When is a dwellinghouse a “dwellinghouse”?

Readers of this blog (if there are any left after my blog posts have become so few and far between) are no doubt well aware that [for the purposes of the UCO] Use Class C3 in the First Schedule to the Use Classes Order applies to the use of a “dwellinghouse” (whether or not as a sole or main residence) by a person or people forming a single household, as a care home for not more than six residents, or by no more than six residents living together as a single household (other than within Class C4), and that Use Class C4 applies [again for the purposes of the UCO] to the use of a “dwellinghouse” by not more than six residents as a “house in multiple occupation”.

It is important to understand that the sole function of each of the Use Classes in the UCO is to identify a specific use of a building or other land, so as to give effect to Article 3(1A) (repeating the effect of section 55(2)(f) of the 1990 Act) which provides that where a building or other land is situated in England and is used for a purpose of any class specified in Part B or C of Schedule 1 or in Schedule 2, the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. But the Use Classes in the UCO do not define the use of that building or other land for any other interpretative purpose.

As explained by paragraph 13.2 of Chapter 13 in The Essential Guide to the Use of Land and Buildings under the Planning Acts, the word “dwellinghouse” itself is not defined as such in the UCO or in the 1990 Act. However, paragraphs 24 to 26 of former Circular 05/2010 contained a helpful summary of the relevant criteria. The common feature of all premises which can generally be described as dwellinghouses is that they are buildings that ordinarily afford the facilities required for day-to-day private domestic existence. (This was a reference to the judgment in Gravesham BC v SSE (1984) 47 p. & C.R. 142.) It follows from this that an individual bed-sitting room in an HMO would not come within the definition of a “dwellinghouse”, because it does not in itself satisfy the Gravesham test, if the occupants have to share some communal facilities within the building such as a kitchen, bathroom or lavatory.

I went on in that paragraph to make the easy and widely held assumption that it would also be the case that such a building, not being in single occupation, would also fail to meet the Gravesham test. In this it appears that I may have been mistaken. My colleague David Evans has kindly drawn my attention to a High Court judgment in which this point was considered last July - Brent LBC v SSLUHC and Rothchild [2022] EWHC 2051 (Admin)

This case arose from the erection of an extension to an HMO which the developer claimed was permitted development under Class A in Part 1 of the Second Schedule to the GPDO. The LPA contended that this could not be PD, as the building was not occupied as a single dwelling. They served an enforcement notice, but a Planning Inspector upheld the developer’s appeal against the EN and quashed the notice. The LPA then appealed to the High Court under section 289 seeking to overturn that appeal decision. The Secretary of State was prepared to consent to judgment, but the developer fought on, and won.

In giving judgment, the Deputy Judge pointed out that, on the face of it, the LPA’s submission that it is necessary to consider whether a dwellinghouse in C4 use is occupied by or in a manner akin to a single household before it can be said to be a dwellinghouse for the purposes of the GPDO is flatly inconsistent with the language of Use Class C4 itself. Use Class C4 applies only to the use of a dwellinghouse by not more than six residents as an HMO. If the building in question is not a dwellinghouse at all, it will not fall within Use Class C4 in the first place. Equally, if a building is accepted to be in Use Class C4, it must by definition be a dwellinghouse. The Deputy Judge did not accept that the term "dwellinghouse" had been used in a different sense in Use Class C4 to that in which it had been used in the GPDO, unless there were express words to that effect or authority compelling such a conclusion. Barring the exclusion of flats and any building containing flats from the definition of "dwellinghouse" in the GPDO [in this context specifically in Part 1 of the Second Schedule], there is none.

A second argument put forward by the LPA depended on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202, on which I commented in this blog on 27 October 2012. However, that case did not establish that to be a dwellinghouse, the building had to be in single family occupation; it simply upheld the Inspector’s finding in that case that ‘as a matter of fact and degree’ the dwellinghouse was no longer being used for a purpose within Use Class C3 but that the nature of its use had turned it into a sui generis use. This was a material change of use that required (but did not have) planning permission. [However, the building in that case did not thereby cease to be a “dwellinghouse” in the general sense, as it still met the Gravesham test.] Moore (2012) was therefore of no assistance to the LPA in the present case. The LPA’s argument that the HMO must be occupied in a manner akin to a single household if it is to remain a "dwellinghouse" was a proposition which the Deputy Judge found difficult to reconcile with the very concept of an HMO as defined in section 254 of the Housing Act 2004. This argument incorrectly sought to import a requirement which belongs only in Use Class C3, and cannot properly be derived from Moore 2012.

Looking at this judgment in Brent LBC v SSLUHC, it seems clear that the finding that a building satisfies the Gravesham test and is therefore a “dwellinghouse” in the general sense of the word must necessarily be a matter of fact and degree, which lies solely within the jurisdiction of the decision-maker (in this case the Inspector). However, I still have slight doubts as to whether an HMO would necessarily meet the Gravesham test; it would seem to depend on the facts of each case. On the other hand, one cannot ignore the reference in Use Class C4 to the use of “a dwellinghouse……. as a house in multiple occupation”, on which the Deputy Judge specifically commented.

It appears that in this case, the dwellinghouse, as extended, will accommodate no more than six persons and so would come within the parameters of Use Class C4. So it would appear that there is no breach of planning control against which the LPA could take any enforcement action in this case. The position would be different, however, where an HMO already accommodated six residents, and the extension then expanded the dwellinghouse to accommodate a total of eight residents. The erection of the extension itself as PD under Part 1 would appear still to be unassailable, but there would then be a material change of use of the building as a whole from a use within Class C4 to a sui generis use, which would be vulnerable to enforcement action. As none of the bed-sits would be a self-contained dwelling, the 10-year rule would apply, rather than the 4-year rule. As the local housing authority, the council might also consider its powers in relation to the regulation of HMOs under the housing legislation.

As a final thought, Brent LBC (and no doubt other London Boroughs) are constantly on the look-out to prevent the development of "beds in sheds" , and quite rightly so. I don't think the case referred to above provides a loophole for any such development. Whilst the provison of outbuildings is capable of being PD under Class E of Part 1, this would only be PD if it is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". It is well-settled law that the provison of additional sleeping accommodation would be part of the primary residntial use and would not therefore qualify as an incidental purpose within Class E.

© MARTIN H GOODALL

Musical Chairs, anyone?

When we were small children, Musical Chairs was a favourite party game. It seems that it is still popular with Tory prime ministers. This week’s Secretary of State for Levelling Up, etc. is Michael Gove again. He previously held the post from 15 September 2021 to 6 July 2022 in Bojo the Clown’s government. Unlike other ministers who resigned in the dying days of Bojo’s government, Gove was sacked, apparently in belated revenge for having stymied Bojo’s original ambition to be PM in 2016.

In reality, not a lot has changed as a result of Rishi Sunak’s having taken over the reins of government. Sunak cannot claim, any more than Truss before him, that his is a ‘new’ government. These are the same tired crew who served under both Johnson and Truss. Sunak himself served continuously under both May and Johnson, having first been appointed as a junior minister in the newly re-named Ministry of Housing, Communities and Local Government in January 2018, during Theresa May’s premiership, then as a senior member of the Treasury team in Bojo’s government from July 2019 until his resignation as Chancellor of the Exchequer, when the Chief Clown’s government fell apart in July of this year.

I have deliberately refrained from commenting on emerging planning policy in recent months, because the situation was so fluid that was impossible to tell which parts (if any) of various planning changes that had been canvassed would be implemented in practice. At the moment, there is continuing uncertainty. Sunak is keen on promoting ‘free ports’ - a wizard way to facilitate money laundering and tax avoidance in those areas, as well as diverting existing jobs and investment from other areas. Truss was all set to promote ‘investment zones’ (effectively free ports on steroids), although it was being hinted that Jeremy Hunt, as Chancellor, was concerned at the cost of these, when he is desperate to find savings in government spending. So enterprise zones may prove to be still-born, although Sunak may still want to press ahead with his free ports project.

Other aspects of planning and development policy are still up in the air, and will depend on efforts to resolve the fundamental differences within the Tory party as to how much new development would be acceptable, particularly in the South of England. This is what prevented the implementation of the previous White Paper and led to the demise of the promised Planning Bill during Bojo’s time at No.10. So watch this space over the coming months to see what (if anything) actually comes forward, and whether significant resistance on the Tory backbenches might still defeat such proposals.

© MARTIN H GOODALL

The Environment Act: A Guide for Planners & Developers

Readers of this blog may recall that Bath Publishing held a seminar on this subject in London (and online) last November. This had been intended to launch Tom Graham’s new book on the subject. The government, however, completely messed up the plans for publication of the book by considerably delaying the final stages of the Bill, with numerous last-minute changes to the legislation, so that Tom Graham had to do an extensive re-write (every legal author’s nightmare). Now at last this vital legal guide to the important new rules on environmental protection and bio-diversity can be published, and I am confident that it will serve as an essential guide for developers and for all planning professionals.

The Environment Act 2021 eventually gained Royal Assent on 9 November last year, and created a new governance framework regulating how the nation manages biodiversity, water resources and air pollution, and introducing conservation covenant agreements as an option for developers.

This new regime leans heavily on the planning system, with environmental considerations becoming a key factor in planning and development decision making. Everyone involved in considering or advising on new developments needs to know how the new regime could impact on those plans. In particular, the provisions around biodiversity net gain are set to kick in this November so it is essential that planners, developers and their professional advisers take these new requirements into account now.

So join us to get up to speed in this seminar where Tom Graham, author of The Environment Act: A Guide for Planners & Developers, will be joined by a team of experts in planning law and environmental management to examine some of the key issues surrounding how the environmental considerations will impact on the planning process including:

• a look at the wider policy considerations,
• an update on the biodiversity metric,
• the impact of climate change on planning decisions
• an overview of the practical considerations for planning applications in the light of the new law.

All delegates will receive the print and digital editions of The Environment Act: A Guide for Planners & Developers free (worth £60) which makes for a comprehensive package of resources to get you up to speed with the new regime.

Who should attend?

• Planning consultants
• Planning and environmental lawyers
• Property developers
• Environmental consultants
• Local authority planning officers

Programme

09.30 - 10.00: Registration and refreshments
10.00 - 10.10: Introduction from the Chair (Martin Goodall)
10.10 - 10.40: The Environment Act and National Planning Policy - Alistair Mills
10.40 - 11.10: Biodiversity Metric 4.0 - an update on what's coming - Dr Nick White
11.10 - 11.30: Refreshments
11.30 - 12.00: Climate change & Planning (speaker to be confirmed)
12.00 - 12.30: The Environment Act 2021 - Practical Considerations for Planning and Development - Tom Graham
12.30 - 13.00: Q & A / Round up from Chair

Speakers include:

• Chair: Martin Goodall, author of A Practical Guide to Permitted Changes of Use and The Essential Guide to the Use of Land and Buildings
• Alistair Mills, barrister, author of Interpreting the NPPF and co-author of the Fourth Edition of A Practical Guide to Permitted Changes of Use
• Dr Nick White, Natural England
• Tom Graham, barrister, author of The Environment Act: A Guide for Planners & Developers and A Practical Guide to Planning, Highways and Development

Date & Venue

Date: Thursday 3 November 2022 (from 10.00 - 13.00),
In-person
One Great George Street
London
SW1P 3AA
Online
Via Zoom

Price: £150+ VAT - includes print and digital editions of The Environment Act: A Guide for Planners & Developers worth £60

If you attended last year’s seminar, don’t assume that this is just a re-run of that event. Things have moved on considerably since then, and there is yet more material with which everyone is going to have to get to grips. This book and the seminar will ensure that you can “hit the ground running” (but a lot more successfully than someone else who used that phrase in the recent past!).

I look forward to seeing you there on 3 November, if not in person then online.

P.S. TO MAKE IT EASY FOR YOU TO BOOK FOR THE SEMINAR AND ORDER TOM GRAHAM'S BOOK, I HAVE NOW ADDED A LINK IN THE LEFT-HAND MARGIN ON THIS PAGE SO THAT YOU CAN MAKE YOUR BOOKING DIRECT FROM HERE WITH JUST ONE CLICK.

MARTIN H GOODALL

All Trussed-up and ‘oven-ready’

The Tory Party may well be in for a roasting under Truss and her Truss-pots, but there’s no point in speculating how it’s all going to turn out. Judging by her various pronouncements at sundry Tory leadership hustings, our new PM seems to have been modelling herself not so much on the Blessed Margaret as on Lewis Carroll’s White Queen, who “believed as many as six impossible things before breakfast”. But we should perhaps pay less attention to what politicians say, and concentrate more closely on what they actually do (or don’t do).

Truss’s first actions as PM have been to appoint the members of her cabinet. Far from being an ‘inclusive’ selection from all parts of her party, it represents an almost complete exclusion of those former ministers who supported Sunak’s leadership bid. More significantly, the new cabinet includes many of ‘the usual suspects’. Truss can hardly claim that this is a ‘new’ government. These are the warmed-over remnants of Johnson’s tired crew. Truss herself has served continuously as a senior minister under all three of her Tory predecessors as PM. She cannot escape collective responsibility for the actions of those governments, from George Osborne’s disastrous austerity drive, through the whole ghastly saga of Brexit and its aftermath, and the mis-steps in dealing with the covid virus pandemic, including the scandals surrounding the improper award of lucrative contracts to Tory cronies. She was one of the nodding donkeys around the cabinet table throughout the entire Whitehall farce.

And so we come to the new Secretary of State for Levelling Up, Housing and Communities (a name which does not seem to have been changed, despite Ms Truss having made no mention of “levelling up” in her recent pronouncements). As I predicted only two months ago, Greg Clark’s tenure of this office was destined to be unusually brief. His successor is Simon Clarke, who is the MP for Middlesborough South and East Cleveland. He had previously spent some 18 months in the department, having been a Minister of State (for Regional Growth and Local Government) in what was then ‘De-CLoG’ from 13 February 2020 to 15 September 2021. Clarke has only been in the Commons since 2017, when he won the seat from Labour with a small majority. His majority in 2019 was significantly greater, but this remains a ‘red wall’ seat, which must be at some risk in the next General Election.

New junior ministers in the Ministry will no doubt be appointed in the next day or two.

As to what planning policies the Truss government will pursue, your guess is as good as mine. As I indicated at the beginning of this post, we can’t place much reliance on politicians’ random statements on the subject up to now. We shall just have to wait and see what emerges in practice.

© MARTIN H GOODALL

Greg Clark appointed new Housing Secretary

Greg Clark is Michael Gove’s replacement at DLUHC. He is MP for Tunbridge Wells.

Clark was a junior minister in DeCLoG (the predecessor to DLUHC) from 2010 to 2012, and later went back to DeCLoG as Secretary of State in 2015. He was the Secretary of State between the 2015 General Election and the appointment of Theresa May as PM in 2016, when he was moved to the post of Business Secretary, serving in that office under Theresa May from 2016 to 2019.

Following the replacement of Theresa May as PM by Boris Johnson in July 2019, Clark (who was opposed to a ‘No Deal’ Brexit) voted against the EU Withdrawal Bill, whereupon Boris Johnson withdrew the Tory whip from him and other Tory rebels. (The whip was restored in the following month.) He is regarded as a Tory moderate.

So, rather unusually, his new department is one that is familiar to the new Secretary of State. (Complete inexperience in and ignorance of the subject with which the new minister will be dealing is more usual!)

Politics is still in a state of some flux, and it is uncertain how long Clark will serve in his new post. This will depend on how long Boris Johnson continues as PM. All ministerial posts will be at the disposal of a new PM when he or she takes over from Johnson.

© MARTIN H GOODALL

Gove out!

The Department for ‘Levelling Up’, Housing and Communities has lost its Secretary of State this evening. Unlike other ministers who have left the government in the past few days, Gove was sacked. At the time of writing (10 p.m. on 6 July), the PM’s reason for this sacking has not yet been made public.

A new Secretary of State will no doubt be appointed in the next day or two (provided that the besieged Chief Clown can find one). It is too early to say what effect this will have on the so-called Levelling Up and Regeneration Bill. This may well depend on the fate of Bojo the Clown. Tonight he is fighting like mad to face down his critics, but if he does not resign in the next day or two, his hash may be settled by Tory MPs next week.

The new Secretary of State (if/when appointed), like other newly appointed ministers, may have a very short term in office.

Watch this space!

UPDATE (7.7.22): News came through just ater 9 a.m. this morning that Johnson has bowed to the inevitable and will step down as Chief Clown and leave the circus. However, there is coninuing controversy this morning over whether he should continue as Prime Minister pending the election of his successor as leader of the Tory Party, or whether he should be replaced now by a caretaker PM. This leaves considerable uncertainty over the refilling of nearly 60 ministerial posts that have been vacated in the past 48 hours. Even greater uncertainty centres on the position of Secretary of State for Levelling Up, Housing and Communiites, bearing mind that Gove was the only cabinet member who has been sacked, as opposed to resigning.

© MARTIN H GOODALL

Brexit wrecks it

My last piece in this blog about Brexit appeared on “Black Friday” (31 January 2020) - the day on which the UK formally ceased to be a member state of the European Union. Re-reading it almost 2½ years later, I have not found any need to alter a single word of what I wrote in that piece.

For a year or two, the government hid behind the covid virus pandemic as a convenient excuse for the consequences of their actions (or, in some cases, inaction), but the fog is clearing now, and it is becoming increasingly clear that Brexit itself has been and will continue to be a significant factor in the economic problems our country is facing. The economy is already 5% smaller than it would have been if the UK had not left the EU. Investment is more than 13% down, as is trade between the UK and the EU. Brexit has cost the government (and hence taxpayers) £30 billion, and growth in our GDP next year is set to be the second lowest of any G20 country except Russia. Farmers are no longer getting the payments they received under Common Agricultural Policy, which the government has failed to replace, and the fishing industry is being devastated by their inability to sell fish into the lucrative European market as they did before Brexit.

Of course, we could have negotiated much more favourable terms for continued trading arrangements with the EU, but the present government, having bluffed and blustered about the possibility of leaving the EU with no deal at all to provide for our future trading relations with Europe, eventually agreed minimal terms at the last minute in order to deliver the ‘hard’ Brexit that their Brextremist right wing demanded, and they have been whingeing ever since about the terms that they themselves signed up to, threatening unilaterally to break the treaty by which the UK is bound in international law.

What the Brextremists on the right-wing of the Tory Party have never understood, and would prefer to ignore, is that the UK is now a ‘third country’ which is in the same position as any other country in the world that is not a member of the EU. It is this (almost certainly wilful) ignorance of the position that leads these Brextremist idiots to wail that the EU is ‘punishing’ the UK for having left the club. But the UK is being treated no differently than any other non-member. You can’t resign from the Golf Club and still expect to have free use of the clubhouse and its facilities or to be able to play on the course in the same way as you did when you were a member. Terms would nevertheless have been available for a much more advantageous relationship that would have preserved the close trading links which this country enjoyed with the EU for nearly 50 years, and which the present government has so wantonly trashed.

The sad fact is that the government has not “got Brexit done”, because Brexit was not a single event; it is a continuous and never-ending process, which will involve constant negotiation and re-negotiation between the UK and European Commission for years to come, in order to sort out the numerous loose ends and anomalies thrown up by the slipshod trade agreement that our Chief Clown cobbled together at the last minute with his mate ‘Frosty’.

What is clearly needed is an urgent effort to repair our relationship with the EU. Clearly the present government is unwilling to take any such step. In fact they seem intent on worsening an already troubled relationship and destroying any trust that the EU might previously have had in this country’s good faith and reliability as a business partner. So it will take an entirely new government of a different political complexion to restore a sensible working relationship with the EU.

The process will be a gradual one, starting with quiet and patient diplomacy to restore trust. From this foundation the new government must then move on to a friendly and sensible discussion with a view to restoring frictionless trade and closer and mutually beneficial trading terms between the UK and EU, starting with the removal of unnecessary non-tariff barriers and avoidable red tape. This will necessarily involve the abandonment of the present government’s stubborn insistence on ‘freeing’ itself from European rules and standards. Many small and medium enterprises dependent on importing from or exporting to Europe are crying out for re-alignment with the common regulatory regime that used to guarantee frictionless trade across the Channel. Only a fool could seriously advocate the abandonment of common food and environmental standards that underpinned cross-border trade, or the even sillier (and utterly impractical) idea of trying to turn Britain into a kind of ‘Singapore-on-Thames’.

No dramatic action will be needed to resolve any operational issues associated with the Irish Protocol. Most businesses in the province are happy with the current arrangements, which are generally advantageous to them. It is really only the DUP’s barmy army that are making a fuss about it, for purely doctrinaire political reasons. Any necessary or desirable adjustments to the protocol are likely be minor, and can be agreed as an integral part of the negotiations referred to above.

This is in fact what the Labour Party is now proposing. In his speech on 4 July, Sir Keir Starmer promised a plan “that will deliver on the opportunities Britain has, sort out the poor deal Boris Johnson signed and end the Brexit divisions once and for all. It is a proper plan to make Brexit work.”

The first step, he said, will be to sort out the Northern Ireland protocol. “If you’re going to make Brexit work, that has to be the starting point.” Labour, he promised, will get the protocol working and we will make it the springboard to securing a better deal. As well as building trust, Labour would eliminate most border checks created by the Tory Brexit deal with a new veterinary agreement for agri-products between the UK and EU. And they will work with business to put in place a better scheme to allow low-risk goods to enter Northern Ireland without unnecessary checks.

The second step Labour would take is to tear down unnecessary barriers. Starmer frankly admitted that outside of the single market and a customs union, we will not be able to deliver completely frictionless trade with the EU. This is the weak point in his plan, but he explained that there are things that can be done to make trade easier. Labour would agree a new veterinary agreement with the EU to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries, which should benefit exporters “at a stroke”.

Starmer’s avowed intent is to ‘unclog’ the Tory Brexit deal, and all the red tape and bureaucracy this has created, which is hampering the flow of British business. Labour’s intention is to break that barrier down, unclog the arteries of our economy and allow trade to flourish once more. A Labour government would also seek mutual recognition of professional qualifications, ensuring UK services can compete and restoring access to funding and vital research programmes. Another important objective will be to strengthening security cooperation with our European neighbours, and an agreement to share data, intelligence, and best practice, and set up joint intelligence working in partnership with Europe.

This, then, is Labour’s plan “to make Brexit work”, hoping to put the divisions of the past behind us and to help everyone from exporters to musicians thrive. But I must confess, as an enthusiastic Europhile, that Starmer’s blunt assertion that under Labour, Britain will not go back into the EU (and that “We will not be joining the single market. We will not be joining a customs union” coupled with the undertaking that “We will not return to freedom of movement to create short-term fixes”) was extremely disappointing. Freedom of movement was never a short-term fix; it was fundamental to the fair and open operation of the Single Market. Far from British workers rushing to fill the jobs in the UK that before Brexit were being done by workers from the EU, many of those jobs have remained unfilled; crops have been left to rot in the fields, and the shortage of nurses and care workers has become even more acute. Freedom of movement in fact works both ways, as tourists, students and professional musicians in our post-Brexit world will ruefully attest. I wish I still had an EU passport!

Starmer’s stance seems to me to be unwise. Given goodwill and flexibility on both sides (especially on the part of UK negotiators, compared with previous performance), it should prove possible over time to move towards an agreement that would enable the UK to rejoin the EU’s Customs Union and the Single Market, as well as rejoining the Horizon scientific research programme as a full member, and other EU institutions, including Europol, the Erasmus programme and other Europe-wide arrangements.

After the history of the last few years, rejoining the European Union may be a bridge too far, for the Europeans as much as for us, but one of the promises of the Brexiteers in the 2016 referendum campaign was that this country could reach terms with the EU which would be just as favourable as the terms of our membership of the EU. They even averred that the UK could remain a member of the Customs Union and stay in the Single Market. So, in moving towards this type of arrangement, a future UK government would be doing no more than the Brexiteers themselves promised.

© MARTIN H GOODALL