Telephone kiosks - the scope of PD under Part 16

Many readers will have become aware of the recent High Court judgment in Westminster City Council v SSCHLG [2019] EWHC 176 (Admin), in which judgment was given by Ouseley J on 5 February. Most commentary on this case has focused on its effect in relation to the use of telephone kiosks for the display of advertising, but the case raises a wider issue relating to the scope of the development permitted by particular parts and classes in the Second Schedule to the GPDO, and the inter-relationship between this and the determination of a prior approval application in respect of such development.

The Westminster case was a challenge by the LPA to an appeal decision in which an inspector had granted prior approval for a telephone kiosk. The Secretary of State and the telecoms operator both sought to defend the Inspector’s decision.

The key to the issue that was before the court is the actual wording of Part 16 of the Second Schedule to the GPDO. This issue applies, in fact, to permitted development under other parts of the Second Schedule. Whether a particular development is permitted by the GPDO is a two-part question. First, the proposed development must qualify as permitted development under the criteria laid down in the particular Part and Class by which it is governed, and secondly (in many, but not all, cases) a prior approval application must be made, and is to be determined under the relevant criteria that apply to the prescribed application.

The development under consideration in the Westminster case was the erection of a telephone kiosk under Part 16, Class A - Development by or on behalf of an electronic communications code operator for the purpose of the operator’s electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of [in this case] the installation, alteration or replacement of any electronic communications apparatus (viz. the proposed telephone kiosk). The relevant qualifying criterion in this case, therefore, is that the development is for the purpose of the operator’s electronic communications network.

In the Westminster case, the LPA attempted to argue that the developer must also demonstrate a “need” for the development. This was by analogy with the condition in Part 16 requiring the removal of the apparatus when it is no longer required. They also sought to rely on Paragraph 45 of the NPPF that applications related to telecommunications, including applications for prior approval under the GPDO, "should be supported by the necessary evidence to justify the proposed development", although Paragraph 46 states that applications should be determined on planning grounds, and authorities should not question the need for the telecommunications system or seek to prevent competition between operators. In the event, this “need” argument was not accepted by the court, and does not therefore require any further consideration.

The second stage (the prior approval application required under paragraph A.3(3)) enables the LPA to determine whether the prior approval of the authority will be required as to the siting and appearance of the development. In the Westminster case, the LPA did not seek to question the Inspector’s planning judgment as to the acceptability of the siting and design of the relevant kiosk.

The LPA’s fundamental objection was that the design and construction of the kiosk incorporated a substantial illuminated panel that was intended for the display of advertisements. The actual display of such advertisements would require advertisement control consent, but it was clear that the design (and arguably the purpose) of the kiosk included, and was perhaps primarily intended to facilitate, the display of advertisements, and in fact the size and design of the kiosk was significantly influenced by that requirement.

The LPA therefore argued, both before the Inspector and in the High Court, that the telephone kiosk was not "for the purpose" of the operator's electronic communications network, but instead was primarily for the purpose of advertising via the illuminated panel. The proposed kiosk was much larger than required to accommodate the proposed telephone; its size was dictated by the desire to provide advertising space.

In defending the Inspector’s decision, the Secretary of State submitted that the developer was an electronic communications operator, and its kiosks, with landline and internet access, were the reason it was an operator at all. The proposed kiosk was obviously "for the purpose of [its] network" within Class A GPDO. "Purpose" had the ordinary meaning of "the reason for which something is done" (as the LPA had themselves submitted). The Secretary of State also argued that the definition of Class A, merely required that the kiosk be "for the purpose of" the network; it contained no "dominant" or "primary" purpose test. The definition of class A did not include any requirement that the kiosk be "needed" or "required", and it should not be altered to "required for the network" or "required for the purpose of the network".

In the end, this case turned on this issue of “purpose” (but not of any requirement for “need”). As Ouseley J put it in his judgment, what the grant of permission for a Class of development subject to prior approval does is to limit the scope of the relevant issues remaining for decision. But the concept of the principle of a development being established, on that basis, means that the development which is being considered for permission under the GPDO must all fall within the Class in question otherwise its "principle" cannot be taken to have been established. A development therefore falls outside the scope of Class A Part 16 if it is not "for the purpose" of the operator's network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO. A development which is partly "for the purpose" of the operator's network, and partly for some other purpose, is not a development "for the purpose" of the operator's network, precisely because it is for something else as well. The single dual purpose development must be judged as a whole.

His Lordship did not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose. Part of its purpose was for the operator's network, as a telephone kiosk. Part of it was to be the electrified advertising panel. The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant. It does not matter whether it would have been lit if no advertisements were displayed. No relative significance has to be attributed to either part of the dual purpose; it is sufficient if the two purposes exist without the advertising use being ancillary or incidental or of no legal significance.

The essential point of this judgment, is that the question of whether a development proposed comes within the scope of and particular Part and Class in the Second Schedule to the GPDO, and can therefore go forward for consideration of prior approval, is not to be determined by the outcome of the prior approval process. It is to be determined first by reference to the essential qualifying criteria set out in the GPDO. The proposed development in the Westminster case was for the purpose of the operator's telecommunications network and for the purpose of advertising, because part of what was needed for the advertising role was performed by the structure and features of the telephone kiosk, to be dealt with under the electronic communications prior approval. The kiosk could not be brought within the scope of prior approval under Class A of Part 16 merely because it would be acceptable in the street scene. The kiosk would fall outside the scope of Class A if advertising consent were granted, since its dual purpose would be apparent daily. The judgement as to whether the kiosk, as applied for, came within the scope of Class A had to be made before siting and appearance were considered. It was for this reason that the Inspector’s appeal decision had to be quashed.

I would not seek to criticise this judgment, but it appears to me from the arguments put forward on behalf of the developer, and also the Secretary of State, that it would be possible to reach a different conclusion on the issue of “purpose” in relation to Part 16, Class A. I have no idea (at the time of writing) whether the developer has sought to take this case on to the Court of Appeal, but it would not be entirely surprising if they were to do so. This is not to say that the Court of Appeal would necessarily reach a different conclusion. It is entirely possible that the first instance decision would be upheld, but this does not appear to me to be ‘an open and shut’ case. However, in the absence of a successful appeal, Ouseley J’s judgment will clearly stand as binding judicial authority on the interpretation of “purpose” in Part 16 of the Second Schedule to the GPDO, until or unless the GPDO is amended.

© MARTIN H GOODALL

Brexit – the endgame [?]

Readers will not be surprised that I am returning today to the subject of Brexit. There is currently no subject that is more important than this. It requires our urgent attention.

As the dust settles following the catastrophic scale of the defeat inflicted on the government on Tuesday evening (the largest suffered by any government in parliament’s history), and the somewhat irrelevant distraction of today’s No Confidence motion, we need to reflect calmly on the situation. Unfortunately, it was clear from Theresa May’s statement to the Commons immediately following the vote on Tuesday (when she said that the government had ‘heard’ the House of Commons’ view) that she intends to take no notice of that opinion, but will press on instead with her mission to force her deal through. She offered talks with other parties, but the implication was that any such talks would be solely directed to gaining acceptance of that deal, or something very close to it. It is clear that she would not be prepared to consider any other options. Her attitude is, frankly, defiant. This does not bode well for the resolution of the current impasse.

There seems to be widespread misunderstanding in parliament (and even on the part of some cabinet ministers including, apparently, the Prime Minister) as to the position of the European Commission in relation to the draft withdrawal agreement that has been negotiated between the EU and the UK government. It has been clear for some time that there is no scope for re-negotiation of that draft agreement, and very little scope for ‘re-assurances’ or ‘clarifications’ of the agreement (particularly as regards the Irish backstop), and this was repeated from various European sources within the past 24 hours. The letters that were sent to the PM from Brussels a short time ago could not give any guarantees, still less any ‘legally binding’ assurances on this or any other issue. Furthermore, it has become clear that the European Commission has now concluded, in view of the size of the government’s defeat on the draft agreement (by 230 votes), that there is really no scope for any adjustment of the draft agreement that would stand any realistic chance of being accepted by the House of Commons, and so they see little point in entering into further discussions.

It is therefore entirely unrealistic for anyone, whether it be Theresa May, ardent Tory Brexiteers, or even the current leadership of the Labour Party, to talk in terms of seeking to re-negotiate the withdrawal agreement. What the Brexiteers in particular do not appear to have understood is that the stated position of the European Commission is not a bluff, nor is it a negotiating ploy; it is a settled position based on the fundamental principles on which the European Union is founded. There will be no ‘last-minute’ concessions or climb-down. It would be futile for British negotiators to go to Brussels and ‘thump the table’ to demand a better deal, as some Brextremists suggest we should. It is equally unrealistic to talk in terms of other alternatives to the current draft agreement (such as so-called ‘Canada-Plus’, ‘Norway-for-Now’ or any other fantasy deals that they might like to dream up).

With barely 10 weeks to go to the 29 March deadline, which is imposed both by Article 50 of the Lisbon Treaty and by section 20 of European Union (Withdrawal) Act 2018, we are rapidly running out of time to resolve matters, irrespective of the course that either the government or parliament chooses to take with regard to Brexit. Postponement of the exit date is now therefore unavoidable, even if the government were to opt for a ‘No Deal’ Brexit. But that poses a problem. Postponement (as distinct from revoking the UK’s Article 50 notice, so as to halt Brexit, which could be done unilaterally by the UK) would require the agreement of the 27 other EU member nations, and if the UK government were to seek such a postponement, perhaps for three months, the EU would be bound to ask – “For what purpose?”. If this postponement was simply to enable us to go on arguing among ourselves as to what sort of Brexit we really want, or to try to re-negotiate the previous draft of the withdrawal agreement, such a postponement is likely to be refused by the EU. In any event, even if consent to a short postponement were to be forthcoming, it is extremely unlikely that we would be any nearer resolving matters by the end of June, and that we would simply find ourselves in exactly the same position by that time as we are in now.

The time has come to be brutally realistic about the practical options that now face the country. Theresa May’s deal is irretrievably dead. (One is inevitably reminded of the Dead Parrot sketch, with Theresa May playing the part of the shopkeeper.) As explained above, alternative deals are equally unachievable. In the 10 weeks before 29 March there are only two stark alternatives left – a ‘No Deal’ car crash Brexit, or No Brexit (at least for the time being). Majority opinion in the House of Commons seems to be firmly set against a disastrous ‘No Deal’ Brexit, and if (as appears to be the case) the PM absolutely refuses to introduce emergency legislation in the next week or two to revoke the UK’s Article 50 notice and repeal the European Union (Withdrawal) Act 2018 (and to make various consequential amendments to other primary and subordinate legislation), the House of Commons must take control, by amending its Standing Orders to enable this, and bring in the necessary Bill themselves.

As I have said before, I do not pretend that this would be a final end to the Brexit debate, but with the pressure of time removed following the cessation of the Article 50 process, there would then be time for mature reflection and calm discussion of our future relationship with the EU, and (maybe in a year or two’s time) a fresh properly informed referendum on our membership of the EU, following a series of citizen’s assemblies which would be held first.

UPDATE (1 February): “Onward and upward - to the land where the Cloud-Cuckoos dwell!” After Theresa May’s stunning parliamentary triumph earlier this week, she is now deploying her unparalleled diplomatic skills to......er, well, just re-read the blog post above. After all, nothing has changed.

There are still only two practical choices - (1) crash out of the EU on 29 March with no deal, or (2) revoke the UK’s Article 50 notice to bring the current abortive attempt to leave the EU to an end (and never mind all the guff about “the will of the people” or the mindless mantra that “the people have spoken” – that was over 30 months ago, and is well past its ‘sell-by’ date). After that, there can then be a proper ‘grown-up’ discussion on Britain’s future relationship with the EU.

Some people are inclined to say “Just get on with it.” But at least half the cabinet and a majority of MPs on all sides of the House of Commons appreciate that this is likely to be a costly mistake, even on the basis of the draft withdrawal agreement that was so decisively rejected by the Commons a couple of weeks ago, and will be an utter catastrophe in the absence of any agreement at all. So what we should be telling MPs and ministers is - “Pull the plug! And do it now, before it’s too late.”

UPDATE (15 February): Tick, tock. Theresa May's deal is just not going to be re-negotiated by the EU, and a disastrous 'car crash' Brexit, with no concluded withdrawal agreement, becomes ever more likely. The more the government runs the clock down, the more urgent it becomes to stop the clock before the time fuse detonates the Brexit bomb on 29 March. Simply 'extending' Article 50 is unlikely to resolve the situation, and will simply kick the can down the road yet again for a few more months at most. The Article 50 process needs to be stopped altogether, as the Father of the House, Ken Clarke, observed in yesterday's debate. Others, such as Sir John Major, have made the same suggestion. Unfortunately, most of the talk about Article 50 in the House of Commons is still focused on temporary postponement.

A final decision must be reached on Wednesday, 27 February, and the House of Commons must at last take back control and put in train the necessary legislation to halt Brexit for an indefinite period. Events on that date, and leading up to it, may prove to be quite dramatic, including possible resignations from both front benches. If MPs funk the essential decision on 27 February, then it may well be that all is lost.

© MARTIN H GOODALL

Planning law reform - Wales shows the way.

As I have explained before, I have given up trying to keep up with the increasing divergence of Welsh planning law from the law in England, but an important project to reform planning law has been under way in Wales throughout the past year, conducted on behalf of the Law Commission by a team under the leadership of Dr Charles Mynors. The final report was published in November, and contains some extremely interesting proposals for planning reform in Wales. The report became available online last month [https://www.lawcom.gov.uk/document/planning-law-in-wales-final-report/], and hard copies have recently been distributed.

So why am I so interested in proposed changes to planning legislation which will apply only in Wales? The reason for my enthusiasm is that the issues with which the report deals are common to both Wales and England, and the need for reform is just as pressing on this side of the Severn. So the changes which the report proposes could equally well be introduced in England. The authoritative analysis of these issues in this report could well be a precedent for a similar exercise in England, which could lead (I hope) to a long overdue consolidation and codification of both our primary and secondary legislation relating to or affecting town and country planning in this country.

As the original consultation document pointed out, an extensive system of primary and secondary legislation has grown up, much altered by successive governments of differing political persuasions in response to new political pressures and priorities. This legislation is supplemented by a mass of policy guidance of various kinds, both national and local. As a result of this evolutionary process, the law that governs our planning system – contained in Acts, Regulations, Orders, Rules and directions – is now excessively complex. We currently have no fewer than 30 Acts of Parliament in England alone, all or part of which contain provisions relating to town and country planning, and around 150 pieces of secondary legislation that determine how the planning system operates in detail, as well as national and local policy documents.

The resulting mass of primary and secondary legislation has grown inexorably and to no particularly obvious pattern. Following the first comprehensive Town and Country Planning Act in 1947, the relevant law and Government policy could be contained, along with commentary, within a single loose-leaf volume (originally entitled the Encyclopaedia of Planning, Compulsory Purchase and Compensation). Seventy years later, the “planning” element of that work has now grown to ten volumes.

Many of these Acts and regulations have been the subject of judicial interpretation in the courts over the last 70 years. And the whole system has been the subject of numerous pieces of guidance, produced either by central government departments and other public bodies or by relevant professionals or others. The law is difficult enough to navigate for specialist professionals, who also have available online resources. For non-specialists, let alone members of the public, the law – albeit simple enough in principle – is now almost impenetrably complex in practice.

The body of judicial authorities is now formidable, and significant judgments badly need to be codified (i.e. taken on board in primary legislation). I have in mind, examples such as the concept of the planning unit, and the rule in Burdle; there are a good many others, such as a statutory definition of “curtilage”, and consistent definitions of “agriculture”, “agricultural land” and “agricultural unit”. As a law student, I recall studying the Sale of Goods Act 1893, which was the result of just such an exercise of codification. If it could be done in the 1890s, it can certainly be done in the 21st century!

One of the problems, even within the primary legislation, is that some provisions are in the four main 1990 Acts; others are in amendments to those Acts; others are in new provisions inserted into the Acts; yet others are in freestanding statutes outside the 1990 legislation altogether. So, for example, the duty to make planning decisions in accordance with the development plan – which is a fundamental principle of the system – is in section 38(6) of the Planning and Compulsory Purchase Act 2004, and not in the 1990 Act. Indeed, it is noteworthy that of the numerous duties laid upon planning authorities when determining planning applications, only two are in the 1990 Act itself.

I cannot summarise a 455-page report in a single blog post, or even in a series of posts, but it has prompted the following further thoughts. In Part III of the principal Act, there is a need to tidy up the three types of planning application that can now be made – for (1) permission in principle [PiP], (2) outline planning permission (followed by approval of reserved matters) and (3) full planning permission. I remain sceptical of the practical value of PiP, which was only introduced due to the over-complication of the rules relating to outline planning applications, which used to be much simpler than they are now. We need a simple and straightforward choice between making an uncomplicated application for outline PP (with some or all matters reserved) or making an application for full PP.

Also in Part III, there is a need to consolidate section 70(2) of the principal Act with section 38(6) of the 2004 Act. My own view is that section 70(2) should be sufficient by itself, and that the introduction in 1991 of what is now section 38(6) of the 2004 Act was entirely unnecessary, and has been a complicating factor that has impacted adversely on the plan-making system. (The process of formulating and adopting the Development Plan needs to be streamlined and simplified in any event.)

The provisions under which an LPA may decline to entertain a planning application (see sections 70A, 70B and 70C) are open to abuse by LPAs, and are unnecessary and unduly restrictive. The perceived problems that these provisions were designed to address were largely imaginary, and these three sections should be scrapped or closely regulated.

There is also a need for better regulation of the use of planning conditions when PP is granted. The new provisions governing pre-commencement conditions only partially address this issue, and are in any event somewhat deficient in resolving the problems posed by pre-commencement conditions. As noted in the Welsh report, there is also a need for clarifying how the approval of matters required by conditions should properly be dealt with. The scope and methodology for amending planning permissions, particularly under section 73 should be clarified.

As regards the lawfulness of development, the provisions governing applications for Lawful Development Certificates would sit better in Part III of the principal Act, rather than being subsumed within Part VII (enforcement). I also suggest that the legislation should be amended to make it clear that the lawfulness of development does not depend on the issue of an LDC (as already confirmed by judicial authority).

There are a good many other useful proposals for planning reform in the Welsh report, and I would very much hope that a similar exercise will be put in hand in England as soon as possible.

© MARTIN H GOODALL

An even more interesting New Year

I hesitate to wish readers a ‘Happy’ New Year, because if Brexit actually happens, it is not going to be at all happy. But I have a sneaking feeling (or is it just hopeless optimism?) that the UK will not in fact leave the EU on 29 March. 2019 might, just might, be the year in which Brexit gets buried once and for all. There’s certainly going to be a lot of political excitement in the next three months, and I suspect the Brexit debate will go on and on, long after that.

It is now clear that all government departments have effectively put most other work on the back burner, and have been ordered by 10, Downing Street to concentrate exclusively on Brexit for the next few months. In the meantime, however, MHCLG will still have to make an amendment order to the GPDO in time to make Class P (residential conversion from B8) in Part 3 of the Second Schedule permanent before the present time limit for that Class of PD runs out.

Apart from that, the major priority will no doubt be to conduct an urgent audit of paper clips and teaspoons throughout the Ministry, and to stock up with teabags and sugar in good time before D-Day (Disaster-Day). There is also the minor consideration of having to deal with all the planning issues that arise from the construction of massive lorry parks, new port facilities, massively expanded warehouse accommodation and other infrastructure required in order to prepare for a No-Deal Brexit – hardly any of which will in fact be ready in time. In practice, the threat of a No-deal ‘car crash’ Brexit lacks any credibility, and nobody (apart from a few head-bangers on the far right of the Tory Party) takes it at all seriously. It is simply a rather hopeless ploy on the part of the Prime Minister to try to scare back-benchers into voting for her botched ‘deal’ when (or if) it comes back to the Commons this month. A much more likely scenario, after the inevitable rejection of the draft withdrawal agreement by MPs, is the revocation of our Article 50 notification, in order to stop the clock, and so avoid a disastrous high jump from Beachy Head on 29 March.

[In the meantime, there has been some loose talk of ‘postponing’ Article 50. This (as opposed to outright revocation of the Article 50 letter) would require the agreement of the EU, and there are already indications that they would only be prepared to allow an extension of time if it were required in order to hold a Referendum or a General Election. A bid simply to gain two or three months for further political in-fighting is not going to be agreed by the EU, and will not in any event solve the political impasse in the Commons.]

So whatever else might happen on the planning front this year will, I fear, depend on how the Brexit process plays out. In the meantime, those who are thoroughly fed up with the whole subject will simply have to grit their teeth, and wait for it to blow over. At least by the end of March we should have some idea of where we might then be heading.

© MARTIN H GOODALL

Eye-watering confiscation orders

I drew attention more than eight years ago in this blog (in June 2010) to the confiscation orders that can be made by the Crown Court under the Proceeds of Crime Act 2002 (‘POCA’). The Act was primarily intended to enable the confiscation of the proceeds of drug-dealing and similar organised crime, and it took LPAs some time to appreciate that the Act was not limited to that type of criminal activity, but could be used in any case where a criminal offence has continued for more than six months and where the offender has ‘benefitted’ from the conduct which constitutes the offence, to the tune of not less than £5,000, provided that they are either convicted in the Crown Court, or sent to the Crown Court for sentencing.

The case which originally prompted me to blog on this topic was Basso & anor v. R. [2010] EWCA Crim 1119, which established that the proceeds of crime in respect of which a confiscation order can be made are the gross proceeds, and not simply the ‘profit’ which the offender made (net of any overheads, expenses, etc.).

Despite this and other examples to which I drew attention in this blog in 2010 and 2011, it seemed to take LPAs a long time to make full use of confiscation orders under POCA in the Crown Court. However, when they began to do so more frequently, some spectacularly large confiscation orders began to be made. Noting this trend, I have been meaning to write the present blog post for some time, because anyone who is tempted to ignore an enforcement notice that has taken effect (either in the absence of an appeal or following the dismissal of an appeal) should be warned that non-compliance could become extremely expensive for them if they are deriving significant income from the unlawful development.

It is not unusual nowadays for confiscation orders in respect of failing to comply with an enforcement notice to run into hundreds of thousands of pounds. Orders of over a million pounds are not unknown, and the highest amount of an order of which I am currently aware totalled more than £4,330,000! (This confiscation order was backed by a threat of 8 years’ imprisonment if the sum was not paid.)

These cases are usually concerned with unauthorised residential conversions or extensions, which have then been let out, and the amount of the confiscation order simply reflects the gross receipts from that illegal activity, calculated from the date by which the enforcement notice should have been complied with. Airport parking is another activity which might well be vulnerable to a confiscation order, and there are no doubt other developments which yield a significant income and which could therefore be the subject of an application to the Crown Court under POCA.

I have no sympathy with the offenders who have been on the receiving end of these confiscation orders. They knew that what they were doing was a breach of planning control, they knew that once the enforcement notice took effect they had to comply with it, and they knew (or should have known) that from the date on which the compliance period expired they were committing a criminal offence for which they were likely to be prosecuted.

There is, however, one little word of warning for LPAs, in the form of the decision of the Court of Appeal in R. v Knightland Foundation and another [2018] EWCA Crim 1860. This was a case where planning permission had been granted for a 14-bed HMO, but an 18-bed HMO had been created. However, officers of the LPA (Islington LBC) indicated that an 18-bed hotel might be acceptable in planning terms, notwithstanding that an enforcement notice against the unauthorised development had taken effect by this time. The council’s enforcement team were nevertheless determined to press on with a prosecution in respect of non-compliance with the enforcement notice and to apply for a confiscation order under POCA, whatever the result of the planning application for the alternative development that had by now been awaiting determination for some considerable time.

When the application for a confiscation order came before the Crown Court, the judge found that the council’s enforcement team had not given material consideration to the pending 2016 planning application in their decision to prosecute and to press for a confiscation order. The judge accepted that the defendants may not have had a legitimate expectation that their planning application would be granted, but they did have a legitimate expectation that it would be determined on its merits measured against relevant criteria. The evidence indicated to him that, despite the enforcement officer’s efforts to influence members of the Planning Team against giving permission, the recommendation of the team would have been to grant permission.

It seems that the Planning Team were then persuaded to refuse permission, irrespective of its merits, solely or mainly due to the potential impact that a grant of planning permission might have on the prosecution and associated POCA proceedings. The judge concluded that the basis of the decision-making process was that nothing should hamper the prosecution or the POCA proceedings. The judge described the way in which the 2016 application had been handled as "improper". He found that it tainted the whole process, both as regards the planning decision and the initiation and continuation of the prosecution. The prosecution had as its focus maximising the returns to the authority from a POCA order.

It was this decision that the LPA sought to challenge in the Court of Appeal, but their appeal was dismissed and the judge’s refusal to entertain an application for a confiscation order under POCA in this case was upheld.

Offenders who have failed to comply with an enforcement notice can take little comfort from this case, which clearly turned very much on its own facts, but Knightland nevertheless serves as a warning to LPAs not to get carried away by their determination to obtain a confiscation order under POCA. They must maintain an objective approach, and deal with each matter on its merits, taking all material considerations into account, including any pending planning application if there is some likelihood that this might be granted.

© MARTIN H GOODALL

Article 50 – Final judgment of the ECJ

Because of its importance in constitutional law, it is appropriate to widen the scope of this blog (which is usually confined to issues of planning law) to take note of the Final Judgment of the Court of Justice of the European Union (the ECJ, or CJEU) in the case of Wightman and Others v Secretary of State for Exiting the European Union (Case C-621/18).

This was the case referred to the ECJ by the Scottish Court of Session in the teeth of strenuous legal opposition from the UK government (who took their resistance to it all the way to our own Supreme Court – and lost). The judgment of the Full Court was handed down this morning. It answers in clear terms the question that was put to the court as to whether a member country (in this case the UK), having started the process of leaving the EU by means of the procedure set out in Article 50 of the Lisbon Treaty, can withdraw from that process unilaterally, without requiring the consent of the EU itself or of other member states.

The Court has concluded that the United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU, and that such a revocation would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State. This means that the UK could remain a member of the EU without losing the valuable rebates and various opt-outs that were negotiated under the premierships of Mrs Thatcher and of John Major respectively. Thus, if we decide to remain in the EU, we shall not have to join the Euro, we will not have to enter the Schengen Area, and will not have to comply with other EU rules from which we are currently exempt.

This possibility exists until a withdrawal agreement concluded between the EU and the Member State has entered into force, or (in the absence of such an agreement having been reached) until the expiry of the two-year period from the date of the notification of the intention to withdraw from the EU (starting from the date of the Article 50 letter written by Theresa May in March 2017, which is due to expire at 23.00 hrs GMT on Friday, 29 March 2019), plus any possible extension of that period that may be agreed, has then expired.

In giving its judgment, however, the Court made it clear that the Article 50 revocation must be decided following “a democratic process in accordance with national constitutional requirements” and that this unequivocal and unconditional decision must be communicated in writing to the European Council. This simply puts the requirements for withdrawal from the Article 50 process on the same legal footing as the requirements for initiating the Article 50 procedure. (As to this, see the judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.)

As the Miller case established, the government cannot rely solely on the Royal Prerogative in doing this, but must seek parliamentary approval. The section in the ‘Withdrawal Act’ specifying that the UK is to leave the EU on 29 March 2019 would also have to be repealed. The two could be conveniently dealt with in a single Act amending the previous Act. Parliamentary approval alone would suffice for the purpose of withdrawing from the Article 50 process, and in view of the shortness of time (barely three months), a decision to introduce a Bill to this effect will need to be made very soon, in the event of the House of Commons rejecting the draft withdrawal agreement that is currently before them.

This, followed by the delivery of a letter unequivocally notifying the Council of the EU of our withdrawal from the Article 50 process, would formally bring to an end the current Brexit process. However, I am not suggesting that this would bring an end to the internal political debate surrounding Brexit, and the government (of whatever complexion, and whoever is then Prime Minister) may well wish to take further steps to bring a final end to the long-running dispute over Brexit, possibly by means of a Referendum or a General Election (or both).

It is important to understand, however, that a Referendum is not a formal legal requirement, either before or after our bringing an end to the current Article 50 process. The Referendum in June 2016 was purely advisory and had no binding legal effect; it was purely a political choice of the Cameron government, and subsequently of Mrs May’s cabinet, to give effect to the outcome of that Referendum by initiating the process of leaving the EU by means of the Article 50 process. As the Supreme Court ruled, there was a legal requirement for parliamentary approval, but that is as far as the formal legal requirements go.

[I promise that my next post will be on a planning law topic!]

UPDATE (18 December 2018): 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.

© MARTIN H GOODALL

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