informed when the call for evidence is issued, should contact MHCLG to register their interest. The call for evidence is in any event likely to be widely publicised in the professional press, and so even if you do not request personal notification when the call for evidence is issued, everyone will have an opportunity to contribute their views. As Tony Thompson says, views based on practical professional experience of the appeal process will be of particular value to the review team.


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.

UPDATE (3 May 2019): The Supreme Court is due to hear an appeal on 21 May against this Court of Appeal decision.