Wednesday, 29 May 2019

Brexit – whither now?

There was little point in commenting on Brexit again while Theresa May’s premiership was in the process of finally collapsing, until the outcome of the election for the European parliament became clear. As was to be expected, Nigel Farage is now crowing like a farmyard cockerel atop a dung heap. He complains of media bias against him and his shiny new party, but in fact the way in which the BBC and others reported the results of the recent election was, if anything, unduly kind to the Faragistes.

In reality, the Brexit Party is simply a break-away faction from UKIP, and to get a true picture of the results one has to consider both of those parties together. Their combined share of the vote, compared with the results in the last Euro-elections in 2014, went up by just 7.4% and they gained 5 extra seats (all of which went to the new Brexit Party faction and none to UKIP, which is now effectively moribund). This compares with the Tories, also a pro-Brexit party (whose official position up to now has been that they wish to deliver Brexit on agreed terms which would enable this to happen in an orderly fashion). They lost almost 15% of their previous share of the vote, with a consequent loss of 15 seats. The extra 7% of the vote gained by the two Brexit parties almost certainly came from former Conservative voters, and perhaps some former Labour voters, who found their respective parties insufficiently ‘Brexity’. This hardly represents any significant increase (or any increase at all) in the overall pro-Brexit share of vote.

The performance of the two wings of the extremist Brexit faction can be compared with the results for the Lib Dems, whose share of the vote compared with 2014 went up by 13.4%, giving them 15 extra seats. The other unequivocally pro-European parties (Greens, SNP, Plaid Cymru and Change UK) gained an extra 9% of the vote, giving them 5 extra seats. So the combined figures for these five anti-Brexit parties represented and overall gain of 22.4% of the vote and a net gain of 20 seats.

The precise position of the Labour Party is still a mystery, and even now after they lost 11.3% of the overall vote compared with 2014, leaving them 10 seats down, the official position of the Labour leader is hardly distinguishable from the Tories, apparently favouring some kind of Brexit on agreed terms, but not ruling out as an option the possibility that they might perhaps support a fresh referendum, but only if they have failed (after how many attempts?) to engineer a General Election. Unsurprisingly, the electorate was confused and are still unsure where the Labour Party stands. It seems to be neither fully pro-Brexit nor is it unequivocally anti-Brexit.

The combined votes for the out-and-out Brexit faction (UKIP and Faragistes combined) were 34.9% of the total votes cast, whereas the combined votes of the unequivocally anti-Brexit parties (Lib Dems, Greens, SNP, Plaid Cymru and Change UK) came to 40.4%. No matter how Nigel Farage tries to spin it, this is hardly a clear call for the result of the 2016 referendum to be delivered; in fact, it is nothing of the kind. The exact views of those voters who still voted for the two main (or formerly main) parties is difficult to discern, but the majority view among Labour members and supporters seems to be anti-Brexit, and many of those who still voted Conservative can probably be counted as pro-Brexit. To be realistic, a roughly equal number of Tory and Labour voters can probably be added to each side of the debate, which would bring the pro-Brexit share of the vote to 44% and the anti-Brexit vote to 54.5%. This confirms that recent opinion polls were broadly correct in detecting a definite shift in public opinion away from Brexit and in favour of Remain.

MEPs are elected by proportional representation, but the D’Hondt system is not perfect (and a single transferable vote might arguably be preferable). So despite the use of this proportional system, the Brexit Party with 31.6% of the votes won 29 seats, whereas the unequivocally anti-Brexit parties (Lib Dems, Greens, SNP, Plaid Cymru and Change UK) with 40.4% the votes won just 27 seats between them. Taking the number of UK seats (73 in total), a total of 29 seats for the Brexit Party falls somewhat short of a majority of UK representation in the European Parliament. So, despite claims to the contrary, Nigel Farage’s Brexit Party did not ‘win’ this election.

These results nevertheless underline the inevitable consequence for the various parties opposed to Brexit of failing to reach an electoral pact with like-minded political parties in good time before an election. In the first-past-the-post system that we use for our domestic parliamentary elections, and in particular in our next General Election (whenever it comes), it is even more important that the anti-Brexit parties agree among themselves as to which constituencies they will contest, standing aside in those constituencies where another anti-Brexit party stands a better chance of winning the seat. The Labour Party ought to participate in these arrangements, but I fear that the political dinosaurs who control that party are so incorrigibly tribal in their attitudes that they could never bring themselves to compromise in this way. The precipitate and ill-considered expulsion of Alastair Campbell from the party this week is a sad reflection of this obscurantist attitude, which does not bode well for the future electoral prospects of the Labour Party. Maybe the time has come for Jeremy Corbyn to follow the example of Vince Cable, and step down from the leadership of his party, so that he can spend more time on his allotment.

The important point is that, interesting though the European election may have been, it has not changed the parliamentary arithmetic at Westminster. The Tory leadership contest may well be influenced by last week’s vote, although Jeremy Hunt has sounded a timely warning note about misinterpreting that vote, but in the final analysis the identity of the Tory leader is an irrelevance. I would not hazard even the most tentative guess as to who may ultimately emerge as the new Tory leader but, whoever it turns out to be, they will be faced with exactly the same political and parliamentary problems as Mrs May.

Those Tory leadership hopefuls who talk about going back to Brussels to negotiate a much better deal than Theresa May was able to achieve have either been failing to pay attention or are simply deluding themselves (and their followers). Not only has the EU made it clear that the draft agreement that has been reached cannot be re-negotiated, but the agreement by which the UK was given an extension to Article 50 until 31 October specifically provides that this extension cannot be used for any renegotiation of that agreement.

The stark choices that will face parliament, and the government under its new Tory PM, are unchanged – (1) sign off on the deal that has been negotiated, (2) ‘crash out’ of the EU without a deal or (3) revoke the UK’s Article 50 notice (so as to put an end to Brexit). One or two of the Tory leadership contenders have enough common sense to appreciate that a ‘No Deal’ Brexit would be catastrophic, and that no government could realistically contemplate such a disastrous outcome to the Brexit process. Whilst the current ‘default’ position is that, in the absence of any other course of action having been adopted in the meantime, the UK is indeed set to ‘crash out’ of the EU on 31 October without transitional arrangements of any sort, there is a strong possibility that if it were to become apparent that the government was seriously prepared to allow this to happen, there could be enough Tory abstentions on an opposition ‘No Confidence’ motion in the Commons to bring the government down and precipitate a General Election. It would need only a handful of Tory abstentions to bring about this outcome, if this proves to be the only way to defend the vital national interest, rather than the narrow political interests of the Tory Party.

One prediction I will make - the tenure of the next Tory prime minister will be as difficult and unhappy as that of Mrs May, and may well prove to be brief and inglorious.


Wednesday, 8 May 2019

New amendments to the GPDO

I have been keeping a look-out on the UK Legislation website for the expected amendment to the GPDO, searching (not unreasonably) under “General Permitted Development Order”, but MHCLG were too clever for me, and sneaked these amendments out in an SI entitled The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 [2019 No. 907]. These regulations were made on 1 May, laid before parliament on 3 May and will take effect on 25 May. Part 2 of these Regulations sets out the amendments to the GPDO.

Part 1, Class A of the Second Schedule to the GPDO (larger domestic extensions) is amended by omitting the words “until 30th May 2019” in paragraph A.1(g), and by omitting sub-paragraphs (13), (14) and (15) in paragraph A.4, thus making this class of PD permanent. This amendment also removes the requirement for the developer to notify the LPA of the completion of the development.

A new Class of PD has been added to Part 3. This is Class JA, which permits a change of use of a building from a use falling within Class A1 (shops), Class A2 (financial and professional services), or Class A5 (hot food takeaways) or from use as a betting office, pay day loan shop or launderette, to a use falling within Class B1(a) (offices). I don’t propose to comment on the detailed provisions of the new Class of PD here, other than to note that there is a qualifying date of 29 October 2018 for the pre-existing use, and a floorspace limit of 500 sq m. The usual exclusions will apply, and a prior approval application is required in respect of transport and highways impacts, noise impacts from neighbouring commercial and retail premises, and any impact that the development may have on the availability in the area of services of the sort that were provided by the pre-existing use.

In Class M (residential conversion from A1 shops, A2 offices, etc.), A5 take-aways have been added to the pre-existing uses that can be changed to residential, together with a clarification of the retail impact assessment that is required.

There is also a slight clarification of the floorspace limit in Class Q (residential conversion of an agricultural building). This provides that the floor space of any [one] dwellinghouse developed under Class Q must not exceed 465 square metres. I must confess that this is how I already read Class Q (as amended in 2018), so I am not sure why it was thought necessary to insert sub-paragraph (ba). This amendment does not affect the cumulative floorspace that can be developed under Class Q, which for the reason previously explained in this blog may be up to 865 sq m in total (if larger and smaller dwellinghouses are developed in the appropriate combination).

Finally in Part 3, there is a minor updating of paragraph W so that paragraph W.10(b) now refers to the February 2019 version of the NPPF in place of the original (2012) version. The same amendment is made elsewhere in the GPDO where references were previously made to the older version of the NPPF.

Part 4, Class D (temporary use of various business premises) is amended by enlarging the uses to which the use of the specified business premises can be changed to include, in addition to those previously listed, Class D1(a) (the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner), Class D1(d) (the display of works of art (otherwise than for sale or hire)), Class D1(e) (museum), Class D1(f) (public library or public reading room), or Class D1(g) (public hall or exhibition hall). The single period during which the premises can be put to another use under this Class of PD is also extended from 2 years to 3 years.

I have deliberately omitted some of the more obscure amendments made by these Regulations, but will just note finally the amendment to Part 16, Class A (PD for electronic communications code operators), which, as previously promised by the government, now excludes from this Class of PD the installation, alteration or replacement of a public call box. Part 3 of these Regulations also amends the Control of Advertisements Regulations to remove the whole of Class 16 from Part 1 of Schedule 3, which gave deemed consent to advertisements displayed on telephone kiosks. Thus the provision of telephone kiosks now requires planning permission, and the display of any advertisements on them now requires advertisement control consent. No doubt there will be rejoicing in local planning authorities and dismay among telecoms operators and outdoor advertising companies. This could also lead to the removal of many remaining telephone boxes, where advertising revenue can no longer be obtained to support their continued provision (an example, perhaps, of the Law of Unintended Consequences).

[For the avoidance of doubt, I should make it clear that where a prior approval application for the erection, alteration, etc. of a public call box is pending on 25 May, it must continue to be processed and, if refused, an appeal against that refusal can still be made and /or determined after that date. Secondly, a surface of a public call box which was used for displaying an advertisement on or before 24 May 2019 may continue to be used for that purpose.]


Friday, 3 May 2019

Supreme Court to consider ‘implied’ conditions

I reported in this blog on both the High Court judgment [ [2017] EWHC 2412 (Admin) ] and the decision of the Court of Appeal [ [2018] EWCA Civ 844 ] in Lambeth LBC v SSCLG.

This case has been appealed to the Supreme Court, and is due to be heard on 21 May.

It raises an important issue as to the extent (if any) to which conditions may be implied in a planning permission where an express condition has not been included in the permission.

If, as is likely, judgment is reserved, we may get the result in June or July.