Earth-moving for garden landscaping

A topic that has vaguely troubled me for some years is the doubtful status in planning terms of engineering works carried out in a domestic garden in order to realise some of the more adventurous garden designs that are publicised on TV as well as in various magazines.

The General Permitted Development Order is of limited assistance here. Part 1, Class E permits the provision within the curtilage of (among other things) any building or enclosure, swimming or other pool, required for the enjoyment of the dwellinghouse as such. “Building” would include anything that amounts to a structure, so various built features could be included in the design, subject to the limitations and conditions set out in Class E. For example, raised decking (or any balcony or other raised platform) is ruled out if its height from natural ground level is greater than 300 millimetres. Class F also permits hard surfacing, and this is not limited as to its area (in contrast with Class E). [There are, of course, exclusions, limitations and conditions in Class E, which I have discussed in a previous blog post, and do not propose to repeat here.]

When addressing a meeting of SWENFORCE (South West enforcement officers) last week, I speculated that one might also rely on Part 2 in respect of fences, gates, walls and other means of enclosure, but an earth bund (which could in principle come within Part 2 if it performs the function of enclosure) would not be permitted development if it was wider than is really necessary to perform that function or if it does not in reality act as a means of enclosure. In some circumstances, it might be possible to argue that raised banking in the garden does in fact constitute a structure, and is therefore permitted development under Part 1, Class E, but the position remains uncertain.

What is certainly not covered by the GPDO is more extensive excavation, and other earth-moving, taking the form of engineering operations rather than building operations. And yet I can think of quite a few garden landscaping schemes, even involving fairly extensive earth-moving, which have produced an entirely acceptable garden landscape, and which have no appreciable impact in planning terms. It seems to me that there is a lacuna in this respect in the GPDO, and there should perhaps be an additional Class within Part 1 of the Second Schedule to cater for works of this type.

The enforcement officers to whom I was lecturing had not encountered this problem in the course of their work, and this certainly accords with my own impression that most local planning authorities turn a blind eye to what in theory might be unauthorised development in the garden, presumably because no-one ever complains about it. The problem is that if a jealous or resentful neighbour does complain, there may be one or two enforcement officers who will see it as their mission to charge into action over it.

I am only aware of one appeal decision that is in any way relevant to this topic. Enforcement action was taken by Greenwich LBC against works carried out in the rear garden of a house as part of a televised makeover of the garden (instigated and broadcast by the BBC no less!). However, this action appears to have been directed at the structures that had been built, including two cube structures and an area of decking, plus a structure made out of old telegraph poles. In practice, it seems that it was only the height of these that was a problem, and the inspector accepted that reducing them below 3 metres in height would be acceptable. The question of any earth-moving or other landscaping does not seems to have arisen in this case.

In practice, even if the earth-works do amount to engineering operations, it is very unlikely in most cases that it would be expedient, under section 172, to serve an enforcement notice, and I would hope that common sense would prevail. I can’t recall off-hand if the NPPG repeats earlier ministerial advice to the effect that enforcement action should not be taken simply in order to ‘regularise’ the position where planning permission has not been obtained for development, if the development is doing no real harm in planning terms, but this principle should apply in any event.

The proper and permanent solution, however, would be an amendment of Part 1 of the Second Schedule to GPDO to permit engineering works for the purpose of landscaping a domestic garden. No doubt it would be necessary to set certain parameters, but this would be better than the continuance of the uncertain and unsatisfactory situation that obtains at present.

© MARTIN H GOODALL

Common sense about the Green Belt

I get the impression that there is a gradual dawning of realisation, not only within certain think tanks but also among ministers and their advisers, that Green Belt policy has been allowed to get out of hand, and that far too much land has been designated as Green Belt, with the result that there is no longer sufficient land readily available near existing towns and cities to meet the urgent requirement for house-building where it is needed. The penalty is a chronic housing shortage and spiralling house prices, particularly in the South-east of England.

The original object of establishing the Green Belt was to discourage uncontrolled urban sprawl into the open countryside around our larger towns and cities and to prevent the coalescence of two or more large neighbouring towns. No-one would disagree with that broad objective; but two undesirable elements have crept into Green Belt policies over the years.

First, the Green Belts have been expanded to a far greater extent than was originally intended and to a far greater extent than is necessary to achieve their objective. For example, the Metropolitan Green Belt around London was intended to be about 12 to 15 miles deep. In some places it is now well over 30 miles deep. I recall, for instance, massive extensions to the Green Belt in Surrey in the 1980s for which there was no need and no objective justification. Our Green Belts now encompass huge areas of land that ought never to have been incorporated in them.

There needs to be a fundamental review of the extent of the Green Belt throughout the country, with a view to reducing substantially the extent of their designated area. This review should proceed on the presumption that extensions of Green Belts that have occurred within the past 35 years should be reversed unless there are very convincing reasons for those extensions, having regard to the primary objective of the Green Belts.

Local political pressures are so strong that it would be impracticable for this to be dealt with at a local level. This is an exercise that will have to be carried out on a national level by central government. Notions of localism are simply going to have to be suspended, if not abandoned altogether as totally unrealistic in face of the dire housing crisis facing the country. Local planning authorities should be required to revise Green Belt boundaries in accordance with the conclusions of this departmental review.

In future, there should be a very strong presumption against further extensions of existing Green Belts. There should, on the other hand, be regular reviews of both the inner and outer boundaries of Green Belts to examine the desirability of removing further land from the Green Belt if changed circumstances require this.

The second undesirable element that has crept into Green Belt policy is an entirely unnecessary and inappropriate rigidity in the treatment of development proposals, which seeks to resist all development in the Green Belt unless either it is deemed to be ‘appropriate’ development or exceptional circumstances can be demonstrated. This rigidity has been further compounded by the unfortunate wording of the relevant policy guidance in the NPPF, compared with the wording of the former PPG2. [See Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin), referred to in this blog on Friday, 1 November 2013 – “Inappropriate Development in the Green Belt”.]

Rather than this increasingly inflexible approach, the advice in the NPPF should be amended to indicate that within Green Belts development should not be permitted which would prejudice the objectives of the Green Belt and/or which would compromise its openness, but that in determining applications for development in the Green Belt local planning authorities should examine the contribution that the application site in question makes to the Green Belt (in other words, its ‘Green Belt value’). It would thus be the impact of the development on the Green Belt as a whole that would be the determining factor, rather than the ‘appropriateness’ of the development in the Green Belt (in land use terms) or any question of exceptional circumstances being required to justify the development. The essential point is that Green Belts are not and never have been intended to create wholly development-free zones in the countryside.

There is one other issue that also needs to be addressed when considering Green Belt boundaries. Over the years a number of anomalies have been created by inept drawing of the Green Belt boundaries. There are quite a few examples, for instance, of the Green Belt boundary cutting across the middle of a residential curtilage. This makes no sense at all, and should be corrected. A related problem is the drawing of a thick line on small-scale maps, with the result that it is impossible to tell with any precision where the Green Belt boundary actually lies. This is an issue that can be addressed by local planning authorities right now, without having to wait for any change of ministerial policy. In their Delivery DPDs (or equivalent DPDs, following adoption of their Core Strategies), local planning authorities should take the opportunity of ironing out anomalies of this sort in the detailed Green Belt boundary at a local level. This is an issue that must be urgently addressed, and not merely in relation to recently fixed Green Belt boundaries, but also in respect of boundaries where these anomalies have existed for a good many years. Local councils really must grasp this nettle, or face the possibility of challenges by way of judicial review if they fail to address the point in their second stage DPDs.

Revision of the NPPF (and/or of the NPPG, as appropriate) should reiterate the principle that the Green Belt boundary should be established on a strong defensible line. This should be a clearly defined and reasonably permanent physical feature in the landscape, such as a river, road or railway. Drawing the boundary across the middle of fields or gardens is totally unsatisfactory, and even field boundaries may not be sufficiently permanent to form a reliable long-term boundary. At the very least, the Green Belt boundary should exclude existing residential development (except in settlements where the Green Belt ‘washes over’ the entire village) and this exclusion must extend to the whole of the residential curtilage. What is required is not a straight line but a clearly defined and readily defensible boundary, even if this may look untidy on a map.

The knee-jerk reaction, both locally from the NIMBYs and nationally from the usual suspects, such as the CPRE, whenever any reform or relaxation of Green Belt policy is suggested must be ignored. These people have become accustomed to regard the planning system as a useful tool for resisting change. But such protests should not deter either this government or its successors after the General Election next year from carrying through this necessary reform of Green Belt policy, so as to enable the essential expansion of housing development around our towns and cities.

© MARTIN H GOODALL

Validation nonsense continues

I had hoped (perhaps rather naively) that the legislative changes made by the 2013 Act and by the accompanying amendments to the Development Management Procedure Order would put an end to the nonsense that we had been experiencing in recent years from some (in fact quite a few) local planning authorities over the validation and registration of planning applications, but anecdotal evidence indicates that problems over the registration of planning applications are still widespread, and in some authorities worse than ever. It is an issue to which ministers need to give urgent attention if they are serious about reducing delays in the planning system and general frustration over its bureaucratic complexities.

The root cause of the problem is the target culture, for which both the present government and their predecessors must share the blame. This has bedevilled so many parts of the public sector, inducing a tick-box mentality, and giving public sector bodies (whether it be NHS trusts or local planning authorities) a significant incentive to ‘fudge’ the figures by, in the case of the NHS, not putting patients on a waiting list for weeks or months after they have been referred to a consultant by their GP or, in the case of LPAs, by using any and every excuse to delay or avoid ‘registering’ a planning application. Budget cuts and the resulting paucity of experienced planning staff has only compounded the problem.

It was the introduction of local validation checklists that gave LPAs a heaven-sent opportunity to find all sorts of flimsy excuses for failing or refusing to register a planning application. It is a rare case indeed where more than a handful of the types of information set out in these validation checklists is actually required, but the fact that an item appears on the LPA’s standard checklist can give rise to endless arguments over whether or not a specific item of information is really necessary in a particular case. It is infuriating to be faced with a refusal to register an application in such cases, and even more annoying if it happens more than a fortnight after the application was submitted.

Examples are too numerous to list, but include a demand for photo-montages of the street scene (whether or not the site is in a conservation area), petty arguments over scaling of plans, demands for ecological reports when the development quite clearly raises no ecological issues, and so on and so on. I appreciate that there is now a mechanism for challenging and, if necessary, appealing against unreasonable demands for information, but very few developers would want to waste further time and yet more expense by going down that route.

I am told that some authorities no longer accept cheques in payment of application fees (although I have not encountered this myself), which causes a further headache for developers and their agents.

Clearly the legislative changes made last year have made no difference to the behaviour of many LPAs, and some authorities seem blissfully unaware of them or of the change of culture that they were intended to encourage. Something much more drastic is required in order to put a stop to the continuing nonsense over the validation and registration of planning applications. The whole concept of the ‘validation’ and the ‘registration’ of an application as a distinct administrative process is only a quite recent innovation. Ministers should take urgent steps to do away with this part of the process altogether.

A planning application should be considered valid if an appropriate form (which should not require a signature), and a plan “sufficient to identify the application site” (but not necessarily drawn to any particular scale), plus drawings of the proposed development in the case of an application for full permission, is submitted to the LPA, accompanied by the tender of the appropriate fee, whether by cash, cheque or some form of electronic funds transfer. The form should be considered complete if it identifies the application site by reference to its ordinary postal address or some other description sufficient to enable it to be identified and specifies the development for which planning permission is sought (in words of the applicant’s choosing). Other information may be given on the form (such as proposed drainage arrangements, etc.), but should not be considered mandatory at that stage. Note the absence of any reference here to a Design & Access Statement – they are entirely unnecessary, and should be done away with altogether.

The LPA should be obliged to enter this application forthwith in the planning register, irrespective of whether or not sufficient information to enable the application to be determined has been submitted at this stage, and time for all purposes should be deemed to run from the date of receipt of the application, irrespective of the date on which it is entered in the planning register.

Before planning officers throw up their hands in horror at these suggestions, they should be aware that this was exactly how the system worked before we got bogged down in all the bureaucratic nonsense that has been foisted on developers and their agents in recent years. There was, of course, and should continue to be, a right for an LPA to request further information. An LPA had, and would continue to have, the right to refuse permission on the grounds that insufficient information had been provided to enable planning permission to be granted. Faced with a request for further information which a developer considers unreasonable, there should be an immediate right of appeal (as there used to be). This would take the form of a full appeal under section 78, so that the planning inspector, if there is sufficient information to do so (including any additional information produced in the course of the appeal), may grant planning permission, or may alternatively dismiss the appeal if, in the inspector’s judgement, the information provided by the appellant is insufficient to enable planning permission to be granted.

In the vast majority of cases, common sense would prevail on both sides, and developers would ensure that sufficient information is provided, either when submitting the application or subsequently, to enable the application to be properly considered. At the same time, LPAs would be less likely to make unreasonable demands for information. In contrast to the current situation, demanding extra information would be of no advantage to the LPA in ‘massaging’ its performance figures; in fact delays caused by unreasonable demands for information would have an adverse impact on their statistics.

Many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined above are made. Nothing less will do.

© MARTIN H GOODALL

Whitley revisited - the result

In a post on Tuesday, 17 December 2013, I drew attention to an application for judicial review in the High Court ( R (Ellaway) v. Cardiff CC ) which had the potential, if it had succeeded, to bring about a significant change in the accepted position regarding pre-commencement conditions, otherwise known as ‘conditions precedent’.

I had hoped to be alerted when judgment was handed down, but in the event this judgment escaped my attention when it was given on 27 March 2014 ( [2014] EWHC 836 (Admin) ). As I had rather expected, the claim was dismissed.

It was not disputed that by the time development commenced on site, the developer had applied for the discharge of all the pre-commencement conditions, although the Council had not yet determined those applications. There was some argument as to the procedural propriety of the means by which the Council dealt with the applications for discharge of the conditions, but the work undertaken on site was carried out in strict conformity with the details provided by the developer in support of the applications for discharge of the conditions. This was exactly in accordance with what has long been accepted as an ‘exception’ to the general rule in Whitley, and this exception is derived from the Whitley judgement itself. There was clearly no basis on which the Council’s action could be challenged on this ground.

The claimant had sought to argue that a matter of this kind ought not to be dealt with in that way, but should be the subject of an application for retrospective planning permission under section 73A. However, Wyn Williams J did not consider that there is any basis to conclude that the Whitley principle and the exceptions to that principle cannot co-exist with Section 73A of the 1990 Act. There is no authority which begins to suggest the contrary. Further, there can be no doubt now, if there ever was following the judgment in Whitley, that the Whitley principle itself is regarded as “a clear legal principle of general application” – see Greyfort Properties Limited v SSCLG [2011] EWCA Civ 908. It is equally clear that the acknowledged exceptions to the principle are also founded upon clear principles of general application.

The possible difference of approach required in this case, as argued by the claimant, arose from the fact that this was EIA development, and (so it was argued) the need to comply with European directives required a more rigorous procedure to be adopted. Nonetheless, it was accepted on behalf of the claimant that European law does not prohibit the grant of retrospective planning permission – i.e. the grant of planning permission after the proposed development has been initiated prior to the discharge of pre-commencement conditions. (See the decision of the Court of Appeal in R (Ardagh Glass Ltd) v Cheshire West Council [2010] EWCA Civ 172.) However, the claimant submitted that European law demands that such a grant should be made only exceptionally and, in effect, only in the context of an application made under Section 73A of the 1990 Act.

Both the Council and the developer strongly disputed that a grant of retrospective planning permission must be made only in the context of section 73A of the 1990 Act. Furthermore, they both submitted that neither the Council nor the developer had acted inconsistently with the relevant principles of European law.

To put it shortly, Wyn Williams J found that the Whitley principle is entirely consistent with the aims and objects of the Directive. The rationale of the exception is to avoid unnecessary formality and wasted time and expenditure. The terms of the exception are clear and self-contained. It is obvious when the exception will apply. The fact that this exception is the product of judicial decision-making, as opposed to Parliamentary enactment, does not mean that it is unpredictable, unclear, imprecise or uncertain. In truth both the Whitley principle itself and the exception relied upon by the Council are clear and their application in individual cases is entirely predictable. The fact that the Court of Appeal has acknowledged that the exceptions to the Whitley principle may not be closed does not mean that the acknowledged exceptions are unpredictable or uncertain.

In the circumstances, the court did not consider it necessary to deal with the issue of delay, which might very well have prevented the grant of relief in this case if the claimant had made out the legal grounds to support her claim.

So we can all breathe a sigh of relief, and continue to rely on the Whitley principle and its acknowledged exceptions. The added ‘European’ dimension made no difference in this case, and there would seem to be no basis for arguing that the discharge of conditions should be dealt with differently in such a case compared with normal procedure. The time for an EIA assessment (where this is required) is much earlier, at the planning application stage. It has been established that the approval of reserved matters after a grant of outline permission can also give rise to a requirement for a separate EIA at that stage, but it is difficult to envisage circumstances in which an application for the discharge of pre-commencement conditions (‘conditions precedent’) could give rise to such a requirement, even where the discharge of those conditions is retrospective following the commencement of development.

© MARTIN H GOODALL

Uses restricted by condition - some further thoughts

In two previous blog posts (“Can conditions preclude Permitted Development?” on Friday, 18 October 2013, and “Conditions that fail to prevent Permitted Development” on Monday, 24 March 2014) I discussed the circumstances in which a condition attached to a planning permission may preclude the operation of section 55(2)(f) of the 1990 Act and Article 3(1) of the Use Classes Order and/or Article 3(1) and Part 3 of the Second Schedule to the General Permitted Development Order – in other words, the right to use the land or building in question for other purposes within the same Use Class and/or to make any of the changes of use that are (or would otherwise be) Permitted Development.

Since then, I have been considering some other judicial decisions on this issue that may shed further light on the topic, although I am bound to say that these judgments have left the position far from clear.

First of all, as I have previously pointed out, a condition that expressly refers to either the UCO or the GPDO can certainly prevent the operation of those Orders. It is perhaps worth noting in this connection that the model conditions that were previously recommended (in Circular 11/95) read:

"The premises shall be used for......…and for no other purpose (including any purpose in Class........… of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

and

“Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification) no....[specified development]........shall be [carried out].”

A problem only arises where those words, or very similar words have not been used.

In my first article, I argued that a condition which simply prohibited other uses without referring to either or both of these two pieces of subordinate legislation could not be taken to preclude their operation. My view (particularly with regard to the GPDO) was based on the proposition that a condition could not prevent an application for and grant of a fresh planning permission for a change of use to any of the uses that the original condition sought to prevent. If granted, the planning permission would supersede the previous permission (and its conditions) and this is exactly what Part 3 of the Second Schedule to the GPDO does; i.e. it grants planning permission (subject to certain requirements being met) for a further change of use. It was on this basis that I argued that a condition that does not expressly preclude the operation of the GPDO cannot therefore have the effect of preventing this permitted development.

Judicial support for this proposition, and for a similar approach to the operation of section 55(2)(f) and Article 3(1) of the Use Classes Order, can be found in the High Court judgment in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806 and in the subsequent decision of the Court of Appeal in Dunoon Developments Ltd -v- SSE [1992] JPL 936, as discussed in the second of my two previous articles.

However, I am aware of two or three other judgments that have gone the other way, and the purpose of this third article is to examine these, and to attempt to form a view as to their effect on this issue.

The first of these was City of London Corporation v. SSE (1971) 23 P&CR 169 (which predated both Carpet Decor and Dunoon Developments). In that case, the wording of the condition was that "the premises shall be used as an employment agency and for no other purpose." This was held to operate effectively to exclude the operation of the Use Classes Order.

In Rugby Football Union v SSETR [2001] EWHC 927, the court considered a condition relating to stands at Twickenham Rugby Football Ground, which was worded that the stands "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected by the court on the ground that the words 'for no other use' were clear. They had no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission, for example under the Use Classes Order (by virtue of section 55(2)(f)). The judge was satisfied that those words met the test of being sufficiently clear for the exclusion of the Use Classes Order.

A more recent decision - R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin) - related to planning permission for the construction of a non-food retail park comprising 5 units. This permission contained a condition which provided that: "The retail consent shall be for non food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing." The stated reason for the condition was to ensure that the nature of the scheme would not detract from the vitality and viability of the nearby town centre.

The appellant sought a Lawful Development Certificate to confirm that they were entitled to use these retail units for any purpose within Use Class A1 of the UCO (i.e. not limited to the categories specified in the condition). On appeal against the council’s refusal of a certificate, the Inspector found that, on a fair interpretation, the use of the word 'only' was effectively the same as the phrase 'and for no other purpose', especially when the condition was read in its entirety. When read alongside the reason and in the context of the permission as a whole, the Inspector found that the condition prevented the exercise of rights under the Use Classes Order (i.e. to use the premises for other purposes falling within Use Class A1).

When the matter came before the High Court, it was held that the reason for imposing a condition is important in understanding the objective of the condition. It is publicly available as part of the planning permission. To ignore it or to fail to have regard to the reason would operate as an unnatural and unnecessary constraint on an interpretation of the condition. This condition was intended to provide an on going mechanism to maintain the retail health of the town centre. In the Court’s judgment, that is what a reasonable reader of the condition would discern - namely, a non food retail consent only, with sales permitted of bulky goods within certain main sectors so as not to cause any material harm to the retail health of the town centre.

The Court specifically considered whether the wording of the condition might be insufficiently clear and unequivocal in its terms as to exclude the operation of the Use Classes Order. However, the judge regarded the use of the word "only" as emphatic. It meant solely or exclusively. That was its plain and ordinary meaning. This would prevent any retail sales other than those stipulated of a non food nature.

The Court did not agree that the absence of the words 'for no other use' (in contrast with the Rugby Union case) made any difference in this regard. The condition before the court in the Royal London Insurance case could also be distinguished from Dunoon Developments, where there was nothing more than a restrictive description of the use in the relevant condition that might potentially (but did not in practice) exclude the Use Classes Order.

In Royal London Insurance there was a planning permission which, read as a whole, including Condition (3), set out what was permitted. Condition (3) restricted the ambit of Class A1 uses. It would be logically inconsistent to construe Condition (3) as carefully limiting A1 uses on the one hand, but then to argue that A1 use is unrestricted and permitted on the other. The condition only made sense if there was an implied exclusion of the Use Classes Order and Class A1 rights. In the Court’s judgment, this was achieved by the words used in the condition.

The first comment I would make in light of these judgments is that the decision of the Court of Appeal in Dunoon Developments should not be lightly set aside. I drew attention in my second article, on 24 March, to the clear words of both Farquharson LJ and the Vice-Chancellor, Sir David Nicholls. These words must be taken as an authoritative statement of the legal position in this regard. It follows that the other cases to which I have referred must, to a greater or lesser extent, have been dependent on their facts.

If any further refinement of the general proposition can be derived from these other cases it is perhaps that if, read as a whole and in context, the clear words of the condition (including the stated reasons for its imposition) leave no doubt that the planning permission that is being granted is only for a strictly limited use, then it may be effective to preclude the operation of either or both of the UCO and the GPDO, even though these are not expressly referred to. So, for example, in the Royal London Insurance case, the condition was explicitly intended to ensure that the development would not detract from the vitality and viability of the named town centre.

By contrast, I suggest that a vaguely worded reason (for example, “to enable the local planning authority to retain control over such uses in future” or some similar rubric) is unlikely to cut the mustard, especially bearing in mind that the procedural advice from ministers (as set out in the NPPG) continues to be firmly against conditions that purport to preclude the operation of section 55(2)(f) and Article 3(1) of the UCO or Article 3 and the Second Schedule to the GPDO. The very fact that there were until very recently model conditions (in Circular 11/95) that recommended explicit wording for such conditions is another persuasive factor which indicates that the general rule in Dunoon Developments should be applied in the absence of a very clear intention (backed up by a clearly stated and specific planning reason for the imposition of the condition) to preclude the operation of the statutory provisions.

[UPDATE: I noticed after writing this piece that "Annex A" to Circular 11/95 (model conditions) was not cancelled along with the rest of the circular. This was presumably meant to refer to APPENDIX A, where the model conditions quoted above (48 and 50 respectively) are to be found. This further strengthens the point that I sought to make.]

NOTE: This topic is more fully discussed in the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

More banner adverts on shrouded buildings

(Fourth in an occasional series)

As I have pointed out on several previous occasions in this blog, there seems to be an unreasoning prejudice in this country against outdoor advertising. Whatever one may think of the overall control of advertisements regime, one aspect that particularly irritates me is the extreme reluctance of some local planning authorities (in fact, I suspect, a majority) to countenance large banner adverts on shrouded buildings while they are in course of demolition, reconstruction or repair.

I have in the past acted for one or two of the companies engaged in this type of advertising, but I am not currently retained by these clients and so I have no professional or commercial axe to grind. I simply think that this type of advertising can be beneficial, both as a means of hiding an eyesore while the building work is in progress and in helping to finance the restoration of the fabric, not to mention brightening up the townscape for a time.

Other countries do not seem to have the same hang-up with this type of advertisement display that we have in the UK. I have previously illustrated examples from both Paris and Venice, where large banner adverts have been erected around outstandingly important buildings in the most sensitive of settings – the point being that if such temporary advert displays are accepted by the authorities in those locations, then there can be no justification for resisting such displays on Grade I listed buildings located in a World Heritage Site in this country or in the most outstanding of conservation areas, and of course on many less important buildings in less sensitive environments.

I previously drew attention to a shroud advert in the Place Vendôme in Paris, and I found several further examples on my latest visit to Paris this year. The first of these is in the Place des Vosges (originally the Place Royale) in le Marais (the 4ème Arrondissement), one of the earliest town squares in Europe (if not the earliest) – completed in 1612. Cardinal Richelieu lived here from 1615 to 1627, and Victor Hugo’s house in the south-east corner of the square is open to the public.

The banner advert here is at the north end of the eastern side of the square, next to the junction with the rue du Pas de la Mule. As the rubric on this and the other advertisements illustrated here clearly states: “Cet affichage contribue au financement de la restauration de l’immeuble.” Précisément!


At night this advert is externally illuminated, as seen in the next shot.

An even larger banner advert is to be seen on the south front of the range of public buildings that house le Palais de Justice, le Conciergerie and Sainte-Chapelle on l’Île de la Cité (in the 1er Arrondissement). This advert fronts onto Quai des Orfèvres and le Pont Saint-Michel.

A third example can be seen at the junction of rue Auber and rue Scribe (in the 9ème Arrondissement) immediately opposite the monumental Opéra Garnier. There is a good view of it from the roof terrace of les Galeries Lafayette (as shown in a second photo below).

In these various shroud displays, the advertising material does not cover the whole of the shroud, so there is also a representation of at least part of the building façade in these displays, which gives an indication of the structure of the building lying behind the shroud.

The three examples illustrated here are representative of the type of banner adverts on shrouded buildings that are clearly acceptable in such cases, even where heritage assets of the highest value are involved, in very sensitive locations. The essential point is that these displays are by their nature temporary and, as the displays illustrated here explicitly state, they contribute to the funding of the restoration of the building (as was clearly also the case in the examples from Venice to which I drew attention in earlier posts).

It seems that LPAs (and even the Planning Inspectorate) remain very reluctant to grant advertisement control consent for such displays, and so the only sensible course of action would be to amend the Control of Advertisements Regulations so as to grant deemed consent to these displays. Planning ministers have shown great enthusiasm for cutting through red tape in the planning system, particularly through the medium of extended permitted development rights, and so an amendment of the Control of Advertisements Regulations ought perhaps to commend itself to Eric Pickles and Nick Boles.

© MARTIN H GOODALL

We apologise for the interruption...............

We have reached one of those frustrating periods again when pressures on my time prevent my keeping up-to-date with this blog. I fear that by the time I can post the next entry on this blog, more than a fortnight is likely to have passed since the previous item was posted at the end of last week. Regrettably, the same applies to the moderation of comments, and so here too there is likely to be a hiatus.

Meanwhile, there have been further developments on which I wish to report when I have the opportunity to do so. My attention has been drawn to a couple of recent judgments that are relevant to the issue of conditions removing permitted development rights and/or removing the right (under section 55(2)(f)) to use a planning unit for purposes falling within the same use class as the existing use. Unfortunately, these judgments are not as clear as might have been hoped and do not really help in clarifying the position.

I have not forgotten that I promised to look at the small print in the recent GPDO amendment order, which limits or restricts some of the development potentially permitted by these changes. There is also an unresolved issue as to the validity of conditions attached to prior approvals issued by LPAs before 6 April 2014. Are these, as some have suggested, ultra vires, or is the provision in the latest amendment order confirming that LPAs have power to impose conditions on prior approvals under Part 3 retrospective in its effect as regards conditions imposed before 6 April 2014? I am rather inclined to doubt this, but the position is not all that clear-cut.

So there is plenty to talk about, but it may have to wait at least another 10 days, before I can get back to posting further entries on this blog.

© MARTIN H GOODALL