Tuesday, 31 March 2020

The Rule of Law – policing the restrictions on movement

As I have made clear repeatedly in this blog, I am a strong believer in the Rule of Law. This, of course, means not only that citizens should obey the law, but also that our government and those charged with policing the law must also act entirely within the law, and must be careful not to exceed their legal authority. However, there has been some controversy recently as to the manner in which some police forces have purported to enforce the recently imposed restrictions on personal movement.

I do not for one moment question the need for such regulations, in order to ensure that social distancing is properly practised so as to limit as far as practcable the transmission of COVID-19. This is clearly crucial. However, certain police forces have not only been over-zealous in seeking to enforce the current movement restrictions, but they have in fact exceeded their legal powers in doing so, and have themselves acted outside the law. (If Derbyshire Police really did pour dye into a freshwater pool, they have almost certainly committed an environmental offence!). Lord Sumption, an eminent lawyer and former Justice of the Supreme Court, has been particularly outspoken on this, and has pointed out that we do not live in a ‘police state’ in this country, and the police must not act as though we do. Avon & Somerset Constabulary, in particular, are completely out of order in encouraging people to ‘inform’ on their neighbours – they are a police force, not the ‘Stasi’.

The function of the police is to enforce the law. They therefore need to be clear as to the actual legal provisions that they are seeking to enforce. In England, these legal provisions are enshrined in The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 [SI 2020 No.350]. They do not include or embrace government ‘advice’ (or purported ‘instructions’) or ministerial pronouncements that do not reflect the actual contents of the above-mentioned regulations.

Regulation 6 of these regulations provides that “During the emergency period, no person may leave the place where they are living without reasonable excuse.” However, (and this is important) there is a list of no fewer than thirteen examples of the needs which constitute a “reasonable excuse”. (Regulation 6(2) in fact simply states that this list “includes” the needs that are referred to, which would appear to suggest that this list is not necessarily definitive, and that other needs could in principle, and possibly in practice, also constitute “reasonable excuse”.) However, in this post I will confine myself to discussing the needs actually listed in Regulation 6(2). All the needs listed are of equal legal status; the order in which they appear in the list does not represent any sort of ranking.

The first item in the list is (a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.

It is important to bear in mind that purchasing any item sold or service provided by a business listed in Part 3 of Schedule 2 is capable of coming within the definition of “supplies for the essential upkeep, maintenance and functioning of the household”. I set out in my last post the premises listed in Part 3 of that Schedule but, just to remind you, they comprise Food retailers, including food markets, supermarkets, convenience stores and corner shops, Off licences and licensed shops selling alcohol (including breweries), Pharmacies (including non-dispensing pharmacies) and chemists, Newsagents, Homeware, building supplies and hardware stores, Petrol stations, Car repair and MOT services, Bicycle shops, Taxi or vehicle hire businesses, Banks, building societies, credit unions, short term loan providers and cash points, Post offices, Funeral directors, Laundrettes and dry cleaners, Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, Veterinary surgeons and pet shops, Agricultural supplies shop, Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part of Schedule 2, Car parks, and Public toilets. Thus a visit to any of these premises does, by definition, come within the needs that constitute “reasonable excuse” for leaving home.

I would endorse the suggestion, made by ministers, that people should avoid going out more frequently or for any longer than is absolutely necessary, and that in any event social distancing should be maintained at all times. But these suggestions are only advice; this advice does not constitute a legal requirement, and it is important that the police and anyone else concerned with the enforcement of the regulations should understand this, and not confuse such advice with the less stringent legal requirements enshrined in the regulations. If it becomes clear at any time that more stringent restrictions may be required in order to contain the continued spread of the coronavirus, then further regulations can and should be made. In the meantime, however, the current Regulations constitute the entire extent of the restrictions that can lawfully be enforced.

It is important to appreciate that the reasonable excuse demanded by Regulation 6(1) is not confined to obtaining “basic necessities”. Furthermore, it is clear that “supplies for the essential upkeep, maintenance and functioning of the household” can include obtaining money, and goods or services from any business listed in Part 3 of Schedule 2. A moment’s thought confirms that it would be a legal nonsense to attempt to distinguish between ‘lawful’ and ‘unlawful’ purchases from such businesses, particularly bearing in mind that it remains lawful for such businesses to remain open for the sale of all the items that they usually offer for sale.

The other point to bear in mind, that it is lawful to go out to buy goods not only for your own family, but also for the household of a vulnerable person (defined in Regulation 1(3)(c) as any person aged 70 or older; any person under 70 who has an underlying health condition, including (but not limited to) the nine underlying medical conditions listed in Schedule 1; and any person who is pregnant). This must necessarily include delivering those goods to the household of the vulnerable person. This need not be a near neighbour. I have had to make deliveries to a family who live a couple of miles away, at least two of whose members are in the vulnerable category, but who have no means of obtaining the supplies that they need in any other way. (They tried, and failed, to order food online.)

The next item in the list is (b) to take exercise either alone or with other members of their household. The English regulations do not specify that this exercise can only be taken once a day, nor do they specify any limit on the time during which this exercise may last or the distance from home to which such exercise may extend. Most important of all, there is nothing in these regulations that prevents a person driving to the point at which they intend to start a run or walk. Those police forces (such as Derbyshire and also Avon & Somerset) which have taken it upon themselves to ‘forbid’ or discourage such journeys are exceeding their powers. They (and we) should remember that the object of the exercise is to ensure that social distancing is maintained. Provided runners or walkers maintain a safe distance [not less than 2m] from other people when they are out, it is clearly immaterial whether they set out on foot or drive to the start of their walk or run.

As one person observed in a TV interview, his local park was crowded, so he drove to nearby woodland to go for a walk ‘far from the madding crowd’, only to find that Mr Plod had left a threatening leaflet on his car. And police really don’t need to get unduly worried if they see a number of cars parked in a car park, as their occupants are unlikely to return to their cars all at the same time. A less flat-footed approach on the part of the police is clearly required. To quote a government minister in a recent interview, people will remember for a long time the manner in which the police conduct themselves during the present crisis, and it is important that they should not undermine public confidence in the fair and proper enforcement of the law, which they risk doing if they exceed their powers by taking an over-zealous approach to the problem that this legislation is designed to address.

[Regulation 7 provides a more effective means of ensuring social distancing, and I suggest that this would be a more appropriate focus for the police than Regulation 6. Regulation 7 prohibits gatherings of more than two people, other than family members in the same household. Here too, however, the regulation provides for exceptions, for which due allowance must be made.]

Reverting to Regulation 6(2), the next item on the list is “(c) to seek medical assistance”, including to access dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, and also veterinary surgeons and pet shops (which is self-explanatory, and calls for no comment). Similarly, one may leave home, in accordance with paragraph (d), ”to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance”; or under paragraph (e) “to donate blood.

Travel to work is covered by paragraph (f) (“to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living”). Clearly, working from home is to be encouraged wherever possible.

Paragraph (g) allows you to attend the funeral of a member of your household, of a close family member, or (if no-one in those two categories is attending) of a close friend.

Under paragraph (h) you may leave home to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings, and under paragraph (i) you may leave home to access critical public services, including childcare or educational facilities (where these are still available to a child in relation to whom you are their parent, or if you have parental responsibility for, or care of, that child). Under this paragraph, you may also leave home to access social services, services provided by the Department of Work and Pensions, and services provided to victims (such as victims of crime).

In relation to children who do not live in the same household as their parents, or one of their parents, paragraph (j) allows the continuance of existing arrangements for access to, and contact between, parents and children (and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child).

Paragraph (k) allows a minister of religion or worship leader, to leave home to go to their place of worship; paragraph (l) allows you to move house “where reasonably necessary” [?] and finally you may lawfully leave your home, to avoid injury or illness or to escape a risk of harm. (So you are not breaking the law if you rush out of the house because it is collapsing or because it is on fire. More seriously, victims of domestic abuse may lawfully seek refuge elsewhere.) With regard to moving house, the government has indicated that this should be put on hold wherever possible, but it nevertheless remains lawful to do so.

This brings me back to the basic point. The essential requirement is that we should all rigorously observe social distancing at all times. That is what these regulations were designed to ensure. My impression is that people are generally complying, and are following ministerial advice, even where it goes further than the regulations. But enforcement must be confined solely to breaches of the regulations themselves and, even then, persuasion and a generally light touch on the part of the police is likely to be more effective than a more heavy-handed approach (let alone the flat-footed actions of certain police forces, which Lord Sumption has roundly condemned).

One final legal note: There are various levels of enforcement. Regulation 8 empowers an authorised person (such as a police officer or a PCSO) who considers that a person is outside the place where they are living without reasonable excuse to direct that person to return to the place where they are living (or to remove that person to the place where they are living). But the belief needs to be a reasonable one, and due regard must be paid to the circumstances discussed above that constitute “reasonable excuse”. So a police officer or PCSO would need to tread very warily in exercising this power, and would need to be well-versed in the detailed provisions of Regulation 6 if they are to avoid possibly adverse legal consequences for themselves or their police force if they get it wrong.

[Officers are likely to find themselves on firmer ground in exercising their powers under Regulation 8(9) where they consider that three or more people are gathered together in contravention of regulation 7. In this case, they may direct the gathering to disperse, or direct any person in the gathering to return to the place where they are living; or they may remove any person in the gathering to the place where they are living.]

Under Regulation 8(11), an officer exercising these powers may also give the person concerned any reasonable instructions they consider to be necessary. However, the lawfulness of such an instruction will inevitably depend on the factors mentioned above. Officers may need some fairly careful training to make sure they get this right. A gung-ho approach would be wholly inappropriate.

Regulation 10 empowers an officer to issue a fixed penalty notice to any person over the age of 18 whom they reasonably believe to have committed an offence under these Regulations. The belief needs to be a reasonable one, and it relates solely to an offence under these regulations; it does not extend to a failure or refusal to observe other ministerial advice that is not covered by the regulations. Similarly, Regulation 9 makes it an offence, without reasonable excuse to contravene a requirement in regulation 4, 5, 7 or 8, or to contravene a requirement in regulation 6. Here again, this refers to the Regulations themselves, and not to any other requirement or purported instruction.

As always, a proportionate approach needs to be taken in the enforcement of these regulations, never forgetting that the most effective form of policing in this country is ‘policing by consent’. It is an essential element in upholding the Rule of Law in its widest sense.


Friday, 27 March 2020

Further compulsory closures

The ‘missing’ Statutory Instruments that I referred to in my blog post on the Coronavirus Act 2020 have now been made. First, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 [SI 2020 No. 350] were made and came into effect at 1.00 p.m. yesterday (26 March). They revoke and replace the Regulations made last week [SI 2020 No.327]. As announced, these new regulations require the closure of a much wider range of premises than last week’s regulations did. They also affect far more aspects of people’s personal lives, including restrictions on movement and other activities.

Dealing first with the closure of premises, this is in three parts. The first part (set out in Regulation 4(1) to 4(3) and Part 1 of Schedule 2 to the regulations) relates to cafes, restaurants and other premises (or any part of the premises) in which food or drink are sold for consumption on those premises. This simply repeats the provisions in last week’s regulations (which these new regulations have revoked and replaced), and I do not therefore propose to repeat that material here. These rules, including certain exemptions and exceptions, were summarised in my first blog post of 23 March - “Compulsory closure of premises”.

The second tranche of premises affected by the new regulations is dealt with by Regulation 4(4) to 4(6) and Part 2 of Schedule 2 to these regulations. Most of these were also covered by last week’s regulations, but for the sake of completeness the entire list of other premises that must be closed comprises:

Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Nail, beauty, hair salons and barbers, Massage parlours, Tattoo and piercing parlours, Skating rinks, Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities, Funfairs (whether outdoors or indoors), Playgrounds, sports courts and outdoor gyms, Outdoor markets (except for stalls selling food), Car showrooms, and Auction Houses.

Paragraph 4(4) does not prevent the use of Cinemas, Theatres, Bingo halls, Concert halls or Museums and galleries to broadcast a performance to people outside the premises, whether over the internet or as part of a radio or television broadcast [but that doesn’t mean broadcasting it on a tannoy to a crowd of people standing outside on the pavement!]. This paragraph of Regulation 4 does not prevent the use of any suitable premises used for the businesses or services listed in Part 2 of Schedule 2 to host blood donation sessions.

If a business that comprises or includes a café, restaurant, bar, etc. forms part of a larger business [other than another business that is required to be closed] the person responsible for carrying on that larger business will still be complying with the requirement in Regulation 4(1) if they close down the café, restaurant, bar, etc. while continuing to operate the larger business. (However, as noted below, hotels must now also be closed.)

Regulation 5 imposes further restrictions and closures during the current crisis. The types of premises that are exempt from this closure order are listed in Part 3 of Schedule 2 to these regulations. With the exception of these exempted premises (listed below), Regulation 5(1) requires the closure of premises and other businesses offering goods for sale or for hire in a shop, or providing library services, other than by making deliveries or otherwise providing services in response to orders received through a website, or otherwise by on-line communication, by telephone, including orders by text message, or by post. Any premises other than those required to carry out what may loosely be described as this ‘mail order’ business [in the widest sense] must be closed. So if a business has a retail shop, the shop must be closed to customers, but the ‘mail order’ business can continue.

The list of premises (set out in Part 3 of Schedule 2) which can remain open to the public is as follows:

Food retailers, including food markets, supermarkets, convenience stores and corner shops, Off licences and licensed shops selling alcohol (including breweries), Pharmacies (including non-dispensing pharmacies) and chemists, Newsagents, Homeware, building supplies and hardware stores, Petrol stations, Car repair and MOT services, Bicycle shops, Taxi or vehicle hire businesses, Banks, building societies, credit unions, short term loan providers and cash points, Post offices, Funeral directors, Laundrettes and dry cleaners, Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, Veterinary surgeons and pet shops, Agricultural supplies shop, Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part of Schedule 2, Car parks, and Public toilets

It appears to me from observation that there are quite a few businesses who thought they would be forced to close (and have closed in some cases) but which are included in this list of businesses that are allowed to remain open. It is perhaps slightly confusing that Schedule 2 is headed “Businesses subject to restrictions or closure”, whereas Part 3 of that Schedule lists businesses that are not subject to restrictions or closure.

In addition to the restrictions described above, Regulation 5(3) requires that a person responsible for carrying on a business consisting of the provision of holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, must cease to carry on that business during the period to which these regulations apply. There is, however, a relaxation of this requirement (in paragraph 5(4)), so that a person carrying on any of these businesses may continue to carry on their business and keep any premises used in that business open in order to provide accommodation for any person, who is unable to return to their main residence, uses that accommodation as their main residence, needs accommodation while moving house, or needs accommodation to attend a funeral; or to provide accommodation or support services for the homeless, to host blood donation sessions, or for any purpose requested by the Secretary of State [for Health], or a local authority.

By Regulation 5(5) places of worship must be closed, except for funerals, to broadcast an act of worship, whether over the internet or as part of a radio or television broadcast, or to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).

By Regulation 5(6) community centres must be closed, except where they are used to provide essential voluntary activities or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).

By Regulation 5(8) crematoria and burial grounds must be closed to the public, except for funerals or burials.

Regulation 6 imposes restrictions on movement, and Regulation 7 imposes restrictions on gatherings. As the restrictions on movement do not affect the use of premises as such, I don’t propose to discuss them here, but that does not detract from their crucial importance. So far as the restriction on gatherings is concerned, it is extremely strict, being limited to no more than two people, with certain very limited exceptions. It does have the effect of precluding many of the activities that would normally be carried on in, for example, sports grounds or public parks, including organised sports or games.

There are, of course, provisions in the Regulations for enforcement, including the creation of offences and penalties, including fixed penalty notices. There appear to have been one or two businesses that were initially reluctant to close, but strict compliance with these Regulations is essential, and will undoubtedly be enforced.

The Secretary of State for Health must review the need for the restrictions and requirements imposed by these Regulations at least once every 21 days, with the first review being carried out by 16 April 2020, and the Regulations will in any event expire at the end of the period of six months beginning with the day on which they came into force (i.e. by 26 September).

The Regulations explained above apply only to England. Similar (but not identical) regulations have been made in Wales and in other UK jurisdictions. The only other relevant SI of which I am currently aware is the Coronavirus Act 2020 (Commencement No.1) Regulations 2020 [SI 2020 No.361] which brings into force certain sections of the Coronavirus Act 2020 which did not take immediate effect. None of those is directly relevant to the subject matter of this blog.


Thursday, 26 March 2020

Coronavirus Act 2020

The Coronavirus Act 2020 received royal assent yesterday and (with certain limited exceptions) came into immediate effect.

Bearing in mind that this blog is devoted solely to town and country planning and related subjects (although I reserve the right to have the occasional rant about Brexit – which, pace Boris Johnson, is still unfinished business), there is very little in the Act which is relevant in the context of this blog. The Act is to a large extent an enabling Act, giving ministers power to make various orders and regulations in the form of Statutory Instruments and to give various ministerial directions.

One section in the Act that is of relevance to development control is section 78, which authorises the Secretary of State for Housing, Communities and Local Government in England [and other relevant national authorities in other parts of the UK] to make regulations relating to the holding of local authority meetings, including timings, frequency, venues, public access and participation and also the availability of documents. The regulations may also provide for a reduced quorum at such meetings. The regulations can disapply any statutory provisions that currently apply to local authority meetings and procedures. This power to make regulations extends only to local authority meetings required to be held, or which are held, before 7 May 2021, i.e. within this and the next municipal year.

The temporary closure of, or restriction of attendance at, schools and other educational institutions (as well as childcare premises) in England and Wales is covered by Part 1 of Schedule 16, which comes into force only on an Appointed Day, when a relevant SI is made by the Secretary of State for Education. An order for closure takes the form of a temporary closure direction or directions made by the Secretary of State for Education under Schedule 16. The Schedule contains lengthy and detailed consequential provisions which it is unnecessary to discuss here. Current closures were announced last week in advance of the Act. I am not inclined to quibble over the legality of this. No doubt the Department for Education will take whatever steps may be necessary, now that the Act is in force, to regularise the position in this regard.

Schedule 22 deals with the power of “the Secretary of State” to issue directions relating to events, gatherings and premises. [I may have missed something, but I have been unable to find in the Act any provision that defines which Secretary of State is referred to in this Schedule.] These powers are extensive. They include the power to issue a direction prohibiting, or imposing requirements or restrictions in relation to, the holding of any event or gathering in England. There is also an unlimited power to issue directions imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in, any premises in England. Such a direction may be issued in relation to specified premises, or premises of a specified description. (This may include a requirement to close those premises.) Criminal offences are created in relation to any failure to obey such a direction.

This leaves us with the problem of finding out precisely what orders or directions have been issued. A trawl through UK Statutory Instruments at 2.00 p.m. today did not reveal any relevant SIs other than those that I have briefly summarised in recent blog posts. It is still not clear what statutory powers ministers currently have for the recently announced restrictions on various activities. They clearly now have the necessary enabling powers under the Coronavirus Act, but appropriate subordinate legislation and formal ministerial directions will then be required to give legal effect to these restrictions. I am not questioning the need for such restrictions, and I have willingly followed government advice and purported ‘instructions’ in the public interest, but as a lawyer I naturally look for appropriate statutory or judicial authority when government seeks to implement various ministerial decisions. Presumably the necessary subordinate legislation and ministerial directions will be made in the next few days. It is particularly urgent to clarify precisely which premises are intended to be closed and which can remain open for the time being, especially bearing in mind the punitive sanctions for non-compliance.

UPDATE (27.3.20): The ‘missing’ SIs that are referred to in the blog post above have now been made. I will publish another blog post here later today explaining the new provisions.


Monday, 23 March 2020

GPDO Amendment - Extended PD for hot food takeaways

When I published my post on compulsory closure of premises this morning, the expected amendment to the GPDO had not yet appeared on the legislation.gov.uk website. It is now online, and takes the form of the The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 (SI 2020 No.330), which was made at 10.42 a.m. this morning, and comes into effect at 10.00 a.m. tomorrow (24 March 2020).

The amendment order introduces a new PD right in Part 4 of the Second Schedule to the GPDO 2015. This is Class DA. This applies to restaurants and cafes, and drinking establishments, and also to drinking establishments with expanded food provision, to enable them temporarily to provide takeaway food. The actual permitted development right comprises development consisting of a change of use of a building and any land within its curtilage from a use falling within Use Class A3 (restaurants and cafes), Use Class A4 (drinking establishments), a mixed use for any purpose within that Class A3 and Class A4 [sic], or a use as a drinking establishment with expanded food provision as defined in Class AA of Part 3 in the Second Schedule, to a use at any time during the period beginning with 10.00 a.m. on 24th March 2020 and ending with 23rd March 2021, for the provision of takeaway food.

This one-year PD right is subject to the condition that the developer must notify the LPA if the building and any land within its curtilage is being used, or will be used, for the provision of takeaway food at any time during the relevant period. For the purposes of the UCO and the GPDO, change of use to the provision of takeaway food under Class DA does not affect the use class which the building and any land within its curtilage had before the change of use. If the developer changes use to the provision of takeaway food under Class DA during the relevant period, the use of the building and any land within its curtilage must revert to its previous lawful use at the end of the relevant period or, if earlier, when the developer ceases to provide takeaway food under Class DA.

For the purposes of Class DA, the “provision of takeaway food” includes any use for any purpose within Use Class A5, and any use for the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises.

The development permitted by the new Class DA in Part 4 of the Second Schedule to the GPDO 2015 cannot be prevented or precluded by an Article 4 Direction. On the other hand, bearing in mind the effect of Article 3(4) in the 2015 Order, a condition in an existing planning permission authorising an A3 or A4 use that prohibits a take-away use or a delivery service would still have the effect of preventing the development that would otherwise be permitted by the new Class DA in Part 4. I wonder whether MHCLG thought of this, or whether they simply could not think of a way of overcoming that particular problem. It would surely have been possible to provide that Article 3(4) would be disapplied in the case of a change of use under Part 4, Class DA. [For some further thoughts on this point, see the comments appended to this blog post].

Unfortunately, MHCLG has failed to take the opportunity that this amendment order presented to prevent the exploitation by unscrupulous developers of the default time limits in Parts 1, 3, 4, 6 and 16 of the Second Schedule, at a time when LPAs may struggle to process prior approval applications and to determine them and notify the applicants of their determination within the relevant time limit (28 days, 42 days or 56 days as the case may be under these various Parts of the Second Schedule).

It would have been a simple matter to provide that instead of the developer being at liberty to proceed with their proposed development in default of the determination of their prior approval application being notified to them by the LPA within that period, the prior approval application would be deemed to be refused at the expiry of the specified period for determination unless determination of the application has been notified to the applicant by the LPA before that date. Alternatively, it might be provided that where the LPA gives notice before the expiry of the stipulated period for determination that they will be unable to determine the application within that period, then the determination period is to be extended by the same period again (for example). Such a provision would have to be temporary (continuing to have effect for, say, no longer than a year).

In the absence of such a temporary amendment, there may be quite a few cases where developers can seize on the failure or inability of LPAs to determine prior approval applications within the relevant period, to forge ahead with proposed permitted development in respect of which the LPA could or should legitimately have refused prior approval. [This point is also discussed in the comments below. The bottom line is that, no matter how difficult it may prove to be in practice, there really is no alternative to LPAs ensuring that they keep on top of this, by giving priority to prior approval applications so as to avoid the default position arising.]


Compulsory closure of premises

The Regulations explained below have now been revoked and replaced by The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 [SI 2020 No. 350], which were made and came into effect at 1.00 p.m. on Thursday 26 March, and are [will be] described in a later blog post.

The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020 No. 327) were made at 2.00 p.m. on Saturday 21 March, and came into effect immediately. [Similar regulations were also made in Wales.] These regulations require the immediate closure of restaurants (including restaurants and dining rooms in hotels or members clubs), cafés (including workplace canteens) [but see below for exceptions], bars (including bars in hotels or members’ clubs) and public houses, and also Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Massage parlours, Indoor skating rinks and Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.

Cafés or canteens at a hospital, care home or school, canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence; and services providing food or drink to the homeless are all exempted from the requirement to close cafés and workplace canteens.

With regard to restaurants, cafés, bars and pubs, the regulations only require the closure of any premises (or part of the premises) in which food or drink are sold for consumption on those premises. If a business sells food or drink for consumption off the premises it must not sell food or drink for consumption on its premises while the regulations remain in force. So seating areas in a take-away must be closed. Nor may outdoor seating areas be used for the consumption of any food sold on the premises. However, food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises. [The effect of the regulations in relation to hotels is that guests will not be able to eat or drink in the hotel, except in their own rooms.]

It is an offence for any of the specified businesses to remain open or to re-open during the period that these regulations are in force, or to infringe any of the other rules outlined above.

These Regulations expire at the end of the period of six months (i.e. after 21 September 2020). In the meantime, the Secretary of State for Health must review the need for the restrictions imposed by these regulations every 28 days, with the first review taking place not later than 19 April. As soon as the Secretary of State considers that the restrictions set out in these regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, he must publish a direction terminating the period during which the regulations apply. Such a direction may exempt all of the businesses covered by these regulations or only some of them.

The main purpose of my drawing attention to this new piece of legislation is to analyse how this relates to the Use Classes Order. Clearly any uses falling within Use Class A1 selling food, such as sandwiches, for immediate consumption must not allow any of that food to be consumed on the premises or in an area (such as a seating area) immediately adjacent to the premises. Shops that have ancillary cafés will have to keep those cafés closed. There is a potential anomaly with regard to Class A1. This relates to Class A1(k) - internet cafés, i.e. where the primary purpose of the premises is to provide facilities for enabling members of the public to access the internet. Clearly they can no longer serve food or drink, but should they perhaps be closed altogether?

Restaurants and cafés within Use Class A3 must all be kept closed, as must pubs and bars within Use Class A4. However hot food take-aways within Use Class A5 can remain open, but must not permit any of the food they serve to be consumed on the premises or in an area (such as a seating area) immediately adjacent to the premises. These regulations do not actually enable A3 and A4 premises to sell hot food for consumption off the premises; so a temporary amendment of the GPDO (or of the UCO) will still be needed for this purpose. Furthermore, there are quite a few planning permissions for cafés or restaurants which contain conditions preventing the sale of hot food for consumption off the premises. An amendment to the GPDO would not in itself have the effect of abrogating any such condition.

Some premises within Use Class D1 are affected by the closure regulations, but others are not. Art galleries must be kept closed (other perhaps than commercial galleries falling within Use Class A1, although in the absence of a definition of “galleries” in the closure regulations this is not entirely clear). Museums must also close, but the closure regulations do not refer to public libraries or reading rooms, nor do they relate to public halls and exhibition halls as such, although concert halls [within Class D2 – see below] do have to be closed. (This does appear to be an anomaly. Maybe the draftsman of the regulations should have looked at the Use Classes Order!) Churches and other places used for worship are, of course, unaffected by the regulations.

Schools, universities and colleges (within Use Class D1(c)) are not affected by these regulations but are, or will be, covered by regulations made by the Secretary of State for Education. I will check this, but have not yet had the opportunity to do so. The 'order' last week to close these institutions must undoubtedly have been (or will be) backed with legislative authority.

So far as Use Class D2 is concerned, many premises within this class are clearly affected by the closure regulations. These include cinemas (as wells as theatres – a sui generis use), concert halls, bingo halls, casinos (another sui generis use), various types of indoor sports facilities, (but not outdoor sports facilities) and also night clubs (yet another sui generis use). As with Use Class D1, there are anomalies in the closure regulations. They do not, for example, refer to dance halls (Use Class D2(d)), unless “other indoor leisure centres” can be stretched to include this category.

Finally, while we are on the subject of sui generis uses, there is no mention of amusement arcades or centres (or fun fairs) in the closure regulations unless, here too, “other indoor leisure centres” can be stretched to include this category. Clearly these regulations were drafted in a tearing hurry, but it might have been a good idea to involve MHCLG in drafting Part 2 of the Schedule to the closure regulations, in order to ensure that no relevant premises were omitted, particularly if they are mentioned in the UCO, either as sui generis uses or within the schedule to that Order.

As this post is published, it seems that the closure regulations may well be extended to a much wider range of uses, possibly embracing the whole of Use Class A1, other than food shops, pharmacies and other essential suppliers, not to mention various uses in other use classes that have not so far been affected by the closure regulations. This is definitely a case of “watch this space”.

UPDATE 8.30 p.m. As I predicted at the end of the blog post above, the Prime Minister has announced that more extensive compulsory closures are now to be introduced with immediate effect. We shall no doubt see the actual subordinate legislation tomorrow. A wide variety of shops within Use Class A1 will now have to be closed, as well as libraries and places of worship, among other premises.


Wednesday, 18 March 2020

“Business as usual” [?]

As readers are aware, this is my personal blog, but in view of my association with KEYSTONE LAW, I thought it would be helpful if I mention that our firm is in an excellent position to provide legal services to all its clients without interruption during the Coronavirus crisis. Working from home is normal practice for Keystone’s lawyers, supported by a sophisticated firm-wide intranet and a strong central administrative operation based in the firm’s Chancery Lane offices. A strong IT system has allowed our Central Office team to go over to home working as well, even for these central operations, and so clients should notice no difference in the delivery of the firm’s professional services while the coronavirus crisis continues, no matter how draconian government restrictions on personal movement may become. Even if any Keystone lawyers have the misfortune to be afflicted by the virus, colleagues in the same team will be able to pick up the (electronic) file and progress their matters.

The one factor we can’t control, and which may well impact on the conduct of planning matters and other transactions and disputes is the continued functioning of public sector bodies, such as local planning authorities, the Planning Inspectorate and the Courts. Whilst all these organisations will no doubt do their utmost to maintain public services, the potential impact of the current crisis on their performance cannot be predicted. It very much depends on the extent to which they are able to function with their staff working from home. LPAs may perhaps be able to continue processing planning applications by this means, especially as most planning applications are determined by officers under delegated powers, although this may be more difficult in the case of major applications.

One area where I foresee some potential difficulty is in the disposal of planning appeals, if these would involve a hearing or inquiry. Where possible, PINS will no doubt try to transfer hearing cases to the written representations process, but this may not be practicable in all cases, and there are of course still some appeals (admittedly a minority nowadays) that will have to go to a public inquiry, and this clearly poses a problem. So far as appeal hearings and inquiries are concerned, PINS has stated that, because of the likelihood of social contact with multiple parties, these will not proceed at the present time. At this stage PINS can’t say when they may be able to resume, but it is unlikely to be soon. For the same reason, all hearings and preliminary meetings in respect of nationally significant infrastructure projects have also been postponed until further notice.

As regards examinations in public of Local Plans, PINS say that local plan inspectors will continue, where possible, to progress the pre- and post-hearing stages of the examination, depending on the stage reached. However, they accept that it is inevitable that the progress of some examinations will be delayed. Two local plan examination hearings which were due to take place this week have had to be postponed, and (despite the assurance of further progress where possible) PINS have admitted that local plan hearings cannot currently take place.

PINS are nevertheless looking at possible technological solutions to enable appeal hearings and local plan hearings to go ahead, but they admit that (so far as appeals are concerned) this will not be straightforward, given the need to ensure fairness for all parties, especially third parties. As regards local plan examinations, PINS accept that technology would only be an option in a limited number of cases, because of the number of participants, the legal right to be heard, and the fact that local plan hearings take the form of “a structured conversation”.

This could seriously delay the adoption of quite a few Local Plans, and could (if the current crisis continues for a significant length of time) make it difficult for the Secretary of State’s recently announced December 2023 deadline for adoption to be met. In the case of the South Oxfordshire Local Plan, it looks as though it is going to be a practical impossibility to meet the much tighter December 2020 deadline that the Secretary of State was demanding in this case. It was widely considered that this timetable would be difficult to achieve, even without the added complications of the coronavirus crisis; now it really would seem to be impossible.

I can’t resist finishing with a mention of Brexit. The government is still stoutly maintaining that they will stick to the December 2020 deadline for completing trade negotiations, so that the transition period will end on schedule on 31st December. But the trade talks are at a standstill, due solely to the coronavirus crisis, and it seems very unlikely that they will resume in the foreseeable future. They require detailed and lengthy talks involving numerous personnel; it’s not just a one-to-one conversation between David Frost and Michel Barnier. It is absolutely inevitable that the current deadline will have to be extended, possibly for a year. An extension must be agreed no later than the end of June, but I suspect that the UK government will see sense rather sooner than that and will agree an extension with the EU. Nigel Farage won’t be a happy bunny, but who care about what he thinks nowadays?

[UPDATE (25.3.20): I have had emails from various barristers’ chambers with whom Keystone Law regularly works, confirming that they are still fully operational (although the delivery of papers in hard copy is no longer practicable, and there will be no face-to-face conferences). In practice, the necessary changes make very little difference to the way we habitually work with counsel, other perhaps than the conduct of site meetings. Meanwhile, the courts are clearly making efforts to find alternative ways of delivering justice, using IT. I am not sure that PINS is yet up to speed with efforts to get the appeals system back on track but, as suggested above, there are various ways in which quite a few appeals could continue to be processed and determined. As for LPAs, they still seem to be struggling; so we shall just have to wait and see how they cope with the problems they face.]


Monday, 16 March 2020

More tinkering with the planning system

Last week, as an add-on to the Budget, the government announced yet another raft of proposed changes that they intend to make to the planning system. These were presented in the form of an oral statement to the House of Commons on 12 March by the Secretary of State for Housing, Communities and Local Government, accompanied by a document entitled “Planning for the Future” published the same day.

As has so often been the case in the past, the contents of both were long on propaganda, puffery and spin, but completely lacking in clear and precise proposals. Having read both the Commons statement and the accompanying document, I am really none the wiser as to what will eventually emerge, and so I am not inclined to waste time and space in attempting to summarise the suggested changes in any detail at this stage. Maybe a bit more flesh will be put on the bones when the long-awaited planning white paper is published “in the Spring”. [“Spring”? That’s next week, isn’t it? Well, when the chancellor of the exchequer’s ‘Autumn Statement’ can sometimes be delivered as late as December, I’m not holding my breath.] Even after the white paper, I strongly suspect that we shall just have to wait and see the actual legislation and revised policy guidance when it emerges from the government sausage machine.

Two new pieces of primary legislation are promised - a “Building Safety Bill” and a “Renters Reform Bill” (neither of which relate specifically to town and country planning – the first will amend the regime for Building Control, and the second will in effect be a piece of housing legislation). The other changes, which will most probably be achieved through subordinate legislation (although the need for primary legislation cannot be ruled out), include the long-threatened right to extend existing buildings upwards to create new residential accommodation and a right to demolish commercial buildings and replace them with housing. But the government still doesn’t seem to have made up its mind precisely how such additional rights will operate. Past indications were that this might involve ‘deemed’ Permission in Principle (‘PiP’) combined with permitted development rights to carry out the work itself, but I remain sceptical as to how this will be achieved in practice.

There are also noises about a streamlined, indeed ‘digital,’ planning system. But I am strongly reminded of the old saying, “Rubbish in; rubbish out”; in other words, simply computerising a system won’t solve anything if the system is half-baked in the first place. Before anyone attempts to computerise any process, what is needed is a thorough systems analysis of the existing process to understand what it is intended to do and how it is intended to do it. Only then can you start to design a proper computerised / digitised system to replace the previous paper-based system. One of the bugbears of the present development management system is that it requires far too much information from the applicant, much of which is irrelevant or unnecessary (involving difficulty, delay and disputes in the tiresome ‘validation’ process, before a planning application can even be processed or considered). If ministers are serious about ‘streamlining’ the planning system, they really need to tackle this issue; otherwise all they will succeed in doing is digitising the existing sclerotic process, with no detectable speeding up or improvement of the development management system.

There are also promises, promises (and a threat) about the plan-making system. Jenrick says the government will shorten and simplify the plan-making process. Amen to that, but how will they do this? It will require a huge effort to overcome the inertia that is hard-wired into the present plan-making system. The threat comes in the form of a December 2023 deadline that Jenrick has set for all local plans to be in place, or else the government will intervene. We have already had a foretaste of this with the threats made to South Oxfordshire DC (a topic to which I may return shortly). I foresee the prospect of legal battles if the Secretary of State attempts to carry out his threat.

And so on, and so on. I can feel my natural scepticism turning to outright cynicism. Further comment in the immediate future would be futile. We shall have to look at the actual changes when (or if) they emerge. Incidentally, there was no mention of the review of PD rights under Part 3, in particular Class O, which is believed to be in train; nor was there any mention of the previously canvassed possibility that the Use Classes order might be amended to bring greater flexibility to the Group A classes.


Monday, 9 March 2020

“Used solely for an agricultural use ……. when it was last in use”

A question was recently raised by a reader, in which they asked about the position where prior approval has been given for permitted development under Class Q, but (before the PD is carried out) the building is sold off separately, thus separating it from the established agricultural holding.

The relevant wording is to be found in paragraph Q.1(a) of Class Q, which lists development that is not permitted by Class Q. This requires the position to be examined on the qualifying date (20 March 2013). If the building was in agricultural use on that date, it qualifies. It also qualifies if it was not in agricultural use on that date, but was in agricultural use when it was last used (before that date). Provided the building has not subsequently been used for any non-agricultural use, it will still qualify for PD under Class Q. It seems to me that there is no requirement that the building must have remained a part of an established agricultural unit after 20 March 2013, so if it has subsequently been sold off and separated from its ‘parent’ agricultural unit after that date, this would not in itself appear to affect the position in any way, provided that the building has not been put to a non-agricultural use at any time since it ceased to be used for agriculture.

That, at least, is the orthodox interpretation of the legislation, but it has raised an interesting point that had not previously occurred to me. The requirement that an agricultural use must have been the last use of the building is set out only in sub-paragraph (ii) of paragraph Q.1(a), which relates to a building that was in agricultural use before 20 March 2013 but was not in use on that date. So if the agricultural use had ceased before 20 March 2013, then the building must not have been used at any time subsequently for any other use. However, under paragraph Q.1(a)(i), a building would qualify for PD under Class Q if it was used solely for an agricultural use as part of an established agricultural on 20 March 2013, but on re-reading paragraph Q.1(a) it appears that the prohibition against the building having been used at any time subsequently for any other use does not apply in that event. The proviso as to the agricultural use being its last use is mentioned only in paragraph Q.1(a)(ii), and would therefore seem to relate solely to a building that had ceased to be in agricultural use before 20 March 2013.

Paragraph Q.1(a) seems in fact to be capable of being interpreted as referring only to the use of the building up to the qualifying date. It must either have been in agricultural use on that date, or (if it was not in agricultural use on that date) it must have been in agricultural use when it was last in use (before that date). On this reading of the legislation, it is irrelevant what use, if any, the building has had at any date after 20 March 2013.

Let me make it absolutely clear that this is not the interpretation of the legislation that has come to be accepted, nor is it the interpretation that I have myself advanced in this blog and in A Practical Guide to Permitted Changes of Use. It is in fact unlikely that the interpretation of paragraph Q.1(a) that I have tentatively put forward above can ever have been intended. But it is an intriguing possibility, nevertheless.


Wednesday, 4 March 2020


I don’t carry advertising in this blog, but I am very pleased to give some free publicity to a book by Peter Edwards, which my publishers BATH PUBLISHING will be bringing out in April.

Neighbourhood planning, introduced by the Localism Act 2011, is now well established as the new 'first tier' of our planning system. The key to this brave new world of localism is the Neighbourhood Development Plan, which enables local communities to make planning policies for their area that have statutory effect and which must be taken into account by decision makers.

This new book has been written in order to answer the key questions faced by neighbourhood planners with a clear, pragmatic focus and in sufficient depth to arm both lay readers and planning professionals with the knowledge they need to operate effectively within this novel planning regime. Along the way, some of the less well-known planning rules and procedures that can be invoked by neighbourhood planning groups and others at a local level are also explained. The author also explores the place of neighbourhood planning within the wider planning system and offers a fascinating assessment of the potential of neighbourhood planning to address a whole range of important environmental issues.

The author, Peter Edwards, is a dual qualified lawyer and runs Planning Progress Limited, a planning and public affairs consultancy that advises a variety of clients from all sectors throughout the UK, on planning and the interaction between planning and the environment. He advises a number of parish councils on all aspects of neighbourhood planning.

This is the fifth book in Bath Publishing’s growing planning law list. Each of these titles is focused on giving sound practical advice on the areas it covers. These books differ in this respect from more general planning law books; the insight and expertise that their authors bring to their subject matter makes all five books an essential resource for planning professionals and for developers and others when dealing with the topics that they cover. The Power of Neighbourhood Planning will be a valuable addition to this growing library of essential practical guides, and an incisive introduction to this often controversial topic, providing sound practical guidance to all those working on a neighbourhood plan.

The price of the book will be £30, and if ordered before 31 March it comes with a free copy of digital edition as well. There are several other tempting offers on the Bath Publishing website - bathpublishing.com (or contact Bath Publishing Limited at 27 Charmouth Road, Bath BA1 3LJ. [01225 577810] .)


Thursday, 27 February 2020

The Heathrow Third Runway case

There has been some excitement in the news media about the judgment handed down by the Court of Appeal this morning in an appeal relating to proposals for the construction of a third runway at Heathrow Airport (R. (Plan B Earth) v Secretary of State for Transport (and conjoined appeals) [2020] EWCA Civ 214. However, as all too often happens, some people have been getting over-excited and are trying to read too much into this decision.

Opponents of the third runway at Heathrow had launched a root and branch attack on the scheme, but their appeal succeeded in the Court of Appeal on only one ground. The Court concluded that, in one important respect, the Airports National Policy Statement (‘ANPS’) supporting this project was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of government policy in a national policy statement, which Parliament put in place in the Planning Act 2008, was not fully complied with. The Paris Agreement [on climate change] ought to have been taken into account by the Secretary of State in preparing the ANPS, but was not.

The Court agreed with the appellants that the Government’s commitment to the Paris Agreement constitutes government policy on climate change, which the Secretary of State was required to take into account. However, the Government when it published the ANPS had not taken into account its own firm policy commitments on climate change under the Paris Agreement. The Court nevertheless emphasised that section 5(8) of the 2008 Act does not require of the Secretary of State to follow or act in accordance with government policy. In terms, what it requires is that the ANPS should explain how the Secretary of State has “taken into account” government policy. It is necessarily implicit in that obligation that the Secretary of State must indeed first have taken that government policy into account. This is an important aspect of the transparency of the Secretary of State’s actions and his accountability, both to Parliament and to the wider public.

The Court of Appeal did not consider that it should quash the ANPS, but confined the relief granted to a Declaration. Other grounds of appeal were all dismissed. These included issues relating to the operation of the Habitats Directive, and also on a variety of issues concerning the operation of the Strategic Environmental Assessment Directive.

The Court of Appeal made it clear that these judicial review proceedings, did not require the Court to decide whether and how Heathrow should be expanded. That is not the kind of decision that courts can make. It is ultimately a political question for the Government of the day. Rather, the Court was required to consider whether the court below (the Divisional Court) was wrong to conclude that the Government’s policy in favour of the development of a third runway at Heathrow was produced lawfully. This is an entirely legal question.

The Court of Appeal was also at pains to stress the limited scope of their judgment. The Court did not decide, and could not decide, that there will be no third runway at Heathrow. Nor did they find that the ANPS supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. However, the consequence of the Court’s decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed.

A successful claim in judicial review proceedings often proves to be a ‘pyrrhic’ victory, and this may well be the case here. All that the Secretary of State need do now is to reconsider the matter, “taking account” of stated government policy in relation to the implementation of the Paris Agreement. As the Court of Appeal made abundantly clear, the Secretary of State is not required to follow or act in accordance with government policy. It is therefore entirely possible that the Secretary of State, having taken account of the government’s own policy as to their obligations under the Paris Agreement, may nevertheless decide for economic and other reasons that the ANPS supporting the expansion of Heathrow Airport should be reaffirmed in its present form, thus allowing the third runway at Heathrow to go ahead.

The government has already stated that they will not seek to appeal to the Supreme Court, but will abide by the judgment (which, as I have explained, should prove to be a comparatively easy exercise). The owners of Heathrow Airport, on the other hand, were all set to pursue a further appeal, but they may think better of it when it becomes clear to them that this judgment is unlikely in practice to prevent the expansion of Heathrow that they have planned.

[Just to make one thing clear, I am not taking sides in this case. I can see that there may well be arguments against further airport development in the face of the mounting climate crisis, but as the Court of Appeal made abundantly clear, that is a political issue, and is not one with which the courts can concern themselves. The government simply has to follow the correct procedure in accordance with section 5(8) of the 2008 Act, and they are home and dry.]


Section 73 - Going to Supreme Court?

I believe the Finney case, in which the Court of Appeal gave judgment in November, may be going on to the Supreme Court. I haven't seen this in black and white yet, so watch this space.


Monday, 24 February 2020

Ministerial revolving door spins yet again

In Boris Johnson’s recent cabinet reshuffle, the Communities Secretary, Robert Jenrick, kept his job, but Esther McVey (“The Mouth of the Mersey”) got the sack as Housing and Planning Minister after barely six months in the job. Her replacement is Christopher Pincher, the MP for Tamworth since 2010 (prior to which the seat had been held by Labour). He last held a junior ministerial position in the Foreign Office and as a government whip. His precise ministerial responsibilities are still not stated on the MHCLG website.

If we were in the Crown Court, Hizonner (before passing sentence) would turn to Inspector Morse and ask him to read the antecedents, to which Morse would have to reply, “Nothing known, Your Honour.” I have never known a minister to have such a vague, or in fact non-existent, CV. I have only seen one press report in which he was vaguely stated to have been “an IT consultant”. MPs are rarely so reticent about their careers before entering parliament.

One thing that is certain is that he knows Sweet Fanny Adams about town and country planning, but since when has complete ignorance of the subject for which one has been given ministerial responsibility ever been seen as a disqualification?

I can’t recall how many Housing & Planning ministers there have been since 2010, but whatever the actual number may have been it has been far too many. Ministers can hardly master their departmental briefs before being moved on, which does not make for any continuity or consistency in policy making or in the delivery of those policies. It’s hardly surprising that the long-awaited Planning White Paper has been postponed yet again.

What a way to run a country!


Tuesday, 18 February 2020

Plans and drawings accompanying a prior approval application

A correspondent recently raised with me an issue regarding a prior approval application which an LPA had refused to accept as a valid application, on the ground that the plan accompanying the application was not drawn to an identified scale. The question was whether the LPA was correct in this, or whether the 56-day period would run in any event, so that the LPA’s failure to process and determine the application would lead to an automatic right to go ahead with the development after the expiry of the 56-day period, failing the LPA’s determination of the application having been notified to the applicant. An alternative scenario is that the LPA does issue a decision rejecting the application on this ground. How would an appeal against such a decision fare?

So far as plans are concerned, in Part 3, paragraph W(2) simply requires that the application must be accompanied by a plan indicating the site and showing the proposed development. Similar provisions are found in other Parts of the Second Schedule to the GPDO (for example, in Part 1, paragraph A.4(2)(b)) There is no requirement that the plan should be to any particular scale, or that it should be a scale plan at all. It may be inferred that the plan should be adequate to identify the site and to show the proposed development with a sufficient degree of precision to enable the plan to be understood, but there is no specific requirement in the GPDO that lays down any particular standard for plan drawing.

The decision of the Court of Appeal in Murrell v SSCLG [2010] EWCA Civ 1367 established that the validity of a prior approval application does not depend upon the LPA accepting it as a valid application. Whether there is a valid application or not is an objective question of law. Thus, the running of time is not dependent on the application being ‘validated’ by the LPA. The appellant’s application in Murrell complied with the requirements of the GPDO and was a valid application, contrary to the LPA’s assertion. Consequently, the PD right claimed by the appellant came into effect upon the expiry of the determination period (calculated from the day following receipt of the application by the LPA). As noted above, the GPDO does not require that the plan indicating the site and showing the proposed development must be drawn to any particular scale. Even a plan marked “Not to Scale” and/or “Do not scale from this plan” would be perfectly adequate to comply with the requirement in the GPDO for “a plan indicating the site and showing the proposed development”.

But what of a refusal of prior approval by the LPA (or a dismissal of the application under paragraph W(3))? The answer to this question is provided by a recent planning appeal [3226314] in Greenwich LBC relating to a prior approval application under Part 1. The Inspector pointed out that Class A paragraph A.4(2) requires the developer to notify the Council with certain information about the proposal, before development commences. The Council stated that the extension drawn on the submitted block plan measured 4.78m and was therefore inconsistent with the written description of 5m. However, paragraph A.4(2)(b) does not require the plan to be drawn to any scale. The plan needs only to indicate the site and show where the proposed extension is to be located. The actual dimensions of the proposed extension are required to be stated in writing under A.4(2)(a), which the appellant did. The appellant also submitted detailed drawings, which clearly indicated that the extension would project 5m. Thus, precise accuracy of the delineation of the extension on the submitted block plan was not critical. Accordingly, the Inspector found that the Council’s stance on this matter was incorrect and that in the absence of any objections, prior approval should not have been refused for the reason given on the decision notice. [Unfortunately, the Inspector was nevertheless obliged to dismiss the appeal, because the applicant had ‘jumped the gun’ by starting work on the extension, and this disqualified the proposed extension as permitted development.]

I wouldn’t want readers to assume that they can get away with only the vaguest indication of what development is actually proposed. As the Inspector observed in the Greenwich appeal, there is a requirement in Part 1 to state the dimensions of the proposed development, so the written description of the proposed domestic extension in such a case must contain that information. In relation to Part 3, whilst a simple but legible plan should suffice for the purposes of a change of use under Part 3, something more will be required if operational development is also proposed, under Classes C(b), M(b), N(b) or Q(b). In this case, there would appear to be an inescapable need for dimensioned drawings to be provided, in order properly to describe the operational development that is proposed. [This is discussed in more detail in paragraphs 13.5 and 13.5.1 of Chapter 13 in A Practical Guide to Permitted Changes of Use.]

It should also be borne in mind that the LPA has the right to ask for additional information under paragraph W(9) of Part 3, although such a request must be confined to the matters that are specified for approval in relation to the Class of development in question. In some cases, this could include a request for more precise details of any operational development that is proposed, in order to be able to assess its design or external appearance, and it could perhaps include a requirement for additional drawings. If such information is properly required, then a failure to provide it might justify the dismissal of the application under paragraph W(3), but the LPA might then face an appeal, with a risk as to costs if they were found to have acted unreasonably.


Wednesday, 5 February 2020

Extending the 56-day period by agreement

As I briefly reported in my post of 3 Feb, the High Court (Holgate J), in a judgment handed down on 31 January in Gluck v SSHCLG [2020] EWHC 161 (Admin), has reversed the effect of last year’s judgment in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), which had determined that Article 7 of the GPDO did not (as had been universally assumed) enable the 56-day period for the determination of a prior approval application relating to permitted development under any Class in Schedule 2 to the GPDO to be extended by agreement between the applicant and the LPA. Holgate J ruled that the decision in Warren Farm should not be followed.

The subject matter of the Gluck case was the proposed residential conversion by the Claimant of two office buildings under Class O of Part 3. There was correspondence between the claimant and the LPA before the 56-period for determination had expired, indicating the claimant’s willingness to agree an extension of time for the determination of the prior approval application beyond the end of the 56-day period. (The claimant later denied that a specific extension of time had in fact been agreed in writing by the LPA, a contention that was rejected both in his appeal against the LPA’s refusal of prior approval, and by Holgate J in the instant case. We will come back to this point briefly later.)

The Warren Farm case had not been decided in the High Court by the time that the appeal decision that Mr Gluck sought to challenge was decided, but it was a major plank in his case in the High Court. He sought to rely on the decision of Mr Mark Ockelton (sitting as a Deputy High Court judge) in Warren Farm that a time period specified in Schedule 2 of the GPDO 2015 for a determination by the authority as to whether its prior approval is required in a particular case was incapable of being extended, so that once it had expired without a decision being made the applicant could proceed with the development described in their application (in so far as it complied with the terms of the Order).

However, the Secretary of State submitted that that decision was incorrect and should not be followed; so that the provision in the Article 7 of GPDO for agreeing an extension of time periods applies to all prior approval procedures. It is a well-known principle that the High Court is bound to follow its own previous decisions, but the Court is not in fact bound to take that course if the judge in a later case is satisfied that there is a powerful justification for not doing so (see Willers v Joyce (No.2) [2018] AC 843 at [9]). For the reasons set out in detail in his judgment, Holgate J therefore declined to follow the judgment in Warren Farm. In that earlier case, the deputy judge stated that he had not been referred to any prior approval procedure in the GPDO 2015 to which the provision for extending time could be applied if his construction of the legislation was correct. By contrast, in the present case there was extensive discussion of this issue.

As in Warren Farm, the Claimant referred to the three alternative time limits under Article 7 for a prior approval to be determined by an LPA, namely -

(a) within any period specified in Schedule 2,
(b) where no period is so specified, within 8 weeks beginning with the day immediately following the receipt of the application by the LPA; or
(c) within such longer period as may be agreed by the applicant and the LPA in writing,

and argued that (c) is an alternative to (b), but not to (a). Therefore, he argued, a period specified in Schedule 2 is incapable of being extended (whether by agreement or otherwise). It is only where a period is not specified in Schedule 2, and the default position in (b) is engaged, that the ability to extend time by agreement under (c) applies.

The way the Secretary of State put it was that the Claimant’s construction conflicted with the purpose of including option (c) in Article 7. That provision recognises that prior approval applications of all kinds will sometimes involve technical issues requiring detailed assessment and consultation with other authorities. That may apply, for example, to the amenities of the future occupants of the residential development to be carried out under Class O. The same time period specified in Schedule 2 provisions such as paragraph W(11)(c) applies both to the LPA’s decision as to whether prior approval is required and, if so, whether it should be granted. These provisions involve a single time period for decision-making. Insufficient information may have been submitted with the application to enable the LPA to decide whether prior approval should be granted (if required) within that period. In that respect the position is similar to that which may arise for permitted development rights which are subject to the grant of prior approval in all cases. A developer faced with the prospect of his application being refused, for example because of the inadequacy of the information he has supplied with the application, might well prefer to have the period for determination extended so as to avoid a refusal and the prospect of having to appeal to the Secretary of State. The flexibility which option (c) was designed to provide logically applies to cases falling within both paragraphs (a) and (b).

Holgate J observe that Bennion on Statutory Interpretation states at section 16.6:–

“Where a single sentence is broken up into several paragraphs with the word ‘or’ or ‘and’ at the end of the penultimate paragraph, there is an implication that each of the preceding paragraphs is to be treated as if separated by the same conjunction.”

Phillips v Price [1959] Ch. 181 is an example of this principle being applied. It represents the natural way of reading the statute and layout of Article 7. By contrast, the Claimant’s argument would depend on reading paragraphs (a) and (b) as if they were separated by the word “and” instead of “or”.

The absence of a provision answering to paragraph (a) in Article 7 could mean that all “prior approval” cases in Schedule 2 fall within paragraph (b). It would then follow ineluctably that paragraph (c) would apply in all such cases, and an extension of the time period could be agreed. Furthermore, paragraph (a) would be otiose. The Claimant’s legal argument on the main issue would collapse. The procedural code for dealing with prior approval applications should not be construed so literally that it would produce unreasonable or unworkable results. The legislation does not require that approach to be taken.

Nor did Holgate J consider that the Claimant’s interpretation of the legislation could be supported by a purposive approach to the language used. Plainly the avoidance of delay in decision-making by LPAs is an important objective. But sound decision-making on matters of public interest is no less important. That needs to be based upon adequate information from an applicant and necessary consultation. Some of the issues involved may be of a highly technical nature. These considerations apply with just as much force to permitted development rights where the time period for decision-making falls within paragraph (a) of Article 7 as to those within paragraph (b). It may well be in the interests of an applicant to agree to extend the time period for determination to enable him to remedy a deficiency in the information he has supplied and/or to hold discussions with the LPA and consultees, so as to avoid a decision by the LPA that prior approval is both required and refused, and the consequential need to pursue an appeal, or to submit a fresh application, together with additional costs and delay. It would be undesirable to deny that option to developers seeking to rely upon permitted development rights falling within paragraph (a) of Article 7 unless the language of the GPDO 2015 compels that conclusion, particularly as the ability to extend time under paragraph (c), and the length of any extension, would be subject to the developer’s agreement.

Furthermore, the practical effect of treating time periods falling within paragraph (a) as incapable of extension would probably lead to more decisions by LPAs refusing applications (e.g. because the information provided in the time available for decision-making is inadequate) and more appeals to the Secretary of State. That would not be conducive to efficient decision-making or to encouraging acceptable forms of development to proceed without undue delay.

In his lordship’s judgment, the language of the GPDO 2015 does not require the Court to conclude that paragraph (c) is an alternative only to paragraph (b). The specification of a time period in Schedule 2 (such as 56 days) for a decision on whether prior approval is required, linked to a restriction on commencement of development, is not incompatible with the possibility of extending time under paragraph (c). Paragraph (b) lays down a finite period of 8 weeks for decision-making, but that is to be read together with, and subject to, any extension under paragraph (c). The language of paragraph (a) does not preclude an extension of time under paragraph (c) simply because the time period is specified in Schedule 2 rather than in Article 7. Nor is any such extension precluded because the time period is used to control when development may lawfully commence. A provision such as paragraph W in Part 3 of Schedule 2 is capable of being read together with Article 7. Permitted development rights granted under schedule 2 are expressly subject to other provisions of GPDO 2015 including Article 7 (Article 3(1)).

On a separate point, Holgate J also accepted the Secretary of State’s submission that if the legislature’s intention had been to treat time limits specified in Schedule 2 as operating independently, and to be incapable of extension by agreement, which would be the effect of the Claimant’s argument, then there would have been no need to include paragraph (a) or to refer to those time limits in Article 7 when the GPDO 2015 was enacted.

Holgate J therefore concluded that Article 7 must be read as if paragraph (c) is an alternative to both paragraphs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing. The decision in Warren Farm should not be followed.

An additional argument deployed by the Claimant was that an extension of time had not in fact been agreed by the LPA, and/or that such agreement had not been sufficiently evidence in writing. On the first point, Holgate J saw no error in the factual conclusion reached by the Inspector on this point in his appeal decision. As to whether the agreement was sufficiently evidenced in writing, he accepted that an email does qualify as being “in writing”, and no greater formality of communication is required. The Claimant’s argument therefore failed also on this point. I would simply observe that my own view has always been that an email does qualify as being “in writing”, but subject to the proviso that the email has actually been received by the addressee (i.e. that it has arrived in their In box, even if it was not opened or read). A request for an automatic delivery receipt added to the outgoing email is always advisable in such cases.

Holgate J’s judgment in Gluck is very welcome in restoring the understanding that most of us had as to the interpretation of Article 7, and confirming that a written agreement (if only by an exchange of emails) between the applicant and the LPA to extend time for the determination of a prior approval application is effective for that purpose in all cases. However, I did stress in paragraph 15.3 in both the First and Second Editions of A Practical Guide to Permitted Changes of Use that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. There would need to be some written evidence that both parties had agreed to extend time. A nil response from the applicant to the LPA’s request for more time would not prevent the expiry after 56 days of the time within which the LPA is required to determine the prior approval application and notify the applicant of that determination. Unfortunately, this passage does not appear in the Third Edition, having been removed shortly before publication in light of the Warren Farm judgment.


Monday, 3 February 2020

56-day period CAN be extended – High Court

Like many other planning professionals, I was frankly non-plussed by the judgment in R (Warren Farm (Wokingham) Ltd) v Wokingham BC, for the reasons I explained in a blog post on 2 August last year.

Now, Holgate J has declined to follow that judgment in the High Court in delivering judgment in Gluck v SSHCLG [2020] EWHC 161 (Admin) last week, when he made a detailed and carefully reasoned analysis of the GPDO, applying well-established principles of statutory interpretation.

I have not had time yet to read the judgment in detail, but in view of its importance, I am publishing this note now to record the fact that Article 7 of the GPDO does permit the 56-period for determining a prior approval application under Part 3 to be extended by agreement between the applicant and the LPA, as we all thought it did before the Warren Farm case.

I hope to publish a post setting out details of the judgment in Gluck shortly.


Friday, 31 January 2020


Dies irae, Dies illa, Solvet saeclum in favilla”

At 11.00 p.m. this evening the UK will officially cease to be a member state of the European Union, after almost half a century in which our membership of the European Community has been hugely beneficial to this country and its people in numerous ways, in addition to the immense economic benefits that membership of this huge trading bloc brought with it. I regard this symbolic break with our fellow Europeans (who as near neighbours are our natural trading partners and friends) as an unmitigated disaster with no countervailing advantages whatsoever, contrary to the vacuous blatherings of various species of Brexiteer.

No doubt Boris Johnson will now gloat triumphantly that he has “got Brexit done”. But he hasn’t done anything of the sort. What will happen this evening is BREXINO - Brexit-in-Name-Only. Nothing else will change until the end of this year at the earliest. We continue to be bound by EU rules and will continue to pay into the European budget, and so everything simply carries on as before (except that we will no longer have any representation on the Council of Ministers or in the European Parliament). So this is only the inauspicious start of a difficult and painful process. If Johnson sticks to his government’s stated intention of diverging from European rules and standards, he will only make Brexit immeasurably harder, and ultimately much more damaging to this country’s interests. Ironically, the people who stand to suffer most seriously from the economic fall-out are those who voted in the greatest numbers for Brexit. We will all suffer to a greater or lesser extent, but I can’t resist a certain sense of schadenfreude that those people in the North and North-east who voted for Brexit (and then last December for Tory MPs), will get what they deserve.

It is very clear that there are many of us (probably at least half the country, judging by the number of people who voted in the General Election for parties which were in support of a second referendum to reconsider Brexit) who will never be reconciled to Brexit. I, and a good many other people to whom I have spoken in the past month, remain implacably opposed to what is happening, and will seek to reverse the process as soon as the political opportunity arises. When the economic and social consequences of Brexit gradually dawn on the wider public, and disillusion sets in (especially in those areas that were duped into electing Tory MPs for the first time), the game will be up for this Tory government, and political nemesis awaits.

The recent antics of the Brextremists have at least afforded us some innocent amusement. They lost ‘the Battle of the Bongs’; Big Ben will not strike the hour at 11 p.m. tonight. Nor will church bells be rung. A few idiots may let off some fireworks, but this Last Hurrah for Brexit promises to be something of a damp squib. It won’t be long before the Brextremists are weeping and wailing, and gnashing their teeth. (Listen out for cries of “Treachery!” , “Betrayal!”, and the like from Nigel Farage and friends when things don’t go exactly as they had hoped or expected.).

Even the trumpeted issue of commemorative 50p pieces may prove problematic. I heard a rumour the other day that counterfeiters have seized the opportunity to strike a large number of fake 50p coins, which they hope to pass into circulation in the coming week or two. I have absolutely no means of verifying this information – it may be the sort of thing President Trump would instantly dismiss as “Fake News!” – but my informant suggested that the fakes may be good enough to deceive the average punter, though not so good as to evade detection. The risk, it was suggested, is that an innocent person might get one of the fake commemorative coins in their change and then find themselves arrested for passing counterfeit currency if they try to spend it. So far as I am concerned, this just gives me an added excuse for refusing to accept any of the new coins, which (in common with a good many other people) I was already proposing to do on principle.

This may well be my last rant against Brexit (well, for a few months at least). Boris Johnson amended the recently passed Bill so as to shut down any parliamentary scrutiny of the forthcoming trade talks with the EU, and he is also doing his best to keep the press in the dark about what is going on. Whether he will succeed in the latter endeavour is perhaps doubtful, but I will leave that to the political press to puzzle out.

Meanwhile, for me, it’s back to the endless fascination of planning law!


Tuesday, 28 January 2020

What price ‘Localism’ now?

I expect most of you will have heard by now of the controversy surrounding the South Oxfordshire Local Plan. This plan got as far as its formal examination in March of last year, under the former Tory administration in South Oxon, but was the subject of furious opposition by local residents who were horrified at the huge increase in housing development that was proposed across the area. This may well have been a factor in the defeat of the Tories in South Oxon in the May 2019 council elections, leading to control of the council being taken over by a coalition of Lib Dems with the Green Party.

The new council withdrew the draft plan from examination in October, because of concern over the increased housing target in the new plan, coupled with the issues raised by the climate emergency, which they felt had not been given sufficient weight in formulating the plan. Most of all, the decision reflected the serious concerns of local electors, which had been expressed through the ballot box in May.

The government had been attempting to bribe Oxfordshire authorities with a promise of more than £200 million in infrastructure grants if they would accept a substantial increase in housing in the county. The proposed withdrawal of the Local Plan promptly led to the government threatening to withdraw this funding. But SODC was not deterred, and made it clear that they would nevertheless persist in their intention of withdrawing their local plan.

Having failed to bribe the council, the government then resorted to threats. A holding direction was issued by the Secretary of State in order to prevent SODC from carrying out their intention, and he followed this up with threats to call in the Local Plan, and then to hand it to the Tory-controlled Oxfordshire County Council to handle. (Unfortunately, it seems that MHLG did not warn OCC of their intention beforehand, and the County is still in the dark as to where the resources are to be found for taking on this task!)

Robert Jenrick (Secretary-of-State-for-the-time-being-pending-Boris-Johnson’s-pleasure) demanded that South Oxfordshire Council should write to him by the end of this month to explain themselves. This they have now done, making a number of very reasonable points, and taking an emollient line (including a request for face-to-face talks with Jenrick, if he’s still there after the pending cabinet reshuffle). Perhaps the most important point in the letter, in addition to the need to address the climate emergency was the fact that the councillors now in office were elected on the basis of their opposition to the draft local plan, and that they therefore have what they believe is “a clear electoral mandate given to us by the residents of South Oxfordshire”. As the council leader pointed out in her letter, the proposed course of action threatened by Jenrick would be a dangerous precedent that would undermine local democracy. It is a great irony that John Howell, the MP for Henley whose constituency covers a large part of South Oxfordshire, was the author of the Tories’ ‘Green Paper’ before the 2010 General Election, which introduced the concept of “localism”, coupled with a commitment that the level of development should be determined at a local level, rather than being imposed from above.

I am not trying to take sides in this dispute. Clearly there are arguments on both sides. The Secretary of State does have the necessary powers to take the action he has threatened, but he must act reasonably (in accordance with the Wednesbury principles). If the matter is taken out of SODC’s hands, an application to the High Court for judicial review seems a distinct possibility. At the moment, both parties seem to be circling each other warily, trying not to put a legal foot wrong. But I can’t help feeling that m’learned friends are already salivating at the prospect of a juicy case ahead.

We shall see.