Another continuity case under section 171B(2)

There has been some comment on last month’s judgment in Islington LBC v SSHCLG [2019] EWHC 2691 (Admin). However, the judgment does no more than to confirm existing and well understood law on the need for the continuity of a residential use throughout a four-year period if an unauthorised change of use to residential use is to become immune from enforcement under section 171B(2). The position regarding the need for continuous use was very clearly established in the judgments in Swale and in Thurrock. Void periods, unless they are of very short duration, will re-set the clock to zero, and this includes voids associated with redecoration or refurbishment for the purpose of re-letting. The resumption of residential use after such a void period will be seen as a fresh breach of planning control, which cannot benefit from any earlier period of residential use in calculating the 4-year period for the purposes of section 171B(2).

Where the Inspector went wrong in this case was in allowing himself to be persuaded that the earlier judgment in Gravesham gave rise to the possibility that residential occupation need not be continuous. I have never derived such an implication from that judgment, and I find it difficult to understand how one could claim support from that case for such a proposition. All that Gravesham did was to establish a pre-qualifying requirement that, before a change of use to residential use can commence, the premises in question must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood; that is to say as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence.

There is admittedly a potential anomaly that arises from the rule in Gravesham, as applied by Impey, (both cases that had been called in aid by the developer in the Islington case). This is the proposition, which was clearly accepted by the Supreme Court in Welwyn Hatfield ("the Beesley case"), based on Gravehsam and Impey, that a change of use to residential use does not depend on actual residential occupation; the change of use takes place at the point at which the construction or adaptation of the premises is completed, so that the premises are then ready for imminent residential occupation.

One is therefore faced with the position (which is not perhaps entirely logical) that a breach of planning control could well take place even if actual residential occupation has not commenced, but that any time between this unauthorised change of use taking place and actual residential occupation commencing cannot be counted towards the 4-year period for the purpose of calculating the time when this breach of planning control (i.e. the change of use) will become immune from enforcement under section 171B(2).

Although Gravesham and Impey, and also Welwyn Hatfield, were called in aid by both the developer and by the Secretary of State in the Islington case in attempting to defend the Inspector’s decision, the potential anomaly I have mentioned above did not arise in this case, which was a straightforward example of a residential use being subsequently interrupted by a void period during which the flat in question was thoroughly refurbished (in fact it was described as having been ‘gutted’, so as to render it completely uninhabitable while those works were in progress). The judgment in Panton and Farmer has no application in this situation; it applies only after immunity has first been achieved. There are numerous examples of void periods having been held to ‘stop the clock’ for the purposes of the 4-year period, so that the clock is then re-set to zero if a residential use is subsequently resumed. Mrs Justice Lang’s judgment in favour of the LPA, quashing the Inspector’s decision, in which he had allowed the developer’s appeal against the LPA’s enforcement notice, seems to me to have been inevitable in these circumstances, and should occasion no surprise whatsoever.

Where the courts might perhaps find themselves in some difficulty in the future, would be a case where works were completed so as to bring about a change of use, as established in Welwyn Hatfield, followed by a period of (say) a couple of months, or perhaps even longer, before actual residential occupation of the premises commences (during which the property was on the market but had not been sold or let), followed by a period of continuous and uninterrupted residential occupation falling short of four years, but which when aggregated with the period when the property was fully ready for occupation but had not yet been occupied does add up to four years. The court would then have the interesting task of reconciling Thurrock and Swale on the one hand with Welwyn Hatfield on the other.

© MARTIN H GOODALL

THIRD EDITION is launched

Last week Bath Publishing and Keystone Law held another very successful event to launch the THIRD EDITION of A Practical Guide to Permitted Changes of Use. This took the form of a seminar, held at the Institution of Civil Engineers in Great George Street, Westminster. We had so many bookings that we had to hold the seminar twice, once in the morning and then again in the afternoon. Even this was not enough to accommodate everyone who wanted to attend, and we could probably have filled the lecture theatre for a third time, if we had had the energy to repeat the seminar all over again.

The seminar was ably chaired once again by Brian Waters, the eminent architect and town planner and Chair of the National Planning Forum, who is also the editor and publisher of “Planning in London”. In addition to my presentation on the scope of Building Operations permitted by Class Q (residential conversion of agricultural buildings), Alistair Mills from Landmark Chambers, who is another Bath Publishing author, gave an entertaining account of recent case law, which was warmly appreciated by the audience.

The liveliest part of the event was the panel discussion, beginning with a brief survey of potential amendments to the PD rights for changes of use under Part 3 (especially under Class O – residential conversion of offices, which has become increasingly controversial), and continuing seamlessly into a wide-ranging Question and Answer session on Part 3 generally. Alistair Mills willingly participated as a member of the panel at short notice, and we were joined in the morning by my colleague Oliver Goodwin from Keystone Law’s planning law team, and in the afternoon by my colleagues David Evans and Andrew Darwin. The proceedings, both in the morning seminar and in the afternoon, went with a swing and I have never encountered such an enthusiastic and thoroughly engaged audience.

Those of you who now have your copy of the book will have seen that it is a substantial hardback volume, which is significantly larger than either of the two previous editions. Quite apart from the fact that those earlier editions are now thoroughly out-of-date (and so should no longer be relied upon), the Third Edition is even more of a ‘must have’ guide to all the rules and procedures that have to be complied with in achieving prior approval for developments under the permitted development rights in Part 3 of the Second Schedule to the GPDO. For what you get, the price of this book is an absolute bargain.

This reminds me to tell you that, if you have not yet bought the book, you have a last chance to avail yourself of the generous launch offer that Bath Publishing is making, which will give you not only the book itself, but also a free copy of the digital edition, all for just £60 + VAT. But hurry, this offer only lasts for a few more days - until 30th November. After that date the book will be available for £60 on its own, or you can then buy it as a print / digital bundle for £90 + VAT. So if you get your order in this week, you can save yourself over £30 on the print/digital bundle.

© MARTIN H GOODALL

Section 73 – Limits to the variation of conditions

I understand the Finney case may be going on to the Supreme Court. I haven't seen this in black and white yet, so wait and see.

The Court of Appeal issued a helpful judgment on 5 November which confirms the correct approach in exercising the power to vary the conditions attached to a planning permission. This was the case of Finney v Welsh Ministers [2019] EWCA Civ 1868. Section 73 of the 1990 Act provides a power to grant planning permission for development without complying with conditions subject to which a previous planning permission was granted. In practice, this allows certain conditions to be removed altogether or to be relaxed or varied. However, the Court of Appeal’s judgment in Finney makes it clear that there is a limit to how far the variation of a condition under section 73 may lawfully go.

The planning permission in question in Finney authorised the installation of two wind turbines with a tip height of up to 100m, and associated infrastructure. This permission was granted subject to 22 conditions. One of these provided that the development was to be carried out in accordance with the approved plans and documents, which showed a wind turbine with a tip height of 100 metres.

The developer subsequently applied under section 73 for the "removal or variation" of that condition to enable a taller turbine type to be erected. A submitted drawing showed a variation of the proposed development so as to permit tip heights for the turbines of up to 125 metres. It is important to note, however, that this variation would have taken the development outside the scope of the development described in the operative wording of the planning permission.

The LPA refused the section 73 application, and the developer appealed to Welsh Ministers (in practice the Planning Inspectorate) against that refusal. Having considered a number of planning issues raised in the appeal, the Inspector allowed the appeal so that the development could be carried out subject to a revised condition that would permit tip heights for the turbines of up to 125 metres. (This also involved varying the operative wording of the permission, so as to remove the words in the description of the development that referred to a tip height of up to 100m for the wind turbines.)

There could be no challenge to the inspector’s planning judgment, but a third party objector (Professor Finney) sought a quashing order in the High Court on the ground that the Inspector had no power to allow the appeal and to grant planning permission for development that was not covered by the description of the development in the body of the original planning permission. The only power, it was argued, was to vary the conditions attached to that development as described in the original permission. The High Court rejected this challenge, noting that the point had not been raised before the inspector. Professor Finney then appealed against that judgment to the Court of Appeal.

In considering the legal issue that this case raised, the Court of Appeal drew attention to a passage from the recent Supreme Court judgment in Lambeth LBC v SSHCLG [2019] UKSC 33, where Lord Carnwath had said: “A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.” Furthermore, it is well-settled law that a condition on a planning permission will not be valid if it alters the extent or the nature of the development permitted: Cadogan v SSE (1992) 65 P & CR 410.

Counsel for Prof Finney had stressed in argument the distinction between the “operative part” or grant of the planning permission on the one hand, and the conditions to which the operative part or grant is subject. The distinction between these two parts of a planning permission is reflected in other provisions of the 1990 Act. This distinction between the operative part or grant, on the one hand, and conditions on the other had been drawn in other cases decided under the Act, for example Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin) (when Hickinbottom J observed: “… the grant identifies what can be done—what is permitted—so far as use of land is concerned; whereas conditions identify what cannot be done—what is forbidden.”).

The question in the appeal in Finney, therefore, was whether, on an application under section 73, it is open to the LPA (or, on appeal, Welsh Ministers) to alter the description of the development contained in the operative part of the planning permission. Similar challenges on this ground had been upheld in previous cases, such as R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7.

Although R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) was decided the other way, this was on the basis that the precise extent of the description of the consented development in that case (an extensive multi-purpose leisure development that included a “multi-screen cinema”) did not prevent a variation of one of the conditions that had specified a 12-screen cinema with a capacity of 2,000, by substituting under section 73 an increase in the number of screens to 13, with a capacity of 2,400. (The important point was that the operative words of the planning permission itself in that case had referred only to a “multi-screen cinema”, without specifying the number of screens or the seating capacity of the cinemas in the description of the development authorised by the permission.)

Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. On receipt of such an application, section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development. That coincides with Lord Carnwath’s description of the section as permitting “the same development” subject to different conditions. It is notable, the Court of Appeal observed, that if the planning authority considers that the conditions should not be altered, it may not grant permission with an altered description but subject to the same conditions; on the contrary it is required by section 73(2)(b) to refuse the application. That requirement emphasises the underlying philosophy of section 73 (2) that it is only the conditions that matter.

The Court of Appeal therefore allowed this appeal, and quashed the Inspector’s decision because it was beyond her powers.

© MARTIN H GOODALL