Could your decking be ripped up by the Council?

Several newspapers have picked up on the story of Lesley Cherry from Stockport, Greater Manchester, who had failed to get planning permission for raised wooden decking at the back of her house, and came home from holiday to find that council workers had destroyed the decking while she was away.

The papers would like us to believe that this came ‘out of the blue’, but it undoubtedly had a history. An Enforcement Notice does not get served without some sort of prior warning. You will get a letter or a call from an enforcement officer and/or you will receive a Planning Contravention Notice (‘PCN’). That is the point at which alarm bells should start ringing, and this is the time to engage an experienced planning lawyer to act for you. Timely intervention may even persuade the council that no breach of planning control has occurred, or that a retrospective planning application might be considered.

In the Stockport case, the first thing to do would have been to see if the decking could in fact come within the definition of Permitted Development within Part 1 of the Second Schedule to the General Permitted Development Order. In practice, it appears that it would not have done so, due to the exclusion from the categories of permitted development authorised by Classes A and F of the construction or provision of a veranda, balcony or raised platform. However, an appeal against the Enforcement Notice could still have been run under Ground (a), namely that planning permission ought to be granted.

However, Mr and Mrs Cherry appear not to have done this, and so the Enforcement Notice took effect without being appealed. In those circumstances, the property owner is completely stuck, and has no choice but to comply with the notice, failing which an offence is committed. In the Stockport case, it seems that the Council was getting no response at all, and the defendants did not even attend court when summonsed, so it may well have seemed that an injunction under section 187B or direct action under section 178 were the only practical options. Non-appearance to the charge in the magistrates' court may have suggested that getting an injunction would be a waste of time and costs, so direct action under section 178 may have looked like the best bet.

It might seem to the casual observer that the LPA was a bit heavy-handed, but enforcement action should not be ignored. The owners should have got a good planning lawyer on board right from the start and let him or her run a section 174 appeal for them. Having failed to do that, and having failed to respond in any way to the enforcement action, they really only had themselves to blame for what happened.

© MARTIN H GOODALL

Contacting local authorities (2)

An anonymous contributor has been prompted by my original piece to comment on this topic. Their comment was too long for the software to cope with, but it is well worth printing, so I have posted it here:-
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“My goodness---where to start! I agree with you Martin, but I think it’s even worse than you suggest. There's a general flavour of treating the public/applicants as a bit of a nuisance (but not their money of course.)

Councils ad Whitehall need to realise that development and growth does not COST them, it PAYS them. Anything and everything they do---process, policy whatever---that inhibits, delays or impedes development comes at a COST to their local economies and harms prosperity, growth, employment etc.

The solution, I believe, is to abolish application fees entirely. [I entirely agree – MG.] Fee income--and more recently HPDG (PDG)---have become ends in themselves, which distort and even pervert the regular operation of the law.

The latter has been particularly damaging: LPA's now manipulate applications (in a variety of ways) to prioritise qualifying for grant over the rather boring business of actually lawfully processing an application. This has just happened to me - four weeks to even get the application registered (hidden delay) followed by an attempt to summarily and unlawfully refuse the application under delegated powers with the result that a committee meeting deadline was missed and the application ran out of time. What they tried to get me to do was withdraw the application, amend plans for pre-app advice (given by post---no direct contact with the officer), probably re-amend again and finally re-submit: a process which could take three months.

And the reason for all this? To disguise the delay and quality for grant; delay which has been CAUSED by the LPA in the first place and exacerbated by pursuit of grant. Great. So the LPAs get to keep their inbuilt delays AND the extra money from grant! Trebles all round then! But seriously, is this not wholesale fraud on the general taxpayer who's stumping up the grant?

Hand in hand with this there's far too much pernickety attention to minor details, often petulantly applied - along the lines of "Well, you didn't obtain pre-app advice, so even if the proposal is actually OK, I'm going to refuse it 'cos you didn't ask me first. So there." That type of thing.

Back in the '80's the government wrote a policy document which, amongst other things, observed that LPA's/officers exercise a degree of discretionary power "that would not be tolerated in general legislation". How true. Far too much discretionary power is exercised by officers simply imposing their own tastes on an applicant; often it is just the flavour of the month. The identification of "demonstrable harm to interests of acknowledged importance" takes second place, if it’s given any weight at all.

My own view is that these problems will not---cannot---be solved by top down diktat from Westminster and Whitehall. What's needed is abolition of application fees and full and robust re-instatement of Ministerial Circulars to their proper importance and status in the system. No lesser person than Sir Desmond Heap himself, the doyen of planning lawyers, observed that the single most important documents in the system are Circulars.

Without fee income, LPAs will have no choice but to stop gold plating their processes and attitudes and learn to prioritise. At present, large numbers of applications are pushed into insignificant and minor amendments that have no importance whatsoever. An officer may be right that a little tweak of detail here and there would be an improvement, but does it matter in the public interest context? Would the man in the street or neighbour even see the difference?

Back in 1949, when introducing the first GDO, the then Minister for Housing stated that the purpose of the regulations was to "...remove from control developments which have hitherto occupied an amount of time out of all proportion to any importance to planning.". And that's about the nub of it. LPA's have simply lost sight of what's important and more significantly what's not.

Lastly, I don't know about the experience of others, but I've formed the impression over the last few years than PINS has gone to pot. This is not unconnected to departure from a robust set of Circulars. [I don’t agree with this point. I think the Inspectorate still does an excellent job. They remain our only defence against unreasonable and sometimes downright stupid LPAs - MG]

PS. You've only got to contrast planning with building control to see how bad the former has become. Not only will you be able to contact your BCO, but if there's a job going on you'll probably have his/her mobile number too. So a quick call to a mobile saying 'I've got a bit of a technical here, could you come and have a look' will elicit a response like 'Sure. As it happens, I'm just round the corner at the moment, I'll be with you in, say, 20 mins. Is that OK?'

And let’s remember, too, that planners are now trying to muscle in on Building Control's territory. God help us.

Oh, and finally---really---re your point about info buried in a website, what about this: Once I had unearthed a deeply buried original Scheme of Delegation, from which I discovered that summary refusal under DG, as they were attempting, was unlawful and I made the LPA aware of this last Friday. By Monday the file had mysteriously disappeared from the website! The same url---I'd bookmarked it---came up with our old friend "Page Not Found". Just fancy that.”
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Clearly this is a heart-felt cri de coeur, and one which many would no doubt echo, so I thought it was worth an airing. I observed some months ago that, by their behaviour in handling planning applications, planning officers are giving ministers and their political supporters far too much ammunition with which to attack the planning system. It is clear that the ministerial appetite for radical change to the planning system is not yet sated. The possible results may be to no-one’s advantage. It is in the interests of everyone involved in the planning process to make the existing system work, for fear of having something far worse foisted on us.

MARTIN H GOODALL

Nuisance caused by development

Two cases decided last year have drawn attention to the issue of Nuisance (i.e. the tort of Nuisance) in the context of development or uses which are authorised under statutory powers. Such authorisations may include planning permission, waste management licences and various other environmental permits. One of these cases, Davis v. Tinsley, involved alleged noise nuisance from wind turbines. The claimant had sought an injunction against the operation of the turbines, plus substantial damages, based on the common law tort of Nuisance. This was a case which had been closely followed by all those interested in the issue of noise nuisance from wind farms, and judgment in the case had been eagerly or anxiously awaited (depending on various parties’ points of view).

In the event, the case was resolved at the beginning of December last year by an out of court settlement, the terms of which were strictly confidential. We may surmise, however, that on the basis of existing case law, there was a reasonable chance that this case would have succeeded if it had gone to trial, and it was this which no doubt prompted the defendants to settle.

The other case concerned a waste management licence under which an operator was running a landfill site. This was the case of Barr & others v. Biffa Waste Services Ltd (No.3) [2011] EWHC 1003 (TCC) in which judgment was given by Coulson J on 19 April 2011. This case did not involve a planning permission as such, but the relevant principles to be derived from earlier cases were reviewed by the court, and the judgment is useful in providing further clarification of the basic rules.

Discussing planning permission, the judge pointed out that it is settled law that the grant of planning permission does not of itself sanction or otherwise endorse an activity which is causing a nuisance to neighbouring properties. In Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923 at 934, Buckley J had said that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, that case established an important exception to this rule, where the grant of planning permission had altered the character of the neighbourhood.

By contrast, in Wheeler v AJ Saunders Ltd [1996] Ch 19, the court found that, on the particular facts of that case, the permission could not be said to have altered the character of the neighbourhood, and the claim in nuisance (caused by a piggery) was therefore upheld.

We can see, therefore, that the grant of planning permission can be relevant in nuisance cases, at least to the extent that it can change the character of a neighbourhood for the purposes of evaluating the nuisance. In Gillingham, Buckley J said that "where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously". In Wheeler, the same point was also considered, but the change of use affected only a small piece of land and could not, therefore, effect a change in the character of the neighbourhood.

In the Court of Appeal in Watson v. Croft Cromo-Sport Ltd [2009] EWCA Civ 15, the Chancellor rejected the submission that what may properly be regarded as 'strategic planning decisions' affected in principle the private rights of the citizen to complain of a common law nuisance. However, he stressed that the implementation of such planning permission "may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the questions of nuisance or not". In support of that principle he referred to the judgments in Wheeler and in Hunter v Canary Wharf Ltd [1997] AC 655.

Thus a grant of planning permission will not of itself sanction the nuisance (Wheeler). However it may be relevant to issues surrounding the character of the neighbourhood (Gillingham, Watson).

From these various decisions it can reasonably be inferred that a major infrastructure project which has changed the character of a neighbourhood may more easily resist claims founded in nuisance than a development which does not have so great an impact. There is perhaps something slightly illogical about this, in the sense that major nuisances might not be actionable (if they arise from a development that has changed the character of the neighbourhood), whereas lesser nuisances could still be open to a legal claim. For what it's worth, I would very much doubt whether the erection of a wind farm could be said to have 'changed the chgaracter of the neighbourhood' for these purposes, although this may be open to argument, if the point is ever contested before the courts.

One other issue which has occasionally been raised in such cases is the possible breach of Article 8 of the European Convention on Human Rights (the right to respect for a person’s private and family life). To take just one example, in R (Downs) v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664; [2010] Env LR 7, the claimant had succeeded at first instance in a claim for breach of Article 8 in connection with crop-spraying. However, the defendant's appeal was allowed. The Court of Appeal held that, in order to constitute a breach of Article 8, there had to be "severe environmental pollution" and this test had not been met in that case. (The European case which proposed the test of 'severe environmental pollution' is Lopez Ostra v Spain (A/303-C) (1995) 20 EHRR 277.)

Reverting to the planning permission cases, the courts have been careful to guard against a situation in which, merely because planning permission had been given for the carrying out of a particular activity, the defendant was at liberty to perform that activity in any way that he chose, regardless of his neighbours. The courts have repeatedly held that the mere grant of planning permission does not give the recipient the right to undertake the permitted operation in such a way as to cause a Nuisance. But as we have seen, this is subject to the exception established by Gillingham.

In the Biffa case, Coulson J held that the defendant did not have a defence of statutory authority to the nuisance claims that were before the court. However, he concluded that the permitted use of the landfill site meant that the carrying out of permitted activities of waste disposal, performed in accordance with the detailed terms of the permit and without negligence, amounted to a reasonable user of land. In those circumstances, whilst claims in nuisance that involved allegations of negligence against Biffa would have been open to the claimants, claims in nuisance alone were not. Since the claims which proceeded to trial were in nuisance alone, they were bound to fail. These claims were accordingly dismissed.

© MARTIN H GOODALL

A plethora of guidance and advice

One of my main objections to the replacement of all the old Planning Policy Guidance Notes and Planning Policy Statements by the NPPF was the loss of a very useful body of practical assistance on all sorts of procedural issues in addition to the exposition of policy. Arguably, the policy is still there in the NPPF, although considerably abbreviated and lacking in detail. Ideally, the NPPF should have been a more substantial document, but the crazy ministerial insistence on keeping it down to around 50 pages has resulted in a somewhat laconic document with some regrettable, and potentially damaging, lacunae.

Clearly the lack of explicit guidance on many practical issues previously dealt with in the body of published ministerial advice has been keenly felt in many quarters, and so we have seen the publication of an increasing quantity of advisory material, both official and unofficial, which attempts to fill the gap. There are several problems arising from this. First, because of the ad hoc and totally uncoordinated nature of these publishing exercises, there is no means of knowing with any certainty what has or has not been published and where to find it. Secondly, where such material comes from an unofficial or only semi-official source, it is impossible to know what weight can be placed on it. Many of these documents, I suspect, if cited to inspectors at inquiries would not necessarily be accepted as authoritative. So one is left to ponder what use such documents may be in practice.

What finally prompted me to put these thoughts in writing was the publication last month of guidance on housing viability, local plans and the national planning framework, aimed at helping planners decide whether development plans satisfy the requirements of the NPPF in terms of housing viability. I understand that at the same time a document has been published on local standards in new housing development. These two documents have been published by the Local Housing Delivery Group, which has official backing from Housing Minister, Grant Shapps.

The advice is very much the sort of thing one would have expected to see in a Planning Policy Statement before these were all summarily withdrawn upon the publication of the NPPF. For example, it recommends that planning authorities should take the residual land value approach (where the difference between the value and costs of development are compared with land values) in assessing policies in development plans. LPAs should assess policies for the first five years of the plan based on current costs and values and use a more flexible approach for the 6-15 year period of a plan, recognising that economic cycles and policy change over time. It also recommends that councils should use a threshold land value based on a premium over current use values to determine the viability of sites, with the precise figure being determined locally. All very sensible, but what bothers me is the multiplicity of different sources from which these miscellaneous publications are coming.

There needs to be a serious re-think about this in government. Until March of this year there had been a continuous series of ministerial policy documents since at least the 1960s, if not before, originally in the form of Development Control Policy Notes, subsequently replaced by a series of Planning Policy Guidance Notes and latterly by an uncompleted series of Planning Policy Statements. Documents such as the two recently published by the Local Housing Delivery Group ought to be published by ministers as official guidance, and form part of a co-ordinated series of technical and procedural guidance on various aspects of the plan-making and development management process. If this would look too much like a U-turn, in view of Eric Pickles’ very public criticism of the volume of ministerial guidance that had previously been published, then a less embarrassing expedient would be to publish the material in the form of departmental circulars – a type of ministerial guidance which mercifully escaped the ill-considered withdrawal of other policy statements.

© MARTIN H GOODALL

Contacting local authorities

There is a worrying trend I have noticed among local authorities of failing to reveal the identities and contact details of senior officers on their websites. Some local authorities do not even name their Chief Executive on their website.

Whilst they would no doubt wish to channel initial contacts with the Council through some kind of sorting system (much as one would process incoming mail through a post room), so as to ensure that emails are forwarded to the right person in the organisation, it effectively prevents legitimate contact with a particular officer when this is reasonably required.

The same problem arises nowadays in contacting individual officers by telephone. They rarely answer their direct dial lines, but have them permanently diverted to their voicemail. But more often than not, you won’t even get that far, but will get some infuriating push-button answering system, until you finally get through to yet another answering machine.

Admittedly it is rather a long time since I worked in local government, but we would certainly not have been allowed to avoid the public in this way. It was drummed into us that we were there to provide a public service, and that included being available on the telephone and taking calls when they were put through.

I have been dealing with one local planning authority recently which has taken non-communication to such extraordinary lengths that, despite repeated emails and telephone calls, I was unable to ascertain whether or not an application I had lodged with them on behalf of a client had been registered. I eventually learnt that it had been when I got a letter from a local builder offering his services to do the building work! After a bit of ferreting about, I was able to extract the bare details from a far from user-friendly website. To this day, I have had no direct communication from the authority, and would be slightly surprised if they meet their target date for determining the application.

And planners wonder why they get criticised by the government and by developers and business organisations!

© MARTIN H GOODALL

The presumption in favour of sustainable development

I have noted over the past few months that some people seem to have been getting over-excited by the National Planning Policy Framework. They seem to think (no doubt prompted by the tendentious claims of ministers) that the NPPF has brought about a revolution in town and country planning. Nothing could be further from the truth; the changes that the NPPF has introduced are minor, and their impact is likely to be limited. The previous body of ministerial policy advice that the NPPF has replaced was lengthier and more detailed, but largely similar in its overall thrust and direction.

A particular focus of attention among those who hoped or wished that the NPPF heralded a fundamental change of approach was the ‘presumption in favour of sustainable development’ which it introduced. However, it seems that these hopes may prove to have been illusory. A recent planning appeal decision shed an interesting light on the topic. This was an appeal by Galliards Developments against the refusal of planning permission for 135 dwellings at Hunting Butts Farm, near Cheltenham. The decision seems to have occasioned a certain amount of excitement on both sides of the argument, but in practice it simply illustrates the practical limits to the application of the much-vaunted presumption in favour of ‘sustainable’ development.

The appeal site is in the Green Belt, although the Inspector acknowledged that some land will probably have to be released from the Green Belt in order to meet Cheltenham’s needs for housing and economic development. Notwithstanding this, he decided that the location of the appeal site in the Green Belt negatives the presumption in favour of sustainable development in the NPPF. The Inspector referred to paragraph 14 of the NPPF, which provides that where the development plan is absent, silent or relevant policies are out-of-date, permission should be granted unless “specific policies in this Framework indicate development should be restricted”. A footnote makes it clear that this applies, for example, to those policies relating to (among other things) land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or a National Park as well as to designated heritage assets.

Unsurprisingly, the Inspector therefore decided that because of its location in the Green Belt, "the site is subject to a specific framework policy indicating that development should be restricted". He continued: "In these circumstances, paragraph 14 is clear that, even if relevant development plan policies are out of date, the presumption to grant permission does not apply."

If anyone thinks that this is an interpretation of the NPPF which could not have been foreseen, or which somehow negatives the intentions of ministers in promulgating the NPPF, they clearly have not read the document properly. Paragraph 14 and footnote (9) could hardly make the position clearer.

© MARTIN H GOODALL

More non-planning issues

I have complained before of issues being dragged into planning decisions which go beyond what could reasonably be regarded as material considerations in the planning context. Unfortunately, no-one seems to have mounted any legal challenge to this trend yet, but a developer who is prepared to make a stand on the issue might sooner or later be prepared to have a crack at a local planning authority that is guilty of this sort of thing.

Just to take one example that has come to my attention, I recently heard of “Enplanner”, which I understand is a new tool developed in Bristol to help planning applicants meet on-site renewable energy policies. Developers, architects, agents and consultants were invited to a workshop last week to learn how it can help them meet the on-site renewable energy requirements which are now to be part of every planning application.

I understand that “Enplanner” is intended to make it easy for applicants to show, by creating an energy statement, that they have met local policy requirements. This involves demonstrating that they have included sustainable energy measures such as biomass, solar or combined heat and power in their developments.

I am told that “Enplanner” has been developed in conjunction with the Carbon Trust for use by all local authorities who have adopted on-site renewable energy policies. This goes beyond mere guidance. It involves a requirement to submit energy statements, which applicants are expected to complete on-line.

Even if you believe that saving the planet is an important policy objective, the appropriate vehicle for doing so is the Building Regulations. Until comparatively recently, a firm dividing line was maintained between the proper confines of town and country planning on the one hand, which is concerned with issues of land use and design, and on the other hand the technical requirements associated with the actual construction of buildings, including sound construction methods and materials, adequate natural lighting and ventilation, and more recently, thermal insulation standards and energy performance. These considerations are the proper concern of the Building Regulations.

What the requirement for energy statements in conjunction with planning applications and the adoption of on-site renewable energy policies is doing is to blur the distinction between the planning system and the Building Regulations regime. “Enplanner” may be a useful tool in connection with meeting Building Regulations requirements for energy efficiency, but it has no place in the planning system.


Bristol City Council seems mighty proud of its role in developing “Enplanner” as a planning tool, and boasts that every person building or extending property on however large or small scale will be playing their part in applying this policy. They claim that most developers welcome the opportunity to address climate change in their proposals. But what the planners fail to appreciate is that demanding this sort of information up-front at the planning application stage (and it is only one of a number of similar impositions that are being piled onto an already over-complicated and unduly bureaucratic planning system) is an insupportable burden on developers and their professional advisers at this comparatively early stage in the development process. It involves massive additional expenditure when the final design of the development has probably not been determined and when everyone can well do without this unnecessary complication.

Having established the principle of development and the overall design through the planning process, the proper time for working up the technical details, including any proper and reasonable requirements for sustainable energy measures such as biomass, solar or combined heat and power or whatever, is at the Building Regulations stage.

The government says that it is trying to cut down on red tape and wants to simplify compliance regimes across government. The sooner they put a stop to this sort of nonsense in the planning system, the better it will be for everyone.

© MARTIN H GOODALL