CA upholds judgment on the qualifying ‘purpose’ of PD under the GPDO

Earlier this year, on 18 February, I drew attention to Westminster City Council v SSCHLG [2019] EWHC 176 (Admin), in which judgment had been given by Ouseley J on 5 February. This case has now reached the Court of Appeal (New World Pay Phones Ltd v Westminster City Council [2019] EWCA Civ 2250). On 18 December, the Court of Appeal unanimously upheld the judgment at first instance.

You might suppose that, with the almost universal use nowadays of mobile phones, the demand for public call boxes would be greatly reduced, and yet prior approval applications to install new or replacement telephone kiosks have burgeoned over the last few years. The key to this is that these applications are nearly always accompanied by a parallel application for advertisement consent to allow illuminated advertising on the whole of the back panel of the new kiosk. This, Westminster suggested, betrayed the true purpose of these proposed structures. The Council thought it unlikely that the new kiosks would be used by the public to make telephone calls; and the applications were in substance an attempt to exploit PD rights so as to circumvent normal planning controls that properly apply to such development.

Following February’s judgment, MHCLG moved with unaccustomed alacrity to plug this loophole. With effect from 25 May 2019, the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 removed from the PD rights granted by Part 16 of the Second Schedule to the GPDO development consisting of the installation, alteration or replacement of a public call box, and for good measure the Advertisement Control Regs were also amended to exclude from Schedule 3 of those regs deemed consent for [unilluminated] advertisements displayed on the glazed surface of a telephone kiosk.

[In light of this, you may be wondering why New World Pay Phones bothered to take their case on to the Court of Appeal. The answer lies in the transitional provisions in the May 2019 amendment regulations. Where a prior approval event occurred before 25 May 2019, the PD right under Part 16, Class A continues to have effect in relation to a public call box as if the amendments made by these Regulations had not been made. So if New World Pay Phones could get the High Court judgement overturned, the Inspector’s original appeal decision would thereby have been restored. It was that appeal decision that was the “prior approval event” in this case, and so the permitted development could still have gone ahead.]

As I pointed out in February, the significance of this case is not confined to telecoms developments under Part 16. The “purpose” of the proposed development is what really matters, and whether or not this actual purpose falls within the qualifying purpose or purposes specified by the relevant Class in the appropriate part of Schedule 2 to the GPDO. As I noted in February, it seemed to me from the arguments put forward on behalf of the developer, and also the Secretary of State, that it would be possible to reach a different conclusion on the issue of “purpose” in relation to Part 16, Class A. This was not to say that the Court of Appeal would necessarily reach a different conclusion, and it seemed to me that it was entirely possible that the first instance decision would be upheld, but the case would clearly turn on the interpretation of “purpose” in the context of the Second Schedule to the GPDO.

As Hickinbottom LJ put it in his judgment, the “use” of a building or land is an important planning concept, as is the related concept of “purpose”, i.e. the use for which the building or land is intended. By section 75(2) and (3) of the 1990 Act, where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and, if no purpose is specified, then the permission is construed as including permission to use the building for the purpose for which it is designed. “Purpose” in this context is not subjective – it does not depend upon what is in the mind of the developer – it is the use for which the development, looked at objectively, is intended.

As Ouseley J observed in his judgment at first instance, “A development falls outside the scope of Class A Part 16 of it is not ‘for the purpose’ of the operator’s network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO. …….. A development which is partly ‘for the purpose’ of the operator's network, and partly for some other purpose, is not a development ‘for the purpose’ of the operator’s network, precisely because it is for something else as well. The dual purpose development must be judged as a whole.”

The essential points to be derived from the judgment of Hickinbottom LJ in the Court of Appeal may be briefly summarised as follows:

(1) To fall within a specified class of PD, development not only has to comply with the class description, but also has to satisfy a series of conditions and limitations unique to that particular class. If it does not do so, then it is not permitted under the GPDO; and planning permission can only be obtained on the basis of a full application.

(2) To take the advantage of being permitted development, the proposed development must fall entirely within the scope of the GPDO. Mixed use development cannot take advantage of that benefit – because, if it were to be able to do so, the GPDO could and would be used for permitting development for something outside its scope, i.e. the part of the development that does not fall with a permitted development class.

(3) The true construction of the GPDO means that, as a general proposition, to be “permitted development”, the whole of any development must fall within the scope of a class in Schedule 2 of the GPDO, by falling within the relevant definition and satisfying any express restrictions as to “exceptions, conditions and limitations”; and therefore a mixed use or dual purpose development, where one use or purpose is outside the scope of the class, cannot generally be permitted development.

It was beyond dispute that the proposed telephone kiosk in this case did not have merely the single purpose to enclose electronic communications apparatus, but that it also had an advertising purpose. It therefore very clearly fell outside the scope of the GPDO. For those reasons, in Hickinbottom LJ’s view, Ouseley J was right to conclude that the proposed development fell outside the scope of the GPDO, and was right to quash the prior approval on that ground.

© MARTIN H GOODALL

LAST CHANCE TO STOP BREXIT !

This Thursday’s General Election will be positively the last chance to prevent a disastrous Brexit at the hands of Boris Johnson and his Brextremist friends. The Tory election slogan (“Get Brexit done”) is as mendacious as all Johnson’s other lies and obfuscations. If Johnson wins an overall majority, so that he can rush his Brexit Bill through parliament with only the most perfunctory debate (thereby avoiding all the serious defects of his vaunted ‘deal’ becoming obvious before it passes into law), then the country will be faced with a disastrously hard Brexit, and the likelihood that the UK will still crash out of the EU at the end of 2020, with no agreement having been reached as to our longer-term relationship with the EU, in terms of trade, security, scientific cooperation and the many other important benefits that the UK derives from its current membership of the EU.

Contrary to Johnson’s assertion, his deal is not “oven-ready”. It will not ‘get Brexit done’. It will be only the overture to long and difficult negotiations with the EU, which could drag on for years, not to mention even more difficult horse-trading with other nations with whom the UK currently has advantageous trade terms, as a result of Europe-wide trade deals that the EU has made with those countries on behalf of all its member states. It is naïve to believe that these agreements can simply be rolled over on substantially the same terms as we currently enjoy. As a much smaller trading entity than the EU, the UK’s bargaining position would be substantially weakened, and the terms that might be negotiated will be nothing like so good as those that we currently enjoy with those other countries. After three years clocking up a prodigious number of air-miles, Mrs May’s trade minister (Dr Liability Fox) had only succeeded in agreeing to buy oranges from Israel and cuckoo clocks from Switzerland, plus some miscellaneous items from Iceland and the Faroe Islands. Johnson’s motley crew are unlikely to do any better (especially when it comes to negotiating with the USA).

And does anyone seriously believe the Tory Party’s death-bed repentance, after nine years of unnecessary austerity (which, contrary to their assertions, has still not been brought to an end), which has prompted them suddenly to promise that they will reverse at least some of the cuts that they have savagely imposed on public services throughout their years in office?

People are understandably fed up with Brexit, but they would be tragically mistaken if they think that voting Tory will “get Brexit done”. What people really want is to “get Brexit over with”, which is not the same thing at all. This can easily be achieved, simply by cancelling Brexit altogether. No more long and difficult debates; no more tricky and risky international negotiations. As soon as we pull the plug on Brexit, that’s the end of all our problems. The reaction to the Lib Dems’ proposal to cancel Brexit without letting the voters have a final say on the matter shows that people do want a chance to vote on the matter one last time in light of all that has transpired in the past three and a half years; so there clearly needs to be a referendum on the terms of Johnson’s deal, with the alternative of simply staying in the EU on present terms.

It has therefore become vital at this General Election to prevent Boris Johnson from getting a parliamentary majority. The problem is that our ‘first past the post’ electoral system can all too often result in a candidate being elected on a minority of the votes cast in their constituency. Labour and Lib Dem votes might add up between them to 60% in that constituency, but the Tory candidate could still win with just 40% of the votes cast. Unfortunately, Labour and the Lib Dems have refused in most cases to cooperate with each other to prevent this happening, and so it is left to individual voters to do the job for them. If you want to prevent a Tory MP being elected in your constituency by default, then old party loyalties must be laid aside and you should vote for the one candidate in your constituency who, with the benefit of the combined anti-Tory votes, could defeat the Tory candidate. This is the only means that is now left to us to prevent a disastrous Brexit, from which this country might never recover.

Once again, the Tories have wheeled out their old trick of threatening the electorate with an invented bogey-man. This time, it’s Jeremy Corbyn; last time it was a “coalition of chaos” with the SNP as well, but what we got instead was Theresa May’s very own coalition of chaos, with the DUP. This old Tory trick of waving a white sheet about and talking darkly of ghosts and ghoulies and things that go bump in the night won’t wash any more. As the doyen of psephologists, Professor Sir John Curtice, observed recently, the chances of Jeremy Corbyn gaining a working majority in this election are as close to zero as it is possible to get. So blood-curdling prophesies of economic disaster under a left-wing Labour government can be entirely discounted. If we can avoid a majority Tory Brexiteer government, then what we shall get is another hung parliament. (Cue more Tory weeping and wailing and gnashing of teeth – but only because it will frustrate their knavish tricks, and prevent them once again from forcing a hard Brexit on the country). In a parliament where no party can command a majority, the compromise of a second referendum then becomes the only practical way forward, and it is one that this next parliament should seize on as the best way of “getting Brexit over with”.

Friday the 13th (in the cold, clear light of dawn) : So that’s it, then. Boris Johnson now has his majority, and the country is doomed. Goodbye, Great Britain; welcome to Little England – an insignificant little offshore island, with no influence in the world and a slowly declining economy, left only with its dreams of past glories.

But the Tories and other Brexit supporters had better not get too carried away with any sense of triumph. Reality, in the form of ongoing Brexit negotiations and other difficult trade talks, will impose itself all too soon, and electors in the Midlands and the North of the country, who elected Tory MPs for the very first time in some cases, will be expecting Johnson’s government to deliver on their generous election promises. Those electors will punish the Tories at the ballot box for any delay in rolling back austerity and spending generously to provide new hospitals, properly funded schools and much improved public transport and other public services.

© MARTIN H GOODALL

Curtilage revisited (yet again)

One of the nightmares a lawyer has is that he or she has overlooked some relevant judicial authority – a judgment that has somehow escaped their notice, and which could potentially undermine some cleverly constructed argument that they have carefully devised. The same dilemma faces legal authors (including bloggers), and so in our seminar last month, I had a sudden frisson of doubt about the vexed issue of “curtilage”, the definition of which has repeatedly troubled the courts over the years.

What prompted my sudden anxiety was the citation by Alistair Mills, in his excellent survey of recent case law, of the judgment in Challenge Fencing Ltd v SSHCLG [2019] EWHC 553 Admin. This was a judgment that was handed down in March 2019, but which I had somehow missed until Alistair Mills drew attention to it in our seminar.

It turns out that this judgment does not change the accepted view of how “curtilage” is to be defined, but it did prompt me to revisit the issue of “curtilage” in light of the various judicial authorities on the subject that go back over the past 70 years or so. It is, I would suggest, a good idea to carry out this exercise occasionally, rather than repeating time and again the same old summary that one has been accustomed to trotting out whenever the subject arises.

One point that immediately became apparent to me from a re-reading of the cases is that very little attention seems to have been paid over the years to what I have always regarded as the locus classicus on this topic, the judgment in Sinclair Lockhart’s Trustees v Central Land Board (1950) 1 P.& C.R. 195. So far as I am aware, this judgment has never been over-ruled or distinguished, and so it remains good law.

The essential point that I derive from that case is that, in order to be within the curtilage of a building, the land in question must not only have a close spatial relationship with the building (a point to which the courts have repeatedly returned) but it must also share a functional relationship with the building. To quote the relevant passage in the judgment:

“The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.”

Although the Sinclair Lockhart judgment was not referred to in R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin), it is clear from the characteristically thorough and carefully reasoned judgment of Sullivan J (as he then was) that he certainly had in mind the need for a functional relationship between the alleged curtilage building and the principal building, as well as a spatial relationship. This was a strand of thought that ran through the entire judgment (which has to be read in its entirety to understand the stress laid on this point). It may be briefly illustrated by this passage:

“…..In 1984 Mill Barn and the Old Granary were not being used for purposes that were ancillary to the use of the farmhouse as a dwelling house; they were being used for the purposes of the general farming enterprise which was being carried on at Jews Farm. They, and the agricultural buildings to the west, were being used for agricultural purposes. They were not being used, for example, to garage the farmer's car, to store his domestic items, as a children's playroom, staff quarters etc cetera.”

In Egerton, Sullivan J held that, both in relation to their spatial relationship with the listed farmhouse (being separated from it by a wall) and in the lack of any functional (domestic) relationship with the farmhouse, the nearby barns were not within the curtilage of the farmhouse, and so they were not listed buildings. It is clear, therefore, that for one building to be within the curtilage of another building, their relationship must be both functional and spatial.

So far as the spatial relationship is concerned, a number of points have been established by the various judicial authorities over the years. In Dyer v Dorset County Council [1989] 1 Q.B. 346, the court referred to the definition of the word “curtilage” in the OED:

“a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings”

The reference in the dictionary definition to the curtilage being “small” was held to be irrelevant by the Court of Appeal in Skerritts of Nottingham Ltd v SSETR (No.2) [2000] 2 P.L.R. 102; [2000] J.P.L. 1025, but Dyer is still authority for the proposition that (irrespective of its size) land forming the curtilage of a building must be ‘attached’ to a dwellinghouse (and not be separated from it by any intervening land) and must form one enclosure with it, a point affirmed by the High Court in Burford v SSCLG [2017] EWHC 1493 (Admin). (Practical examples of the application of this rule were provided by Collins v SSE [1989] P.L.R. 30 and McAlpine v SSE [1994] E.G.C.S. 189. )

One aspect of the decided cases with which I take issue is the repeated references to the judgment of the Court of Appeal in A-G (ex rel. Sutcliffe) v Calderdale BC (1982) 46 P. & C. R. 399, where it had been held that there were three factors to be considered when identifying the curtilage of a (listed) building. These were: (1) the physical ‘layout’ of the listed building and the structure, (2) their ownership, past and present, and (3) their use or function, past and present.

Stephenson LJ had said in that case:

“Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage. So when the terrace was built, and the mill was worked by those who occupied the cottages, and the millowner owned the cottages, it would have been hard, if not impossible, to decide that the cottages were outside the curtilage of the mill.”

It seems to me, however, that reliance should no longer be placed on that judgment. First, the buildings in that case may not (at the relevant time) have been in one and the same planning unit. The well-known rule in Burdle established that the unit of occupation is the appropriate planning unit to consider, until or unless a smaller unit is identified which is in separate use, both physically and functionally. That alone suggests that by the time that the mill building in Calderdale came to be listed, the adjoining terrace of millworkers cottages cannot have been within the same planning unit as the mill itself. Although the cottages were clearly built and were originally (and perhaps still) owned by the millowner, they were separately occupied, whether by millworkers or others. Even if they constituted ‘tied accommodation’, they clearly constituted separate units of occupation, and (even though they may have been attached, at least at one end of the terrace, to the mill building), they were in separate use, both physically and also functionally, as dwellings.

Even if they continued to be occupied by millworkers as tied accommodation, the terrace could not now be regarded as ‘ancillary’ to the mill building, bearing in mind the House of Lords decision in Westminster City Council v British Waterways Board [1985] A.C. 676; [1984] 3 All E.R. 737 that a use in one planning unit cannot be ancillary to an activity carried on in a different planning unit, even an adjoining one.

So far as physical attachment to another building is concerned, it is clear from section 1(5) of the Listed Buildings Act that any structure fixed to a listed building forms part of the listed building. However, the House of Lords in Debenhams plc v Westminster LBC [1987] A.C. 396 insisted that a structure fixed to a listed building would itself be listed only if it was subordinate or ancillary to the building that was actually listed. An obvious example (cited in Debenhams) is a terrace of houses; the listing of just one of the houses in the terrace clearly does not apply to the houses on either side if these are in separate ownership or occupation, even though they are structures that are ‘fixed to a listed building’. I would submit that this applies equally to the situation in the Calderdale case, and that the terrace of millworkers cottages cannot, for the reasons explained above, be regarded as having been included in the listing of the mill building (in the absence of their having been specifically included in the listing description).

For the reasons explained above, I would respectfully disagree with Lieven J’s formulation in Challenge Fencing of the tests that are to be applied in assessing whether or not a building or an area of land falls within the curtilage of a particular building (as summarised in paragraph 18 of her judgment), at least in so far as they depend, to a degree, on Stephenson LJ’s observations in the Calderdale case.

The definition of what constitutes “curtilage” is (and, in the absence of any general legislative definition, must remain) a matter for the courts. However, I entirely agree that the actual identification in a particular case of the extent of the curtilage of a building is a question of fact and degree, and so this must be a matter solely for the decision-maker, subject to normal principles of public law. This, however, depends on the correct application of the definition of “curtilage” (as established by the judicial authorities referred to above).

Reference was made in Challenge Fencing to the judgment in Sumption v Greenwich LBC [2007] EWHC 2776 (Admin). That case established that the identification of the curtilage must be determined in relation to the factual position at the relevant time (for example, as at the date of first listing in the case of a listed building, or as at the date of the application in the case of an LDC application); it also established that the extent of the curtilage can very easily be changed from time to time, subject of course to any addition to the curtilage being incorporated in the same planning unit as the building within whose curtilage it is claimed to have been included, and also to its use at that time being lawful in planning terms.

So I would formulate the relevant indicators as follows:

(1) The identification of the curtilage of the building in question is a matter of fact and degree, to be determined by the decision-maker.

(2) The determination is to be made by reference to the relevant point of time in the particular case (e.g. the date of first listing in the case of a listed building, or the date of the application in the case of an LDC application).

(3) In order to be within the curtilage of Building A, the relevant land and/or other building(s) must, at the relevant time, have been within one and the same planning unit as Building A.
(a) This question is to be determined in accordance with the rule in Burdle, i.e. What was the unit of occupation at the relevant time?
(b) At that time, were the alleged curtilage land and/or other buildings in the same use as Building A, without having been divided off from it, or were they in separate use, both physically and functionally?
(c) Past or present ownership (as distinct from occupation) is unlikely to be of assistance in relation to this question, which will depend on the actual occupation and use of the various parts at the relevant point in time in that particular case.
(d) The historic layout or use of the land and buildings is unlikely to be of any assistance in answering this question; it is actual occupation and use at the relevant time that will be the determining factors.

The following questions will only fall to be answered if it has been determined in answer to Question 3 that the alleged curtilage land or buildings were at the relevant time in one and the same planning unit as Building A.

(4) At that time, were the alleged curtilage land and/or building(s) used for the comfortable enjoyment of Building A? Did they serve the purpose of Building A in some necessary or useful way? (For example, if Building A is/was a dwelling, were the other building(s) and/or land also in use for domestic purposes in connection with the use and occupation of Building A as a dwelling?)

(5) Were the alleged curtilage land and/or building(s) attached (in spatial terms) to Building A, and did the land and/or building(s) form one enclosure with Building A? If not, were the relevant land and/or buildings divided from Building A by a wall, fence or other means of enclosure or were the relevant land and/or buildings separated from Building A by any intervening land (e.g. uncultivated ground, rough grass, pasture, etc.)?

(6) In a case where Building A was, or became at that time, a listed building, was any building within the alleged curtilage physically attached to Building A? If so, was it subordinate or ancillary to Building A? (The relative sizes of Building A and any attached building may be a factor in answering this question, as well as the relative functional relationship of the respective conjoined buildings.)

(7) Finally, whilst the claimed curtilage need not necessarily be ‘small’, is its size and alleged necessary or useful function in relation to Building A proportionate to the size and function of Building A?

It will be seen from these proposed questions that the three factors listed by Stephenson LJ in the Calderdale case really don’t come into the equation (at least, not in the form in which they were stated in that judgment).

There are, of course other judgments on this issue that have not been cited above, such as Methuen Campbell v Walters 1979 1 QB 525.and Lowe v FSS [2003] EWHC 537 (Admin), but they don’t really add anything to the authorities already cited.

© MARTIN H GOODALL