Voting in planning committees

The judgment of the Court of Appeal in R (Friends of Hethel) v. S Norfolk DC [2010] EWCA Civ 984 has caused a certain amount of huffing and puffing in local government circles. The Court ruled that voting in Council committees must be by simple majority. The Council in the case in question had a rule which required that a decision by an area planning sub-committee to grant planning permission had to be by a two-thirds majority, failing which the planning application had to be referred to the main committee. The main committee did take decisions by a simple majority, and so the Council thought that the rule in relation to voting in area sub-committees was perfectly lawful. It could be argued that this was simply a facet of the scheme of delegation, whereby the decision was reserved to the main committee, but if an area sub-committee voted by a two-thirds majority to grant planning permission, then in those circumstances they had delegated authority to take that decision on behalf of the Council.

However, Sullivan L.J. held that the requirement for the area sub-committee to pass the resolution to grant planning permission by a two-thirds majority was in breach of Schedule 12 of the Local Government Act 1972. He acknowledged that the procedure was intended to reflect the Council’s scheme of delegation, but the method adopted fell foul of the rules in Sch. 12. A method could have been devised to allow the sub-committee’s views to be reflected in a decision delegated to the Chief Planning Officer, but the unlawful requirement for a two-thirds majority prevented a valid reference of their decision to the main committee. As a result of this, the main committee had no authority themselves to determine the application.

There was an additional reason for quashing the planning permission in this case. The Council had failed to consult English Heritage on the effect of the proposal (involving a highly visible wind farm) on the setting of more than 200 listed buildings, of which as many as 24 were in Grades I or II*. The extent to which the proposal for the wind farm might affect the setting of the listed buildings was one on which English Heritage should have been given the opportunity to comment.

© MARTIN H GOODALL

The scope of re-determination

When an appeal decision has been quashed in the High Court, to what extent should the Secretary of State (or, in practice, one of his Inspectors) re-consider the issues in the appeal?

If the appeal was brought under s.78 against a refusal of planning permission, so that the quashing order was made under s. 288, it is well-settled law that the decision, having been quashed in its entirety, is before the Secretary of State de novo. (See, for example, Kingswood DC v. SSE [1988] JPL 248.)

However, the Court of Appeal confirmed last December that this rule does not apply to an appeal against an enforcement notice under s. 174 which has been quashed under s. 289. (See R (Perrett) v. SSCLG [2009] EWCA Civ 1365.)

The difficulty in the Perrett case was that the quashing order had been made by consent, and the parties were unable to reach agreement as to the scope of the re-determination by reference to the terms of the consent order. In particular, the appellant wanted to re-run the appeal under Ground (d), but the Planning Inspectorate ruled that this issue could not be re-opened, because it had been determined on the evidence before the first Inspector. So Ground (d) was to be excluded from the scope of the re-opened inquiry.

The Court of Appeal upheld the Secretary of State’s view that he had a broad discretion as to the manner in which enforcement notice appeals are reheard and determined after they have been quashed by the Court (following the decision in Newbury DC v. SSE [1988] JPL 185). The Court in effect ruled that those grounds of appeal under s. 174 which have not been the subject of a successful challenge in the High Court cannot be re-canvassed when the appeal is re-determined. The scope of the re-hearing and re-determination is at the Secretary of State’s reasonable discretion but can properly be confined to those issues which were the subject of the successful challenge in the High Court.

The distinction between enforcement notice appeals under s. 174 and those against a refusal of planning permission under s. 78 is understandable. A Section 78 appeal embraces the whole of the planning merits of the planning application the subject of the appeal. Such issues are often closely inter-related and may not readily be separable. The grounds of appeal under s. 174, on the other hand, are separate and distinct from each other and, where they fall to be determined, each is determined separately by the Inspector. It follows that if the decision on one or more of the stated grounds of appeal has not been successfully challenged (or has not been challenged at all) then the Secretary of State is perfectly entitled to decline to re-open the appeal in respect of that particular ground.

It nevertheless remains a matter of discretion for the Secretary of State (or, in practice, PINS) as to what the scope of the re-determined appeal should be. He may possibly be persuaded that in light of the quashing of the previous appeal decision on one particular ground, certain other closely related grounds might properly be re-opened, but there is clearly very limited scope for challenging the Secretary of State’s (or PINS’) decision as to the basis on which a Section 174 appeal will be re-determined.

© MARTIN H GOODALL

Doom and gloom for housebuilders

My attention was attracted by a succinct summary of “the grim reality facing housebuilders” in Anthony Hilton’s City Comment column in yesterday’s Evening Standard (15 September). It can be found at http://www.thisislondon.co.uk/markets/article-23878161-the-grim-reality-facing-housebuilders.do [This is not a hyperlink, so you’ll have to copy and paste it.]

The house-builders are facing multiple problems. Not only are buyers finding it difficult to raise large deposits and then find a willing lender but, when they do so, mortgage valuations are frequently coming in at less than the asking price of the property, with resulting frustration all round.

Even if the mortgage famine were to abate, there are other financial problems facing the industry. Government grants and subsidies of one sort or another, particularly for social housing (through the Homes & Communities Agency) have already been halved and are likely to be cut again.

Two further factors are adding to the gloom, and it was these two points which struck a chord with me. The first relates to the current state of the planning system. As we all know, the scrapping of regional strategic planning has left a huge void in the planning system, and many fear that the government’s espousal of ‘localism’ as an alternative will simply lead to local planning authorities dancing to the tune of the NIMBYs. Few believe that the promised financial incentives will persuade Councils whose electors really don’t want more housing in their patch to accept extra development, so even fewer homes will be built, especially in the south-east where they are urgently needed.

Hilton’s thesis is that the changes the government is making to the planning system will lead to years of uncertainty while new policies are worked out and the government’s changes bed down. There are those who suggest that it may be 2014 before things are back on an even keel, which chimes in with the view of other industry analysts that it will take three to five years for house-building to get back on track.

And if that wasn’t enough doom and gloom to be going on with, there are the continuing demands for affordable housing which, despite the scepticism of local authority planners, are a real threat to the viability of many housing schemes. Added to that is the demand for developer contributions for infrastructure, which is another overhead which will drive down the potential viability of proposed housing developments.

Finally, the ‘green’ agenda is another factor driving up costs, with ever more stringent environmental performance standards being demanded in an effort to reach the Holy Grail of zero-carbon housing.

The outlook is grim indeed, and Hilton suggests that it may lead to the banks pulling the plug on some developers, with resulting forced sales of over-valued land banks at a substantial discount, leading to a general downward revaluation of building land. I don’t see how that can be regarded as a ‘solution’ to the industry’s problems. It just confirms that the house-builders are in for a very troubled period.

As for wannabe first time buyers, frankly they stand no chance, and the government doesn’t seem to have any intention of trying to help them. On the contrary, I get the distinct impression that this government sees its constituency as being those elements in society, especially in well-heeled ‘Middle England’, who just don’t want any more houses built in their green and pleasant land. This was the driving force behind the Conservatives’ concept of so-called ‘open source’ planning and ministers are continuing to forge ahead with these half-baked ideas. The deafening chorus of dissent has not deflected them from their avowed intent, and it may take several years before the folly of their approach is borne in on them.

© MARTIN H GOODALL

To right a wrong

I have commented twice before on the injustice which can be caused by the preclusive provisions of s.285 of the 1990 Act. The problem, it seemed to me, was that it would be difficult to correct this anomaly without opening the door to spurious defences to enforcement notices being put forward simply as a ploy to delay effective enforcement against breaches of planning control.

I was reflecting on this the other day when it occurred to me that there is scope for a compromise position, whereby s.285 (or an equivalent provision) need not preclude all challenges to enforcement notices other than by way of an appeal under s.174 (and any subsequent appeal to the High Court on a point of law under s.289).

It seems reasonable that if an appeal has been dismissed by an Inspector under s.174, then further challenges to the enforcement notice in question (other than under s.289) should be precluded. This would apply irrespective of the precise grounds on which the appeal proceeded, as the appellant would have had the opportunity to include all or any of the statutory grounds in their appeal and also to take any points regarding the lawfulness of the notice (e.g. as to its being a nullity or ultra vires). [On further reflection, I think this may still be unduly restrictive. The prosecutor could simply rely on the doctrine of res judicata or issue estoppel where an Inspector had already dealt with one of the 'technical' grounds in determining an appeal. The effect of this would be to leave it open to a defendant to raise one of the other technical grounds as a defence to a prosecution for non-compliance.]


So it seems to me that if no appeal has been determined under s.174, whatever the reason may have been (for example because no appeal was ever made against the notice), then it would not be unreasonable to allow the purely ‘technical’ grounds of appeal (Grounds (b), (c), (d) or (e) and particularly the last of these where there had been no appeal because the defendant was simply unaware of the enforcement notice) to be raised as a defence to a prosecution under s.179 for failure to comply with the notice, or to be prayed in aid in any proceedings seeking to prevent an authority from exercising its default powers under s.178.

This is unlikely to delay effective enforcement action being taken against unauthorised development, because in the absence of any appeal there will have been no delay in the enforcement notice coming into effect. Thus, any prosecution against non-compliance is likely to be launched much sooner than could be done if the notice had been appealed, and there is no reason why the proceedings in the Magistrates’ Court or the Crown Court should be delayed by one of the ‘technical’ grounds being pleaded as a defence to the charge of non-compliance. The Court should have no difficulty in making a determination as to any disputed evidence or points of law arising from such a defence.

In the same way, it would not be unreasonable for s.191 to be amended to allow an application for a Lawful Development Certificate, necessarily limited to cases in which Grounds (b), (c) or (d) in s.174 might have applied, to be made where there had been no determined appeal against an enforcement notice which remains in force. This would be slightly more problematic and would, I suggest, involve the determination of a two-part question, first as to whether the enforcement notice was invalid for one or more of the reasons set out in the first three of the ‘technical’ grounds in s.174, so as to establish that the development was lawful at the time when the now impugned enforcement notice took effect and, secondly, (in cases relating to material changes of use) whether the development is still lawful, taking into account the proper operation of the 4-year rule or the 10-year rule (whichever is applicable) in the intervening period.

Whether the government could be persuaded to make such a change to such a longstanding statutory provision in the principal Act is perhaps questionable, but I have previously drawn attention to two or three cases in which the current preclusive provisions have caused injustice, and so a reform of s.285 (and of s.191) along the lines I have suggested is worthy of consideration by the government.

Later: On further reflection, a defence to prosecution for failure to comply with the requirements of an enforcement notice (in the absence of an appeal) ought properly to include at least part of Ground (f), to the extent that the requirement or requirements in question can be shown (objectively) to be outside the scope of what could properly be demanded by the LPA in order to remedy the breach of planning control alleged by the enforcement notice.

What I have proposed would in effect give a person served with an enforcement notice a choice of appealing against that notice under s.174 or of defending a subsequent prosecution for non-compliance on certain of the 'technical' grounds (but it would be 'either/or'; they could not have two bites of the cherry.) More time could be gained in practice by going through the appeal process under s.174 (as at present), and they might prefer such matters to be determined by a planning inspector rather than by the court. So the only people who would be likely to avail themselves of the 'technical' defences in the absence of a s.174 appeal would be those who had failed to appeal in time, for whatever reason, or subsequent owners who had 'inherited' an unappealed enforcement notice. I can confirm from my own professional experience that these situations do arise in practice for all sorts of reasons, and it is in order to remedy the resulting injustices which can be caused by the preclusive provisons of s.285 that I have proposed the changes outlined here.

MARTIN H GOODALL

Comments

The comments facility still doesn't seem to be operating correctly. I received an automated e-mail notification of a comment recently, but was unable to access it for moderation, so it seems to have got lost somewhere out there in the ether.

In point of fact this was simply a request from a reader for my contact details, which are in fact freely available on this blog. My e-mail address is no secret; it is -

martin.goodall@keystonelaw.co.uk

As I indicated before, I have no objection to readers writing to me directly, but pressure of work is currently a constraint on my entering into any detailed correspondence.

Mention of pressure of work reminds me that the flow of material in the blog has slowed to a trickle in the past month. However, while travelling up to London for a meeting last week I noted half a dozen topics for future posts, and it is simply a question of finding the time to write them up for posting here.

So, watch this space.

© MARTIN H GOODALL

Busy, busy, busy

The lapse of time between posts on this blog is an indication of the way my work is building up at the moment. It just keeps coming in.

Client confidentiality prevents my writing about my current matters in any detail, but I reflected the other day that I currently have three different cases running which involve development on the sites of former coal mines, each in a different coalfield and entirely unconnected with each other. Unrelated matters seem to come in groups like this; I still have two aviation-linked cases running (having had several others in the recent past), and a little while back I had a number outdoor advertising cases to deal with, including advertising on BT phone boxes and some big ‘shroud’ adverts on buildings in course of refurbishment.

It is the sheer variety of planning matters that makes working in this field so interesting and, despite the recession, I still have a number of housing developments on the go, as well as several single dwellings. Some are appeals, others are applications which need to be carefully steered through the planning process; hence the involvement of a planning lawyer at an early stage – a wise precaution, and probably cheaper for the client than letting it go pear-shaped and then having to run an appeal.

Needless to say, a lot of my work involves enforcement and compliance issues, including disputes over the lawful implementation of planning permissions, discharge of conditions and so on. There is certainly no sign of any fall-off in the demand for legal help in those areas.

All this is a rather lengthy excuse for the apparent reduction in the frequency of posts on this blog recently, but I still hope to keep the flow of news and comment going. There is certainly no shortage of raw material, and we shall soon be poring over the draft Decentralisation and Localism Bill. Judging by the almost unanimous chorus of dissent which greeted the government’s proposals when they were announced, it is likely to be extremely controversial.

© MARTIN H GOODALL

Rogue enforcement notices

Another planning law blog (yes, this one isn’t the only planning law blog around) recently posed a question regarding the legal effect of an enforcement notice which was out of time under the 4-year rule or the 10-year rule (whichever applies in the case in question) but was not appealed. The same question could legitimately be posed in respect of an enforcement notice which alleges a breach of development control which has never occurred. This is an issue on which I previously commented in this blog (see below) and the answer, unfortunately, is that if the enforcement notice comes into effect, either because it has not been appealed or because an attempted appeal was ineffective or was dismissed, the preclusive provisions of Section 285 prevent the validity of the notice being questioned in any other proceedings. This can lead to injustice, as I have previously pointed out.

The only exception to this rule would be an enforcement notice which was in fact a nullity. However, this means a notice which is not merely defective but one which is so bad as not to be an enforcement notice at all. In that case, there would still be scope for defending a prosecution against non-compliance.

The piece I wrote previously gave two examples of the injustice which Section 285 can cause in practice. Ideally, the legislation should be amended to enable some of the ‘technical’ defences to an enforcement notice (under Grounds (b), (c) or (d) for instance, and possibly even Ground (e)) to be raised as a defence to a prosecution for non-compliance if they had not previously been raised on appeal. Alternatively, there should perhaps still be scope for applying for a Lawful Development Certificate (currently precluded by Section 191(2)(b)). [Of course, if these points had been raised on appeal and had been dismissed, then res judicata or ‘issue estoppel’ would apply.] However, I do appreciate the desirability of preventing unmeritorious attempts to gain time before unlawful development has to be remedied, and so any amendment would have to be carefully drafted to avoid creating a loophole for the unscrupulous.

This is what I wrote earlier:

An injustice

[First published on 27 February 2008]

Consider the following facts. The front wall of a domestic curtilage was accidentally damaged as a result of a traffic collision, and the householder decided to remove the remains rather than rebuilding it. He then decided to lay out a hardstanding in his front garden and parked his car on it. The house fronts onto a classified road.

The LPA served an Enforcement Notice. I have not seen that notice but it presumably alleged the unauthorised formation of a means of access onto the highway. The householder was not professionally advised, and it appears that rather than appealing the notice, he attempted to argue about it with the LPA.

In the absence of an appeal, the EN duly came into effect. The householder was subsequently prosecuted in the magistrates’ court for non-compliance with the enforcement notice, and not being professionally represented or advised, he was fined. The LPA is now threatening further action.

That enforcement notice should never have been served, and if appealed it would very probably have been quashed under Ground (c). The removal of the wall did not require consent (and was in any event accidental). The formation of the hardstanding was clearly Permitted Development under Part 1, Class F. No other building or engineering works were carried out.

What about the formation of an access to the highway? It is a classified road, and so could not be Permitted Development under Part 2, Class B. (Note in passing that if the road had not been classified, the formation of the hardstanding might have constituted the necessary qualifying permitted development required by Part 2, Class B.) The essential point, however, is that what happened did not constitute the formation of a new access to the highway in any event. Thus there was no breach of planning control in this case.

The mere removal of a wall, fence, hedge or other boundary feature between a property and the adjoining highway does not constitute the formation of an access to the highway as such, even though it may facilitate access to the highway. This is a proposition which has certainly been accepted on appeal, and I was under the impression that there was also judicial authority to this effect, but I have been unable to find the case I had in mind.

The injustice in this case is two-fold. First the LPA has done the householder an injustice by serving an enforcement notice in the first place. More seriously, in the absence of an appeal under Section 174, the preclusive provisions of Section 285 effectively prevent anyone going behind an enforcement notice once it has come into effect. Thus the unrepresented layman without resort to professional advice has no defence to a prosecution for non-compliance, even where the notice, while falling short of being a complete nullity, is incontestably bad.

This is not the first time I have come across this situation. I recall a case in London in which I was asked to advise where an enforcement notice had alleged a change of use of the flat roof of a house by the formation of a roof garden. This was a nonsense, as it was all part of one and the same planning unit within Use Class C3. There had been no building operations, as there was an existing parapet on the roof. Nevertheless, the householder had failed to appeal the notice, which had consequently come into effect, and so there was no defence to a prosecution for non-compliance with the requirements of the enforcement notice, nor could the position subsequently be corrected.

Perhaps there should be some provision for a retrospective LDC application to be made to overturn ‘bad’ enforcement notices in such circumstances. It might be difficult to frame it in a way that would prevent its being exploited simply as a means of staving off justified action by an LPA in pursuance of a soundly-based enforcement notice, but there are enough cases of injustice being caused by the current rules to make the effort worthwhile.

© MARTIN H GOODALL