Four-year rule lives on (for now)

After retirement it is unsurprising that I have largely lost interest in planning law and practice but, as I have promised, I will leave the contents of this blog available online, subject to the long-standing health warning that posts and comments in the blog must not be treated as legal advice, and that changes in the law, and in its interpretation by the courts, may well render significant parts of the blog out-of-date. Proper legal advice should always be sought from fully qualified planning professionals.

Having said all that, I am still curious to see when the four-year rule is actually going to be abolished, so that all planning enforcement will in future be subject to the 10-year rule. As readers will no doubt be aware, the so-called “Levelling-up and Regeneration Act 2023” received Royal Assent on 26 October just in time before Prorogation later the same day, bringing the last parliamentary session to a close. Section 115 of that Act will amend section 171B of the Town and Country Planning Act 1990 so that in England only (but NOT in Wales) the time limit for all breaches of planning control will in future be ten years beginning with the date of the breach.

However, almost the whole of the Act must await the making of a commencement order (or probably a whole sequence of commencement orders, which are not guaranteed to bring every section of the Act into force). Only one very minor commencement provision has so far been promulgated, relating to a handful of abstruse paragraphs in the Fourth Schedule to the Act.

So, for the time being, where a planning breach is either operational development or a change of use to a single private dwelling, the clock continues to count down under the 4-year rule following the expiry of which, such breaches will be immune from enforcement and will then become lawful. Some people in this position are no doubt getting very nervous about the chances of their getting past the finishing post before the axe finally falls on the 4-year rule.

When (or if) the relevant commencement order is made bringing section 115 of the 2023 Act into force (thereby amending section 171B of the 1990 Act) it is by no means certain that it will happen suddenly without any further warning. I would not be surprised if some sort of delayed implementation might be adopted in the wording of the commencement order. (But maybe this is just wishful thinking on my part.)

In the meantime, try not to bite your fingernails down to the quick in your anxiety over this.

Merry Christmas!

UPDATE 2.2.24: The Department for Levelling Up, Housing and Communities has finally got around to making a commencement order that brings into force some of the substantive sections of the Levelling-up and Regeneration Act 2023. These are contained in the Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024 (SI 2024 No.92), which were made on 25th January 2024. However, section 115 of the Act is not brought into force by any of these regulations. So the 4-year rule continues to live on, at least for the time being.

© MARTIN H GOODALL

Planning & Environment Update 2023: 2 November 2023

I thought you would like to know about my publisher's latest planning law book and launch seminar to be held in London on 2 November 2023 and which I am pleased to say I will be chairing.

Their Planning & Environment Update 2023 gathers a panel of specialists, including my fellow authors Tom Graham and Alistair Mills, who will bring you up to speed with:

• The latest thinking on the impact of environmental issues on national planning policy
• A review of where we are with the implementation of The Environment Act 2021 and the effect it is having in practice
• The latest on the biodiversity metric, due for an update this year
• Practical guidance on contamination and pollution in your development projects

The ongoing, piecemeal implementation of the Environment Act and the twists and turns of Government policy make this a must-attend event for all planners, developers or their advisors.

Attendance at the seminar also includes a free copy of Tom's latest book: Contamination, Pollution & The Planning Process, due to be published in October.

Full details of the programme, speakers and prices are on the Bath Publishing website where you can also book your place online. Or you can contact them by email via info@bathpublishing.co.uk or call them on 01225 577810.

I look forward to seeing you there.

MARTIN H GOODALL

March book offer – 20% off!

Bath Publishing are offering a 20% discount during March on all planning law books in their catalogue. So if you have been thinking about buying one or more of the titles among these very useful practical guides, maybe this offer will persuade you that now is the time to place an order.

You don’t need to quote a code when ordering. This offer is open to anyone who visits the Bath Publishing website and buys any of these planning law titles during the month of March. You won’t have to request the 20% discount when placing your order – this will be applied automatically on all orders when you visit the Bath Publishing website this month:

https://bathpublishing.com/collections/our-books

So hurry! There is now less than three weeks left within which you can benefit from this generous offer.

[ Please note: This is not an advertisement but, as one of Bath Publishing’s authors, I am pleased to pass on to readers of this blog news of their current offer.]

MARTN H GOODALL

Levelling-up Bill in the Lords

I wrote a rather dismissive note last year on the Levelling Up and Regeneration Bill. My views on the Bill as a whole have not changed. It is a dog’s dinner of miscellaneous ideas, many of which are simply not going to work. But Part 3 of the Bill does make various changes to planning law, and some of these will certainly be of concern to planning professionals. The Bill has currently reached its Committee Stage in the House of Lords.

In this Part of the Bill, Chapter 1 (currently Clauses 78 to 84) regulates the collection, processing and publication of various planning data, Chapter 2 (currently Clauses 85 to 94) amends various provisions relating to plan making, Chapter 3 (currently Clauses 95 to 98) makes amendments to the provisions for the protection of various ‘heritage assets’, Chapter 4 (currently Clauses 99 to 106) makes further provision as to the grant and implementation of planning permission, Chapter 5 (currently Clauses 107 to 113) amends the rules and procedures regarding Enforcement, and Chapter 6 (currently Clauses 114 to 123) contains miscellaneous other provisions. In this note, I shall confine myself to Chapters 3, 4 and 5, with a brief look at one or two of the clauses in Chapter 6.

Special regard to more heritage assets

So, starting with a brief look at ‘Heritage’, a new Section (58B) will be inserted in the principal Act (T&CPA1990). This extends the duty imposed by section 66 of the Listed Buildings Act, which relates solely to listed buildings to certain other heritage assets. When considering a possible grant of planning permission, the decision maker will now also be required to have special regard to the desirability of preserving or enhancing the following specified assets or their setting – a scheduled monument, registered garden, protected wreck, or World Heritage Site. The section refers to the particular aspects of these heritage assets that make them significant (by reference to the relevant legislation in each case that gives that type of asset statutory protection).

Temporary Stop Notices for works to Listed Buildings

It has long been a serious concern to conservationists that there has up to now been no power for LPAs to prevent or halt, on an interim basis, unauthorised works to a Listed Building, other than by applying to the Courts for an injunction – a cumbersome and expensive procedure. A new section (44AA) will now enable an LPA, as an alternative, to issue a Temporary Stop Notice. Failure to comply with a TSN will be an offence under section 44AB. Section 44AC will provide for the payment of compensation in respect of a TSN, but compensation may be claimed only if there has in fact been no breach of section 9 (i.e. LBC was not required, because the works will not materially affect the character of the listed building as such) or if the TSN is withdrawn. These provisions will, perhaps rather belatedly, bring the law in England into line with law in this regard as it already exists in Wales.

Street vote development orders

Turning to Chapter 4, we come to the rather weird provisions (to be set out in Sections 61QA to 61QM of the 1990 Act) for “Street vote development orders”. I suspect that no more use will be made of these in practice than has previously been made of “Permission in Principle”. I simply refuse to take any interest in this daft idea.

Minor variations to planning permissions

Clause 102 has another go at trying to make provision for minor variations in planning provision. This will take the form of a new section 73B in the 1990 Act. It will allow the variation of a planning permission (other than one that was granted under sections 73 or 73A). It applies only to permissions granted under Part III of the 1990 Act, but not to a permission granted by any form of development order (although I am mystified as to what sub-section (3) is supposed to mean). A development order will be required in order to sort out the procedure that is to be followed in these cases, but this does seem to be an improvement on the very restricted scope for minor variations up to now.

Planning permission may be granted in accordance with this section only if the LPA is satisfied that its effect will not be substantially different from that of the existing permission. Section 73B cannot be used to vary a commencement condition or the time limit for an application for approval of reserved matters. In dealing with a section 73B application, the LPA will not be able to revisit the principle of granting permission for the development; their consideration must be confined to those respects in which the permission being applied for would, if granted, differ in effect from the existing permission. The requirement in section 70(2) to have regard, among other things, to the Development Plan, must be read subjection to section 73B(7), so its application will necessarily be limited in this context. However, no similar limitation is imposed with regard to section 38(6) of the 2004 Act, and this is an omission which should perhaps be repaired before the Bill completes its passage through parliament.

Commencement notices

I confess that I do not understand the new section 93G (introduced by Clause 103). It will introduce a requirement for commencement notices, and the explanatory notes accompanying the Bill imply that it is intended to apply to most development. What puzzles me, however, is the reference in this Clause to development “of a prescribed description”. I have been unable to find any definition of this phrase. Sub-section (4) provides that a commencement notice must include such information as may be prescribed, and be in such form and be given in such manner as may be prescribed. It seems, therefore, that we shall have to await relevant subordinate legislation before the way this section will work becomes clear.

Completion Notices

Clause 104 inserts new sections 93H to 93J in the 1990 Act. These are detailed provisions as to Completion Notices which, in England, will replace sections 94 to 96. In future, the provisions in sections 94 to 96 will apply only in Wales. I haven’t had time to compare the new provisions with those that they will now be replacing, but the most significant change would appear to be the removal of the current requirement that a Completion Notice must be confirmed by the Secretary of State before it can take effect.

More grounds for ignoring planning applications

Clause 105 introduces new section 70D in the 1990 Act, giving LPAs yet another excuse for declining to entertain a planning application. This enables an LPA to avoid determining a planning application where the developer had a previous planning permission that they failed to implement or where having implemented it, they have not got on with the development. Again, these provisions refer to “development of a prescribed description and to the requirement to provide information “of a prescribed description. So here too we shall have to await subordinate legislation to understand precisely what is intended.

Development Progress Reports

Clause 106 introduces new section 90B in the 1990 Act, providing that where relevant planning permission is granted for relevant residential development in England, such a planning permission must have a condition attached to it requiring that regular development progress reports are to be provided to the LPA. At least in this case sub-section (10) defines “relevant planning permission” (and excludes from this definition permissions granted by the GPDO or other development order, a permission under section 73A, a temporary permission, and permissions granted in an Enterprise Zone or Simplified Planning Zone). “Relevant residential development” is development which involves the creation of one or more dwellings, and “ is of a prescribed description”, so here again we shall have to wait for subordinate legislation, which will also include regulations about the form and content of development progress reports, and various other details, in order to assess how the new provisions will work in practice.

4-year rule to be abolished

Turning now to Chapter 5, which deals with Enforcement, a radical change will be brought about by Clause 107, which amends section 171B (but only in England) so that a single 10-year rule will apply to all forms of unauthorised development. I have argued in the past for a single limitation period beyond which all such development would become immune from enforcement and therefore lawful, in order to put an end to the fraught arguments and confusion as to which of the 4-year or 10-year rule applies in a particular case. But I had in mind a compromise between the 4-year rule and the 10-year rule. (I suggested 6 years.)

I wonder what Lord Carnwath will have to say about this in the House of Lords. In his celebrated report in 1989, which proposed the comprehensive reform of the planning enforcement system that was enacted by the Planning and Compensation Act 1991, he proposed the 4-year and 10-year rules as a sensible compromise which recognised that enforcement against an unauthorised change of use to use as a single private dwelling could deprive someone of their home. I do not recall the reasoning behind the application of a 4-year rule in respect of operational development, but presumably it was felt that the LPA ought to be able to identify such physical development rather sooner than some other breaches of planning control. Bearing in mind the reason for the introduction of a 4-year rule in respect of a change of use to use as single dwelling, I would still argue in favour of a 6-year rule for all breaches of planning control, rather than the blanket application of the 10-year rule.

Temporary Stop Notices

Up to now, section 171E(7) of the 1990 Act has provided that a temporary stop notice ceases to have effect at the end of the period of 28 days from the date when a copy of the notice was first displayed on site (unless a shorter period is specified in the notice), or if it is withdrawn by the LPA. Clause 108 will amend section 171E(7)(a) to make that period 56 days in England (but it will remain 28 days in Wales). This will give an LPA more time within which to investigate a breach of planning control before taking further enforcement action.

Enforcement Warning Notices

Another innovation is introduced by Clause 109. This is an Enforcement Warning Notice, which will be governed by the provisions of new section 172ZA in the 1990 Act. In this case, where an LPA identifies an apparent breach of planning control, they will now have the option of serving an Enforcement Warning Notice where there is a reasonable prospect that, if an application for planning permission in respect of the development concerned were made, planning permission would be granted. The notice must state the matters that appear to the authority to constitute the breach of planning control, and state that, unless an application for planning permission is made within a period specified in the notice, further enforcement action may be taken. A copy of the notice must be served on the owner and the occupier of the land to which it relates, and on any other person having an interest in the land (if it is an interest that, in the opinion of the authority, would be materially affected by the taking of any further enforcement action). However, the issue of an enforcement warning notice does not affect any other power exercisable in respect of any breach of planning control.

So this provision will encourage the LPA to invite a planning application and will encourage the developer to regularise the position by obtaining planning permission rather than risking enforcement action. However, this procedure will only be of practical use where there is a reasonable chance that planning permission will be granted. I recall clear ministerial advice some years ago that where the development in question causes no significant harm in planning terms, LPAs should not insist on a planning application being made simply in order to ‘regularise’ the position, and should not threaten enforcement action in these circumstances. The LPA is in any event under a statutory duty under section 172 to consider the ‘expediency’ of serving an enforcement notice. So I am inclined to doubt the practical value of this new provision.

Restriction on Ground (a) appeals

Clause 110 seeks to restrict appeals against enforcement notices under section 174, where the appellant relies on Ground (a) (that planning permission ought to be granted) if there is also a connected planning application that was under consideration when the enforcement notice was issued. These provisions are too complex to summarise here, and I am at a loss to understand precisely what purpose this provision is intended to serve. The amendment to section 174 may not in fact have the effect intended, as there is also an automatic ‘deemed planning application’ under section 177 (provided that an appeal fee is paid) on which the appellant is entitled to rely in any event.

Appeal delays caused by appellants

Clause 111 attempts to address the problem of undue delays in appeals. This will introduce additional sub-sections in both section 176 and section 195. If at any time before the determination of an appeal against an enforcement notice issued by an LPA in England it appears to the Secretary of State that the appellant is responsible for undue delay in the progress of the appeal, the Secretary of State may give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are specified for the expedition of the appeal, and if the appellant fails to take those steps within that period, the appeal may be dismissed.

Higher fines for breaches of condition

Clause 112 adjusts the maximum fine for failure to comply with a BCN under section 187A, or a to comply with a section 215 notice (for the maintenance of land). In both cases the penalty in England will now be an unlimited fine. The fine for a further offence under section 216 for each day following his first conviction on which any of the requirements of the notice remain unfulfilled will be one-tenth of the greater of £5000, or of level 4 on the standard scale.

Relief from enforcement of planning conditions

Clause 113 inserts new section 196D in the 1990 Act. This is designed to provide relief from the enforcement of planning conditions. This will be dependent on the introduction of regulations (yet more subordinate legislation!) enabling the Secretary of State to lay down the rules under which such relief will operate. In the absence of any indication of what exactly is intended, the purpose of this provision is a complete mystery, but the explanatory notes accompanying the Bill seem to imply that it relates to the operation of Heavy Goods Vehicles. We shall just have and see (if or when the promised regulations emerge).

Finally, I’ll mention briefly one or two of the miscellaneous provisions introduced by Chapter 6.

Pre-application consultations

Clause 114 will make permanent the requirement for certain pre-application consultations (currently set out in sections 61W to 61Y of the 1990 Act). These powers have been used to require pre-application consultation on proposals for on-shore wind turbines. I don’t know off-hand whether any other types of development have been specified by the DMPO or any other development order.

Form and content of planning applications

Clause 116 will insert new section 327ZA in the 1990 Act to provide greater control over the form and manner of planning applications and their associated documents. It will enable the Secretary of State to introduce subordinate legislation to require or allow planning applications to be made and associated documents to be provided online. One interesting aspect of this is that it will include a power to require the application or associated documents to be prepared or endorsed by a person with particular qualifications or experience. Could this be the end of planning applications being submitted by unqualified ‘planning advisers’? Matching changes are proposed to various other Acts (such as the Listed Buildings Act and the Hazardous Substances Act) in respect of applications submitted under those Acts.

Modification or discharge of Planning Obligations under Section 106

Clause 117 will introduce additional powers in relation to planning obligations. It will enable regulations to provide for requirements which must be met in order for a section 106 planning obligation to be modified or discharged under section 106A, and for circumstances in which section 106 planning obligations may not be modified or discharged.

Widened ministerial powers

Finally, technical changes to legislative procedure are introduced by Clauses 122 and 123. These appear to give wide power to the Secretary of State to amend and consolidate planning legislation by subordinate legislation. The explanatory notes accompanying the Bill seek to justify Clause 122 by asserting that it is merely concerned with providing express powers to make ancillary provision when exercising powers to make statutory instruments under the Planning Acts. The current general powers to make statutory instruments (as Regulations or Orders) under those Acts do not expressly refer to making ancillary provision. These amendments, it is claimed, would correct that omission. It is usual/standard practice to expressly provide for ancillary provision to be made when exercising powers to make statutory instruments. This provision is intended to avoid the need to rely on implied powers. The legislative aim of this amendment is to make the legal position clear and express. The amendments, it is claimed, do not affect the Parliamentary process which applies whenever the statutory instrument powers are exercised.

Clause 123 seems to be potentially even wider in its effect. It will enable the Secretary of State to make changes to the law relating to planning, development and compulsory purchase in connection with the consolidation of some, or all, of that law. It will provide the Secretary of State with the power to amend and modify relevant enactments by regulations in support of their future consolidation, including the ability to repeal and revoke enactments. Hmmm; that sounds worryingly wide to me.

There are, of course, other provisions that I have not covered in this note, but those summarised above seem to me to be the most important ones. In practice, they represent yet more tinkering with the planning system without tackling the major issues that the 2020 White Paper sought to address, and which the government had been expected to introduce in its intended, but now abandoned, Planning Bill. The sad fact is that the government’s back-benchers, worried about defending their seats, particularly in the well-heeled South of England, were not prepared to vote for such radical changes and the resulting development that would have followed.

© MARTIN H GOODALL

When is a dwellinghouse a “dwellinghouse”?

Readers of this blog (if there are any left after my blog posts have become so few and far between) are no doubt well aware that [for the purposes of the UCO] Use Class C3 in the First Schedule to the Use Classes Order applies to the use of a “dwellinghouse” (whether or not as a sole or main residence) by a person or people forming a single household, as a care home for not more than six residents, or by no more than six residents living together as a single household (other than within Class C4), and that Use Class C4 applies [again for the purposes of the UCO] to the use of a “dwellinghouse” by not more than six residents as a “house in multiple occupation”.

It is important to understand that the sole function of each of the Use Classes in the UCO is to identify a specific use of a building or other land, so as to give effect to Article 3(1A) (repeating the effect of section 55(2)(f) of the 1990 Act) which provides that where a building or other land is situated in England and is used for a purpose of any class specified in Part B or C of Schedule 1 or in Schedule 2, the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. But the Use Classes in the UCO do not define the use of that building or other land for any other interpretative purpose.

As explained by paragraph 13.2 of Chapter 13 in The Essential Guide to the Use of Land and Buildings under the Planning Acts, the word “dwellinghouse” itself is not defined as such in the UCO or in the 1990 Act. However, paragraphs 24 to 26 of former Circular 05/2010 contained a helpful summary of the relevant criteria. The common feature of all premises which can generally be described as dwellinghouses is that they are buildings that ordinarily afford the facilities required for day-to-day private domestic existence. (This was a reference to the judgment in Gravesham BC v SSE (1984) 47 p. & C.R. 142.) It follows from this that an individual bed-sitting room in an HMO would not come within the definition of a “dwellinghouse”, because it does not in itself satisfy the Gravesham test, if the occupants have to share some communal facilities within the building such as a kitchen, bathroom or lavatory.

I went on in that paragraph to make the easy and widely held assumption that it would also be the case that such a building, not being in single occupation, would also fail to meet the Gravesham test. In this it appears that I may have been mistaken. My colleague David Evans has kindly drawn my attention to a High Court judgment in which this point was considered last July - Brent LBC v SSLUHC and Rothchild [2022] EWHC 2051 (Admin)

This case arose from the erection of an extension to an HMO which the developer claimed was permitted development under Class A in Part 1 of the Second Schedule to the GPDO. The LPA contended that this could not be PD, as the building was not occupied as a single dwelling. They served an enforcement notice, but a Planning Inspector upheld the developer’s appeal against the EN and quashed the notice. The LPA then appealed to the High Court under section 289 seeking to overturn that appeal decision. The Secretary of State was prepared to consent to judgment, but the developer fought on, and won.

In giving judgment, the Deputy Judge pointed out that, on the face of it, the LPA’s submission that it is necessary to consider whether a dwellinghouse in C4 use is occupied by or in a manner akin to a single household before it can be said to be a dwellinghouse for the purposes of the GPDO is flatly inconsistent with the language of Use Class C4 itself. Use Class C4 applies only to the use of a dwellinghouse by not more than six residents as an HMO. If the building in question is not a dwellinghouse at all, it will not fall within Use Class C4 in the first place. Equally, if a building is accepted to be in Use Class C4, it must by definition be a dwellinghouse. The Deputy Judge did not accept that the term "dwellinghouse" had been used in a different sense in Use Class C4 to that in which it had been used in the GPDO, unless there were express words to that effect or authority compelling such a conclusion. Barring the exclusion of flats and any building containing flats from the definition of "dwellinghouse" in the GPDO [in this context specifically in Part 1 of the Second Schedule], there is none.

A second argument put forward by the LPA depended on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202, on which I commented in this blog on 27 October 2012. However, that case did not establish that to be a dwellinghouse, the building had to be in single family occupation; it simply upheld the Inspector’s finding in that case that ‘as a matter of fact and degree’ the dwellinghouse was no longer being used for a purpose within Use Class C3 but that the nature of its use had turned it into a sui generis use. This was a material change of use that required (but did not have) planning permission. [However, the building in that case did not thereby cease to be a “dwellinghouse” in the general sense, as it still met the Gravesham test.] Moore (2012) was therefore of no assistance to the LPA in the present case. The LPA’s argument that the HMO must be occupied in a manner akin to a single household if it is to remain a "dwellinghouse" was a proposition which the Deputy Judge found difficult to reconcile with the very concept of an HMO as defined in section 254 of the Housing Act 2004. This argument incorrectly sought to import a requirement which belongs only in Use Class C3, and cannot properly be derived from Moore 2012.

Looking at this judgment in Brent LBC v SSLUHC, it seems clear that the finding that a building satisfies the Gravesham test and is therefore a “dwellinghouse” in the general sense of the word must necessarily be a matter of fact and degree, which lies solely within the jurisdiction of the decision-maker (in this case the Inspector). However, I still have slight doubts as to whether an HMO would necessarily meet the Gravesham test; it would seem to depend on the facts of each case. On the other hand, one cannot ignore the reference in Use Class C4 to the use of “a dwellinghouse……. as a house in multiple occupation”, on which the Deputy Judge specifically commented.

It appears that in this case, the dwellinghouse, as extended, will accommodate no more than six persons and so would come within the parameters of Use Class C4. So it would appear that there is no breach of planning control against which the LPA could take any enforcement action in this case. The position would be different, however, where an HMO already accommodated six residents, and the extension then expanded the dwellinghouse to accommodate a total of eight residents. The erection of the extension itself as PD under Part 1 would appear still to be unassailable, but there would then be a material change of use of the building as a whole from a use within Class C4 to a sui generis use, which would be vulnerable to enforcement action. As none of the bed-sits would be a self-contained dwelling, the 10-year rule would apply, rather than the 4-year rule. As the local housing authority, the council might also consider its powers in relation to the regulation of HMOs under the housing legislation.

As a final thought, Brent LBC (and no doubt other London Boroughs) are constantly on the look-out to prevent the development of "beds in sheds" , and quite rightly so. I don't think the case referred to above provides a loophole for any such development. Whilst the provison of outbuildings is capable of being PD under Class E of Part 1, this would only be PD if it is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". It is well-settled law that the provison of additional sleeping accommodation would be part of the primary residntial use and would not therefore qualify as an incidental purpose within Class E.

© MARTIN H GOODALL