Interpreting planning permissions again

In this blog on 22 June I commented on the judgment in Stevenage BC v SSCLG [2010] EWHC 1289 (Admin). Another case on the interpretation of a planning permission has subsequently come before the High Court in R (Prudential Assurance Co Ltd) v Sunderland City Council [2010] EWHC 1771 (Admin), in which judgment was given by Wyn Williams J on 15 July.

In this more recent case, a previous planning permission for retail development had been subject to a planning agreement under what was then Section 52 of the 1971 Act containing detailed restrictions as to the types of goods which could be sold from the retail units which the permission authorised. However, that agreement contained a clause (which is commonly found in such agreements) to the effect that the agreement would not prohibit or limit the use or development of the land in any way which was authorised by a planning permission granted subsequent to that agreement.

The subsequent planning permission the subject of the current proceedings authorised the subdivision of one of the retail units into two units. It seems that the LPA in issuing the permission for the conversion of one of the retail units into two units simply did not consider the possibility that this would have the effect of releasing the two units authorised by the new permission from the constraints imposed by the section 52 agreement. Nevertheless, it was plain from the terms of the Section 52 agreement that that is exactly what it did.

An attempt was made by the claimant (a rival developer) to construe the true intention of the planning permission by reference to extrinsic evidence, but the judge held that no extrinsic material was properly admissible to interpret the planning permission so as to achieve an interpretation of that permission which would mean that the use of the two units remained subject to the Section 52 agreement. In particular, the terms of the planning application in respect of another unit together with the material which supported that application could not be used as an aid to the construction of the planning permission in respect of the unit the subject of this dispute.

Wyn Williams J stressed that he had reached this conclusion quite independently of the decision of HHJ Waksman QC in the recent Stevenage case (cited above). Nonetheless the conclusions reached in that case were entirely consistent with his own and, obviously, he was fortified in his own view as a consequence. In the earlier case, the Deputy Judge had noted that if the Inspector in that case (in determining a Section 195 appeal) was correct to determine that the permission in question in that appeal did indeed encompass internal sub-division works, the resultant building was a new chapter in the planning history and/or section 75(3) of the Act applied, thereby having the effect of removing an earlier restrictive use condition and justifying the LDC granted. Essentially the Deputy Judge had reached the conclusion that the internal sub-division objectively formed part of the proposed works which were authorised by the planning permission. He reached that conclusion by a process of reasoning which was similar to that expressed by Wyn Williams J in this case.


© MARTIN H GOODALL

EIA for Polytunnels

The decision of the Court of Appeal early last month to give permission to appeal in R (Wye Valley Action Association Limited) v. Herefordshire Council and E C Drummond & Son [2009] EWHC 3428 (Admin) caused quite a stir among strawberry growers and other fruit farmers who have become accustomed to covering large acreages of land with polytunnels in recent years. Comments from the NFU and others on the judgment of Ian Dove QC which had been delivered in the High Court in December of last year seem to have been made without the benefit of reading the detailed judgment, and so it is worth going into what was in fact a thoughtful and carefully argued decision.

Until 2005, there were many people who thought that polytunnels were not to be classed as structures at all, but that was put beyond doubt by Waverley case (see below). The question which has now arisen is whether those polytunnels that do constitute development (and are therefore subject to the prior notification procedure under Part 6 of the Second Schedule to the GPDO or, in some cases, require express planning permission) should also be subject to Environmental Impact Assessment.

In the Wye Valley case, the application site was in an AONB, and up to 54 hectares of land would be covered with polytunnels at any one time, with individual blocks of polytunnels covering up to 10 ha each. The site is undoubtedly in a sensitive area. It is of significant landscape and built historic interest, with several listed buildings and a Scheduled Ancient Monument nearby , and the site abuts a Special Area of Conservation and an SSSI. Various public rights of way cross the application site and provide views towards it.

Prior to determining the planning application, the LPA adopted a screening opinion in which they determined that the proposal did not fall within either Schedule 1 or Schedule 2. Their Screening Opinion stated that the application involved the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production) and that therefore the application would not require an Environmental Statement to be submitted. It was this, and in particular the Council’s determination that the development did not fall within Schedule 2, which was the subject of challenge in the High Court.

Natural England had observed in response to the Council’s consultation that rotation of polytunnels at Homme Farm is too infrequent to act as mitigation, and that polytunnels would be an annual feature in the landscape. On that basis they confirmed their landscape objection to the proposal.

The case clearly turned on the interpretation of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which give effect to the Environmental Impact Assessment Directive (85/337/EEC) . By Regulation 2, “EIA Development” includes Schedule 2 development “likely to have significant effects on the environment by virtue of factors such as its nature, size or location..." The precise category in which the objectors claimed the proposals fell was paragraph 1(a) of Schedule 2 - "Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes..."

The Court therefore had to consider whether or not the area within which this proposal is sited is “a semi-natural area”. To cut a long story short, the Deputy Judge concluded that whilst the European and UK guidance on this topic (which he quoted extensively) was helpful, it simply confirmed the view which he would have held, even without it, applying the wide scope and broad purpose of the Directive and construing the term "semi-natural".

The starting point, he suggested, is that in this context "natural" means untouched by man. It is well known that most of the landscapes of England have been subject to some extent or another to the hand of man artificially denaturing them through agriculture or through technological activity associated with settlement of the landscape. Semi-natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area.

During the course of the argument, reliance was placed by the Council on the fact that the land was, and still is, cultivated, and that this should have an impact on whether the land is semi-natural. Obviously, the fact that there has been agricultural cultivation is a relevant factor, but it could not, in the Deputy Judge’s judgment, be determinative, because the language of the 1999 Regulations is "uncultivated land or semi-natural areas". That clearly contemplates that semi-natural land may be cultivated and, therefore, the fact of cultivation cannot remove land from this category. The fact that land has been cultivated does not automatically exclude it from the status of being semi-natural. This is where the Council went wrong, by assuming that because the land is already cultivated it is not covered by Schedule 2. There could be a Schedule 2 project on semi-natural land which had been the subject of cultivation.

The site also needed to be considered not only by itself but in the context of the wider area in which it was situated. This was a site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled ancient monument, which clearly comes within the definition of "semi-natural area" as a matter of law. It is an area which has within it a significant number of designated sites, or areas, some of which are overlapping, and which are redolent of the high quality natural environment of the kind which could be described as “semi-natural".

The next question which arose was whether this was a project for intensive agricultural purposes. The purpose of providing the polytunnels is to engineer a step change in the productivity of the land. Whilst the crop grown remains the same, the amount of the crop and the length of time the land can be used to cultivate it is substantially extended. The productivity of the land is substantially improved. That is the object of this development.

This therefore led to the conclusion that the Council had made an error of law in finding that this development was not a project within Schedule 2 and so their decision had to be quashed, because in consequence of that the Council had failed to undertake an environmental impact assessment of the proposal. They failed to go on to consider whether or not the project would have significant environmental effects and, therefore, whether or not it required an environmental statement.

This case is expected to be heard in the Court of Appeal in November, so we have not yet heard the end of this. But this is a robust judgment which it may prove difficult to overturn.

© MARTIN H GOODALL

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The subject of polytunnels was one of the very early topics to be covered in this blog. At the time I wrote the piece (late in 2005), I had not been aware that this subject had recently been the subject of an appeal in the local authority area where I used to work which was heard and determined by an Inspector of my acquaintance. He told me when I met him a short time later that he was greatly relieved that what I had written coincided with what he had decided in the appeal! The appellants in fact challenged the decision (in R (Hall Hunter Partnership) v First Secretary of State and Waverley Borough Council and Tuesley Farm Campaign/Residents Group [2006] EWHC 3482 (Admin), when Sullivan J (as he then was) upheld the Inspector’s decision and agreed that polytunnels can amount to development.

Here is what I wrote:

Polytunnels

[2 December 2005] I was re-reading a copy of Planning the other day and revisited the ongoing debate over polytunnels. I no longer act for one of the largest strawberry growers in the country, so can comment on this topic without fear of prejudicing my clients’ interests.

Obviously it will be a matter of fact and degree in each case, but it seems to me that quite a few polytunnels now in use do amount to permanent structures for planning purposes and their erection thus constitutes development.

It is worth bearing in mind the tests originally propounded in Cardiff Rating Authority v. Guest Keen Baldwin ([1949] 1 KB 385),where one looks at size, attachment to the ground, how far its erection involves construction or assembly (as opposed to merely lifting it into place) and permanence. The other leading authority is the more recent case of Skerritts of Nottingham (which involved a marquee).

On the one hand it will no doubt be argued that polytunnels can be erected and dismantled by staff or agricultural contractors without specialist equipment or labour, but even in this case, if the polytunnels remain in place for more than a few months (let alone a year or more), they are likely to be seen as permanent and therefore in the nature of structures.

As one correspondent has pointed out, some polytunnels are complex assemblies with a substantial framework. They are fixed in place with deep anchors screwed into the ground by machine, and some can be a much as 5 metres high, extending over a considerable acreage. Polytunnels of this nature would clearly be structures, applying the tests both in Cardiff Rating and in Skerritts, and the work involved in their erection would undoubtedly come within the definition of either building or engineering operations in Section 55.

In principle, such structures should come within Class A in Part 6 of the Second Schedule to GPDO, although this should not be automatically assumed – the conditions and limitations applying to that class should be carefully checked. Provided a structure qualifies within Class A, planning permission is not required as such, but there is an absolute requirement to give prior notification, enabling the LPA to decide whether it wishes to approve the siting and design of the structures. If the structures are erected without the prior notification procedure having been strictly complied with, then their erection will not be permitted development and will therefore be unlawful, and the LPA would be perfectly entitled to issue an enforcement notice requiring their removal. I am aware of such enforcement notices having been upheld on appeal, and having survived at least one High Court challenge.

So, if polytunnels are a bone of contention with your authority, you may well be able to do something about it.

© MARTIN H GOODALL

The Community Right to Build

I don’t propose to waste time discussing the government’s proposals for the so-called ‘Right to Build’ proposals. They will clearly require primary legislation, which we are promised will be included in the ‘Decentralisation and Localism’ Bill when this comes before parliament later this year or early next year.

Like much of what has been announced by this government so far, it will all be dependent upon the formulation of detailed proposals. Until that happens, it is no more than ministerial waffle.

The ‘Community Right to Build’ seems set to drive a coach and horses through the concept of plan-led planning, but the government has already blasted a huge hole in that concept by the abolition of regional strategies. The future of Development Plans is clearly another subject which the ‘Decentralisation and Localism’ Bill will have to tackle.

The government seems hell-bent on reducing the planning system to complete chaos, and appears to be oblivious of the consequences of doing so. I am neither a supporter nor an opponent of this government, but they seem to have all the judgment and wisdom of a set of characters out of the Jeeves and Wooster stories. I am not sure who I would nominate for the roles of Bertie Wooster or Gussie Fink-Nottle. The trouble is that the civil service may have considerable difficulty in fulfilling the role of Jeeves and extricating their young masters from the scrapes they are likely to get themselves into.

If the proposed legislation emerges in anything like the form which is apparently envisaged by ministers, we can look forward to bands of community enthusiasts battling it out with the local NIMBYs over rural housing proposals. As a planning lawyer I am already salivating at the prospect.

© MARTIN HGOODALL

Planning for ‘free’ schools’

In a statement in the Commons on 26 July, Eric Pickles attempted to explain how his department is going to do the bidding of the Schools Secretary (Michael Gove) and “tear up planning laws” to allow his new ‘free’ schools to be built.

In the short term, there is not a lot anyone can do to give effect to Gove’s ‘diktat’. So Uncle Eric was reduced to huffing and puffing that local authorities should “attach very significant weight to the desirability of establishing new schools and to enabling local people to do so” and that they should “adopt a positive and constructive approach towards applications to create new schools”, but he had to add that they should also seek to mitigate any negative impacts of development through the use of planning conditions or planning obligations. However, he added that LPAs should only refuse planning permission for a new school if the adverse planning impacts on the local area outweigh the desirability of establishing a school in that area.

Repeating the formula he used in May in announcing the end of regional strategies, Pickles said that LPAs and PINS should take this Commons statement into account as a material consideration when determining planning applications and appeals.

Ministers obviously recognise that LPAs may nevertheless refuse permission and so Pickles is going to ask the Planning Inspectorate to fast-track any appeal that is lodged. So it’s tough luck on those appellants waiting to have ‘ordinary’ planning appeals dealt with; any ‘free’ school appeal will go straight to the head of the queue.

Further liberalisation of planning law to ease the creation of ‘free’ schools will have to await legislative amendments, which are likely to take the form of amendments to subordinate legislation. Rather puzzlingly, Pickles suggested that this would be by way of changes to the Use Classes Order, but I would have thought that the appropriate vehicle would be through the addition of a further class of permitted development to Part 3 of the Second Schedule to the GPDO. This would not, of course, prevent Article 4 Directions being made by LPAs if they felt that such changes might be harmful if uncontrolled.

© MARTIN H GOODALL

Mediation in Planning

Up to now I had always been sceptical about the potential role for mediation in planning. The scenario I had in mind ran something like this :

Appellant: “We want to build 500 houses in your Green Belt”
Planner: “Absolutely not.”
Appellant “Well, how about 250 then?”
Planner: “No!”
Mediator to planner: “Well, I wonder whether there might be scope for agreement if you were to allow, say, 100 houses to be built on this Green Belt site?”
Planner: “!!!!!!”

I would be the first to acknowledge that issues of principle like that were never meant to be the subject of mediation, and perhaps we should all now study the report by Leonora Rozee and Kay Powell on "Mediation in Planning" which has recently been published. This report was commissioned in June 2009 by the National Planning Forum and the Planning Inspectorate following up a proposal in the Killian Pretty report which had suggested that the use of alternative dispute resolution at all stages in the planning process should be investigated.

The report describes how mediation can provide a cost effective way of resolving disputes. It includes five case studies, covering enforcement, an Area Action Plan and a major development, and draws upon the results of completed mediations as well as related work, expert interviews and a specially commissioned survey to test opinion, international experience, and relevant literature.

The report concludes that mediation can provide an effective tool to tackle a wide range of planning issues. It recommends that mediation should be strongly encouraged by Government by providing a policy framework, creating capacity to allow its benefits to be realised and establishing an appropriate regime of incentives and penalties to support the delivery of a new approach to planning. Bearing in mind the government’s wish to cut down the scope of the appeals system, this might appeal to them as a mechanism for doing so, although the necessary legislation is unlikely to be ready in time to be included in the ‘Decentralisation and Localism’ Bill, and so will probably have to await the second tranche of planning legislation the government has threatened to unleash on us in a couple of years’ time.

As I indicated above, mediation cannot replace the appeals system and there will always be areas where mediation will not be appropriate, but the report suggests that mediation has genuine benefits which should be considered by everyone involved in the planning process including lawyers, planning officers and consultants. I must take a closer look at it.

© MARTIN H GOODALL

Going, going, gone

While I have been otherwise engaged, the Secretary of State has at last carried out his much-trumpeted intention of scrapping Regional Strategies, as everyone is no doubt well aware by now. But, as I have observed before, the ghosts of the regional strategies will linger on, not least because (no matter whether targets are formally set or not), there is still a chronic shortage of housing in many parts of the country. The level of demand may have been masked to a degree by the difficulty of raising mortgages since the credit crunch, but the housing need is undoubtedly there, as the studies which informed the formulation of the regional strategies clearly showed. Those figures still hold good. Household formation continues apace, and housebuilding is nowhere near keeping up with it.

It has been suggested that we shall now have a housing free-for-all so far as applications and appeals are concerned, and PPS3 can be called in aid to support the need to release a lot more sites for housing. Not a lot has changed. The density target has gone (but that may lead to a demand for even more land for development at lower densities), and the definition of ‘brown land’ has been tweaked slightly, but PPS3 continues to urge the maximisation of development on urban land, and that must mean that garden land is still up for grabs, no matter what the press were told.

Things may change again when the new legislation on Development Plans is introduced, but it is unlikely to reach the statute book before next summer. Local Development Frameworks are also likely to face delay in the immediate future while planners work out how to take into account in their core strategies the removal of the regional element from the equation. In the meantime, developers who can raise the finance may have a wonderful window of opportunity if they get moving with their proposals. Nimby-driven planning authorities may dish out refusals, but on appeal there seems to me to be an enhanced chance of getting planning permissions for housing development, at least in the next year or so.

© Martin H Goodall

“Normal service will be resumed.........”

This blog is written when I can grab a few moments to do so, and so is subject to other demands on my time. In the next two to three weeks it is very unlikely that I shall have the time to write further posts, and so there may be nothing new posted here until towards the end of July.

There has been much more than usual to write about in June, due to the various announcements from the coalition government as they begin to set out their stall. Possibly the flow will now abate somewhat, as ministers and civil servants get to work on turning what at the moment are only statements of intent into real action.

This is a point which should be borne in mind. What we have had so far is what I have described as ‘government by press release’. With the exception, perhaps, of some shifts in ministerial policy (such as the slightly revised PPS3), nothing will actually change until necessary primary and subordinate legislation is put in place. For example, the amendments to the GPDO to allow changes of use between Classes C3 and C4 are currently out to consultation, and it will no doubt be the Autumn before the GPDO is actually amended to give effect to these changes.

In the same way, the abolition of the IPC, its absorption of its work into the Planning Inspectorate and the transfer of decisions on major infrastructure projects to the Secretary of State will have to await the passage through parliament of the ‘Decentralisation and Localism’ Bill (silly name). Latest indications are that the bill may not be introduced in parliament until some time in the New Year. Proposed changes to the Development Plan system will also have to be included in that bill. It may well be this time next year (or later) before the resulting Act becomes law.

In the meantime, this blog is going to take an enforced summer holiday, but normal service will be resumed later in July.

© MARTIN H GOODALL