Partial demolition in advance of permitted development

In paragraph 9.4.3 of Chapter 9 in the Third Edition of A Practical Guide to Permitted Changes of Use, I discussed works carried out to an agricultural building in advance of its residential conversion (and in advance of a prior approval application being made under Class Q of Part 3). However, I did not deal in that chapter with the question of partial demolition of the building in advance of such conversion.

The position regarding the entire demolition of a nearby or adjoining building that is physically separate from the subject building is straightforward. In many cases, such demolition will be permitted development under Class B of Part 11 (subject to compliance with the terms set out in Part 11).

However, the position in respect of the demolition of a complete building is wholly different from that applying to the partial demolition (or the demolition of part only) of a building. Although Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168 related to a listed building (and specifically to the provisions of the ‘Listed Buildings Act’ of 1990), the judgment of the House of Lords in that case dealt with the issue of whether the definition of ‘demolition’ includes the demolition of part only of a building, or whether such partial demolition is in fact to be treated as an ‘alteration’.

This point was discussed in the speech of Lord Hope, where he observed on page 183: “According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. I agree therefore with Millett L.J. [1995] 1 E.G.L.R. 167, 169, when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone.” Conversely, therefore, partial demolition (or demolition of part only) of a building amounts to an alteration, rather than ‘demolition’.

The Town and Country Planning (Demolition - Description of Buildings) Direction 2021 (which, by virtue of section 55(2)(g), exempts from the definition of “development” in section 55 the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities) makes it clear that the reference to “building” in that direction does not include part of a building. Furthermore, although Class B in Part 11 of the Second Schedule to the GPDO permits “any building operation consisting of the demolition of a building” subject to certain restrictions and also a requirement for a prior approval application to ascertain whether the approval of the LPA is required as to the method of demolition and any proposed restoration of the site (in addition to certain other requirements), Article 2 of the GPDO provides that, in this Order, “building” includes any part of a building, except [inter alia] in Class B of Part 11. So this permitted development right does not extend to partial demolition (or the demolition of part only) of a building.

Demolition of an entire building can clearly be carried out as permitted development under Class B of Part 11, but partial demolition needs planning permission, but if it is an agricultural building, such partial demolition might possibly be permitted development under Part 6, either within Class A(a) [the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of works for the erection, extension or alteration of a building] or Class B(a) [the carrying out on agricultural land comprised in an agricultural unit, of not less than 0.4 but less than 5 hectares in area, of development consisting of the extension or alteration of an agricultural building], but only where the development is reasonably necessary for the purposes of agriculture within the unit, and subject to a prior approval application being made.

The problem here is that paragraph Q.1(f) specifically rules out permitted development under Class Q of Part 3 if development has been carried out anywhere on the established agricultural unit since 20 March 2013 under Part 6, Classes A(a) or B(a) (or, where the development under Class Q begins after 20 March 2023, within 10 years before the date when development under Class Q begins). So the only partial demolition of the building that could be carried out without jeopardising the PD right under Class Q would be the demolition of internal partitions or other internal features which (provided that any such works affect only the interior of the building or do not materially affect the exterior appearance of the building) would be exempt from the definition of ‘development’ by virtue of section 55(2)(a) of the 1990 Act.

Partial demolition of an agricultural building will only be permitted development under Part 6 if it has been the subject of a prior approval application (and if it meets the agricultural need test). However, partial demolition of an agricultural building without planning permission (whether under Part III of the 1990 Act or under Article 3 and the Second Schedule of the GPDO) would be unlawful. Article 3(5) of the GPDO provides that the permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful. It might conceivably be argued that any unlawful partial demolition of the agricultural building could not have amounted to “building operations involved in the construction of that building”, but this would still appear to me to be problematic. It might, for instance, be argued against this that the building in its current (partially demolished) form results from building works to produce the building in that altered form, and that such building operations were therefore “involved in the construction” of the building to arrive at that altered form.

So the conclusion must be that partial demolition of an agricultural building in advance of its residential conversion without the risk of jeopardising the permitted development right under Class Q of Part 3 can only safely be undertaken under the terms of a planning permission granted under Part III of the 1990 Act. There should be no need in making such a planning application to demonstrate any agricultural or other need for such partial demolition, and there should in most cases be no planning objection to such partial demolition (assuming that the building is not a heritage asset, either designated or undesignated).

It is clear, despite the views expressed by some planning officers, that when a prior approval application under Class Q is submitted, the physical form and condition of the building must be considered as at that date. Where there has been any alteration to the building before the submission of the prior approval application, such as structural strengthening or partial demolition within the building, this will be immaterial if, by virtue of section 55(2)(a), it did not constitute development. Where that alteration (or those alterations) did amount to development under section 55, then it would fall to be considered in the manner outlined above. The point is that any such previous alterations cannot be taken into account by reference to paragraph Q.1(i) (because they do not form part of the development in relation to which the prior approval application is made); they will only be relevant to the question of possible disqualification under Article 3(5) or under paragraph Q.1(f).

Just to ensure that no-one is under any misapprehension, entire demoiltion of the subject building would result in the complete loss of permitted development rights, which can only subsist in respect of an extant building. If the building ceases to exist (for whatever reason), all existing use rights are lost, as is any permitted development right that might otherwsie have attached to that building.

© MARTIN H GOODALL

Class MA - Some further points

In my post yesterday, I briefly summarised the provisions of the new Class MA in Part 3. However, it is worth bearing in mind some other points to which I did not have time to draw attention yesterday, including one or two deliberate omissions from Class MA.

Residential conversion of several types of premises that are sui generis uses is not permitted by Class MA. Thus, in contrast to Class M, this PD right does not extend to hot food take-aways, betting offices, pay day loan shops or launderettes. I do not know whether this omission was deliberate or inadvertent, or whether the government may add these to Class MA in the future.

Second, also in contrast to Class M, the PD right under Class MA does not include any building operations. This is in line with Classes O and PA, which Class MA also replaces. So, planning permission will be required in the vast majority of cases for external alterations to the building, including new doors and windows, and other external details. LPAs should bear in mind, however, that planning permission for the change of use itself is already granted by Article 3 of the GPDO (as well as all internal alterations to convert it to residential use – covered by section 55(2(a)). It follows that the only issues for the LPA to consider in determining a planning application for such building operations are those that relate strictly to those building operations themselves, including aesthetic and other material considerations (if any).

In Class M, the requirement for a prior approval application included the following matter:

- whether it is undesirable for the building to change to a residential use because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Use Class A1 (shops), Use Class A2 (financial and professional services) ……… , but only where there is a reasonable prospect of the building being used to provide such services, or (where the building is located in a key shopping area) on the sustainability of that shopping area.

This requirement is not repeated in Class MA, so the retail impact that may result from the residential conversion of retail premises, even in a key shopping area, is no longer a matter with which an LPA can concern itself. The only ‘protected’ uses whose loss must be considered are NHS health centres and registered nurseries. Clearly, therefore, (despite ministerial protestations to the contrary) the government is content to preside over the decline and death of England’s town centres.

Furthermore, Class MA (unlike former Class PA) does not include as a matter requiring prior approval:

- where the authority considers the building to which the development relates is located in an area that is important for providing industrial services………, whether the introduction of, or an increase in, a residential use of premises in the area would have an adverse impact on the sustainability of the provision of those services

Instead, the relevant matter that may require the LPA’s prior approval under Class MA is the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses [which is not the same thing at all]. Here again, the LPA is precluded from considering the impact of the loss of industrial premises. So planning officers can forget any idea of protecting employment land where residential conversion is proposed under Class MA.

A couple of final points are worth bearing in mind. First, although prior approval is required in respect of the provision of adequate natural light in all habitable rooms of the dwellinghouses, and there is no reference here to the adequacy of the residential accommodation, Article 3(9A) makes it clear that Schedule 2 does not grant permission for, or authorise any development of, any new dwellinghouse where the gross internal floor area is less than 37 square metres in size, or that does not comply with the nationally described space standard issued by the former DCLG on 27 March 2015. On the other hand, adequacy of amenity space, provision for refuse storage, etc. is not a matter with which the LPA can concern itself in relation to Class MA.

The second point is that paragraph W of Part 3 applies to the processing of all prior approval applications under Part 3, and so the 56-day Rule will apply to Class MA in the same way. Planning officers must therefore be alert to the need to issue a determination within the 56-day period, which commences on the day following receipt of a completed application. So LPA officers should not waste time in deciding whether of not to ‘validate’ the application. If it does not comply with the rules, it can be rejected under paragraph W(3).

I dare say there are other ramifications to Class MA that will become clear in the light of experience, but that will do for now. Happy town planning!

© MARTIN H GOODALL

Government goes ahead with new PD rights

Readers are no doubt getting used by now to the meaning of the word “Consultation”. The government announces a proposed legislative change (in this case making important changes to the GPDO). They invite comments, prompting numerous vociferous objections. Then they totally ignore these responses and go ahead with the changes anyway. That’s “Consultation”.

The opposition in this case came not merely from ‘the usual suspects’, but also from important elements in the property industry, who might perhaps have been expected to support the greater freedom to redevelop commercial property. So concerned are the professional bodies with the potential impact of these changes that even after these amendments to the GPDO were made last week, the RTPI, the RIBA, the RICS and also the CIOB [Chartered Institute of Building] wrote to the Prime Minister to express their concern that these latest PD changes could present a real risk to the country’s town centres and to small businesses in particular. However, I doubt whether the government will take any notice.

The latest changes to the GPDO came in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 [SI 2021 No. 428], which was made on 30 March and comes into force on 21 April, although (as explained below) the new PD rights do not in fact take effect until 1 August. It applies both to England and to Wales. [But is this right? What about the devolution of planning powers to Welsh Ministers? See comment below for an explanation.]

I am not going to attempt to set out the new provisions in any detail. What follows is simply a summary of some of the main points. In Part 3, Class M (the residential conversion of buildings formerly within Use Classes A1 and A2) and Class O (the residential conversion of offices formerly within Use Class B1(a)) will cease to apply after 31 July, and will be replaced by the new Class MA, which (subject to the restrictions and limitations mentioned below) will extend to all buildings falling within the current Use Class E.

This new PD right will also have the effect of replacing (and in effect reviving in a new form) the lapsed PD right that was formerly granted by Class PA. Only Class N (the residential conversion of an amusement arcade or centre, or a casino, each of which is a sui generis use) remains in its original form. Whether it was an unintentional oversight or a deliberate change, the effect of the abolition of Class M is to put an end to the PD right for the residential conversion of betting offices and pay day loan shops (with or without flats above them). This aspect of Class M has not been subsumed within the new Class MA.

There are the usual restrictions, which exclude certain buildings from this PD right. The most important of these is the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval [although this would hardly seem long enough to prevent the practice on the part of unscrupulous landlords of ‘winkling out’ existing tenants].

Another essential qualification is that the use of the building must have fallen within one or more of the old ‘town centre’ and similar use classes (i.e. A1, A2, A3, B1, D1(a), D1(b), or D2(e) (other than use as an indoor swimming pool or skating rink) and/or the new Class E, for a continuous period of at least 2 years prior to the date of the application for prior approval. The cumulative floor space of the existing building changing use under Class MA may be up to a fairly generous limit of 1,500 square metres. Some of the usual exclusions apply to buildings or their curtilage will apply to Class MA (SSSI, Listed Building, Scheduled Monument, Safety Hazard Area, Military Explosives Storage Area, AONB, the Broads, National Park or World Heritage Site and also if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained).

PD under Class MA will be subject to a prior approval application being made in respect of transport impacts of the development (particularly to ensure safe site access), contamination risks in relation to the building, flooding risks in relation to the building, impacts of noise from commercial premises on the intended occupiers of the development, the provision of adequate natural light in all habitable rooms of the dwellinghouses, the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, or for waste management, storage and distribution, or a mix of such uses. Where the development involves the loss of services provided by a registered nursery, or a health centre maintained under section 2 or 3 of the National Health Service Act 2006, the impact on the local provision of the type of services lost, this will also be a matter requiring prior approval.

Although the location of the building within a conservation area is not a disqualification in the case of Class MA, the impact of that change of use on the character or sustainability of the conservation area will be a matter requiring prior approval, but only where the development involves a change of use of the whole or part of the ground floor.

An application for prior approval for development under Class MA may not be made before 1 August 2021. Development must be completed within a period of 3 years starting with the prior approval date, and any building permitted to be used as a dwellinghouse by virtue of Class MA is to remain in use as a dwellinghouse Use Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the use as a dwellinghouse.

Various changes have also been made to Parts 7, 8, 11 and 20 in Part 2 of the Second Schedule to the GPDO, which I haven’t got time to discuss here. One important transitional provision is to preserve the effect of existing Article 4 Directions in respect of PD under Class O for a further year. Until the end of 31 July 2022, a direction issued under article 4(1) of the GPDO that is in effect immediately before 1st August 2021,and which withdraws permission for all or any development, or for any particular development, granted for Class O of Part 3 of Schedule 2 to the GPDO, and which has not been cancelled in accordance with the provisions of Schedule 3 to the GPDO, will remain in effect as if a reference to any development permitted under Class O included a reference to the equivalent development under Class MA of Part 3 so far as that development would, but for the direction, be permitted under Class MA.

Finally, there is one minor amendment to the Use Classes Order. This change has the effect of excluding use as a swimming pool or skating rink from Class E, so that these two uses will now fall solely within Class F.2(d). I commented on the apparent anomaly of a swimming pool or skating rink falling alternatively within either Class E or Class F.2 on page 360 of the Revised Edition of The Essential Guide to the Use of Land and Buildings under the Planning Acts (pages 16/17 in the November 2020 Supplement). I also pointed out one or two other anomalies of a similar nature in the UCO as revised last year, and it will be interesting to see whether the government takes the opportunity to deal with those too in future amendments to the UCO.

© MARTIN H GOODALL

The scope of a prior approval application

One of the issues that has arisen in relation to prior approval applications is whether in determining either that their prior approval will not be required or that prior approval is granted, the LPA is impliedly determining that the proposed permitted development does qualify as such, so that the LPA cannot subsequently resile from their decision on the ground that the development does not in fact qualify as permitted development.

This problem became particularly acute following the judgment in Hibbitt regarding the permissible extent of building operations under Part 3, Class Q. Several LPAs, having granted prior approval for Class Q developments then sought to go behind the prior approval they had granted, because they then came to the conclusion in light of Hibbitt that the development in respect of which they had granted prior approval could not in fact be carried out as PD.. I discussed this issue in paragraph 16.2 of Chapter 16 in the Third Edition of my book on Permitted Changes of Use.

So far as permitted development under Part 6 is concerned (allowing certain agricultural building or engineering operations), the Court of Appeal in Keenan v Woking BC was clear that under the terms of Part 6, the LPA does not have the power to determine whether or not a proposed development under that part of Schedule 2 does or does not qualify as permitted development, and it was stressed that this is so, despite the fact that the guidance in paragraph E14 of Annex E to former PPG7 might have been read as encouraging it to do so.

Some LPAs have assumed that Keenan is authority for the general proposition that a grant of prior approval does not amount to a determination that the development in question does qualify as PD. However, as I pointed out in the book, the wording of paragraph W.(3) does appear to give an LPA that power in relation to proposed development under Part 3. Paragraph W.(3) provides that the LPA may refuse an application where, in the opinion of the authority, the proposed development does not comply with (or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with) any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It was on this basis that I expressed the view that there is at least an implication in paragraph W.(3) that the LPA may (and probably will) consider not only the specific matters requiring prior approval, but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question.

It is therefore arguable, I suggested, that in giving its prior approval in respect of the prescribed matters, the LPA impliedly accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W.(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. I suggested that It is arguable that, for this reason, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I suggested that further support for this proposition may perhaps be derived from the judgment of May J in R v Sevenoaks DC Ex p. Palley [1994] E.G. 148 (C.S.), and went on to summarise that judgment and the various judicial authorities that were reviewed in that case. In doing so, I nevertheless conceded that Ex p Palley can have no application in Part 6 cases, in light of the clear decision of the Court of Appeal in Keenan. I also added a caveat that Ex p Palley was decided some years before the House of Lords decision in Reprotech, which perhaps throws some doubt on the extent, if any, that reliance can still be placed on Ex p Palley in other prior approval cases. So my remarks in paragraph 16.2 ended on a somewhat tentative note, with the observation that there could be no guarantee that an argument based on the judgment in Ex p Palley would necessarily be accepted if it were to come before the High Court or the Court of Appeal.

My reason for raising this issue again now is that I have noticed that a case is due for hearing in the High Court on 11 May (R (Smolas) v Herefordshire Council) which raises this issue of whether LPAs have the power when considering a prior approval application of also determining whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. I do not know the subject matter of the dispute in Smolas, nor do I know under what Part or Class in the Second Schedule to the GPDO the proposed development is alleged to fall, but I am hoping that the forthcoming decision in the High Court may perhaps help to remove the remaining uncertainty that I had identified, one way or the other.

© MARTIN H GOODALL

Lawful use – the need for continuity clarified

In my book The Essential Guide to the Use of Land and Buildings under the Planning Acts I pointed out that when an application for a Lawful Development Certificate is made in respect of an existing use, that use (in addition to having been continuous and uninterrupted throughout the 4-year or 10-year period, whichever is applicable) must also be in existence when the application is made. What I wrote (in paragraph 19.5.1 of Chapter 19) was:

“There is, however, a requirement that the use must actually subsist on the date when an application for a Lawful Development Certificate is made, although (having regard to Panton and Farmer) this does not imply that the use must have been continuous since the date on which it became lawful, following 10 years’ continuous use in breach of planning control.”

This statement is correct, but it occurs to me that I should perhaps have explained this proposition in a little more detail. The authority that I had in mind was a passage in the judgment of Robin Purchas QC in Nicholson v SSE [1998] J.P.L. 553, at page 561, where he pointed out that the need for continuity of the breach of a planning condition seemed to him to be consistent with the linked provisions in section 191 for LDCs in respect of uses and operations :

“By section 191(1)(a) the purpose of the application in respect of uses is to ascertain whether “any use of buildings or other land is lawful”. It is plain accordingly that in respect of uses the use must exist at the time of the application. The question is itself also directed to that time. Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past in that generally they will already have taken place. However, the question is asked, as with “existing uses” and matters of non-compliance, in the present as at the time of the application. In the context of the section as a whole, I find no difficulty in reading that as a requirement that the operation should continue to be in existence in some physical sense, be it as a building or other structure or as may be. That seems to me to fit with the definition of lawfulness in section 191(2). As with section 191(3), lawfulness for uses and operations requires under (b) consideration whether they “do not constitute a contravention” of an enforcement notice then in force. As I have said, that seems to me to presuppose that there is something in existence at the time of the application which would be capable of contravention if there was in fact a relevant enforcement notice then in force. Equally, under (a), the requirement that “no enforcement action may then be taken” implies that there is something in existence against which enforcement action might be taken if it were not for the absence of requirement for permission or the grant of permission or the expiry of time for enforcement action. To my mind, the natural reading of section 191 in respect of uses and operations is that the section requires that the uses and operations should exist at the time of the application in the sense that I have indicated. That would be consistent with the approach that I have taken to non-compliance. Any other interpretation would seem to me somewhat to strain the language used and should only be adopted if the natural construction plainly conflicts with the object of the Act or otherwise leads to an absurd or illogical result.”

This passage was obiter but Nicholson was nevertheless cited with approval in the Court of Appeal in Swale BC v FSS [2005] EWCA Civ 1568, at para. 6 (Keene LJ), and was further discussed in Ellis v SSCLG [2009] EWHC 634 (Admin).

In paragraph 19.5.1 of The Use of Land….. I also pointed out that, having regard to Panton and Farmer v SSETR [1999] J.P.L. 461, the need for the actual existence of the use at the time of the LDC application does not imply that the use must have been continuous since the date on which it became lawful, following 4 years’ or 10 years’ continuous use in breach of planning control (whichever is applicable). The relevant passage in Panton is to be found on page 468:

“Mr Albutt's skeleton argument appeared to suggest that an "existing" use for the purposes of section 191(1) described one which was active at the time of the application. During the hearing I suggested the term "dormant use", as representing a use which had arisen by way of a material change of use, but was now inactive, possibly for a long period of time. Such decline, even cessation, of physical activity could, of course, occur in countless different circumstances. The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above.

It is clear that a dormant use, in this sense, can be an "existing" use for the purposes of section 191(1), and this position was in terms accepted by the first respondent. This becomes clear when one appreciates that the LDC provisions have to be construed in the context of the enforcement provisions as a whole. Section 191 (1) enables the grant of a certificate where a use is lawful, one example of lawfulness being immunity from enforcement through the passage of time. By section 171B(3) the relevant period of time (in relation to a use other than as a single dwelling-house) is the passage of10 years from the date of the breach. The subsection is silent on any requirement for continuation of the use. Indeed; this approach is consistent with the fundamental principles of statutory development control in relation to material changes of use. The provisions are concerned with the carrying out of development, that is to say not use, but material change of use.

Further, this approach to the term "existing", shared by the first respondent in this case, is consistent with the approach taken by the Secretary of State in relation to the former provisions. Under the previous provisions relating to established use certificates, the use had to have "continued since the end of 1963", and be "subsisting at the time of the application". In a number of appeal decisions, the Secretary of State accepted that these provisions could apply to an inactive, or dormant, use, provided that it had not been abandoned.

Finally, there is nothing inconsistent, in my view, between this approach and the judgment of Mr Robin Purchas Q.C. (sitting as a deputy High Court judge) in Nicholson v. SSE (1998) 76 P. & C.R. 191. That decision concerned the time limits for enforcement in relation to breaches of condition. Mr Purchas held that an LDC could only be granted where the non-compliance with the planning condition was current at the date of the application. As Mr Purchas pointed out, if there were a period, following non-compliance, of compliance with the condition, the breach would be at an end, and a later breach would constitute a fresh breach, in relation to which time would begin to run again under section 171B(3). As he pointed out: "In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use". The learned deputy judge continued in the following terms at page 199:

"That construction seems to me consistent with the linked provisions in section 191 for lawful development certificates in respect of uses and operations ... It is plain, accordingly, ……. [the passage I have quoted above] ………. would be consistent with the approach that I have taken to non-compliance."

There is nothing inconsistent, in my view, between those remarks and the approach that I take in the present case, an approach accepted by the first respondent. The burden of Mr Purchas' s reasoning is that there must be, at the date of the application, a use or operation at the land upon which an enforcement notice could "bite". An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense.”

The only other point that needs to be borne in mind when considering the judgment in Panton is that the Court of Appeal made it clear both in SSETR v Thurrock BC [2002] EWCA Civ 226 and in Swale BC v FSS [2005] EWCA Civ 1568 that the remarks in Panton regarding a use being dormant do not apply to the period before immunity from enforcement is achieved, i.e. during the 4-year or 10-year period, throughout the whole of which the use must be both active and continuous. The rule in Panton nevertheless applies once immunity has been achieved under the 4-year or 10-year rule.

Thus there is no contradiction between what I wrote in my book on The Use of Land….. and what Richard Harwood wrote in the Third Edition of Planning Enforcement, viz: “If the active use ceased after it became lawful, a CLEUD application should only be refused if the use was then abandoned or otherwise terminated”. In paragraph 19.5.1 of my book I did not intend to imply that the use has to be active at the time when an application for an LDC is made; merely that it still has to exist (in the sense of not having permanently ceased or been abandoned). I fully accept that a use, once it has become lawful may then become dormant but still remain extant. The judgment in Panton and Farmer is clear authority for this and, in these circumstances, an application for an LDC in respect of an existing use must be granted accordingly.

© MARTIN H GOODALL

Confiscation orders – Panayi over-ruled

Back in April 2019, I reported on a decision of the Court of Appeal in R v Panayi [2019] EWCA Crim 413, which seemed to cut down the scope of a confiscation order that could be made under the Proceeds of Crime Act 2002 (‘POCA’). In that case, the defendant had been charged with being in breach of an Enforcement Notice "on or about 18 February 2016". The LPA had sought a confiscation order calculated on the basis of the gross rental income from two self-contained flats occupying an unauthorised enlargement of the property in question, from the date by which the Defendant should have complied with with the Enforcement Notice (12 February 2005) to the date of conviction (26 September 2016).

However, the Court of Appeal held in that case that the offence charged had to be interpreted as relating to a criminal offence committed on a single day in February 2016, on or about the 18th of that month. That was the only criminal conduct of which the appellant was convicted. It was up to the LPA, as the prosecuting authority, to decide the period over which the conduct charged should extend. As the Court of Appeal pointed out, section 179(6) of the 1990 Act gives the option to the prosecutor of charging by reference to any day or longer period of time, but it had chosen in this case to charge the offence in respect only of a single day, and so a confiscation order had to be limited to the same period.

I expressed considerable reservations about this decision at the time, because it had previously been my understanding that a confiscation order can be made in repect of “an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence", although this provision is not satisfied unless the defendant obtains relevant benefit of not less than £5,000. It was on this basis that the Court of Appeal had previously upheld a substantial compensation order in Basso & anor v. R. [2010] EWCA Crim 1119.

I ended by confessing my confusion at the apparent inconsistency between Basso (and other similar cases) and the decision that had been reached by the Court of Appeal in Panayi, and I suggested that this apparent discrepancy raised an issue that would have to be reviewed, either by a differently constituted Court of Appeal in a future case, or by the Supreme Court.

This finally occurred when R (Haringey LBC) v Roth [2020] EWCA Crim 967 reached the Court of Appeal in July 2020. I became aware of this case within a day or two of its being decided, but other priorities in the meantime have delayed my reporting on it. In this case, the matter was treated as one of benefit from particular criminal conduct. No reliance was sought to be placed on the criminal lifestyle provisions. The relevant provision was therefore section76 (4) of POCA, which provides that: “A person benefits from conduct if he obtains property as a result of or in connection with the conduct”, and Section 76 (7) provides that: “If a person benefits from conduct his benefit is the value of the property obtained.” As in Panayi, the offence was charged in respect of a single day (in this case, 18 May 2017), whereas the enforcement notice had required that the unlawful use should cease by 9 March 2013, and the Statement of Facts accompanying the summons stated that the defendant had been in breach of the Enforcement Notice for 53 months and had gained a financial benefit from non-compliance in the sum of approximately £508,800. In the confiscation proceedings before the Crown Court, the amount of benefit was agreed at £527,887.55, and this was the amount that the Defendant was accordingly ordered to pay.

In appealing against this order to the Court of Appeal, the Defendant sought to rely on the Court’s decision in Panayi, pointing out that the offence charged was of breaching the requirements of the Enforcement Notice on just one day, i.e. 18 May 2017. In consequence, it was argued, a confiscation order reflecting a period of criminality in excess of four years was not within the Crown Court’s powers. However, Davis LJ, in giving the decision of the Court observed that such an outcome, on so literalistic a reading of the charge, could scarcely appeal to a sense of the merits, and in any event the present case was, in the Court’s opinion, plainly distinguishable from Panayi.

In Panayi the only reference dates in the charge were the date when the Enforcement Notice was actually issued (which would not be the actual time by which compliance was required to take place) and the date of the rejection of a challenge to the refusal to issue an LDC. In the present case, however, the summons did identify the date from which the (criminal) non-compliance had started: i.e. 9 March 2013. The summons, though it was undoubtedly clumsily drafted, sufficiently identified the date when the criminal conduct started (9 March 2013).

Furthermore, the accompanying Statement of Facts, also made it clear that it was the entire period which had been identified that was the subject of the summons. The gross amount of the rent receipts for the relevant period was actually agreed for the purposes of calculating benefit, and the appellant had known the case he had to meet. So, even if there were technical deficiencies in the drafting of the summons, they were not fatal. The Court also noted that where a defendant has positively assented to the counts being treated as specimen counts, even though not specifically so charged, then there is no objection to them being so treated.

The Court also referred to the decision of the House of Lords in Hodgetts v Chiltern DC [1983] 2 AC 120 (a case not referred to in Panayi). That case decided that failure to comply with an Enforcement Notice by ceasing to use the land as required by the notice constituted a continuing offence, and not a succession of individual offences occurring on each day. It was held in that case that an information charging the offence as “on and since May 27, 1980” was validly drafted and was not bad for duplicity, although Lord Roskill (with whose speech the other members of the House agreed) had gone on to say that it might be preferable if such offences were charged as having been committed between two specified dates, starting with the date when compliance with the enforcement notice became due and ending with a date not later than the date of the summons (or the date when the enforcement notice had been complied with, if this had occurred). The Court of Appeal suggested that this guidance might usefully continue to be borne in mind by those drafting summonses under section 179 of the 1990 Act. However, although this undoubtedly represents best practice, it is clearly not a legal requirement.

The Court of Appeal also rejected the appellant’s other arguments, basing themselves both on both Del Basso [2010] EWCA Crim 1119 and Hussain [2014] EWCA Crim 2344. There was no basis or reason for departing from these authorities, and on the contrary the Court endorsed them. The Court also noted that a similar approach had been taken in Evangelou [2019] EWCA Crim 1414.

It is therefore clear that the Court of Appeal has decisively rejected the approach taken to confiscation orders by a differently constituted court in Panayi, and that (provided the period of the breach of an enforcement notice is made clear in the documentation before the Court) a confiscation order can be made by the Crown Court for the gross proceeds received by the defendant throughout the period of the unremedied breach of planning control, even if the summons itself is framed in terms only of a sample charge covering a shorter period or even a single day. It is nevertheless advisable that an LPA should frame the charge to embrace the longer period, thereby obviating any disputes of the type that arose in Roth.

© MARTIN H GOODALL

The 56-day Rule – CA upholds agreed extension of time

On 5 February this year, I summarised the judgment of Holgate J in Gluck v SSHCLG - a challenge to an appeal decision in circumstances where there had been a purported extension of time for determination of the prior approval application, which the LPA alleged had been agreed with the applicant. That decision departed from the previous ruling in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), in which a Deputy Judge had been persuaded that Article 7 of the GPDO did not permit an extension of the 56-day period in the case of a prior approval application made under Part 3 of the Second Schedule to the GPDO.

This issue has now come before the Court of Appeal, in Gluck v SSHCLG [2020] EWCA Civ 1756, which has upheld the judgment at first instance on both the points that were in contention in this case. The importance of this Court of Appeal decision is that it puts this issue beyond doubt, and resolves any lingering doubt that there might have been over any potential incompatibility of the High Court judgment in this case with the previous judgment in Warren Farm. I don’t need to rehearse the issues again here, as the Court of Appeal has endorsed the decison at first instance on both of the points that were in contention between the parties.

The position, as now confirmed by the Court of Appeal, is that:

(1) The wording of Article 7 of the GPDO, after setting a time limit for the determination of a prior approval application, allows a prior approval application under the GPDO be determined in all cases within such longer period as may be agreed by the applicant and the authority in writing.

(2) The phrase “agreed by the applicant and the authority in writing” does not require any formal document. Agreement can be sufficiently evidenced by an exchange of emails. The only requirement is that there must be sufficient evidence in writing (which may be in electronic form) to show that one party had proposed an extension of time and that the other party had assented to that proposal. The evidence of such agreement in this case was clear beyond doubt.

Mr Gluck’s appeal against the judgment of the High Court was accordingly dismissed. Time had been duly extended in the manner provided by Article 7, and so Mr Gluck was not entitled to proceed with his development in default of the determination of his prior approval application within the 56-day period.

© MARTIN H GOODALL