Agricultural dwellings and other houses in the countryside

The following is an article which took the form of an interview with a journalist which, for reasons which are too complicated to explain, never got published. Having been written for lay readers, it omits the usual references to relevant legislation and to decided cases, but I hope that readers of this blog may nevertheless find it helpful.

NOTE: Since this article was written the General Permitted Development Order has been amended to enable the residential conversion of agricultural buildings. For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” the Third Edition of which was published by Bath Publishing in October 2019. You can order your copy by clicking on the link on the left-hand sidebar of this page.

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Can I ask you about a problem people sometimes come across when they find just the right home out in the country, but it has an agricultural tie on it – a planning condition which says it can only be occupied by someone “wholly or mainly occupied in agriculture”? How can they overcome that problem?

First of all, it’s no good thinking you can get round it by just doing a little bit of ‘hobby farming’ – keeping a few chickens or goats. What these agricultural occupancy conditions mean is that the family’s main earner must make their living from agriculture. It must form the larger part of their income. You will be in breach of this condition if you don’t derive most of your income from some form of agriculture.

The only exception is if you are a retired farmer, but even then the Council would need to be convinced that you did derive most of your income from farming before you retired. The same would apply to a farmer’s widow.

Is it possible to get these conditions lifted? Some of them are quite old, and things may have changed since they were first imposed on a property.

You can certainly apply to the Council to remove an agricultural occupancy condition, but they will be very reluctant to do so, unless you can demonstrate very clearly that there is no longer a need for this type of accommodation to be kept available for farmworkers in that locality.

The property would need to have been on the market for at least six months, or preferably a year (at a substantially discounted price that reflects the fact that it is subject to an agricultural occupancy condition). Only if there were no takers at that price after a genuine attempt to sell it might you then persuade the Council to remove the condition.

I suppose you might argue that because of the way farming has changed, there is no need for so many agricultural dwellings in the area, but I think it would still come down to proving that there is no demand by putting it on the market subject to the agricultural occupancy condition. As I said, the asking price would have to reflect the fact that it was subject to this condition.

After that, you could then apply to the Council to remove the condition, and provide them with the evidence of the unsuccessful marketing campaign.

What happens if an agricultural occupancy condition has not been complied with for a long time?

A breach of condition will become immune from enforcement and therefore lawful if it has been continuously breached for a period of 10 years, and if that breach is still continuing.

But you will need to be able to prove that the breach has continued throughout the 10-year period without interruption.

Can you add together the time a property has been occupied by two or more different owners or occupiers who don’t comply with the condition?

Yes, but only if they have all been living there in breach of the condition, without a break.

If there has been a breach of the condition for several years, and then someone moves into the property who does comply with the condition, this puts an end to that breach. If, after this, the condition is breached once again, the clock starts again from zero, and the earlier breach cannot be counted towards the 10-year period. In other words, you can’t add together two separate breaches of the condition to make up the 10-year period. [The 10-year period might comprise occupation by two or more owners or occupiers during that 10-year period, but only if the breach of condition continues throughout these successive ownerships or tenancies.]

There’s an even more important point to bear in mind. If the property has been unoccupied for a time, then that may count as a period when there has been no breach of the agricultural occupancy condition, so that the clock goes back to zero again if the next occupier is someone who doesn’t comply with the condition. In that case, the previous occupation of the property in breach of the condition wouldn’t count towards the 10-year period.

But supposing a breach of the condition has continued for 10 years or more, does that have the effect of removing the condition altogether?

No it doesn’t. The fact that a breach of condition has become lawful after 10 years does not mean that the condition has been removed. All that has happened is that it has become lawful to occupy the property in breach of the condition. If someone else then moves into the property who complies with the condition, then a later breach of the condition will not be lawful – it will only become immune from enforcement (and therefore lawful) if the fresh breach of the condition lasts 10 years or more.

Can you not get a certificate to prove conclusively that the condition no longer applies?

You can apply for a Lawful Development Certificate (which in this case would take the form of a Certificate as to the Lawfulness of an Existing Use or Development), but that certificate will not say that the condition no longer applies; it will simply confirm that continued occupation of the property in breach of the condition is lawful, which is not quite the same thing.

These certificates can be useful if you need to establish the position beyond dispute. Such a certificate is ‘conclusive’, but that doesn’t mean that it applies for all time. It simply certifies ‘conclusively’ what the legal position was at the time it was granted.

It doesn’t change anything. It doesn’t have the effect of removing the condition. It simply proves that on the date when the Certificate was issued the breach of condition had become lawful. So continued occupation of the property in breach of the condition would continue to be lawful. But the condition would still be there in the background, and could potentially be complied with by a future occupier. If that were to happen the Lawful Development Certificate could no longer be relied upon.

But if the condition has become a ‘dead letter’, then presumably you can apply to the Council to remove it?

You could certainly apply, but most Councils won’t agree to remove an agricultural occupancy condition just because a current breach of that condition has become lawful by having continued for 10 years or more. They would argue that someone might move in who does comply with the condition, and then it would ‘bite’ again.


So there are really no easy answers when it comes to agricultural occupancy conditions?

No. You have to recognise that they are quite an obstacle, and you need to take sound legal advice before committing yourself to buying a property with an agricultural tie on it. Don’t assume you can get round it or get rid of it easily. That is why the price of a property which is subject to an agricultural occupancy condition is usually subject to a substantial discount compared with the open market value.

On a related topic, how easy is it to get planning permission to build a new house in the countryside? What do you have to do to get planning permission?

There are strong planning policies, both nationally and at a local level, which discourage the construction of new homes in the open countryside, even a single house.

There are only two exceptions – the first is a planning permission for an agricultural dwelling. (I’ll come back to that in a moment).

The second, which is fairly rare, is building a substantial house of ‘exceptional’ architectural quality – in effect a modern ‘stately home’. Some planning authorities have been persuaded to give permission for one or two houses of this type, but it is not going to be an option for most people.

So if you are prepared to do a bit of farming ‘on the side’, can you get planning permission for what the planners would call an ‘agricultural dwelling’ ?

The first thing is that there has to be a genuine agricultural need for a new home on a particular agricultural holding. That involves passing two tests.

First, you will need to prove to the planners that there is an existing agricultural business on the holding which is commercially viable, and you will need to produce accounts to prove it, together with an agricultural expert’s report confirming the viability of the business.

Secondly, you will have to prove that it is essential to that agricultural business to have someone actually living on the holding. Most arable farms don’t need someone on site; it is only if you are involved in something like intensive livestock rearing that you are going to be able to justify having someone living on site. Just occasionally, if there have been problems with theft or vandalism, Councils have been persuaded to allow a home on a smallholding, but you really do have to prove a genuine need. Just wanting to live on the property instead of in a nearby village is not enough.

Most Councils will not grant permission to build a house or bungalow right away. They will probably only give you a limited permission for a caravan or mobile home for a trial period, and if you then want to extend that permission or build a permanent home on the site, you will have to convince them that the business is still viable and that the need still exists after that first trial period. I had a client in Somerset once who succeeded in getting a temporary permission for two residential caravans on the site, but the agricultural business failed, and when he tried to get permission for a bungalow or to extend the permission for the mobile homes, the Council refused, and he had to get off the site.

You certainly won’t get planning permission for a home just because you fancy doing a bit of ‘hobby farming’. Even genuine farmers can find it difficult to get over these hurdles.

As regards the position of "dependants" of an agricultural worker living with them, see now Shortt v. SSCLG discussed in my blog post of 28 July 2014.

© MARTIN H GOODALL

Trees and pre-conditions

I am very grateful to Paolo Bavaresco, of TMN Tree Management [www.treemettlenexus.com] for contributing the following note on this topic.

Paolo writes : “I shall offer the benefit of my knowledge and experience over 23 yrs, including hostile confrontations and developer/LPA wars with TPOs.

Trees are protected in law by TPO and Conservation Area restrictions - as Martin states - but also via felling licences [ http://www.forestry.gov.uk/forestry/infd-6dfkw6 ] - I think that answers Martin’s blog question?

There are also litigation considerations for the developer regarding trees – the public and construction staff can be at risk of injury from trees, often from inadvertent damage on site by construction. I once witnessed a construction-damaged tree uproot with each gust of wind to an angle of 30 degrees blocking the site entrance; the dumper driver would wait for the wind to die down and the tree lift back up to allow him to proceed. Upon cautioning him regarding his own safety, he replied he’d been doing it all week!

Although a developer can prune branches and roots of third party trees up to his boundary, this may be detrimental to the health and safety of those trees. Legal action could be taken by the owner of the trees against the developer for compensation based on the amenity valuation of the trees.

Developers have been known to fell all trees owned by them in close proximity to any development of theirs, BEFORE any contact with planning. It is very rare for this approach nowadays, at least with my clients, because it sends a bad signal to planning, risks prosecution by DEFRA for breach of tree felling licence restrictions (more than 5 cu m of timber felled within any quarter requires a licence, of which no more than 2 cu m can be sold - see exemptions) and the Wildlife & Access to the Countryside Act may also be breached in the process.

As a response to bulldozing unprotected trees, some LPAs do not make available to the public the maps showing where all TPOs and Conservation Areas are in force.

The preferred LPA modus operandi is for the public to contact the LPA with site and enquirer grid reference/ address and postcode, before the information is divulged. This allows them to control loss of tree cover - they can check if there are any trees of significance and apply a TPO.

The Town & Country Planning Act states that maps of TPOs and Conservation Areas must be made available for public viewing at a public venue such as a library or council offices. Some LPAs do not make this information available without tight restriction. Their response is that such maps would be misleading, as new Conservation Areas and TPOs can come into force at any time - the law could be broken without the user realising, based only on out-of-date mapping information. This is something of a red herring, I feel, as a tree owner must be informed of such new restrictions coming into force, and new TPOs are rarely pro-active in my experience; a sound TPO really needs to have been assessed by a qualified arboriculturalist due to the subjective nature of assessing risk/cost/benefits of trees.

I would appreciate Martin’s point of view on the lawfulness of restricting access to Conservation Area/TPO maps.

The game changes once the LPA is notified of intent to develop. Trees are a material consideration in the planning process, regardless of TPO/Conservation Area status - it is the LPA’s duty to procure the amenity of the area; all trees have an inherent amenity to varying degrees. Arboriculture (and the Town & Country Planning Act) makes provision for health, safety and visual amenity of trees. But trees are also at the centre of ecological systems - the Wildlife & Access to the Countryside Act is concerned with their protection as a form of habitat in an indirect way, as wildlife is a material consideration in the planning process, and see also relevant ministerial guidance in both Wales and England

I agree with Martin that the use of conditions as stated is laughable really, but the planners are following ministerial guidance. TPOs and conditions have historically been used inappropriately in protecting trees subject to potential development.

Fortunately, there is a long established British Standard for assessing amenity value of trees suitable for removal or retention on development sites – BS5837 (up for revision). All an LPA need do is insist it is applied before any site work commences, along with citing BS3998:2010 for any tree work recommendations made.

Most LPAs as part of the planning process, will insist on a tree survey being carried out to BS5837:2005, including third party trees in the zone of influence, prior to any site works commencing, and a grant of planning permission will not even be considered until this has been done.

An ecological survey will also demonstrate that National and LPA planning policies regarding trees and their habitat will be complied with, again before site works commence and before planning permission can be considered.

I expect Martin is aware of all this, and he would probably agree that a requirement to assess trees to BS5837 does not afford them protection, and I would agree, but it certainly jeopardises the chances of receiving planning permission if tree constraints are ‘removed’ pre-application. In a recent fee proposal for such a survey, I stipulated that all trees within 12 x the diameter at breast height would need to be included. Upon reaching the site to survey, all trees within that zone had been felled, because of lack of statutory protection.

Urban trees are not being replaced as fast as they are being lost. Urban tree replacements take many years of careful attention to establish, let alone reach maturity. Trees absorb 10 Kg of Carbon Dioxide per year. Trees are vital carbon sinks, especially urban trees, particularly in the UK, which has a low percentage of forest cover. Add to this their importance in lowering flood risk, particulate pollution, noise levels and improving various warm fuzzy feelings of general well being. Current statutory protection (relating only to timber, wildlife and amenity) is wholly inadequate in protecting them and us from our development needs.

I hope this may be of some use to Martin and his blog visitors.”

© PAOLO BAVARESCO

[I confess that, when I wrote my original note, the possible need for a felling licence was not in the forefront of my mind, and so Paolo’s note came as a timely reminder of this further constraint on the removal of trees. The exemptions (which will be found on the Forestry Commission website mentioned above) are narrower than I recalled.

The extent of designated Conservation Areas should be readily ascertainable by viewing Council websites. I cannot recall the precise statutory rules within the planning legislation as to the availability of TPOs, but this is environmental information and as such should therefore be readily accessible under the Freedom of Information legislation.

I am not sure whether LPAs are always so rigorous in their approach to the retention of existing trees as Paolo suggests they should be when processing planning applications. As in so many other aspects of development management, performance can be very variable as between one LPA and another.

One final point which I should make clear is that a condition designed to protect retained trees will be perfectly effective and enforceable, once development has commenced; the problem which I identified in my original note arises during the period between the grant of planning permission and its implementation, when none of the conditions will yet have come into effect. No amount of clever wording of conditions will overcome this; a TPO may be the only way, although the need for a felling licence, as Paolo points out, may be a further measure of protection for the trees in the meantime. - MHG]

The definition of development (2)

As promised, I am returning to this topic to follow up the suggestions for reform which I proposed here last week.

I would propose to amend s.55 [1A] by deleting paragraph (a) [“demolition of buildings”]. This was a hasty and ill-thought out insertion in the Act in 1991, which necessitated some complex gymnastics, including ministerial directions under s.55(2)(g) - recently found to have been unlawful (!) - plus Part 31 of the GPDO. This nonsense could all be done away with by simply removing demolition from the definition of development.

There are some further amendments which might usefully be made to some of the other sub-sections of section 55.

Sub-section (2) sets out some exceptions to or exclusions from the definition of development, and there are a number of changes that I would propose to this sub-section.

Paragraph (d) has been anomalous and unnecessary since the inclusion of dwellinghouses within the Use Classes Order in 1987. Since that date, the wider provisions of paragraph (f) have applied to dwellinghouses (which are now in Use Class C3), and so the uses to which any buildings or other land within the curtilage of a dwellinghouse may be put are no longer limited (if they ever were) to purposes which are “incidental to the enjoyment of the dwellinghouse as such”; they include purposes which form part of the primary residential use of the property and ancillary uses as well. Nor is the lawfulness of such uses confined to the ‘curtilage’ of the dwellinghouse; it extends to the whole of the planning unit.

For the avoidance of doubt, I should make it clear that, as matters stand at present, the wording of Part 1 of the Second Schedule to the General Permitted Development Order does confine the initial use of outbuildings and other structures (including pools, etc.), built as permitted development, to purposes which are strictly “incidental” to the residential use, and such operational development is also confined to the ‘curtilage’ of the dwellinghouse. However, once that permitted development has been carried out, the effect of Section 55(2)(f) is such that there is nothing (after a decent interval) to prevent that development, which was originally for a purpose which was strictly “incidental” to the enjoyment of the dwellinghouse as such, then being used instead for purposes which form part of the primary residential use (such as extra sleeping accommodation) or for any ancillary purpose. This suggests to me that there is a need to amend the wording of Part 1 so that it no longer uses the term “incidental”, but that is another topic, and we must return to the provisions of section 55.

I have used the removal of paragraph (d) as an opportunity to insert a new paragraph in its place, dealing with the use or uses to which a newly erected building can be put. If erected with the benefit of planning permission, the use of a new building is governed by section 75, but that section does not apply to buildings which were not built with the benefit of planning permission. This gives rise to a possible difficulty where an unauthorised building has become immune from enforcement under the 4-year rule and therefore lawful. There is judicial authority which suggests that the use of that building may not become lawful at the same time. It is in order to obviate that difficulty that I have proposed the following new paragraph to exempt the use itself from the definition of development:

(d) the use of a building or part of a building for the purpose or purposes for which it was designed or adapted when first built together with the use for the same purpose or purposes of any land which forms part of the same planning unit which comprises that building or part of a building and the land occupied with it;

This exemption would apply only to the first use of a new building; it would not exempt a subsequent change of use of the building from the definition of development. The effect of the change would be to make it clear that the use of a new building does not need to be considered separately from the operational development involved in its erection.

The next proposed amendment relates to agricultural and forestry uses. At the moment, any change of use to use for agriculture, horticulture or forestry is entirely excluded from the definition of development, so that turning your house and garden into a smallholding (as Tom and Barbara Good did in the well-known sitcom The Good Life) is perfectly lawful. To avoid anomalies and difficulties arising in future, I am proposing that this exemption should be confined to changes within this group of uses, and would not apply to a change of use from some other use. So, as amended, this paragraph would read:

(e) the use of any planning unit for the purposes of agriculture or forestry (including afforestation) where the last use of the planning unit was for one of those purposes, and the use for any of those purposes of any building which existed within the planning unit when the current use commenced;

I think the wording of paragraph (f) would also benefit from a little tidying up, to make it clear that it applies to the planning unit:

(f) in the case of a planning unit which is used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the whole of the planning unit for any other purpose of the same class, including the use for such purpose or purposes of any building which existed within the same planning unit when the current use commenced.
Note that I have omitted the reference in the current wording of this paragraph to part of the buildings or land. That arises from an amendment which I am proposing to sub-section (3), to which I will return in the next post on this topic.

Finally, in light of my proposal to remove demolition from the definition of development, paragraph (g) would also need to be taken out of sub-section (2), and it might be advisable to put the point beyond doubt by adding to the exclusions in sub-section (2) the following new paragraph (g) :

(g) the demolition in whole or in part of any building or structure or any part of a building or structure.

© MARTIN H GOODALL

Planning ahead

There are several topics for discussion which are likely to arise in the next few weeks. The House of Lords has begun the Committee Stage of the Localism Bill but, at the time of writing, they have not yet reached Part 5 of the Bill, dealing with town and country planning. Judging by their Second Reading debate, the Lords are likely to give this part of the Bill rather more robust and thorough scrutiny than it got in the Commons.

I am aware that I never returned to the ‘Plan for Growth’ after my initial post on that document on 7 April, in order to deal with issues such as land auctions, financial incentives, proposed revision of the Use Classes Order coupled with greater freedom to switch between use classes, and other possible changes to the GPDO, plus ideas for speeding up the processing of applications and appeals. Most of these topics are the subject of ongoing consultations, and so further comment at the moment would be superfluous. We shall see exactly what emerges in due course.

The next ‘big’ thing in planning will be the draft National Planning Policy Framework. We have had a ‘semi-official’ sponsored first draft (from the Planning Practitioners Group), plus a recent leak (which may or may not be accurate). We should get the real thing some time this month, and then the fat will be in the fire. Watch out for some strong reactions, not least from me.

There seems to have been a dearth of interesting judgments in the courts recently. I try to keep a lookout for cases that may be of concern to planning practitioners, but there is no point in commenting on cases which depend very much on their own facts and which do not establish or illustrate a principle of more general application. Nevertheless, I shall continue to monitor judgments as I become aware of them.

Several general discussion topics have arisen recently on which I propose to comment when I get time to write them up. It is clear that many people find that planning law is an impenetrable jungle, and need a ‘native’ guide to steer them safely through it. (This includes a good few planning officers!) Despite Eric Pickles’ avowed intent to cut down the jungle, I very much doubt whether his efforts will result in any improvement, and they may only serve to make the jungle even thicker and more impenetrable in certain parts.

There is likely to be no shortage of material for this blog in the foreseeable future, and the only problem is finding the time to write it all up in between the demands of a busy professional practice.

© MARTIN H GOODALL

Another confiscation case

A month ago I noticed a report of another confiscation order being made in a planning enforcement case. The London Borough of Bexley obtained a confiscation order under the Proceeds of Crime 2002 against defendants who were running an illegal car trade from residential premises. Prosecution had followed their failure to comply with an enforcement notice by continuing to allow cars to be sold from their home.

The defendants appeared at Bexley Magistrates' Court on 20 July 2010 for trial, having earlier pleaded not guilty. They were found guilty of the offence and committed to Woolwich Crown Court for sentencing and for the Council's application for a confiscation order against them to be considered. The defendants were said to have benefited by £182,120 from their illegal activity.

However, the confiscation order was limited to £3,000 to be paid within six months. The court accepted that the defendants lacked the means to pay the balance, but made an order which was intended to secure the confiscation of the remaining £179,120 should the defendants be able to pay in future.

The Planning Committee Chairman claimed that this was one of the first cases in the country where a confiscation order has been issued in a planning enforcement case but, as we have seen in this blog, there have already been a number of other reported cases, and no doubt there have been more cases which have gone unreported.

This case does nevertheless serve as a further reminder of the financial risk that people run if they fail to comply with an enforcement notice against a development which gives them a financial reward of any kind. As we have seen, the gross sum received (and not just the net profit), if the failure to comply with the enforcement notice continues for more than six months after the enforcement notice took effect, can then be confiscated, subject to the other criteria set out in POCA being satisfied.

© MARTIN H GOODALL

The definition of development (1)

It was reported to me once that a certain local government officer had complained that “Martin Goodall goes to bed with the Planning Encyclopedia under his pillow.” This idea rather amused me, although I would deny the implication that I am obsessively interested in the minutiae of planning law. Nevertheless it is a very interesting area of the law, and I make no apology for my enthusiasm for the subject.

Much of my time is naturally spent in working on practical planning problems on behalf of clients, but my thoughts do occasionally turn to more theoretical aspects of planning law, and so it was that, in an admittedly rare idle moment, I began to consider how the definition of development in section 55 of the 1990 Act might be improved. These are some of the ideas that occurred to me.

First, I would propose to re-draft sub-section (1) to read:

“55.—(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering or mining operations in, on, over or under land, including land covered by water, or the use of any planning unit for a purpose which differs materially from the purpose for which the land or building or part of a building which now comprises that planning unit was last used prior to its current use.”

It will be seen that I am proposing two important changes to the basic definition of development in sub-section (1). The first of these is the omission of “other” operations from the categories of operational development. It might reasonably have been supposed that this term should be construed ejusdem generis with “building, engineering and mining” operations, but the decision of the House of Lords in Coleshill & District Development Co v. MHLG [1969] 2 All E.R. 525 scotched that proposition, thus leaving “other” operations in an undefined limbo. It seems to me that the term serves no useful purpose – either development falls within the definition of “building, engineering or mining” operations or it does not. Anything else should be regarded as de minimis. I can see no merit in having some sort of ‘long-stop’ term intended to catch undefined activities of an operational nature which fall outside the scope of those types of operational development which are expressly mentioned in sub-section (1).

I have also taken the opportunity of including a point which has previously been established by litigation, but which it might be helpful to spell out – namely that ‘land’ includes land covered by water.

The second important change relates to changes of use. As the law stands at present, the use of land on a continuing basis, for any purpose whatsoever, does not constitute development. The statutory definition of development currently relates solely to “the making of any material change” in the use of any buildings or other land. This is a single event. The lawfulness of the subsequent use depends on that event, but this has led to a number of legal difficulties and anomalies. Some of these difficulties could be removed if the actual use, rather than the material change of use with which it commenced, is treated as development. I have not sought to abandon the concept of a change of use altogether, so the definition refers to a use which differs materially from a previous use, but it is the use itself which would in future constitute development, rather than the material change of use with which it commenced.

I have also taken the opportunity to refer to the “planning unit” rather than the vague phrase “any buildings or other land” in the current version of s.55. I would propose that a suitable definition of “planning unit” be added to s.336, based on the well-known formula proposed in Burdle (i.e. it would be the unit of occupation, until or unless some other unit is identified which is physically and/or functionally separate from it).

I would also propose some amendments to sub-sections (2) and (3), and I will return to these later next week.

I have no idea whether anyone will ever take up these suggestions. I hope they do, but it is probably too late to amend the Localism Bill to incorporate such changes, and another opportunity for further legislative reform may not occur for several years. Nevertheless, I would hope in the meantime that consideration might be given to some sensible tidying up of anomalies in the existing legislation. Such an exercise is long overdue.

© MARTIN H GOODALL

Development plan conundrum

Development plan conundrum


As I have observed on a number of occasions in the past, the full implications of some judgments do not always become clear on a hurried first reading. When looking at the Court of Appeal’s decision in Cala Homes [27 May], I did not initially spot the Court’s warning that “it would be unlawful for a local planning authority preparing, or a planning inspector examining, development plan documents to have regard to the proposal to abolish regional strategies. For so long as the regional strategies continue to exit, any development plan documents must be in general conformity with the relevant regional strategy.”

As other commentators have pointed out, the Court’s judgment could have significant implications for the plan-making process in those areas where regional strategies are in force. I have already pointed out in a previous post that abolition of regional strategies will not immediately occur upon the Localism Bill receiving Royal Assent, because the government has first to complete its strategic environmental assessment. Ministers pretended that they were doing this on a purely voluntary basis, but they would have been in breach of European law if they had failed to take this step, as ‘Sir Humphrey’ no doubt pointed out to them.

The requirement for local development plan documents to be in general conformity with the regional strategy in those regions where they are in place may therefore continue for some time after the Act is passed. The temptation may be for LPAs to delay progress on their LDFs, although other government initiatives to free up the planning process could lead to planning by appeal where continuing delay means that there is no up-to-date development plan in place.

It would appear, on the other hand, that LPAs are free to down-size their housing targets in those regions where the RSS did not get beyond the draft stage before the Secretary of State decided to scrap regional strategies. There would appear to be no reason for authorities in those regions to delay work on their core strategies and other local development documents. The soundness of these core strategies, however, may well be called in question if planned housing provision is inadequate to meet identified need. The absence of a regional strategy does not negate the research which underpinned the housing targets which were written into the draft strategies. Those figures will continue to be a material consideration, notwithstanding abandonment of the draft regional strategy. Where real problems may arise in the development plan process is in those regions where there is a regional strategy in place, even though it will sooner or later be cancelled by the government.

One last point: I read in another commentary the suggestion that in light of the Court of Appeal’s decision in Cala Homes, a number of developers might seek to challenge adverse appeal decisions made in the past few months (even if now out of time under s.288). However, unless someone can draw to my attention relevant statutory or judicial authority to tell me I’m wrong, I have always been and remain firmly of the view that the 6-week time limit laid down by s.288 is absolute, and that the Court has no jurisdiction to extend that time (in contrast to the discretion they have in enforcement cases under s.289). If a decision letter was issued in a s.78 appeal more than six weeks ago, it is too late now to challenge that decision in the High Court.

© MARTIN H GOODALL