More banner adverts

(Third in an occasional series)

I drew attention in two previous posts to large banner adverts displayed in Venice (Monday, 13 February 2012) and in Paris (Tuesday, 7 August 2012). The point of those two posts was that even in very sensitive locations, in terms of the historic townscape, the authorities in those cities are prepared to allow the display of banner adverts on buildings which are shrouded during the execution of repairs and maintenance. Bearing in mind that such advertising displays are, by their very nature, temporary, there can be no serious objection to such advertising to hide the paraphernalia of building work and scaffolding. Where the work comprises conservation of the historic fabric, the advertising revenue could even contribute to the cost of restoration.

The essential point I was seeking to make, is that if the city authorities in Venice are prepared to allow such temporary banner adverts in a World Heritage Site, such as the Piazza San Marco or, if the City of Paris is happy to allow them in the Place Vendôme, then there really can’t be any objection to similar short-term adverts in this country, even in conservation areas or World Heritage Sites, where they serve to hide the detritus of building work. And there certainly can’t be any objection to such advertising in the average and often undistinguished town centres of many English towns and cities.

I visited Venice again a month or so ago and, as I had expected, the Doge’s Palace is now visible in all its glory, sans advertising, as is the Bridge of Sighs, which had been similarly hidden from view on my last visit. The east front of Sansovino’s Library, facing onto the Piazzetta is also now free of advertising, but restoration work is continuing on various other parts of the Palazzo Reale, and so banner adverts are currently displayed over the shrouding on the south front of the Zucca (facing onto the Mole) and also at the west end of the Piazza San Marco (the range added to the palace by Napoleon, and now forming part of the Museo Correr). The accompanying photos illustrate these adverts.

[The “Caro” adverts on the façade of the Museo Correr would probably have been there anyway, as they were advertising a display in the museum of sculptures by the British artist, Anthony Caro, which was part of the Biennale.]

I doubt whether we will ever overcome the precious attitudes of town planners in this country to outdoor advertising, and so the only practical way of ensuring that banner adverts can be displayed in future on buildings under repair (or awaiting demolition, such as the late unlamented Tollgate House in Bristol), without being obstructed or frustrated by over-zealous town planners, is to amend the Control of Advertisements Regulations to give deemed to consent to such adverts.

Uncle Eric has demonstrated his enthusiasm for flying flags; so perhaps he should now embrace the joys of outdoor advertising in the same way.

© MARTIN H GOODALL

The duty to co-operate

My former colleague, David Brock (who is only ‘former’ because he has now retired from active legal practice – lucky chap) posted an extremely interesting item on his blog last Friday, which I suggest that those interested in strategic planning and in the provision of strategic housing land would find it well worthwhile to read. A direct link to David’s blog will be found in the left-hand margin on this page.

I don’t propose to repeat or précis David’s piece, as you will no doubt read it yourself, but it does point up in very clear terms the complete failure of the ‘duty to co-operate’ (introduced by the Localism Act) to replace the gaping hole in strategic planning that has resulted from Uncle Eric’s ill-advised abolition of the Regional Strategies.

It reminds me of that well-known line in the Laurel and Hardy films – “Here’s another fine mess you’ve got me into, Ollie.” (No prizes for guessing which members of our wonderful coalition government could be cast in the respective parts of Laurel and of Hardy!)

© MARTIN H GOODALL

Can conditions preclude Permitted Development?

The immediate answer to this question is that of course they can, and such conditions are quite common. They are usually along the lines that “Notwithstanding [the GPDO – variously referred to] no development shall take place under Part 1, Classes A or E [etc. etc.]” (or as the case may be). Some conditions even exclude all types of PD under the whole of Parts 1 and 2. There is no doubt that if the condition is worded with sufficient precision (and most are) the type of permitted development specified by the condition cannot be carried out, and a planning permission would have to be sought instead. There must, of course, be an objective justification for such a condition, and I have come across rather too many examples of these conditions which were imposed without any such justification. The remedy in such a case is an application under section 73 (and, if necessary, an appeal against a refusal to remove the condition). I have even won costs against the LPA in such appeals.

However, I have recently been asked by a correspondent about the effect of a rather differently worded condition in relation to the recently introduced right to convert an office (Use Class B1(a)) to residential use. In this case, a duly implemented planning permission which had authorised a change of use of premises to office use contained a condition that read: “The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof).” Does this preclude a change of use to Use Class C3 under the new GPDO provisions (subject to the qualifying criteria and compliance with the prior approval procedure)?

At first sight, it appeared to me that this condition does have that effect – if you simply take the words : “The premises shall be used as an office (Use Class B1a) and for no other purpose. But second thoughts suggested otherwise. It seems to me that this condition does not (and cannot) preclude an application for planning permission for a further change of use. It was designed solely to prevent the use being changed within Use Class B1 in reliance on the terms of section 55(2)(f) of the 1990 Act (whereby such a change of use within the same use class would not constitute development within the meaning of the Act). Any other change of use, to a use outside the scope of Class B1, would have been development in any event, and would have required planning permission. Thus, if planning permission were to be granted for such a further change of use, it would supersede the previous permission (and its conditions). What Part 3 of the Second Schedule to the GPDO does is exactly the same; it grants planning permission (subject to certain requirements being met) for a further change of use. The condition in question cannot therefore have the effect of precluding this.

There are several reasons for reaching this conclusion. First, the condition referred specifically to the Use Classes Order and contained no reference at all to the GPDO. I do not consider that the quoted wording could be stretched to include the GPDO or to be construed so as to do so. Furthermore, if permitted development was intended to be precluded by this condition, this should have been stated in clear terms. It is well settled law that conditions must be clear in their intention and effect; their purpose cannot be implied. Permitted Development cannot be precluded by implication. If an LPA wishes to preclude PD, it must word the condition in such a way as expressly to remove specific PD rights.

I mentioned above that if planning permission were to be granted for a further change of use, it would supersede the previous permission (and its conditions). As I have pointed out, what the GPDO does is to grant planning permission for a further change of use. This is the primary reason for my taking the view that this condition in the previous permission does not preclude the further change of use now authorised by Part 3. For the same reason, I do not consider that the condition would prevent the other change of use permitted by Part 3 (subject to a floorspace limitation) from B1 to B8.

I recall that there used to be some doubt as to whether development carried out as permitted development would be free of conditions under an existing planning permission. The conclusion (although I can’t recall offhand the relevant authority for this) was that the conditions continued to apply to the property as a whole. However, I don’t see that rule as being applicable in this context, where planning permission is given by the GPDO for an entirely different use of the property, at least so far as concerns conditions that were specifically addressed to the actual use of the property. Where the GPDO authorises a change of use under Part 3, it seems to me that any such conditions attached to the earlier permission would no longer apply. The position as regards other conditions (for example as regards car parking) may, however, be more doubtful.

No doubt there are those who would take a different view, and I cannot pretend that the answer I have given above to the question that was posed to me is the last word on this subject. But for what it’s worth, and subject to any contrary statutory or judicial authority that might be brought to my attention, I don’t believe that a condition like the one quoted above would preclude a change of use under the GPDO.

UPDATE: In case anyone didn’t see Steve Jupp’s helpful contribution to this discussion among the comments posted below this item, I thought it might be useful to follow him in drawing attention to paragraph 86 of Circular 11/95 (recently cancelled, I know, but in my view the statements it contained are still relevant and should continue to be applied). This paragraph stated in clear terms that “a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well.” Q.E.D.

NOTE: This topic is more fully discussed in the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

Permitted development excluded in an AONB

There is so much material awaiting posting that it is difficult to know where to begin, but I thought I would start with a recent query I received about the extent to which Permitted Development is excluded in an Area of Outstanding Natural Beauty. The question arose because the AONB in question encompasses a great number of towns and villages, most of which contain undistinguished housing far removed from anything that could possibly be described as being of outstanding natural beauty.

My correspondent therefore asked me whether the LPA is correct in asserting that permitted development rights are excluded in respect of development within the curtilage of a dwellinghouse (under Part 1 of the Second Schedule to the General Permitted Development Order) because this is a settlement that is ‘washed over’ by the AONB designation, and is not excluded from it. The site in question is not in a conservation area.

[What follows applies in England only, not in Wales, which has different rules.]

In most AONBs, the designation covers a wide area, and towns and villages within the area are not excluded, although the boundary may be drawn around the outside of a large town if it is on the periphery of the area. The limited contribution (if any) that even the most undistinguished part of any settlement within an AONB makes to the natural beauty of the area does not affect the position in any way.

Permitted development rights are slightly reduced (but are not wholly removed) in relation to Part 1 of the Second Schedule to the General Permitted Development Order (development within the curtilage of a dwellinghouse) in certain areas (“Article 1(5) land”) which include any property anywhere within an AONB. I have confined this note to AONBs, as there is a very subtle distinction in respect of these areas, compared with other “Article 1(5) land (such as conservation areas).

Under Class A, the temporary right (until 30 May 2016) to build larger domestic extensions is excluded in an AONB. Other excluded development within Class A comprises the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles, any extension beyond a wall forming a side elevation of the original dwellinghouse and any extension of more than one storey beyond the rear wall of the original dwellinghouse. But, with these exceptions, other extensions and alterations within Part A can still be built within an AONB.

The enlargement of a dwellinghouse consisting of an addition or alteration to its roof (under Class B) is also excluded in an AONB, but minor alterations to the roof under Class C are not excluded. The erection or construction of a porch outside any external door of a dwellinghouse (under Class D) is not excluded either.

As regards Class E (the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure; or a container used for domestic heating purposes for the storage of oil or liquid petroleum gas), development is not permitted in an AONB by Class E if the total area of ground covered by buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwelling-house would exceed 10 square metres, but devlopment closer to the house is OK. In an AONB, development under Class E is also excluded if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.

Development under Class F (the provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such, or the replacement in whole or in part of such a surface) is not affected.

In the case of Class G (the installation, alteration or replacement of a chimney, flue or soil and vent pipe on a dwellinghouse) this development is not permitted within an AONB if the chimney, flue or soil and vent pipe would be installed on a wall or roof slope which fronts a highway, and forms either the principal elevation or a side elevation of the dwellinghouse.

Development under Class H (the installation, alteration or replacement of a microwave antenna on a dwellinghouse or within the curtilage of a dwellinghouse) is permitted in an AONB, but not if it would consist of the installation of an antenna on a chimney, wall or roof slope which faces onto, and is visible from, a highway, or on a building which exceeds 15 metres in height.

If you look at Part 1 of the GPDO, you will see that this still leaves quite a wide variety of permitted development that can be carried out within an AONB, subject to the usual limitations and conditions set out in the Order. It is certainly not the case that permitted development rights are wholly or substantially removed within an AONB. On the other hand, local planning authorities have the power to exclude permitted development rights by means of an Article 4 Direction, and also by means of a condition attached to a planning permission, and this is perhaps more likely within an AONB (and on other “Article 1(5) land”, such as a Conservation Area) than elsewhere.

So the LPA in question was correct up to a point in the case that was put to me, but the effect of the exclusion of certain permitted development rights should not be over-stated.

© MARTIN H GOODALL

Labour’s planning policy

Two speeches at this week’s Labour Party conference gave an indication (albeit somewhat vague and lacking in any detail) as to the possible thrust of Labour’s planning policy if they regain power at the 2015 General Election.

Hilary Benn promised that “Labour will get Britain building again.” He frankly acknowledged that we are just not building enough homes, but pointed out that in the last few years, the profits of the big housebuilders have nevertheless soared. Land, he said, is too expensive. Too often developers hang on to it hoping for the price to rise.

Benn rather piously expressed the view that we can’t carry on saying on the one hand “Where are the homes for the next generation?” and on the other “Please don’t build them near me”. But he failed to give any clue as to how NIMBYism might be overcome. In fact he seemed to be going in the opposite direction when he opined that we will not get more homes by top-down targets. Councils and communities, he said, must take that responsibility “but they need more power to be able to do so.” I am bound to say that this does sound to me like typically meaningless political claptrap.

Benn’s approach seems to be based on the assumption that communities actually want house-builders to build homes on the land they own, or over which they hold options. But in all too many places the NIMBYs want no such thing, and they are only too happy that land-banked sites should remain undeveloped. So proposing that developers must register their land banks (including optioned sites) so that “communities should be able to do something about it” is just pie-in-the-sky.

It is difficult to see what would be achieved by requiring developers to implement their existing planning permissions or face (as yet unspecified) financial penalties in respect of unimplemented planning permissions. Benn went on to suggest that if developers, despite being charged some sort of ‘non-development’ tax or penalty, still don’t build on their land, a Labour government “will sell the land on to someone else who will”. Frankly, any politician who thinks that such a mechanism could be made to work or that it would actually have any practical effect in getting homes built is away with the fairies.

Another proposal canvassed by Benn is that where there is insufficient land available for housebuilding within a particular LPA area, that LPA should be given a new ‘Right to Grow’, allowing them, if they wish, to appropriate land for house-building within neighbouring councils’ areas. There would be a requirement for those neighbouring LPAs to work together to achieve this. It sounds like the current ‘duty to co-operate’ but with much sharper teeth. How it would work in practice is anyone’s guess.

Finally, Benn proposed that we should build new communities – new towns and new garden cities. He held up the example of the Attlee Government in this regard, but studiously ignored an abortive initiative by the most recent Labour government to do something similar. A Labour government, he said, will make sure that local authorities get the powers and the incentives they need to acquire land, put in the infrastructure and build new towns. It seems, however, that Benn is expecting the initiative to come from the local authorities, rather than from central government. Funding wasn’t mentioned.

In his leader’s speech, Ed Miliband took up the same themes. In 2010 when the last Labour government left office there was a shortage of one million homes in Britain. If we carry on as we are, by 2020 there will be a shortage throughout the country of two million homes (equivalent in size to two cities the size of Birmingham). So he too said “we’ve got to do something about it”, and repeated what Hilary Benn had said earlier, adding that a Labour government will have a clear aim that by the end of the next parliament (in 2020) Britain will be building 200,000 homes a year, more than at any time in a generation (but still not by any means as many as in the days when Harold Macmillan was the Housing Minister).

The housing crisis to which Mr Millibean referred is of long standing, and was increasingly apparent throughout the 13 years of the last Labour government. This is not intended to be a party political point (and I am certainly no Tory), but the plain fact is that the last Labour government did nothing effective to tackle what was already recognised at the time as a real crisis. This does engender some scepticism as to the ability or willingness of the next Labour government to tackle this issue effectively in view of their failure to address the problem between 1997 and 2010.

What Miliband and Benn were proposing in their party conference is unlikely to make any practical difference to the housing situation in this country. The major problem is a lack of affordable housing, and in particular social housing. 25 years of council house sales have depleted local authority housing stock, and HM Treasury has resolutely resisted the re-investment of the proceeds in new council house building.

The attempt by successive governments, both Tory and Labour, to use or, in reality, to abuse the planning system (entirely without any legislative authority) to produce an element of affordable housing has been an abject failure, and has not produced more than a tiny proportion of the affordable housing that is actually needed. In all too many cases it has simply made proposed housing developments unviable, so that no houses get built at all on some sites unless the affordable housing obligation can be renegotiated. The only reason for this policy being pursued is an almost paranoid fear in government, even within the last Labour government, of funding social housing from general taxation, involving extra government borrowing and an increase in the PSBR. But if we are not prepared to do this, then no other mechanism is going to produce the social housing that is so badly needed.

Tinkering with the private housing market (which is all that was being proposed at the Labour Party conference) will do nothing to resolve the crisis. At worst, the present government’s ‘help-to-buy’ scheme will simply produce another house price bubble in the private sector without in any way tackling the underlying problem. Labour will clearly eschew that approach, but their suggested nostrums are unlikely to be any more effective in solving the housing crisis.

In the post-war period, continuing into the 1950s and 1960s, governments of both political colours recognised the need for substantial public house-building programmes, and funded them from general taxation. Until a future government is prepared to do likewise, the housing crisis will only get worse.

© MARTIN H GOODALL

Yet more interesting times

You may have noticed that blog posts have been a bit thin on the ground recently, due to the continuing pressure of work. Unfortunately, it does not look as though I am going to be able to find the time to write anything further here for at least the next 10 days.

This is rather frustrating, as there has been an awful lot going on recently, which is just begging to be written up here. Among the many recent innovations, the Planning Inspectorate has published a new Procedural Guide to Planning Appeals and Called-in Planning Applications, and the government has announced a faster planning appeals process, leading (it is hoped) to earlier decisions. This will involve ‘front-loading’ the appeals process, including a requirement to submit a full appeal statement with the appeal form, which will make a lot more work for appellants at the outset of the appeal process. The new rules will apply to appeals in respect of applications determined after 1 October, but I shall have to defer discussing these and other innovations to a subsequent post.

Meanwhile, new regulations have been published for applications under section 62A of the Town and Country Planning Act 1990 (introduced by Section 1 of the Growth and Infrastructure Act 2013). This is the provision that enables certain applications to be made direct to the Secretary of State, bypassing the local planning authority.

Three new statutory instruments have been made relating to conservation areas and demolition, which I have not had time to look at yet. These, too, come into effect on 1 October.

In addition to this, we have also had the new web-based planning advice that is set to replace all the old familiar circulars. I confess that at a first glance, I was not impressed, but this too is a topic to which we shall return.

As I mentioned in passing a few weeks back, further changes to planning fees have been introduced by The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 (SI 2013/2153) (2013 Regulations). Yet again, 1 October is the date when these come into force.

Then, of course, there are Chris Grayling’s proposals for further changes to judicial review. I haven’t had time to look at these in any detail yet, but they include the idea of a special planning court, which could be a welcome innovation. But this will depend on how it is implemented. It is a subject to which I will return in due course.

Uncle Eric has not been idle himself, and on 2 September he was boasting to the House of Commons how very busy De-CLoG has been during the summer, when everyone else was away with their buckets and spades. This has included a report on the future of our high streets. (They haven’t got a future, basically.) He also touched on the plans to extend permitted development rights, previously discussed in this blog, and new guidance published on 28 August calling for councils to deliver more town centre parking spaces, to tackle street clutter and to get rid of ‘sleeping policemen’ (road humps). He also wants to encourage residents to rent out parking spaces in their front gardens. (This had already caused apoplexy among some planning officers.)

Uncle Eric also drew attention to powers introduced by the Localism Act 2011 for the listing of assets of community value, including local pubs, to prevent their sale and redevelopment. And then, of course, there was Uncle Eric’s wheelie bin crusade. And so on, and so on.

So, there will be an awful lot of material for planning professionals to digest in the near future, and a lot of changes that are going to happen on 1 October.

One thing Uncle Eric said made me laugh. He reckons that, with these various changes and the ‘simplification’ of ministerial planning advice, there is going to be little or no work left for planning lawyers to do. I think we may find that as result of some of these changes there will be more work for us than ever!

© MARTIN H GOODALL

More restrictions on judicial review?

In an article by the Justice Secretary, Chris Grayling, published in the ‘Daily Wail’ this morning, he calls for further restrictions on the right to apply to the High Court for the judicial review of ministerial decisions in planning and infrastructure cases. [The web version can be found at - http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html ]

He makes no bones about that fact that he is taking a strongly partisan political approach to this issue, seeing it as an avowedly Right-Left struggle. The first four short paragraphs of his article are pure bile, complaining about a growing number of “professional campaigners” who, he alleges, are “taking over charities, dominating BBC programmes and swarming around Westminster” (!) Worst of all, in Grayling’s view, is that they “articulate a Left-wing vision”. He seems to be particularly annoyed that former advisers and politicians are joining the ranks of what he calls “serial campaigners”, and he singles out the charity sector as an area where “advisers from the last Government can be found in senior roles”. He seems to be equally unhappy about moves in the opposite direction, “with campaigners lining up to try to become Labour MPs”.

This very much sets the tone and the background for what follows. Grayling alleges that charities “target the legal system as a way of trying to get their policies accepted”, particularly through the medium of judicial review. He objects to these people being able to challenge the decisions of government and public bodies in the courts, aided and abetted, as he puts it, by “teams of lawyers who have turned such legal challenges into a lucrative industry”.

It is at this point that the real lies start, and as the Nazis’ propaganda and police chief, Joseph Goebbels once observed, the bigger the lie, the more easily it will be swallowed by a gullible public. Grayling casually remarks that there are now thousands of judicial review applications each year, but he carefully omits to mention that, as a proportion of all JR applications, planning and infrastructure-related JR applications account for less than 2% of the whole!

As I have previously pointed out in this blog [Judicial review – the statistics on Tuesday, 20 November 2012 and Judicial review - statistics update on Sunday, 2 December 2012], the numbers of JR (i.e. non-statutory) cases relating to town and country planning and infrastructure cases in recent years have been: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191. (I don’t have the figure for 2012, but it is unlikely to show any really dramatic increase.)

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications in 2011 which ministers are so fond of quoting (or mis-quoting). Most of these were in fact immigration/asylum cases. Even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). Furthermore, it is not possible to discern any indication that there has been any increase in hopeless applications in this area of the law. The notion that ministers have been peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development and infrastructure projects, is clearly nonsense. In most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application.

Grayling’s assertions are based on an outright lie! But that does not deter him from proposing further restrictions on judicial review in addition to those introduced only a couple of months ago.

What these proposals actually are is not vouchsafed to us in his vituperative article in the Mail. According to the Press Association, a consultation paper is due to be published today, and we shall know more of what is afoot when this emerges. However, the PA report suggests that under these new plans, “campaigners will be banned from launching challenges” and that “local councils will also no longer be able to judicially review major infrastructure projects in their area”. It is also suggested that Grayling wants to penalise unsuccessful JR applicants with payment of a greater proportion of the government’s costs. Never mind the Aarhus Convention – a document that Grayling no doubt dislikes as much as he hates all those pesky lefties.

It is difficult to imagine a man less suited to being the Minister of Justice (and Lord Chancellor) than Chris Grayling (unless it might possibly be Michael Gove).

[UPDATE (14.17 6.9.13) : The consultation paper can now be accessed at - https://consult.justice.gov.uk/digital-communications/judicial-review. I may blog on this topic again when I have had the chance to read it in detail.]

© MARTIN H GOODALL