Agricultural development

It seems the government has been persuaded that the current rules set out in Part 6 of the Second Schedule to the GPDO should be relaxed to some extent, so that development for agricultural purposes should become easier in future. The precise details are currently subject to consultation and the actual changes still lie in the future.

I am not sure that I agree with the proposition on which the proposed changes appear to be based; farmers can hardly complain of being tied up in red tape so far as the already fairly light regulation of agricultural development is concerned. I have never really felt that there was any justification for exempting agriculture from the planning system, especially since intensive farming methods, the proliferation of ‘prairie’ farming, the removal of hedges and copses and the erection of large tin sheds and silos, not to mention the establishment of extensive areas of polytunnels in fruit-growing areas, have all had a significant impact on the character and appearance of the countryside.

It seems to me that there is absolutely no reason why all building and engineering operations on agricultural land should not require express planning permission like any other built development, and I would scrap agricualtural Permitted Development rights altogether. It is true that the current rules set out in Part 6 are complex, in some cases ambiguous and in certain respects anomalous, but rather than tinkering with the GPDO (bearing in mind the mess the last government made of Part 1) it would be a great deal easier to scrap Part 6 altogether, and to subject agricultural development to the normal development control regime.

No doubt any such proposal would provoke screams of agony from the NFU, but it seems to me that farmers have had it far too much their own way over the past 60 years or more. The justification back then, in the wake of the Second World War, was the need to ensure the security of the nation’s home-grown food supplies, and no doubt the agricultural depression of the pre-war era was also a factor in the government’s thinking at that time. However, that is no excuse for what is now a thoroughly outdated ‘feather-bedding’ of the agricultural industry, especially when modern farming methods have a much increased capacity to impact on our environment.

No doubt townies like me will be told that we ‘don’t understand the countryside’, and that the ability of farmers to do exactly what they want, wherever and whenever they want is absolutely crucial to their economic survival and for the future of the countryside. I don’t believe it for one moment. It is high time they were brought fully into the planning system like everyone else.

© MARTIN H GOODALL

Tesco wars – you read it here first

I see that the BBC News website is carrying a story about the campaign to stop the onward march of Tesco through our High Streets [http://www.bbc.co.uk/news/business-13431552].

Those of you who follow this blog regularly will have seen the paragraph I included in my post-holiday summary on 16 May referring to Bristol City Council’s views on this issue. What they are asking the government to do is to refine the A1 use class so that it distinguishes between small local independent retailers and national chain stores, due to the much more significant impact of the latter on local shopping areas.

Much as I dislike Tesco myself (and my wife and I always avoid shopping there or buying their petrol), I have to agree with DCLG’s response to Bristol’s plea for a change to the Use Classes Order, when they pointed out that it is not the role of the planning system to restrict competition, or to give preference to one retailer over another.

As I suggested in my original piece, those who wish to stop Tesco in its ever-increasing bid for retail monopoly should be concentrating on competition law, rather than planning law. Don’t waste time on Eric Pickles (who is a waste of space anyway). Vince Cable is the minister who needs to be convinced to do something about it. As Business Secretary, he is responsible for competition law, and so it is his department which has the power to introduce legislation to tackle this issue.

© MARTIN H GOODAL

Localism Bill – Report and Third Reading

I am sure I am it alone in having been totally confused by the 234 (or was it 236?) amendments put forward by the government, which were shoved into the Localism Bill this week with minimal debate. I suspect that the only way to make sense of them will be to read them in context when the Bill is reprinted in its revised form prior to its introduction in the House of Lords.

The most controversial addition to the Bill is New Clause 15, which will amend section 70(2) of the 1990 Act so as to provide that in addition to having regard to the development plan (so far as material) and to any other material considerations, a local planning authority must also take into account any local finance considerations, so far as material to the application. “Local finance consideration” means (a) a grant or other financial assistance that has been, or will or could be, provided to a relevant authority by a Minister of the Crown [i.e. the New Homes Bonus], or (b) sums that a relevant authority has received, or will or could receive, in payment of Community Infrastructure Levy. The RTPI has categorised this as “cash for sprawl”.

The clause will no doubt come in for strong criticism in the House of Lords, but one saving grace is that s.38(6) of the 2004 Act still puts the development plan first, so that the extent to which “any local financial considerations” will influence a decision will depend upon their being identified as material considerations which indicate that the matter should be determined otherwise than in accordance with the development plan. Planning lawyers will be rubbing their hands at the thought of the litigation which this is likely to generate.

I have made it clear in the past that this blog is not party political, but I nevertheless found myself in agreement again with the opposition spokesman, Jack Dromey, when he said in this week’s Commons debate that, on health, the Government gave not an inch in Committee, got it badly wrong and then paused for thought. On localism, the Government admitted in Committee that they had got it badly wrong. They committed to making changes and are now bringing forward 234 new clauses and amendments—more than the entirety of provisions in the original Bill. It is clear, he said, that the Secretary of State, a man with a closed mind, sat on his Ministers (“a fate too awful to contemplate”). Since the Committee stage the House had had additional changes to digest emerging from the Budget and those 234 new clauses and amendments. The sum total of the changes proposed is confusion, chaos and nothing short of a car crash.

Since taking power, Dromey continued, the Government have moved at breakneck speed to demolish the planning system and to rebuild it within a matter of months. The demolition is nearly complete, with the end of sensible regional strategic planning, including the folly of the abolition of the regional development agencies and their replacement with local economic partnerships with no powers and no money—all because the Secretary of State gets out the clove of garlic and the cross at the very mention of “regional”. Ending up in a pickle [geddit?], the Government have produced a system that is desperately unfit for purpose.

On New Clause 15, Dromey pointed out that the CPRE, RTPI and TCPA all condemn this proposal. To quote the CPRE : “We believe that this amendment would fundamentally distort the planning system by encouraging local authorities to base decisions on the financial implications rather than the spatial merits of the proposed development. It could also undermine the plan-led system and result in the spread of developments that go against the views of local people.” That view, said Dromey, is echoed across the planning community, and will soon be heard in Members’ surgeries up and down the country.

The new clause, Dromey observed, undermines the fundamental principle that planning decisions should be made in the long-term public interest, taking account of land use consequences and of what local people actually want, rather than being based on financial rewards for the decision-maker. The new clause represents a fundamental conflict of interests within planning.

Turning to the Government’s amended duty to co-operate in the formulation of neighbouring authorities’ Local Development Frameworks, Dromey pointed out that their most significant proposed change is to use the local development framework soundness test as a sanction to ensure that co-operation takes place. That sounds reasonable, except that it is a retrospective test. Unlike opposition amendments, the Government’s amendments do not specify what is meant by co-operation. It will be extremely difficult for any inspector to assess definitively whether there has been adequate co-operation. It could take several years to judge whether or not co-operation has been successful, a period we can ill afford given the pressing need to meet housing needs, to modernise our infrastructure and to respond to the increasing scientific evidence of climate change. In short, the Government’s proposed duty to co-operate, he said, remains essentially voluntary, does not specify a unified product in terms of plan or strategy, does not specify the issues to be dealt with, and does not create an effective boundary to shape the extent of co-operation. It is certainly true that the proposal in general is a step in the right direction, but this measure simply will not work.

Finally, Dromey turned to the National Planning Policy Framework, which has been trailed by the Government as a document that will streamline national planning policy guidance, but at every turn the Government have promised that something additional will be in the NPPF. The NPPF is clearly a document of vital importance to the proposed planning changes but, in the absence of a draft copy to read alongside the Bill, there is considerable uncertainty about what the NPPF will be, what it will look like, its status within the planning system and the process for its development and adoption. Promises from the Government that it will all be OK when the NPPF is published simply will not wash. It is wrong that such a major document, so relevant to the radical changes in the Bill, has not been published alongside it.

In conclusion, Dromey observed that the House had in front of them a blueprint for a planning system that will deliver nothing but chaos. It is full of contradictions in its objectives and overloaded with inconsistencies in the policies designed to deliver those same confused objectives. The Government claim that the Bill will deliver balanced economic growth and the housing we need, safeguard the environment and increase local engagement in planning. In reality, it dismantles the strategic planning system and the means to meet our housing need, deliver sustainable economic growth, meet our energy needs and capacity, safeguard our environment and mitigate climate change. While Ministers claim the Bill delivers localism, the sum total of their proposals are neighbourhood forums that will be thoroughly opaque, undemocratic and unaccountable, he said. Any hopes that the Government mean what they say about empowering communities, delivering on sustainable development or mitigating climate change are utterly discredited by their proposal to rig the planning system to make their regressive New Homes Bonus deliver housing in the wrong areas.

The only comment I can add to all of that is – “Hear! Hear!”

© MARTIN H GOODALL

Updates

An anonymous commentator has asked me whether I could update the blog with additional information to reflect subsequent changes in the law or in the situation commented on in particular posts. If there has been an important development on that topic after the original item was posted, I will usually post a new item dealing with the change, but I do also add minor updates to items as and when it seems appropriate. However, if the item was purely topical and has become stale news, then I don’t always bother.

At the time of writing, there seems to be an ongoing problem with the functionality of the Blogger software which is preventing re-edits of items, but no doubt the site owners will resolve this problem shortly.

The ‘health warning’ found on the Introduction page should be taken to include the proviso that articles published in this blog refer to the law at the time they were originally published. The law may have changed or developed since then, and so reliance should not be placed on older items without checking for more up-to-date information.

Whilst I hope people find the contents of this blog helpful and informative, it is no substitute for obtaining proper legal advice, preferably from our team at KEYSTONE LAW.

© MARTIN H GOODALL

Flying the flag

I see that Uncle Eric intends to amend the Control of Advertisements Regulations to remove some of the restrictions on the display of flags (which are classed as advertisements, even if they are not actually advertising anything).

This reminded me of a piece I wrote under this title, which appeared in this blog as long ago as 3 July 2006. Here is what I wrote on that occasion:

“Maybe it’s all those white flags with red crosses on them that have been seen around recently (to warn everyone to keep well away from the people flying them) that has led to the planning implications of flying flags getting on the TV news. I missed seeing this report, but apparently Channel 4 News last Thursday night picked up on the way the Control of Advertisements Regulations operates in relation to the flying of flags. (Has the ‘silly season’ started unusually early this year?)

The gist of the report seems to have been that the regulations permit the flying of a flag vertically but not horizontally or at an angle. Presumably, this was a reference to Schedule 3 Class 7, which gives deemed consent for an advertisement in the form of a flag attached to a single flagpole projecting vertically from the roof of a building or a single flagpole (again vertical) on a building site. I suppose some bright spark has decided that any other form of display is unauthorised.

The TV people even managed to get an interview with the planning minister, who promised to change the regulations and expressed the hope that LPAs would not take enforcement action in the meantime.

This is not the first time the regulations relating to flags have caused difficulty. You can have any number of vertical flagpoles each displaying a single national flag. The rules seem to be silent as to whether this means different national flags, or whether each separate flagpole could have the same national flag on it (such as that strange white flag with the red cross on it which seems to have been so popular recently).

The rules about other flags, such as a flag proclaiming “Jerrybuilt Developments”, are quite restrictive – one only on a site where houses are being built (Class 7B), or again only one (displayed vertically on the roof, as mentioned above) on any building, which can bear the name or device of the occupier (Class 7A) subject to the inevitable size limits.

So if you want to wind up your Enforcement Officer, tell him to go round and demand that people displaying flags on the front walls or roofs of their houses take them down immediately or face prosecution under the Control of Advertisements Regulations! Perhaps the best time to find the occupants in would be during the next World Cup match (although now that England has been knocked out, they seem to be disappearing fairly rapidly without the need for official intervention).

At the weekend, I discovered that the ‘problem’ of flags not being flown vertically from flagpoles was nothing new. I heard of a case in Tewkesbury five years ago where the proprietor of a hotel who flew a flag at an angle of about 45 degrees above the entrance to the hotel was told it was unauthorised. Very sensibly, he ignored the 'jobsworth' who told him it should be flown vertically, and it still flies at its unauthorised angle to this day. At least the hotel proprietor will now have the comfort of knowing that he has the support of the Planning Minister (Yvette Cooper) pending a long overdue updating of the Advertisement Control Regulations.”

_______________________

The Control of Advertisements Regulations have already been amended since that article was written, so the position is already slightly more relaxed than that described above, but it seems that the Secretary of State has persuaded himself that some further relaxation of the rules is now called for.

© MARTIN H GOODALL

Ton up!

This blog is published by me as an entirely independent legal commentary on planning law matters, but I am proud to be a member of KEYSTONE LAW, and you will have seen the link to the firm’s website on the sidebar.

In less than 10 years since it was founded, KEYSTONE LAW has recently passed a significant milestone: we now have a total of 100 solicitors in the firm. Unlike other firms, who have a mix of fee earners, including trainees and newly qualified solicitors, Keystone has no solicitors of less than 5 years’ post-qualification experience, and the average across the firm is 12 years’ practice since admission, which means that some of us have considerably more time under our belts than that. So we able to bring immense expertise and experience to bear on all the areas in which the firm practises.

As I have mentioned before, this ‘blog’ is not intended as a marketing tool, but is simply a conduit for comment on topics relating to planning law and practice, but you might care to take a look at KEYSTONE LAW’s website (by clicking on the link on the left-hand side of the page) to see the broad range of services the firm is able to provide.

Sorry for posting such a blatant ‘commercial’, but I felt that this occasion should not be allowed to pass without comment.

(End of commercial break!)

© MARTIN H GOODALL

“We apologise for the late arrival of.......”

I am acutely aware that there has been a significant delay in postings here since late April. I cannot plead ‘leaves on the line’ or ‘the wrong sort of snow’ as an excuse; the explanation is much more straightforward - I have been on holiday. Unfortunately, I have probably reinforced Eric Pickles’ jaundiced view of planning lawyers, as we did go to Italy - but not to Tuscany this time.

While I have been away, there have been quite a few developments in planning law and practice, as was to be expected. I see that barn conversions are now back in fashion again. Residential conversion of agricultural buildings was once quite a popular form of development, but this then fell out of favour and further conversions were discouraged unless they were for rural industries or other commercial uses. Now, the government seems to be prepared to countenance residential conversions once again, although this relaxation may be confined to ‘affordable homes’ where farm buildings “are considered inappropriate for employment use”.

The vehicle for this policy change will be a proposed countryside policy statement setting out the government’s rural policy priorities, including economic priorities , which they have promised to publish before parliament’s summer recess. Beyond this, it is not clear yet what steps the government proposes to take to persuade Councils to relax their planning policies to allow such residential conversions, or how they would seek to prevent their resistance to such conversions in the future. The proposed change clearly does not presage a free-for-all for residential barn conversions, but a blanket refusal of applications for such developments would no longer seem to be an option for local councils.

Another news story which caught my eye was Bristol City Council’s plea for restrictions to be imposed on retail uses in Class A1 of the Use Classes Order, following the anti-Tesco riots in Stoke’s Croft recently. This seems a fairly forlorn hope in view of the current policy trend, which is precisely in the opposite direction, with the likelihood that changes of use within shopping centres may be made even easier in the foreseeable future. In any event, it seems pretty daft to complain of the establishment of what is effectively a grocery store in a retail shopping frontage! There may or may not be an argument for excluding uses such hairdressers, travel agencies or funeral directors from Class A1 (although I would not support a proposal for any such change), but I cannot immediately think of any re-definition of this use class which could realistically prevent Tesco or any other grocery chain from opening a store in such a location.

Those who wish to stop the onward march of Tesco should be concentrating on competition law, rather than planning law. The minister whose ear they need to bend is Vince Cable, not Eric Pickles.

Meanwhile, as expected, the government has tabled a large number of amendments to the Localism Bill, which are due to be debated on the floor of the Commons this week, on 17 and 18 May, when the Bill goes through its Report Stage and Third Reading. I have not yet had the chance to go through the proposed amendments in any detail, or those tabled by the opposition and back-benchers, but (unless I missed something in my haste) a quick trawl through the government amendments did not reveal any suggestion that the very unsatisfactory provisions on ‘concealed’ development are to be changed.

I am still in the process of playing ‘catch-up’ with my work following my return to the office, so it may be a day or two before I can pick up these various points and examine them in more detail. I must also take a look at any judgments that have been delivered while I have been away. Cala Homes have had their hearing in the Court of Appeal and judgment has been reserved in that case, so it may be a week or two before we know the result of this ongoing saga.

Frankly, I would rather be back in Italy right now, but I can’t afford it unless I get some more work done.

Ciao, ragazzi!

© MARTIN H GOODALL