Brexit – Where on earth do we go now?

I make no apology for returning to the subject of Brexit in a second successive blog post. At the moment “it’s the only show in town”, and the planning topics that are in my pending tray for future discussion are rather technical and, to me at least, somewhat tedious.

After three days of debate in the Commons, parliament is now taking a breather and has three days off over this weekend to take stock, and to try to work out what will happen when the Brexit debate is due to resume on Monday and Tuesday.

The full court of the ECJ (aka the CJEU) is due on Monday to deliver its judgment on the case referred by the Scottish courts as to whether the UK is legally able unilaterally to withdraw the Article 50 letter which formally initiated the current Brexit process, and so bring it to an end (at least for the time being). The Advocate General’s opinion is that we can, and whilst the Court is not bound to follow that opinion, there is a reasonable prospect that they will do so.

The importance of this decision (if the Court does share the view of the Advocate General) is that this will provide a clear alternative to ‘crashing out’ of the EU with no deal, if Theresa May’s flawed withdrawal agreement is thrown out by the Commons on Tuesday.

That said, it is clear from the speeches in the Commons over the past few days that, whilst there is a substantial majority of MPs in favour of avoiding a ‘no deal’ Brexit, there is no consensus as to what alternative course should be pursued. There remains, therefore, a distinct danger that the UK could crash out of the EU on 29 March simply by default.

Having thought about this over the past few days, I had reached the conclusion that the only safe course of action would be for the government (of whatever complexion, and whoever is Prime Minister) to withdraw the Article 50 letter in good time before 29 March, so as to give the country sufficient breathing space to review the whole issue of Brexit and all its ramifications, and to decide, without being under the pressure of a deadline, whether (and, if so, how) to proceed with Brexit.

I feared that I would be in a minority of one in putting this idea forward, but I was heartened yesterday to learn that the Mayor of London has reached precisely the same conclusion, and for the same reasons. The object of doing this would simply be to “stop the clock” and allow enough time to seek a resolution of what has turned into a major governmental and political crisis.

No doubt this will be met with shrieks of “Betrayal!” from the loony right of the Tory Party and from a ragbag of the other usual suspects (such as Nigel Farage and the Daily Excess), but what is being suggested is not a final end to Brexit, but simply a pause long enough for mature reflection on the way forward, which would otherwise be a practical impossibility in the present febrile atmosphere with the deadline of 29 March looming.

A General Election or a Referendum (maybe both) may be necessary in order finally to resolve the issue of Brexit, but these processes and procedures will require time, which we do not currently have with the fixed deadline of 29 March rapidly approaching. Simply extending the Article 50 deadline by two or three months, assuming this could be agreed with the EU, (and amending the ill-advised provision which enshrined that date in UK legislation) would not be enough to ensure that we could sort things out freed from the sort of time constraint which would inevitably skew decision-making.

I appreciate that only the government could take the step of withdrawing the Article 50 letter, and that Theresa May absolutely refuses (at least at present) to do anything other than steer the Titanic at full steam ahead straight at the iceberg, with the object of ramming it head-on. However, doubt and dissent about the course she is pursuing is no longer confined to the Tory back benches; it seems to have spread to most of her cabinet. Even members of her team inside No.10 seem now to be among the doubters. By one means or another, May must be stopped from pursuing her present suicidal course. This could take any one or a combination of steps – a cabinet revolt, a ‘no confidence’ motion among Tory MPs, and a large and decisive Commons vote not only against the ‘deal’ currently on offer but also against a ‘no deal’ Brexit.

We can only live in hope that we shall be delivered from the utter catastrophe that a ‘No Deal’ Brexit would cause. I believe that the course I have suggested above is the safest way of achieving that, whilst keeping future options open.

UPDATE (11 December 2018): I was interested to note today that Sir John Major has also joined those who are calling for the UK's Article 50 notice to be revoked. As I have explained, and as both the Mayor of London and Sir John have also observed, this is now essential in view of the very real risk of our running out of time, and 'crashing out' of the EU with no deal, purely by default. The problem has been greatly exacerbated by the crass decision of the PM to pull today's 'meaningful vote' and to jet off round Europe in a time-wasting and hopeless bid to save her political skin. It seems that the government has no intention of rescheduling the vote on the withdrawal agreement until mid-January (if then), which will leave the revocation of her Article 50 letter as the only practical alternative to a car-crash Brexit. This would not, of course, prevent a fresh Article 50 letter being sent in the future to re-start the Brexit process, if that is then the will of parliament (backed, if they think it necessary, by a confirmatory referendum).

UPDATE (18 December 2018): To coin a phrase, “Nothing has changed. Nothing-Has-Changed!” since my previous update. We are exactly where we were when I last wrote on this issue. Meanwhile, I have taken the opportunity to re-read the ECJ’s judgment of 10 December. Contrary to a statement made recently by ministers, there is nothing to prevent the UK’s withdrawing its Article 50 notice, but then (at any time) submitting a fresh Article 50 letter, if the country subsequently decides that it wishes to resume the Brexit process. The objection to this course of action to which ministers referred was voiced by the European Commission in their submissions to the ECJ but was firmly rejected by the Court. Withdrawal of the UK’s Article 50 notification, thus bringing the current Brexit process to an end, would not prevent the country from reviving its intention to leave the EU, if (after further consideration) it were to decide to do so. Convinced Brexiteers need not therefore have any anxiety that withdrawal from the Article 50 process within the next three months would represent a final and irretrievable end to Brexit; it would not prevent or inhibit in any way a subsequent resumption of the Brexit process. It would, on the other hand, remove the threat of a ‘no-deal’ Brexit on 29 March and the catastrophic economic and logistical crisis that would ensue from such a ‘car-crash’ Brexit.

For a considered and objective review of the whole Brexit process, I would strongly recommend readers to listen to (or read the transcript of) a lecture given by Sir Ivan Rogers last week. It can be found here : https://news.liverpool.ac.uk/2018/12/13/full-speech-sir-ivan-rogers-on-brexit/

© MARTIN H GOODALL

Brexit, even bluer

I have been tempted several times in recent weeks to comment again on Brexit, but the position was becoming so chaotic that it was difficult to make sense of the constantly shifting situation as negotiations came to a head. But now that the PM has cobbled together a compromise deal with the EU (which seems to satisfy almost no-one) things really are moving towards the final crunch, when the Commons votes on it on Tuesday 11 December, after a 5-day debate.

I took some time out today to watch May’s statement in the House of Commons. The Honourable Member for the Eighteenth Century, Jacobus Rees-Mogadon, congratulated May on another ‘Boycottian’ innings at the dispatch box (the third in 10 days), but like her cricketing hero, she played nothing but blocking shots and, in yet another laborious innings scored very few runs, simply hanging on to her place at the crease, at least for a little longer. Like many a timid batsman, she let a number of balls go past her, if the questions raised by MPs were simply too awkward to answer.

As the session dragged on, there was a pathetically small measure of support for the ‘deal’ which the PM had brought back from Brussels. I counted very few Tory MPs who were prepared to give an uncritical welcome to the draft withdrawal agreement (and the first did not come until at least an hour into the 2½ -hour session). There were, on the other hand, numerous members on all sides of the House who urged the PM to hold a People’s Vote in light of the terms that have now been agreed, which bear little resemblance to what was promised on the ‘Leave’ side before the referendum of 2016.

There are many people, both inside and outside parliament, who cannot understand what the PM and others have to fear from a properly conducted referendum on the basis of the terms that have only now, at the end of long and weary negotiations, become clear. It is obvious that no-one wants to crash out of the EU with no deal, and that neither the government nor the Commons as a whole would seriously contemplate such a possibility. Veiled threats by the PM that this is a real risk if her deal is rejected are not to be taken seriously. The true alternative to the present deal is for the country to remain in the EU. This is the question which should now be put to the electorate as a whole, not least because it may be the only practical means by which the apparent impasse in parliament could be resolved.

The PM desperately clasps the result of the 2016 referendum to her bosom like a fig-leaf, entirely ignoring the indications from several different strands of research that there has been a change in public opinion, not least in the areas that voted for Brexit in 2016, now that the manifold disadvantages of Brexit compared with our continued membership of the EU are becoming clear to them. The inescapable fact is that there is no possible deal that could be more advantageous than our existing membership of the EU.

It was none other than the former Secretary of State for Exiting the EU, David Davis (the first of no fewer than three of them in a little over two years!), who once observed, specifically on the subject of a European referendum, that democracy is not democracy if people do not have the freedom to change their minds. If that were not so, why should we have any more General Elections? If May were right in her assertion that she is bound to give effect to the will of the people as expressed in a referendum more than two years ago, then it could equally be said that the ‘People Have Spoken’ in the General Election of June 2017, and the present hung parliament should be allowed to sit for the indefinite future, because that was what the People decided in 2017. Merely to state this proposition is to expose the absurdity of the Prime Minister’s position.

It is now becoming urgent to stop Brexit. The European Court of Justice will hear a referral from the Scottish Court of Session tomorrow, which seeks to establish that a country which invokes Article 50 of the Lisbon Treaty can withdraw from the Article 50 process if it so chooses. The UK government went all the way to the Supreme Court in an unsuccessful attempt to stop this. Why? What were they afraid of?

Theresa May is implacably determined not to be deterred or diverted from the course she has so doggedly pursued for the past two years. But for the sake of the country, she must be stopped – first by the Commons on 11 December, then by irresistable pressure from the public, applied through their Members of Parliament. MPs must be told by their constituents that they must vote for a Referendum on either supporting May’s deal, or abandoning Brexit, in order to settle the issue once and for all.

[And in case you are wondering what ‘Remoaners’ (or ‘Remainiacs’) like me would do if the vote in this first and only referendum on the terms that have now been negotiated is still to leave the EU, the answer is that at that point we would have to admit defeat, and leave the country to its fate. But then, if Brexiteers are confident that they would still win, then what objection could they possibly have to a People’s Vote being held to determine whether we should leave the EU on the basis that has now been negotiated, or whether we should after all remain in the EU?]

© MARTIN H GOODALL

Interpreting the NPPF

I didn’t have time to blog on it at the time, but I imagine that most readers of this blog are well aware that the revised version of the National Planning Policy Framework was published on 24 July 2018. This is the first revision of the National Planning Policy Framework since 2012. Users are already referring to the document as “NPPF2” to distinguish the current version from the earlier version which it has replaced.

Since the first version of the NPPF was published, numerous problems of interpretation and practical application of the policies that it contained have had to be determined by planning inspectors, and some of these have inevitably reached the courts, so much so that quite a body of judicial rulings has been built up over the past six years. We now have the added task of making sense of the new version of the NPPF, and of determining to what extent previous judgments apply to this new version.

It is a formidable task for planning professionals who are concerned with day-to-day development management issues. But help is at hand. Bath Publishing have recently published an extremely useful guide under the title Interpreting the NPPF written by planning barrister Alistair Mills of Landmark Chambers. Alistair is a rising star in the planning law firmament, and had already established a reputation as an expert on the NPPF before his current book was published.

This brief blog post is not intended to be a review of the book as such, but I can strongly recommend this guide as a useful, indeed essential, tool in understanding and applying the ministerial policy set out in the NPPF. There is no waffle or padding in the text; it summarises the various points it discusses concisely, but with great clarity.

After discussing the nature and status of National Planning Policy, the author goes on to explain the interpretation of policy, the concept of ‘sustainable development’ and the principles of Plan-making and Decision-taking. There then follow ten chapters on specific areas of policy, including residential development, the Green Belt, the Natural Environment, the Historic Environment, and Minerals, among several others. The book then concludes with a chapter on challenging planning decisions involving interpretation of the NPPF.

This is a book that planning professionals in both the public and private sectors will want to have on their bookshelves, and I am willing to bet that it will get very well-thumbed.

You can obtain further details of the book, and buy a copy, by visiting Bath Publishing’s website at www.bathpublishing.com

© MARTIN H GOODALL

Consultation on further expansion of PD rights

Coinciding with the Autumn budget, MHCLG published a detailed consultation paper which proposes various extensions to existing PD rights, plus some new ones, some of which may prove to be extremely controversial. It is for this reason that I am not getting too excited about these suggested changes at the moment.

Local planning authorities have never been happy with the significant widening in the scope of permitted development under the GPDO since 2013, particularly those provisions that permit various residential conversions. However, as the government points out, in 2016/17 alone, permitted development rights provided nearly 18,900 new homes, 8.5% of the total number of net additions delivered.

Perhaps the two most contentious proposals in the consultation paper are those that relate to the upward extension of existing buildings to create additional new homes, and the suggested creation of a PD right to allow the demolition of existing commercial buildings, so that their sites can be redeveloped for housing.

Upward extensions
What the government is proposing is a new PD right, subject to prior approval by the LPA, to allow additional storeys to be built above certain buildings, in particular those in commercial or residential (C3) use. A number of issues would need to be considered, including height limits. For example, this PD right could apply to the airspace above premises in a terrace of two or more joined properties where there is at least one higher building in the terrace. The roof of the premises extending upward would be no higher than the main roofline of the highest building in the existing terrace. This would have the advantage of providing a fixed local point against which any proposal could be considered and offer greater certainty on what is permitted. An alternative approach would be to permit upward extensions more widely to a height no higher than the prevailing roof height in the locality. While this may extend the proposed right to a greater number of properties, it would not be possible to define prevailing roofline in regulations; it would be a matter to be considered by the local authority as part of the prior approval. In doing so, the local authority would be able to define what it considered to be the prevailing roofline taking account of the local building types and heights and the extent of the area over which it should be determined. But his may offer less certainty to the applicant.

Local amenity impacts would have to be considered when reviewing a proposal to construct additional storeys. The government is therefore proposing that there should be a maximum limit of 5 storeys from ground level for a building once extended, with anything higher requiring a planning application. (This would be based on an additional storey not exceeding 3 metres in height.) There would also be potential issues where premises are not on level ground. The impact of adding additional storeys in these cases could be significantly greater on the amenity of neighbouring premises, for example from overlooking and overshadowing and on the character of the area.

The government would also like a permitted development right to apply to purpose built, free-standing blocks of flats (within Use Class C3) over 5 storeys in height would provide an opportunity to deliver additional new homes through upwards extensions, but it would have to be determined whether there should be a limit on the number of additional storeys that could be added.

The government proposes that upward extensions should be permitted on premises in a range of uses that are compatible with C3 residential use. These could include existing C3 residential premises, those high street uses that can already change use to housing under a permitted development right (shops (A1), financial and professional services (A2), restaurants and cafes (A3), betting shops, pay day loan shops and launderettes (which are sui generis), offices (B1 (a)), and buildings in mixed use within these uses. The government also wants to explore whether there may also be other buildings whose use is compatible with the introduction of new homes. Given that they are usually located in residential areas or high streets, would premises such as health centres and buildings used for community and leisure purposes be suitable for inclusion in the permitted development right? It is suggested that out-of-town retail parks with a mix of shopping and leisure uses may also be suitable for upward extensions to provide additional homes.

The permitted development right would need to allow for the physical works required to construct or install additional storeys on a building. These could include works to strengthen existing walls, engineering works to strengthen existing foundations to support the additional storeys and works to provide safe access and escape for any additional new homes within the building’s footprint. Separately it could also allow for works within the curtilage where it is necessary for access to the additional new homes. The government does not propose to define particular physical works to allow for the varied nature of what might be required. There would, however, be a prior approval in relation to the nature and impacts of the works. (There would still, as always, be a requirement to comply with other legislation, and with the Building Regulations and Fire Regulations, the Party Wall Act, etc.)

Prior Approval would be required for these upward extensions. These would include matters such as flooding and contamination risks, transport and highways and the impact of additional new homes on existing occupiers and businesses, especially those that create noise and odours which may be a statutory nuisance. Prior approval would apply the “agent of change” principle, set out in paragraph 182 of the NPPF, to ensure the introduction of housing could be integrated effectively with existing business and community uses, and to consider mitigation measures for the potential impacts on new residents and existing businesses. The prior approval would also assess the impacts of any works external to the building and within the curtilage, including fire escapes. Prior approval would also require consideration of the design, siting and appearance of the upward extension and its impact on the amenity and character of the area, taking account of the form of neighbouring properties. This may include considering whether the proposed development is of good design, adds to the overall quality of the area over its lifetime, is visually attractive as a result of good architecture, responds to the local character and history of the area and maintains a strong sense of place, as set out in paragraph 127 of the NPPF. But the government expects prior approval on design to be granted where the design is in keeping with the existing design of the building (a warning shot across the bows of planning authorities!).

Prior approval would also consider the impact of the development on the amenity of neighbouring premises, for example, from obscuring existing windows, reducing access to light or resulting in unacceptable impact on neighbours’ privacy from overlooking. It would also consider measures to mitigate these impacts, and enable the neighbours, including owners and occupiers of premises impacted, to comment on the proposal.

There would be an application fee calculated per extra dwelling created, to recognise the range and complexity of issues for local authority consideration.

An additional idea, which seems to have been almost afterthought, is that the proposed right to build upwards might possibly be drafted so as to allow householders to extend their own homes. However, the consultation simply throws the idea open for discussion and asks whether the PD right for upward extension of a dwelling should allow for the enlargement of an existing home and, if so, what considerations should apply.

Demolition of commercial buildings and replacement with housing
In the Autumn Budget of 2017 the government committed to consulting on introducing a permitted development right that would allow the demolition of commercial buildings and their replacement with residential development.

The government now suggests that a PD right focused on smaller sites may be more practical. For example, in formulating such a PD right it might be necessary to consider the size of the site; the height and density of new buildings; the existing use of the site, the relationship with local plan policies for key sites and areas where the right should apply.

This would be subject to prior approval (possibly requiring the wider range of matters mentioned above to be considered than under current PD rights, including any necessary mitigation measures). Higher application fees would probably be payable. There may well be a demand from LPAs that this extended PD right should include a requirement for the provision of, or contributions towards, affordable housing in such cases.

Change of use from storage or distribution (B8) to residential
Class P in Part 3 introduced a PD right for change of use from storage or distribution (within certain limits) to residential use in 2015 for a period of three years. The right was extended in April 2018 for a further 14 months. At present Class P allows applicants to secure prior approval on or before 10 June 2019, and gives those with prior approval three years from the prior approval date in which to complete the change of use. The government now proposes that this PD right should be made permanent and that the existing conditions, including the matters requiring prior approval, should remain unchanged.

The consultation document does not, however, mention any intention to extend or make permanent the current PD right under Class PA for the residential conversion of light industrial buildings. This PD right is currently due to expire on 30 September 2020. Maybe this will be something for consideration by the government next year (assuming they are still in office by that time).

Larger extensions to dwellinghouses
The permitted development right for larger extensions to dwellinghouses, introduced in 2013, was originally intended to be purely temporary, but in 2014 this PD right was extended for three years, to May 2019. In view of its continuing popularity, the government now proposes that the right should be made permanent. The existing conditions would remain unchanged, but where prior approval of larger extensions is required under these rules, the government proposes to introduce an application fee of £96.

Public call boxes and advertisements
This is a subject that has proved to be controversial, and so the government is now consulting on the possibility that the right to erect phone boxes as PD might be ended. There is also a closely connected issue regarding advertising displayed on these boxes, and so an amendment of the Control of Advertisement Regulations is also on the cards.

I don’t propose to discuss this topic further here, as it is highly technical and I suspect it is unlikely to be of interest to most of my readers.

Changes to the Use Classes Order?
Almost as an aside, the government suggests once again in this consultation paper that the UCO might be amended in relation to the various Class A uses. This might involve the amalgamation or adjustment of some of the existing town centre uses (A1, A2, A3, A4 and A5). It isn’t a new idea, and has been mentioned several times in the past. The lack of any definite suggestions in the consultation paper, and the fact that it gets no more than a passing mention, suggests that it is still not at the forefront of ministerial thinking. As long ago as 2015, the government also noted that they really ought to do something about consolidating the much-amended 1987 Use Classes Order but, what with one thing and another, they still haven’t got a Round Tuit.

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So the overall reaction to the consultation paper must be “Watch this space” - we shall have to wait and see what emerges next year following the end of the current consultation period on 14 January. Some of the less controversial proposals could come forward as early as next Spring, but my guess is that the really contentious ones, involving the upward extension of existing buildings and the demolition of commercial buildings to make way for residential development may take rather longer to come forward, and may be quietly dropped if they are greeted with loud booing from LPAs and conservationists. I can’t really see what advantage is to be gained from making such developments PD. The issues that would have to be considered in relation to a prior approval application for these developments would be substantially similar to those that would apply to a planning application, so why make the change? Widening permitted development rights to the extent that is now canvassed by the government makes rather a nonsense of the whole concept of “permitted development”.

© MARTIN H GOODALL

Defective prior approval applications

As those familiar with the GPDO are well aware, the rules laid down in those parts of the GPDO that require a prior approval application to be made are very clear as to the documents and other information that must accompany the prior approval application. These requirements, however, vary quite considerably as between one part of the Second Schedule and another.

If an LPA receives a prior approval application which is incomplete, or is not accompanied by all of the information that the GPDO itself requires the applicant to provide (together with any application fee that is payable), the application cannot be treated as a valid prior approval application. The LPA has two choices in such a situation. They can ask the applicant to supply the missing items (but the application will not be complete, and will not therefore become valid, and time will not begin to run under the relevant Part of the Second Schedule, until all of the missing items are received by the LPA). Alternatively, the LPA could simply treat the application as invalid and reject it, or take no action on it. The first of these two options would appear to me to be more user-friendly, and less risky in legal terms, but an example of the latter course being taken by the LPA, and being backed up both by the Planning Inspectorate and by the High Court was provided by the case of Maximus Networks Ltd v SSCLG [2018] EWHC 1933 (Admin), in which judgment was given on 25 July.

This was a case under Part 16 (relating to PD by telecoms code operators), involving no fewer than 367 prior approval applications in respect of public telephone boxes proposed in various London boroughs. The claim before the court related to 53 outstanding appeals in relation to these applications in Southwark and in Hammersmith & Fulham. I don’t propose to discuss the facts of the case in any detail, because they were specific to the requirements of Part 16, but the general principle that the case illustrates is of wider application. Before a prior approval application is made for such development under Part 16, the owner of the land must be notified by the applicant. [There is no such requirement in respect of changes of use proposed under Part 3, which requires only that the LPA itself should notify neighbours.] In the Maximus case, the landowner was the highway authority, which happened to be one and the same authority as the LPA. The developer failed to notify the highway authority of the proposals before submitting the prior approval application to the planning department.

Southwark had validated its applications, but Hammersmith & Fulham had not, because they did not accept that the applications were valid. When appeals against the non-determination of these applications reached PINS, the Inspectorate concluded that the applicant’s failure to give notice to the landowners rendered all of the applications invalid so that PINS therefore had no jurisdiction to determine these appeals and were unable to take any action on them.

Maximus nevertheless argued that PINS had a discretion to re-consider the validity of the applications and therefore to entertain these appeals. PINS, however, responded that section 327A of the 1990 Act [expressly forbidding the entertainment of an application that does not comply with a legislative requirement as to the form or manner in which the application must be made] prevented their consideration of these appeals. Furthermore, PINS pointed out, by virtue of section 79 of the 1990 Act, the fact that some LPAs may have accepted the applications as valid does not preclude the Secretary of State from making his own decisions as to the validity or otherwise of the applications, which can only be made following receipt of related appeals. It was this latter point (rather than section 327A) on which the Secretary of State primarily relied. Maximus nevertheless maintained their position that the Secretary of State had a discretion as to whether to consider the appeals, and had failed (or had failed properly) to exercise this discretion.

Having reviewed the relevant judicial authorities, Dove J concluded that (as the Secretary of State had claimed), by virtue of section 79 of the 1990 Act, the fact that some LPAs may have accepted the applications as valid does not preclude the Secretary of State from making his own decisions as to the validity or otherwise of the applications, which can only be made following receipt of related appeals. if it is appropriate to do so. Plainly, he observed, when exercising the discretion under section 79 the question of whether or not prejudice might arise from the failure to comply with the statutory requirements may very well be a factor in play. The extent and nature of the breach concerned will also be very likely to be a factor. Beyond that it is difficult to be prescriptive as to the considerations which may be material to the exercise of the discretion as it will inevitably be a fact sensitive exercise, varying in its considerations from case to case. It was against the background of that analysis that the submissions in this case fell to be evaluated.

It was on this basis that Dove J reached the conclusion that the contentions advanced by Maximus were without substance. It needed to be borne in mind that this was an administrative decision, and thus an overly forensic scrutiny of its terms would be inappropriate. He was unable to accept that PINS’ decision involved a complete negation of the exercise of discretion under section 79. The decision explained the view that had been formed that there had been a failure by the applicant to comply with the formal requirements in relation to notice under Part 16 , and in his judgment this was not evidence of PINS’ assuming that they only had power to conclude that there was no jurisdiction to entertain the appeals; it simply explained their justification for concluding, in applying section 79 of the 1990 Act, that the applications had not been valid and therefore the appeals should not be entertained. It was a concise analysis of the basis upon which PINS were declining to accept jurisdiction in respect of the appeals, rather than an assertion that PINS had no power at all to do anything other than refuse to accept the appeals.

The court also rejected Maximus’ second ground of challenge, that even if PINS had in reality recognised there was a discretion to be exercised under the legislative framework, this discretion was in fact exercised irrationally. The claimant’s submission that no prejudice could conceivably arise where the LPA and the landowner were one and the same organisation. In Dove J’s judgment, however, that contention depended upon a considerable over-simplification. Part of the claimant’s contention in this regard had been that that no prejudice had arisen from their failure to give notice to the highway authority as landowner, because it was one and the same authority as the LPA, and the knowledge of one department may reasonably be taken to be the corporate knowledge of the body as a whole. [Digressing for a moment, I have a vague recollection that there was judicial authority from at least 30 years ago that was precisely to this effect, but no reference seems to have been made to any such authority in the instant case.]

Dove J had no hesitation in dismissing this argument, on the basis that a local authority may have a variety of interests in terms of its functions, not all of which can be assumed to be represented by its functions as a local planning authority. He observed that a local authority as a land owner may have very different interests and concerns to take account of in exercising its powers to own and control land, and it cannot be assumed that when a planning application is made to an LPA that the planning department will automatically or of necessity consult the department concerned with protecting the authority’s interests as a land owner or automatically be aware of all matters of which that other department would wish to be made aware. [This does seem to me, however, to ignore the rather obvious point that the other department involved in the instant case was the highways department, who would almost certainly have been consulted on the prior approval application by the planning department in any event.]

Maximus did succeed on one point. One of the LPAs had refused to refund the application fees when the appeals had finally been rejected by PINS on the basis of their invalidity. Maximus relied on their right to a refund of the fees in these circumstances, by virtue of Reg 14(3) of Fees Regs. The court accepted this, and made a declaration confirming the applicant’s right to a full refund of the applications fees.

As explained above, I do have some reservations about this judgment in relation to the question of corporate knowledge of information received by one department of a local authority without express notice having been given to another department of the same authority (at least so far as this case was concerned), but the real importance of the case is to confirm the importance of complying with the legislative requirements applying to particular applications, whether for full planning permission or for prior approval in respect of permitted development under the GPDO. An LPA, and also PINS upon receipt of an appeal, would clearly be within its rights in declining jurisdiction to determine the application or the appeal in these circumstances. It is notable, however, that the Secretary of State did not rely on the mandatory requirement in section 327A, but based their defence instead on section 79 and their exercise of their judgement as to the validity of the appeals in accordance with that section.

© MARTIN H GOODALL

Pre-commencement conditions

The legislation governing the imposition of pre-commencement conditions (often referred to as ‘conditions precedent’) comes into force next week, on the first day of October.

As from that date planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition (other than in the circumstances described below, which are set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 - 2018 No. 566).

A pre-commencement condition for this purpose is one which is imposed on a grant of full planning permission (but not an outline permission) and which must be complied with either before any building or operation comprised in the development is begun, or (in the case of change of use) before the material change of use occurs.

The government’s hope is that LPAs and applicants will discuss conditions (including any pre-commencement conditions) during the processing of the application and before a final decision is made. They expect the LPA to share with the applicant any draft pre-commencement conditions at the earliest possible opportunity. If the applicant confirms their agreement to a pre-commencement condition in writing, then the pre-commencement condition can be imposed, and the procedures set out in the Regulations do not apply.

Where an LPA has not been able to obtain written agreement to a pre-commencement condition it wishes to impose, it may serve a notice under the Regulations, which must include the text of the proposed pre-commencement condition, the full reasons for the proposed condition (which must be set out clearly and precisely), the full reasons for its being made a pre-commencement condition (which must also be set out clearly and precisely), and finally, a notice that any substantive response must be received by the LPA within 10 working days from the date on which the notice is given.

In the absence of a substantive response from the applicant, the LPA may impose the pre-commencement condition without the written agreement of the applicant. (The process is set out in the Regulations and also in the online Planning Practice Guidance.)

© MARTIN H GOODALL

Back to work

Readers will have noticed the very long break in postings on this blog, although I have managed in the meantime to keep reasonably up to date with the comments that readers have continued to post on a wide variety of topics. But I have no excuse for the hiatus in adding new material to the blog, other than that during the Long Vacation there didn’t seem to be a lot going on on the planning front, and so I didn’t feel motivated to write anything.

Despite the lengthy parliamentary vacation, on the other hand, the political situation has continued to deteriorate, and hardly a day has gone by without some fresh disaster befalling the government in its inept conduct of the Brexit negotiations. Perhaps they should ship over the barbary apes from Gibraltar to take over from the existing negotiating team.

It is becoming increasingly clear that if we are to avoid an utter disaster befalling this country next year, we must STOP BREXIT!

I may not be able to resist returning to the topic of Brexit in the future. But for now, let’s get back to town and country planning.

© MARTIN H GOODALL