Permitted development for office conversions to be permanent

The long-awaited announcement of the proposed extension or removal of the May 2016 deadline for the completion of the residential conversion of offices finally came yesterday in a press release issued jointly by 10, Downing Street and De-CLoG. The measures that were announced are far more wide-ranging than this, and include a new Housing and Planning Bill and a whole raft of other planning changes, which we shall have to get to grips with in the coming months.

With preparations for the publication of my new book at an advanced stage, I have inevitably been focused on this topic for the past few weeks, and this is likely to continue until we finally go to press. We had hoped to do this no later than the end of this week, but must first try to establish the likely timetable for the necessary GPDO amendment order. The bare bones of the government press release gave no hint of this, nor of the detailed provisions that it will contain.

The most reliable indication of ministers’ intentions was set out in their “Technical consultation on planning” of July 2014. This canvassed the proposal either to extend or to make permanent all the permitted development rights which were due to expire in May 2016. The proposal in the case of Part 3, Class O was to extend the completion deadline by three years to 30 May 2019, but there were later hints that the deadline might be removed altogether, and this is what has now been announced.

The Government’s original proposal was to amend Class O with effect from May 2016, and it was emphasised in the 2014 consultation paper that these amendments would not come into force until the existing permitted development right ends in May 2016. The amended permitted development under Class O would replace the existing right.

It was the government’s intention that the exemption of certain areas (‘Article 2(5) land’) which applies to the current permitted development right would not be extended to apply to the new permitted development right under Class O, but there are rumours that the government has been persuaded to keep these exemptions in place.

It was also proposed that in addition to prior approval of the impact of the proposed development in relation to highways and transport, flooding and contamination, prior approval would also now be required in respect of the potential impact of the significant loss of the most strategically important office accommodation. However, in order to avoid this being used as an easy excuse by LPAs to refuse these prior approval applications, this would be tightly defined. The existing general exclusions would continue to apply (i.e. listed buildings and land within their curtilage, scheduled monuments and land within their curtilage, safety hazard areas and military explosive storage areas).

So far as the potential impact of the significant loss of the most strategically important office accommodation is concerned, the relevant provision would no doubt take a similar form to the existing provisions in Class M and Class P (if this intention is now carried forward into the GPDO amendment order). The list of matters requiring prior approval might therefore include an extra item along these lines :

“(d) where the authority considers the building to which the development relates is located in an area that is strategically important for providing office accommodation within Class B1(a) (offices) of the Schedule to the Use Classes Order, whether it is undesirable for the building to change to a residential use because of the impact of the change of use on adequate provision of facilities of the sort that may be provided by a building falling within Use Class B1(a) (offices), but only where there is a reasonable prospect of the building being used to provide such facilities.”

However, whether a provision of this sort will find its way into the amendment order, and the precise form it may take, remains (at the time of writing) a matter of speculation.

The government’s original intention had been to make an amending order in sufficient time to ensure that local planning authorities would be given more than a year to prepare for the introduction of the new permitted development right and, although it was not spelt out explicitly, to make Article 4 Directions where they consider it necessary to do so; but an amending order made within the remaining time before the end of May 2016 removing the exempted areas with effect from that date would leave LPAs with significantly less than a year in which to make Article 4 Directions to replace these exemptions.

Whilst Article 4 Directions could still be put in place before the end of May 2016 if LPAs were to embark on the process more or less immediately, the essential point is that they would not be able to give 12 months’ notice of those directions, so as to avoid what could potentially be very large compensation claims if planning permission is subsequently refused for the residential conversion of offices that could have been carried out as permitted development in the absence of the Article 4 Direction. The equally unattractive alternative from the point of view of the affected LPAs would be to postpone the coming into effect of any such Article 4 Direction so as to avoid the risk of compensation becoming payable, but at the risk of laying their areas open to a rush of prior approval applications for the residential conversion of offices in the formerly exempted areas in the meantime.

This difficulty could be avoided if the government were either to retain the existing exempted areas under Article 2(5) and Part 3 of Schedule 1 (as it has been suggested they now intend to do) or, alternatively, to postpone their removal from the GPDO for up to (say) 18 months, in order to give LPAs the opportunity to put Article 4 Directions in place at least a year before the protected areas lose their exemption.

The amendment order could be made and laid before parliament this week, or we may have to wait several weeks or even months before it comes forward. However, developers will wish to end the current uncertainty as soon as possible, in order to unlock the funding for these office conversion schemes that had all but dried up in advance of the original May 2016 completion deadline. If the government is sympathetic to the commercial needs of the developers, they won’t delay any longer before introducing the necessary amendments to the GPDO.

UPDATE (2.30 p.m. 13/10/15): In a press release issued this morning Brandon Lewis (the Minister for Housing and Planning) said that offices that have already received prior approval for residential conversion will now have three years to complete the conversion. No doubt all office conversions under Class O will be subject to a three-year completion condition in future (which already applies under a number of other Classes in Part 3).

Lewis has also confirmed that (as previously rumoured) the new permitted development right under Class O will allow office buildings to be demolished and replaced with new buildings for residential use, and that permitted development will also be extended to include the change of use of light industrial buildings within Class B1 and launderettes (still a sui generis use).

As I suggested above, the exemption of certain areas under Article 2(5) will not immediately be removed. I suggested 18 months’ grace, but the government has agreed to allow a three-year period until May 2019 before these exemptions disappear.

© MARTIN H GOODALL

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More on short lets in Greater London

I am grateful to Sheridan Westlake (who until the end of last week was a Special Adviser - a ‘SPAD’ - at De-CLoG, before going off to work for the Tory re-election campaign) for drawing my attention to the Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 (2015 No. 994 (C. 69)), which was made on 27 March, but has not yet been laid before parliament. This will have to await the summoning of a new parliament on 18 May.

Article 6 provides that the date appointed for the coming into force of sections 44 and 45 of the Act (dealing with the relaxation of restrictions on short-term use of London accommodation) is 26 May 2015. Some of the other provisions of the Act are due to come into force in April, but I confess that I am puzzled as to the legality of this, in the absence of this statutory instrument having been laid before parliament. At the head of the SI one usually expects to see three dates – the date the SI was made, the date it was laid before parliament and, finally, the date when the SI takes effect. Only the date on which the SI was made is shown, and so I am left in doubt as to whether this Commencement Order will in fact be effective until after the next session of parliament commences.

I confess to being very rusty indeed on my basic constitutional and administrative law, including parliamentary procedure, so I remain completely in the dark so far as the current legal status of this Commencement Order is concerned, especially during the hiatus between the dissolution of one parliament and the summoning of the next.

Just to recap on the existing legislation, section 25 of the Greater London (General Powers) Act 1973 (as amended) provides that for the purposes of section [55(1) of the 1990 Act], the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part thereof which is so used. “ Use as temporary sleeping accommodation” in this context means use as sleeping accommodation which is occupied by the same person for less than 90 consecutive nights [originally 22 nights] and which is provided (with or without other services) for a consideration arising either by way of trade for money or moneys worth; or by reason of the employment of the occupant; whether or not the relationship of landlord and tenant is thereby created.

What section 44 will do (when it comes into effect on 26 May) is to make section 25 of the 1973 Act subject to a new section 25A. This provides that, notwithstanding the provisions of section 25(1), the use as temporary sleeping accommodation (i.e. for less than 90 days) of any residential premises in Greater London does not involve a material change of use if two conditions are met.

These are, first, that the sum of the number of nights of use as temporary sleeping accommodation, and the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year, does not exceed 90 and, secondly, that, in respect of each night which falls to be counted in this way, the person who provided the sleeping accommodation for the night (i.e. the owner or normal occupier) was liable to pay council tax in respect of the premises. If more than one person provided the sleeping accommodation for the night, then it’s OK if at least one of those persons was liable to pay council tax in respect of the premises. And it does not matter whether any previous use was by the same person. (I confess that I am not quite sure what difference dection 25A makes, compared with section 25 itself.)

The second new section (25B) gives either the local planning authority or the Secretary of State the power to direct that section 25A is not to apply to specified residential premises, or to residential premises situated in a particular area. A direction under this section can be given only if the local planning authority or the Secretary of State considers that it is necessary to protect the amenity of the locality. The local planning authority may give a direction under this section only with the consent of the Secretary of State. A direction under this section can be revoked at any time, but only by the person (i.e. the LPA or the S of S) who gave it. A direction is not subordinate legislation, and is not therefore subject to the usual legislative formalities, but this power will not arise before 26 May.

The Secretary of State may delegate his functions under this section to an LPA, or may direct that an LPA may give directions under this section without his consent (although he can also revoke such a delegation or direction).

The Secretary of State also has power by means of a statutory instrument to make regulations providing for the procedure which must be followed in connection with the giving of a direction under this section or in connection with its revocation, and as to the information which must be provided where the LPA seeks the consent of the Secretary of State to their giving a direction under this section.

Section 45 of the Deregulation Act then goes on to give the Secretary of State the power, by means of a statutory instrument, to make regulations to disapply section 25(1) of the 1973 Act if conditions specified by those regulations are met. The regulations must include provisions corresponding to section 25B but, subject to that, they may amend the 1973 Act, and may make different provisions for different purposes, and they may include incidental, supplementary, consequential, transitional, transitory or saving provisions. A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

It was section 45 of the 2015 Act I had in mind in pointing out that the Secretary of State would run out of time (and has now run out of time) in which to make any such regulations before the General Election. I didn’t follow the Deregulation Bill in its passage through parliament, other than to note its general progress, but I am under the impression that sections 44 and 45 as they have emerged in the Act differ somewhat from the original draft of the Bill, and that the amendments made during the passage of the Bill may well have been intended to overcome this time problem by allowing changes to the rules in advance of any statutory instrument being made.

If so, then it seems that Uncle Eric has ultimately been frustrated, and the intended relaxation of the rules on short-term lets in Greater London will have to await the pleasure of the next Secretary of State.

©MARTIN H GOODALL

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Budget statement – more GPDO changes

As I have noted before, George Osborne loves to include planning announcements in his budget statements. Today’s written budget statement (published to coincide with the Chancellor’s budget speech in the Commons) promises a review of the General Permitted Development Order. After so many amendments over almost 20 years since it was first published in 1995 it certainly needs it. Dare one hope that some of the more opaque drafting to be found in parts of the Order might at last be clarified?

A number of us have noted that recent additions to the GPDO do not grant an automatic right to carry out permitted development, but involve a prior approval procedure which I described the other day as “planning permission-lite”. It seems that the government has recognised this, and intends to make what amounts to a three-tier system of planning consents a permanent feature of the planning system.

As the budget statement puts it, there are already and will continue to be, first, simple permitted development rights for small-scale changes, then prior approval rights for development requiring consideration of specific issues, and then planning permission for larger scale development. I am not convinced that there is likely in practice to be any significant difference between the second and third kind of consent so far as the applicant is concerned. There will still be hoops to jump through and the possibility of applications being turned down, with the consequent time and expense of going to appeal. I drew attention the other day to the wide discretion that LPAs would appear to have in practice to refuse prior approval of barn conversions, even though they now come (at least in theory) under the category of ‘permitted development’.

In addition, further extensions of permitted development rights are proposed. The government is going to consult on further changes of use to residential use, for example from warehouses (B8) and light industrial structures (B1(c)). They are also considering extra PD rights for commercial premises to allow the expansion of facilities such as car parks and loading bays within existing boundaries (although only “where there is little impact on local communities”, which suggests that this will be one of the changes that will be subject to a prior approval procedure).

One other idea that emerged from the Budget Statement was the suggestion that for people who want to build their own home, the government will consult on creating a new ‘Right to Build’, giving custom builders a right to a plot from councils, and a £150 million repayable fund to help provide up to 10,000 serviced plots for custom build. It will be interesting to see how what appears in effect to be a ‘reverse-compulsory purchase’ concept will work.

© MARTIN H GOODALL

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Subdividing a planning unit

Ben Wharfe recently raised a query with me as a comment on an early post I wrote on “curtilage confusion”. I thought that rather than shunting this, together with my reply, into the comments section of that post, it would justify a wider airing in the main part of the blog.

Ben drew my attention to the Court of Appeal’s judgment in Wakelin v. SSE 1978 JPL 769. His query actually related to the subdivision of a single dwellinghouse, but I don’t think that Wakelin is directly in point here, as the position is clearly governed now by section 55(3)(a) of the 1990 Act, which specifically declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part which is so used.. As the later decision of the Court of Appeal in Arun established, it is the 4-year rule that applies here, even if the breach of planning control is in fact and a breach of condition. To that extent, Wakelin has been superseded, because that case involved just such a breach of condition, and this point was lightly dismissed as a consideration by Lord Denning.

Thus section 55(2)(f) has no application so far as the subdivision of a house is concerned, because the position is entirely governed by section 55(3)(a). However, there is a slight doubt as to the precise effect of section 55(2)(f) in other cases. On one reading of the wording of this sub-paragraph, it may not necessarily apply to subdivision of a planning unit as such, although it certainly covers any change of use within the same use class. So for example, change of use from a butcher’s shop to use as a post office (both within Use Class A1) is not to be taken for the purposes of the Act to involve development of the land. But subdivision or amalgamation of planning units may nonetheless amount to a material change of use if it has the effect of changing the character of the use. The Court of Appeal’s judgment in Wakelin is one example, and the more recent High Court judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 (involving the amalgamation of seven dwellings so as to re-convert the building to use as a single dwelling) is another example, where the change in the size of the planning unit was held to affect the character of the use in planning terms (in a broad sense, not confined to its possible environmental effects) and was thus a material change of use amounting to development, notwithstanding the fact that the earlier and later uses were all within one and the same use class.

This may come as a surprise to many people, as there seems to be a general assumption that section 55(2)(f) covers subdivision of a planning unit, so long as the use of all of the new planning units created by this subdivision remains within one and the same use class. Richmond clearly established that this is not necessarily so with regard to the amalgamation of two or more planning units, but it seems that the same could equally apply to the sub-division of a planning unit. A material change of use does not necessarily occur upon the sub-division of a planning unit, but if this changes the character of the use (in planning terms) then this may amount to a material change of use, notwithstanding section 55(2)(f). It is quite frankly a ‘grey’ area, and I suppose that, as in so many other cases, it will be ‘a matter of fact and degree’, dependent of the precise circumstances of each such change to the planning unit.

© MARTIN H GOODALL

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Bribing the NIMBYs

One of the things the government finds really frustrating is that they can’t MAKE local planning authorities grant planning permission. They can try persuasion, and they can ultimately impose government policy (as set out, for example, in the NPPF) through the appeals system; hence the housing appeals that are being allowed on greenfield sites where these developments are being resisted by local councils. But this still delays development that the government would like to see happening right now.

The problem is that elected councillors, fearful of losing their seats at the next council elections, are very susceptible to pressure from vociferous NIMBYs in their district, and it is this that has led quite a few councils to allocate less housing land in their emerging development plans than is objectively needed to meet housing demand in their areas, and to refuse planning permission for housing developments, wind farms, waste incinerators and other such schemes that tend to get the NIMBYs foaming at the mouth.

Now we have the prospect of fracking (extracting natural gas from gas-bearing shale by hydraulic pressure), which is strongly supported by the government, mainly I suspect because of the failure of successive governments since 1990 to come up with a viable strategy for energy, with the result that the lights are going to go out quite soon now unless the government can find a quick fix for the energy deficit. They have seized upon fracking as the answer, like a drowning man clasping at a piece of driftwood. Short of keeping the remaining coal-fired power stations open, in breach of international commitments, there doesn’t seem to be much alternative in the short term, although the nuclear option is clearly the best solution in the longer term. (Forget wind power – it is never going to deliver.)

But here we come back to the NIMBY problem, and the resulting reluctance of local planning authorities to grant permission even for purely exploratory drilling.

Three years ago, when the government decided that it wanted to promote more development as a means, they hoped, of kick-starting economic growth, they came up with the idea of the New Homes Bonus - effectively a bribe to local planning authorities to accept housing development in their areas which they might otherwise have been inclined to resist. There seems to be very little evidence that this has influenced planning decisions at the local level, not least because the NIMBYs can’t see any benefit for themselves in a bonus being paid to their local councils, so they have naturally kept up the relentless pressure on their councillors to resist further development in their area.

It may well have been the slowly dawning realisation among ministers that the New Homes Bonus has been largely ineffective in influencing local decision making that led to the Chancellor announcing in his ‘Autumn’ Statement (in December) that the bribes to accept new development offered to councils (in the form of the New Homes Bonus and the neighbourhood funding element of the Community Infrastructure Levy) might be extended to individual households in areas where new housing developments are to be built. Now we have a similar proposal in relation to fracking, whereby local residents might be paid some form of financial compensation for the disturbance and inconvenience caused by fracking.

No indication has been given as to how either of these ‘compensation schemes’ might work, and I strongly suspect that the government really hasn’t given any serious thought to the practicalities (or even to the practicability) of these schemes yet. It smacks of making policy on the hoof - a frequent habit of the present government, who seem to make a practice of announcing policy initiatives only to withdraw them when it becomes clear, usually quite quickly, that they are seriously unpopular or that they simply won’t work. (Maybe this government should be given the Turner Prize for developing the U-turn as an art-form.)

It is difficult to see how any compensation scheme might work in practice, and it seems improbable, bearing in mind the continuing resistance to further housing development and the virulence of the increasing opposition to fracking, that any scheme designed to buy off the NIMBYs with direct bribes (er, I mean ‘compensation’) will have the effect the government hopes to achieve. There must also be doubts over the legality of such a procedure, especially if (as appears to have been hinted) the compensation for fracking is to be paid by the extraction companies direct to neighbouring owners. How could this be reconciled with the fierce and all-embracing provisions of the Bribery Act 2010?

Ultimately, the government will get its way by allowing appeals against the refusal of planning permission at the local level, but at the cost of a delay of up to a year in bringing shale gas on-line, so as to address the increasingly urgent energy deficit.

I think it might be a good idea to ensure that you have a good stock of candles at home.

© MARTIN H GOODALL

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Conditions that fail to prevent Permitted Development

In a blog post published here on Friday, 18 October 2013 (“Can conditions preclude Permitted Development?”) I drew attention to a type of condition attached to planning permissions along these lines : - “ The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof)” (or words to that effect). The question is whether a condition framed in these terms can prevent the operation of the permitted development right granted by Part 3, Class J of the GPDO, as amended in May 2013.

In my original piece, I expressed the view (for the reasons set out there) that this wording does not have the effect of precluding permitted development under Part 3 of the Second Schedule to the GPDO. But I was unable at that time to put my finger on any specific authority to back this up. Since then, our planning law team at Keystone Law has had to get to grips with this question ‘for real’, and I am grateful to my colleague Ben Garbett for having dug out the judicial authority that backs up the view I expressed last October.

In the meantime (as noted in an update to my original post), Steve Jupp had kindly drawn my attention to paragraph 86 of Circular 11/95 which, after making it clear that conditions of this type are officially discouraged, added that a condition restricting changes of use will not restrict ancillary or incidental activities unless it so specifies, and the paragraph ended with this sentence: “Similarly, a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition also specifically removes those rights as well.” Circular 11/95 has now been cancelled, but this sentence was not a statement of ministerial policy; it was a general statement of the law, which continues to be applicable.

The author of Circular 11/95 no doubt had in mind judicial rulings to that effect. The first of these was delivered by Sir Douglas Franks QC in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806, where he said:

“This case turns on the proper construction of the planning permission. As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.

The Court of Appeal reached a similar conclusion in Dunoon Developments Ltd -v- SSE [1992] JPL 936 (although the judgment in Carpet Decor does not appear to have been drawn to the attention of the court in that case). Article 3(4) of the GPDO had been called in aid by the LPA, but Farquharson LJ held that :

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

He concluded that he recognised that it is necessary to examine the condition with care, bearing in mind the appellants’ submission that that if the LPA were correct in their interpretation, it would deprive the appellants of a development right granted by statute. “It is clear that that the condition makes no express exclusion of the effect of the General Development Order. The question, therefore, is whether it is to be implied from the words themselves, in the context in which they are used, to so exclude them. As already indicated, the condition does not have that wide effect.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more. In the present case there is nothing more. Condition 1 delimits or circumscribes the ambit of the permitted use. The condition is not apt to achieve more. It is not apt to achieve more because it is not fairly apparent from the language of the condition, or the document [the planning permission] read as a whole, that Condition 1 is intended to do more than this. If the condition is fairly read, its purpose is, but is only, to define the ambit of the permission granted. There is not explicit or implicit an intention to negative development pursuant to any existing or future Use Classes Order or General Development Order.”

I am aware of an earlier decision in City of London Corporation v. SSE (1971) 23 P&CR 169 that appears to have gone the other way but, in light of the more recent judgments in both Carpet Decor and Dunoon Developments, I do not believe that any reliance can now be placed on that earlier decision.

The best that might be said for this type of condition is that it may (if appropriately worded) exclude the operation of section 55(2)(f), i.e. other uses within the same use class (as the condition quoted earlier would appear to do), although the judgments in Carpet Decor and Dunoon Developments make it clear that even the operation of section 55(2)(f) by reference to the Use Classes Order cannot be taken to have been excluded in the absence of clear words specifically referring to the UCO.

However that may be, it is abundantly clear from these judgments that (as was confirmed by paragraph 86 of Circular 11/95) a generally worded condition of the type under discussion here cannot prevent the operation of the General Permitted Development Order, and in particular Part 3, Class J in the Second Schedule. Local Planning Authorities who try to resist permitted development on the basis of such a condition are going to be on a hiding to nothing. Where time and effort had to be expended, we have found, is in persuading them that they are wrong in thinking otherwise and, if they still don’t accept the position, in taking the necessary legal and procedural steps to confirm our clients’ right to carry out the development. We are already working on several such cases, and no doubt more will follow.

NOTE: This topic is discussed more fully 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

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Financial incentives to be offered for injunctions

Enforcement action against breaches of planning control has always been the Cinderella of the planning service in most planning authorities, and the squeeze on council budgets has only served to further weaken local councils’ exercise of their enforcement powers. It can be a very expensive exercise, especially if the enforcement action is simply ignored by a recalcitrant developer, so that the council has to resort to applying for an injunction.

Now, however, albeit rather late in the day, De-CloG has announced a new fund to give LPAs some financial help in dealing with proceedings for injunctions in planning cases. Of course, if local authority funding had not been cut in the first place, this extra financial support might not have become necessary, but no doubt it will be welcomed by any hard-pressed authority having to go for an injunction against a persistent breach of planning control, or at least it may be until they read the small print.

The fund provided by De-CloG is £1 million, of which £200K will be available between now and 31 March this year, and the remaining £800K will be available until 31 March 2016. However, this funding is not as generous as it sounds. The maximum grant for any one case is limited to not more than half the council’s estimated costs, but is limited to a maximum payment of £10K.

So the maximum amount of grant that an LPA can apply for is £10,000 (or 50% of their estimated legal costs, whichever is the lesser) towards the cost of securing a Court Injunction in the High Court or County Court. The authority is required to provide a costs estimate setting out details of anticipated legal costs likely to be incurred in preparing and issuing legal proceedings and attending court, but this estimate is not to include non-legal specialist officer time. The LPA must take responsibility for any legal costs incurred in excess of £10K or in excess of any lesser sum that may be granted.

The fund is solely for use by LPAs in England, towards the cost of securing a Court injunction (High or County Court), under Section 187B of the Town and Country Planning Act 1990, against actual or apprehended breaches of planning control to be restrained. Funding is only available where other enforcement options have been, or would be, ineffective, or where there have been persistent breaches of planning control over a long period.

Funding will not be available for court proceedings which have already been started, or where an appellant lodges an appeal under section 174 against an enforcement notice that the LPA has issued. The criteria refer to an appeal made “within 28 days of receiving the notice”, but as the notice will usually come into effect within a fairly short time after the minimum 28-day period, it seems a little odd that an LPA could be deprived of funding for injunction proceedings where an enforcement notice is timed to come into effect (say) 35 days after service, and the developer appeals after 28 days but within the 35-day period.

LPAs will have to jump through hoops to get the funding they are seeking. Before a grant is made, they will have to demonstrate why the action is in the general interest, explain the degree and flagrancy of the breach of planning control, set out the enforcement history for the site (e.g. what other measures have failed over a long period of time), explain any urgency needed to remedy the breach, set out the planning history of the site, provide details of previous planning decisions in relation to the site, set out consideration of the Public Sector Equality Duty (section 149 of the Equality Act 2010) and Human Rights Act 1998, and demonstrate that an injunction is a proportionate remedy in the circumstances of the individual case, in addition to stating the amount of funding requested, including a breakdown of estimated legal spend on legal costs in 2014-15 and 2015-16. And all of this must be written in no more than 1,000 words, writing on one side of the paper only in the Head of Planning’s best joined-up handwriting. Deductions from funding will be made for untidy handwriting, poor grammar and spelling errors. (OK – I made the last bit up, apart from the thousand-word limit, but you get the general drift.)

And that’s not all. To qualify for consideration, the authority is required to confirm that it has adopted the enforcement best practice recommended in paragraph 207 of the National Planning Policy Framework and published its plan to manage enforcement of breaches proactively. The authority’s enforcement plan must have been published at least three months prior to applying for grant and the authority is required to confirm adherence to the recommendations of the National Planning Policy Framework with regard to the way in which the authority monitors the implementation of planning permissions, investigates alleged breaches of planning control; and takes enforcement action whenever it is expedient to do so.

Finally, to support the application for funding, the authority will be required to provide an active web link for their published local enforcement plan together with written confirmation that they are adhering to the objectives of the plan in a positive, pro-active and proportionate way and have been doing so for at least the previous three months.

Contractors engaged by De-CLoG (Ivy Legal) will assess applications for funding against the eligibility criteria in January, April, July and October, and applications for grant must be received no later than the last working day of the relevant application month.

You might think that someone in De-CLoG is trying to make it difficult, if not practically impossible, for local authorities actually to get their hands on this money! I wonder what level of take-up there is going to be when the amount of work involved in applying for funding, and the sum that is likely to be doled out, are taken into account. Getting funding might prove to be more difficult than getting the injunction itself, and many LPAs may conclude that it’s not worth the hassle.

© MARTIN H GOODALL

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Catching up

Continuing work on “The Book” (actually a writing project involving several different titles), combined with a recent holiday, has resulted in a more than usually lengthy delay since my last post here.

There is quite a backlog of topics on which I could write, but still being very short of time, I will just make a few passing comments on some topical issues.

The government, and their various opponents, are now in full election mode, with only three weeks left before parliament is dissolved, when the so-called ‘short’ campaign (a full five weeks of it) commences. There is clearly going to be quite a bit of unfinished business left over, the ultimate fate of which is going to depend on the outcome of the election.

Rather surprisingly, Eric Pickles’ current PPS threw doubt the other day on the government’s intention to go ahead with their previously enthusiastic proposal to make permanent those permitted development rights that are currently due to expire on 30 May 2016. These comprise the authorisation of larger domestic extensions and the residential conversion of offices that fall within Use Class B1(a). So even if we get a Conservative, or Conservative-led, government after 7 May, it seems there is now some doubt as to whether these temporary permitted development rights will be extended to 30 May 2019, as the government had proposed, and then perhaps be made permanent.

Despite ministerial harrumphing (and Uncle Eric is very good at doing that, if nothing else), relaxation of the restriction on short-term lets in Greater London still remains in doubt. The Bill on which this depends (which is expected to become the Deregulation Act 2015), having proceeded at a snail’s pace through the House of Lords, had its Third Reading there on 4 March and now awaits what our parliamentarians delight in calling “Ping-pong” (consideration of Lords’ amendments by the Commons, return of any rejected amendments to the Lords for further consideration, and so on – hence the name), which is due on 10 March.

Royal Assent should follow quite quickly after that, possibly even the very next day (11 March) but the new Act will not actually amend the 1973 Act, which prohibits short-term lets in Greater London; it will simply give the Secretary of State power to make a statutory instrument amending or modifying that prohibition. Up to yesterday, I had been under the impression that there is no longer enough time left in which to lay such subordinate legislation before parliament in this session, but I see that the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 were made yesterday, laid before Parliament today (just 25 days before parliament is dissolved), and will come into force on 6 April, i.e. in one calendar month from now.

If the Deregulation Act receives Royal Assent next week, on the day after a very quick consideration of Lords amendments, we already know that the relevant section will come in to force immediately on the passing of the Act; so could Uncle Eric make the requisite Order on 12 March, lay it before parliament on 13 March and bring it into force on 13 April? That would allow no more than 18 days for theoretical consideration of this statutory instrument before the dissolution of parliament. I don’t have access to a copy of Erskine May, so I don’t know whether this is procedurally permissible or not. Perhaps the Opposition could put a spanner in the works by proposing a negative resolution in that event.

However, if I was right in my previous assumption that by the time the Deregulation Bill receives Royal Assent it will then be too late to lay fresh subordinate legislation before parliament, or if it can be de-railed by the tabling of a negative resolution, then it will be entirely dependent on the view on this issue that is adopted by the ministers who are in office after 7 May as to whether this ever comes forward. Ministers have not in any event said that they will wholly revoke the restriction on short-term lets in Greater London, and so any amending order that may be made could be quite limited in its effect, and be hedged around with various ifs and buts.

© MARTIN H GOODALL

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Development Management Procedure Order replaced

Oh, and just in case you hadn’t noticed, the DMPO has also been replaced by a consolidated Order - the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595). This was also made on 18 March, laid before parliament on 24 March and comes into force on 15 April. (It’s like that old joke about London buses – you wait for ages and then..............)

It contains several drafting amendments, and a handful of procedural changes. No time to say more at the moment.

© MARTIN H GOODALL

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Download Mirror Dinghy Plans Australia

Mirror Dinghy Plans Australia

In order to help out some of our visitor that also participate and looking for mirror dinghy plans australia in this great past-time, I decided to go above and beyond and include simple, easy-to-follow, step by step instructions with all of mirror dinghy plans australia. Since I don't have the time to mentor every person I meet that is interested in learning to build boats, I felt like this was the best way to give back.

The illustrated mirror dinghy plans australia that I've created are of such high quality, that those that I've shared them with have said it's just not right to keep these stashed away in a private archive only to be seen by a select few. The plans for mirror dinghy plans australia offered here on the website are based upon my many years of boat building experience, you'll find no better source of information and proven boat plans anywhere on the internet!

>> Get mirror dinghy plans australia here <<

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PERMITTED CHANGES OF USE – the seminar

In addition to publishing my new book, “A Practical Guide to Permitted Changes of Use”, BATH PUBLISHING are also organising a seminar on this subject, which is to be held at the RIBA at 66 Portland Place, London W1B 1AD on Friday 27 November. [NOTE THE CHANGE OF VENUE.]

This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £120 +VAT if you book before 25 October and includes a copy of my book (worth £40 when published), which will be given to all delegates to the event. [UPDATE: The early bird discount has been extended (for readers of this blog only) until 13 November. For details, see the post on 26 October, which tells you how to claim this discount when booking.]

The seminar will cover some of the issues that give rise to difficulty in relation to this type of permitted development, followed by a panel discussion:

• Restrictive conditions in planning permissions - Do they or don’t they preclude permitted development?

• The 56-day rule in practice

• Structural issues (including partial demolition and structural alterations)

• Prior approval - material considerations and appropriate conditions

You can read more about the programme and venue or book online on the Bath Publishing site here.

Professional delegates will be able to claim 2½ hours’ CPD for this event.

If you have already ordered the book and wish to attend enter the discount code COUPRE35 when booking online to make sure you are not charged for the book again.

Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button below the seminar icon on the left-hand side of this page, by calling Bath Publishing on 01225 577810 or by sending your cheque and full contact details to:

BATH PUBLISHING LIMITED 27 Charmouth Road Bath BA1 3LJ

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On the Eve of the Secret History of American River People Expedition

As you may have heard, the shantyboat nears completion and we are readying it for the Secret History of American River People expedition on the Upper Mississippi starting in a few days.

This is a research journey to gather and present the lost stories of people living on or adjacent to the river. You can read all about it at the project website.

You can follow our progress on our voyage. You may want to hear about our triumphs and travails and the cool people we meet. If so, you can get automatic updates via email (or Twitter or Instagram and so on) right here: http://peoplesriverhistory.us/contact/

I also hope you will keep in touch with us and send us contacts of amazing people we want to talk to on the Upper Mississippi.

Thanks for all your support that has made this project possible.

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Get Wooden Dinghy Plans Free

Wooden Dinghy Plans Free

In order to help out some of our visitor that also participate and looking for wooden dinghy plans free in this great past-time, I decided to go above and beyond and include simple, easy-to-follow, step by step instructions with all of wooden dinghy plans free. Since I don't have the time to mentor every person I meet that is interested in learning to build boats, I felt like this was the best way to give back.

The illustrated wooden dinghy plans free that I've created are of such high quality, that those that I've shared them with have said it's just not right to keep these stashed away in a private archive only to be seen by a select few. The plans for wooden dinghy plans free offered here on the website are based upon my many years of boat building experience, you'll find no better source of information and proven boat plans anywhere on the internet!

>> Get wooden dinghy plans free here <<

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ANDREW HIGNETT JOINS KEYSTONE LAW

Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning and environment lawyer, Andrew Hignett, has joined KEYSTONE LAW. This further strengthens our well-established planning law team, and now gives us coverage of major infrastructure projects, particularly in the ports sector, in addition to the other specialisations we already cover. It brings the number of planning lawyers in the firm to five, all of whom have substantial experience in planning law at a senior level.

Andrew’s key skills are founded in planning and environmental law, and he principally advises ports and other organisations in the sector on marine-related development, particularly in relation to port infrastructure projects. As well as project work, Andrew advises on regulatory and harbour management issues, including the promotion of Harbour Revision Orders.

He has considerable practical experience on the impact of nature conservation law in both the UK and Europe. Andrew also has experience of the judicial review of development consents, including planning permissions, marine licences, and harbour revision orders.

Andrew is a member of the UK Environmental Law Association and is actively involved in the work of the British Ports Association. He also writes and lectures on issues of concern to the ports industry.

© MARTIN H GOODALL

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We’re all going to be film stars!

Not to be outdone by the forthcoming second series of ‘The Planners’ on the telly (which, by the way, is going to be re-titled “Not in My Back Yard!”), Uncle Eric has decided that the cameras should be allowed into planning committee meetings and planning hearings and inquiries.

New guidance is to be issued by De-CLoG, which "will make clear the rights for members of the press and public, including local bloggers and hyper-local [?] journalists, to report, film and tweet planning appeal hearings." In a press release, De-CLoG ministers express the hope that “this will open up a previously mysterious and rarely seen side of the planning process”.

The new freedom to record and film proceedings, including the use of digital and social media can be exercised in future in appeal hearings and inquiries, provided that it does not disrupt proceedings. According to the blurb, "Inspectors will advise people present at the start of the event that the proceedings may be recorded and/or filmed, and that anyone using social media during or after the end of the proceedings should do so responsibly."

Pickles is particularly annoyed, because previous guidance he published in June, which was intended to open up planning committee meetings in the same way, has been deliberately ignored by some councils. Unfortunately, he omitted to write this into recent changes to subordinate legislation on the conduct of council meetings, and so he can do no more for the time being other than to huff and puff about it (something Uncle Eric is rather good at doing).

The press release ‘names and shames’ several of the offending councils:

• Wirral Council banned a blogger from filming its planning committee on health and safety grounds, asserting the ban was necessary as they cannot ‘police’ people filming.

• Tower Hamlets stopped a 71 year old resident and OAP campaigner filming a council meeting in June 2013. Council officers asserted that allowing filming could lead to “reputational damage to the authority”

• Keighley Town Council stopped a council meeting when a group of pensioners started to film the meeting and called in the police who escorted the 11 residents from the town hall. Officials argued allowing filming would be a “breach of Standing Orders”

• Blogger Richard Taylor, producing a guide for citizens on how to film meetings, has warned that some councils have demanded identity papers, such as a passport, before allowing filming, and warned “be prepared for the police to be called and the possibility of arrest, especially if you intend to film, photograph, tweet or take notes on a laptop” (Apparently, he was threatened with arrest when he tried to film Huntingdon District Council.)

• Bexley Council has asserted it intends to continue to prohibit audio and visual filming due to its “agreed protocol”

• Stamford Town Council meeting has reaffirmed its ban on a newspaper reporter tweeting from a council meeting, due to “concerns about 140 character snippets of information not accurately portraying a debate”

I have no more sympathy than Pickles with these weak excuses. If meetings are open to the public (as most planning committee meetings must be by law), there can be no reasonable objection to the proceedings being filmed, photographed and recorded, or reported ‘live’ on social media.

On the other hand, if you have attended as many different planning committee meetings as I have, you may well understand the reluctance of elected members to have their ‘deliberations’ broadcast to the great unwashed. The sad fact is that the standard of debate in many planning committees is absolutely dire, and the poor calibre of elected members, their profound ignorance of planning principles and procedures, and general lack of common sense is appallingly obvious. When officers in one authority claimed that allowing filming could lead to “reputational damage to the authority”, their fears may well have been justified!

As for opening up planning inquiries and hearings to the cameras, camera phones and recorders, I rather suspect that interest in recording the proceedings in this way will rapidly wane. It is rare even to see a local print journalist at an appeal hearing or inquiry, and those members of the public who bother to attend mostly drift away by lunchtime on the first day. The plain fact is that for those not directly involved in the process, it is arcane and incomprehensible, and opening it up to the cameras is not going to change that.

Major public inquiries into controversial development proposals might attract the TV cameras, but they will have the same problem as print journalists who have tried to cover these proceedings in the past. The bigger the development scheme, the longer the inquiry, and for journalists and TV crews it is likely to prove as exciting as watching paint dry.

Still, it makes a good silly season story, and Uncle Eric can feel satisfied that he has taken yet another decisive step to improve the planning system. Never mind, that we are still not building more than a tiny proportion of the new homes that are so urgently needed. Never mind that local planning authorities are starved of funds and can hardly cope with their work as a result. And never mind that all Uncle Eric’s previous brave words and stirring deeds have done virtually nothing to make any really significant change to the planning system.
______________

UPDATE (30 August 2013): I am told that Merton Council has begun webcasting various meetings within the past few months, including its Planning Applications Committee (although I am told that after two meetings no further webcasts have been made due to "technical difficulties"). A correspondent has suggested that readers should watch the first three applications presented on 18 April.

The webcasts can be accessed on:

http://www.merton.public-i.tv/core/portal/webcasts

This is not a link, but if you copy and paste this URL into the address line on your browser, the page should open. Don’t panic when you get no sound at the beginning. The camera was switched on before the meeting began, and the sound only starts when the Chairman opens the meeting, 7½ minutes into the recording. (You can move the cursor along to get to this point without having to watch usual the pre-meeting comings and goings in total silence. Alternatively, the menu on the right of the page enables you to go straight to the start of each item. The first application is reached about 10¾ minutes ibnto the recording.)

The 18 April meeting seems fairly typical to me. One thing you’ll notice is that the proceedings might reasonably be described as ‘unhurried’. It takes over 20 minutes, including the planning officer’s introduction, and public statements, before the members of the committee start to discuss the first application around 33½ minutes into the recording.

Anyway, see what you make of it.


© MARTIN H GOODALL

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Conditions preventing Permitted Development

I have written on this topic before, and it is covered in my book (in Appendix A), but, as a result of discussions with my colleague Ben Garbett, it has become clear that a distinction needs to be drawn between a condition excluding the effect of section 55(2)(f) of the 1990 Act, and a condition which has the effect of precluding permitted development under the GPDO thus engaging Article 3(4) of that Order (which rules out permitted development contrary to any condition imposed by any planning permission).

We are dealing here with two separate statutory provisions, which differ not only in their wording but also in their purpose and effect. For this reason, it should not be assumed that a condition that appears on the face of it to preclude the use of a building or land for a purpose other than that which is expressly authorised by the terms of that planning permission necessarily has the effect of excluding the operation of both of these statutory provisions.

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither if these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. In contrast to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

There has been a tendency (not least on the part of planning inspectors in their appeal decisions), to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development that would otherwise be permitted by the GPDO. I confess that I may have been guilty of doing this in the past myself – it is all too easy to see the effect of a preclusive condition as applying equally to the operation of section 55(2)(f) and to permitted development under the GPDO. However, as I hope to show in this article, such an assumption is incorrect.

Let’s get a couple of preliminary points out of the way first. A planning permission which specifies the authorised use in the description of the development will thereby limit the initial use of the development (e.g. Wilson v. West Sussex CC [1963] 2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. Secretary of State for the Environment (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”). However, in the absence of an express condition attached to the permission, this will not prevent a different use being implemented subsequently, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998] P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685). Thus in a case such as those cited above, where the planning permission authorises a development that creates a single private dwellinghouse, the description of the development authorised by the planning permission cannot, by itself, prevent a subsequent change of use to unrestricted residential use, if the use of the dwelling continues to fall wholly within Use Class C3. Section 55(2)(f) will operate in such a case (subject to the rule in Kwik Save Discount Group Ltd v. SSW [1981] J.P.L. 198, where it was held that a change of use authorised as permitted development under Part 3 of the Second Schedule to the GPDO could not lawfully be made less than two months after the original use had been implemented; the original use had to be more than purely nominal.)

The second point is that a condition, if appropriately worded, can restrict the use or uses to which the development authorised by a planning permission can be put. It is beyond dispute that if a condition is expressly worded so as to preclude the effect of either or both of section 55(2)(f) [and Article 3(1) of the UCO] or the GPDO, then it will be effective to limit the use of the property in that way.

The model conditions recommended in Appendix B to Circular 11/95 (which remain extant, although the rest of the circular was cancelled in March 2014) read:

"[48] 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

“[50] Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 [2015] (or any order revoking and re-enacting that Order with or without modification) no..... .[specified development]........shall be [carried out].”

If so worded, there can be no doubt that such conditions do preclude the operation of these statutory provisions. However, difficulty arises (and has been the subject of litigation) where the allegedly preclusive condition does not refer explicitly either to section 55(2)(f) (and/or to Article 3(1) of the UCO) or to the GPDO.

What has not previously been noticed (and I am grateful to Ben Garbett for drawing attention to this point) is that the judicial authorities that are frequently cited in this connection are not universally applicable to the preclusion of both categories of statutory provision mentioned above. Certain judgments relate specifically to conditions that exclude the effect of section 55(2)(f); others relate solely to conditions that exclude (or purport to exclude) permitted development.

Bearing in mind that, as I pointed out above, negativing the effect of section 55(2)(f) does not have the effect of removing a planning permission that would otherwise enure for the benefit of the land, it is understandable that in this case, the condition in question need not necessarily refer expressly to section 55(2)(f) or to Article 3(1) of the UCO. This is confirmed by those judicial authorities that have dealt with this issue. For example, in City of London Corporation v. SSE (1971) 23 P&CR 169, 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.

Similarly, in Rugby Football Union v SSETR [2001] EWHC 927, a condition relating to stands at Twickenham Rugby Football Ground required 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.

R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin)) was similarly decided. This case related to planning permission for the construction of a non-food retail park comprising five 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 Court upheld an inspector’s decision that 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 for the imposition of the condition 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 (to use the premises for other purposes falling within Use Class A1). 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 essential point in all the cases cited above is that they related solely to the exclusion of section 55(2)(f) [and Article 3(1) of the UCO]. None of these cases related to a condition that had the effect of precluding permitted development under the GPDO.

Although a condition worded like those in the City of London, RFU and Royal London Mutual Insurance cases may be sufficient to exclude the effect of section 55(2)(f), there is very clear judicial authority that a similarly worded condition does NOT exclude the effect of Article 3(1) of the GPDO, granting planning permission for the classes of development described as permitted development in Schedule 2 to the Order, unless the condition contains a specific reference to the GPDO (like Standard Condition 50).

There are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by express reference to the relevant statutory instrument in the wording of the condition. As Sir Douglas Franks QC put it in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806:

“As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.”

In light of the judgments in City of London, RFU and Royal London Mutual Insurance, Sir Douglas Franks’ inclusion of the UCO in the requirement for express words in the condition, mentioning the relevant Order, can no longer be taken as authoritative so far as the UCO itself is concerned, but in relation to the GPDO, the Court of Appeal subsequently concluded in Dunoon Developments Ltd -v- SSE [1992] JPL 936 that Article 3(4) of the GPDO was not engaged by a condition which contained no reference to the GPDO. Farquharson LJ held that:

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO 2015] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more.”

In our seminar in November, Ben Garbett made the point that no judgment since Dunoon Developments has suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The later cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) [and to Article 3(1) of the UCO], and cannot properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition. On the contrary, Carpet Decor and Dunoon Developments remain the leading (and indeed the only) authorities so far as the exclusion of the GPDO is concerned.

In our view, a number of planning appeals in prior approval cases have been wrongly decided as a result of Inspectors concluding that conditions that do not expressly mention the GPDO can nevertheless have the effect of precluding permitted development in accordance with Article 3(4). Thus in one case, the condition in question required that the premises were to be for office use only and not for any other purpose (including any other activity associated with an undertaker’s funeral business). The stated reason for the imposition of the condition was that any other use would be inappropriate and could place “unacceptable pressures” on the site and locality. It was argued on behalf of the appellant that in the absence of any mention in the condition of development under the GPDO it did not have the effect of removing the permitted development rights under Article 3(4), but the Inspector wrongly determined that the judgment in Royal London Mutual Insurance applied in this situation, and that the condition was therefore effective to remove permitted development rights in accordance with the Article 3(4).

Keystone Law’s planning law team are therefore in no doubt that any future appeal decisions which (in reliance on City of London, RFU or Royal London Mutual Insurance) conclude that a condition that does not explicitly refer to the GPDO nevertheless brings Article 3(4) of the GPDO into operation would be open to legal challenge in the High Court under section 288 and are likely to be quashed.

Happy New Year!

© MARTIN H GOODALL

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Shroud adverts on large buildings

I was pleased to see a report of a planning appeal decision earlier this month in London , in which an Inspector had allowed an appeal against the refusal of advertisement control consent for the display of a large shroud advert on the scaffolding around a building awaiting or undergoing refurbishment.

The Inspector very sensibly decided that an advertisement display of this type would be preferable to ‘drab’ sheeting round the building, and that the shroud advert would ‘enliven the street scene’. This seems to have overridden arguments by the LPA that the advert would be a prominent feature close to a conservation area (although not actually in it).

The essential point is that this display will be purely temporary, while the works on the building are being carried out, a fact which many LPAs seem entirely to overlook. Clearly, the inspector was satisfied that any alleged detriment to amenity would be outweighed by the advantage of the ugly plastic sheeting that normally covers such developments being hidden by a lively and attractive advert.

I very much hope that other inspectors will follow this lead, although it would be unnecessary for these matters to be disputed in this way if the Control of Advertisements Regulations were amended to allow temporary shroud advertising of this type where a building is covered in scaffolding and plastic sheeting during building works.

© MARTIN H GOODALL

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Think hard about gasoline

WHEN THE DREADED day comes, and your old auxiliary engine finally decides to head for the great scrapyard in the sky, what are you going to replace it with? There’s almost complete agreement these days. You’ve got to get a new diesel, right?

But why a diesel? It’s not necessarily the right choice for everyone who owns a good old boat. In fact, it’s more of a fashion than a logical choice. There’s much to be said for modern gas engines with fuel injection and solid-state ignition.

The most popular reason given for choosing a replacement diesel is that it’s safer. But sailors who own diesels mostly cook with propane gas, which can blow a boat to pieces just as easily as gasoline can.

A gas engine is cheaper, smoother, and more powerful than a diesel of the same weight. It’s easier to crank, easier to repair, even for an amateur, easier to remove from the boat, and much quieter in action.

Gasoline engines in cars are designed to run about 3,000 hours, or 100,000 miles before they need an overhaul. Now, the average boat owner logs 200 engine hours a year, so, if you maintain it faithfully, it would take nearly 15 years before a gas engine needed an overhaul.

As for safety — your nose is very good at sniffing out very small concentrations of gasoline. Together with a bilge blower, run for five minutes before every start, it will virtually eliminate the chances of a surprise explosion.

So, when the time comes to replace your auxiliary motor, don’t be stampeded into diesel. Gasoline engines have been used in small boats for many decades. Consider their advantages very carefully before you make your choice.

Today’s Thought

To some will come a time when change

Itself is beauty, if not heaven.

—E. A. Robinson, Llewellyn and the Tree

Tailpiece

Notice outside a muffler shop:

“No appointment necessary. We heard you coming.”

(Drop by every Monday, Wednesday, Friday for a new Mainly about Boats column.)

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Gorge Fly Shop Fishing Reports January 26th

Gorge Fly Shop Weekly Fishing Report

"Fly Fish the World with Us"

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Agricultural occupancy conditions and ‘dependants’

The wording of the model agricultural occupancy condition (No. 45 in Appendix A to Circular 11/95, which remains extant following the cancellation of the remainder of that circular) has been widely used by many LPAs. It reads:

“The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependants”.

The question inevitably arises as to whether there would be a breach of such a condition where a member of the family living with the agricultural worker is not financially dependent on that person. The point was considered by the House of Lords in Fawcett Properties Ltd v Bucks CC [1961] AC 636, and the general impression derived from that judgment was that financial dependence was the qualifying criterion.

However, the question arose again in the case of Shortt v. SSCLG [2014] EWHC 2480 (Admin), in which judgment was given on 22 July. An LDC had been sought from the LPA on the basis of a continuous 10-year breach of the AOC, based on the fact that (a) the person actually working in the locality in agriculture had made a consistent loss in the agricultural enterprise throughout that period and (b) that, in consequence of this, the person’s husband was not financially dependent on her, and so could not be a ‘dependant’ for the purposes of the condition. The LPA failed to determine the LDC application, so the applicant appealed to the Planning Inspectorate under section 195.

The Inspector took what many would consider to have been a very sound commonsense approach to this issue. In his view, the appellant’s contention in reliance on Fawcett was an unnecessarily restrictive interpretation of the wording of the condition. In the context of people living in a family, the words subsistence and support are capable of having a non-monetary construction, he suggested. Furthermore, were the meaning of ‘dependant’ in the condition to be invariably interpreted as financially dependent, it would leave members of a family who lived in a dwelling whose occupation was the subject of such a condition, but who were not themselves working in agriculture, at risk of enforcement action whenever the agricultural worker’s income fell below a level deemed to establish dependency, which would be a nonsense. The Inspector considered that the wording of the condition should be interpreted so as to avoid such a possibility, having regard to the potential impact on, or interference with, ordinary family life.

For the purposes of the High Court application, the judge assumed that Mrs Shortt was an agricultural worker, but made no profit from the farm in any year, and therefore made no financial contribution to the family. This was clear from the evidence of her accounts. After considering various statutory definitions of ‘dependant’ in other legislation, His Lordship observed that, so far as the definition of “dependant” is concerned, context is everything.

Turning to the decision of the House of Lords in Fawcett, in His Lordship’s view that decision was is itself equivocal as to whether “dependant” in the statutory context from which agricultural occupancy conditions derive necessarily requires an element of financial dependency. Various appeal decision had been called in aid by the applicant, but these were not entirely in her favour. For example, in one case (Land at Meadows, Colwell Road, Freshwater, Isle of Wight: Planning Inspectorate Appeal No App/C/96/P2114/643380), the Inspector did not consider that “the condition could be construed as excluding a married couple, one of whom works outside agriculture”, where the agricultural worker appears to have earned nothing from that enterprise. Therefore, His Lordship held, even in the statutory context (or a context in which the precise statutory wording had been adopted), there is no clear authority to the effect that “dependant” necessarily implies financial dependency.

The wording of the condition in the present case differed slightly from the model condition, and this appears to have had a material effect on the judge’s decision. The condition did not simply refer to agricultural workers and their dependants, but agricultural workers and “the dependants (which shall be taken to include a widow or widower) of such persons”. So “dependants” here were deemed to include a widow or widower of an agricultural worker, whether or not, before that worker’s death, the spouse was financially dependent upon him or her. It would strain the construction of the condition too far for it to mean “the dependants (which shall be taken to include a widow or widower who was, prior to the agricultural worker’s death, a financial dependant of that worker)”.

Given that “dependants” may or may not include dependency other than financial dependency depending upon the context of the word, it seemed to His Lordship that, if the term is to include a widow or widower irrespective of earlier financial dependency, looked at objectively, it must have been intended to have included a husband or wife without financial dependency. In his view it could not have been the intention of the condition to prohibit spouses who are not financially dependent upon an agricultural worker from occupying the dwelling during the worker’s life, but allow such spouses to occupy it after the worker’s death.

Therefore, the words as used in the condition, looked at as a whole, appeared to His Lordship to envisage “dependency” in a wider and more open-textured way than one requiring an element of financial dependency, certainly to include a spouse and minor children of the worker who is their wife and mother and who provides them with usual family services and care.

To that extent it could perhaps be argued that this judgment is dependent on its facts, that is to say, on the precise wording of this condition. The judge himself pointed out that he was restricting himself to construing the particular condition in this case. It was unnecessary for him to seek to construe “dependants” in the statutory context, and he declined to do so. No doubt he was unwilling to be seen to be differing from a House of Lords decision, but Fawcett was decided over 50 years ago in a very different social and economic context, and a broader interpretation of “dependants” may now be more appropriate, not least because a narrow interpretation could throw up some undesirable and even nonsensical anomalies in such cases, as the Inspector pointed out.

It remains to be seen how much weight can be placed on Shortt as an authority on this issue, but I suggest that Fawcett, even though it was a House of Lords decision, should no longer be uncritically accepted as authority for the proposition that, in the context of an AOC, the interpretation of “dependant” is necessarily confined to financial dependants. It should reasonably be taken to include those in a family relationship with the agricultural worker living with them, such as spouses and even perhaps adult children, even though those persons are financially independent.

© MARTIN H GOODALL

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How to ‘fix’ the planning system

Earlier this month there was a flurry of announcements intended to make it look as if the government is at last prepared to do something about the continuing failure (primarily on the part of the development industry, but they of course are excused from any blame by the government) to deliver sufficient new housing to meet ever-growing demand. This process started with a joint newspaper article by Cameron and Osborne in The Times on 4 July, foreshadowing the budget statement and various press releases and other documents issued to coincide with the budget on 8 July, and then on 10 July a policy document described as the government’s “Productivity Plan” and entitled Fixing the Foundations.

I have commented before on the Treasury’s habit of taking ownership of such announcements, rather than De-CLoG, leaving that subservient department to obey the commandments of the Chancellor handed down on tablets of stone from the Mount Sinai of Downing Street. This is nothing new; the tendency of the Treasury to take charge was equally evident under the last Labour government. But Gorgeous George has always found this approach particularly to his taste, and he has been in a notably gung-ho (not to say hubristic) mood since the election.

The government’s proposals for further changes to the planning system are set out in Chapter 9. With regard to housebuilding, the document acknowledges the longstanding failure to build enough homes to keep up with growing demand, and notes that housing starts fell by nearly two-thirds between 2007 and 2009, with the number of first time buyers falling by more than 50% between 2006 and 2008 (carefully selected figures to coincide with the last period of Labour government).

The document blames “an excessively strict planning system”, which prevents land and other resources from being used efficiently, thereby impeding productivity by increasing the cost and uncertainty of investment, hindering competition, constraining the agglomeration [?] of firms and the mobility of labour, and encouraging land speculation, rather than productive development. Ministers assert that the resulting under-supply of housing, especially in high-growth areas of the country, has pushed up house prices.

The document recognises that the glacial pace of the plan-making system has been a major constraint in achieving the release of housing land, although they refuse to acknowledge one of the primary factors in this – the abolition under Eric Pickles’ superintendency of the Regional Spatial Strategies, which were designed to ensure that all authorities should contribute their share to meeting housing land need. The weak and wishy-washy ‘duty to co-operate’ that was incorporated in the Localism Act failed (as nearly everyone predicted) to provide an effective alternative, and even the NPPF has only had a limited effect in securing the release of housing land.

The plain fact is that local planning authorities, with all the local political pressures to which they are subject, cannot be trusted to deliver the housing that is needed in their areas in order to meet demand not only locally but generated in neighbouring areas as well. The government forswears ‘top-down planning’, but is nevertheless obliged to cast about for some mechanism that would force the hands of LPAs.

In pursuit of this objective, the government has announced its intention to take further action to ensure that local authorities put local plans in place by a set deadline. That deadline has been announced today in a written ministerial statement. It will be “early 2017” (five years after the publication of the NPPF), although it is not entirely clear whether ‘producing’ a local plan means actually adopting it, or merely publishing the first consultation draft. Furthermore, a local plan is not complete until all the DPDs are in place (a lengthy process). I suspect that what is referred to here is simply the Core Strategy.

The government proposes to publish league tables, setting out local authorities’ progress on their Local Plan. The league tables will be fairly meaningless in themselves, but where it becomes clear that LPAs are not making effective progress towards the adoption of a Local Plan, De-CLoG will intervene in those authorities and will do the job themselves. Whether this will in practice lead to faster plan-making is perhaps open to doubt.

This will be accompanied by proposals to streamline the plan-making process significantly, helping to speed up the process of implementing or amending a plan. The government also intends to strengthen the duty of cooperation between local authorities (a clear admission that this provision in the 2011 Act has been ineffective). This means that LPAs will have to be prepared to find housing land to meet the housing needs of adjoining local authority areas where they cannot be met within those areas themselves. However, you can be sure that this will produce a good deal of screaming and kicking on the part of some local councillors, who can see no reason why Midsomer Fartworthy District Council should be forced to allow houses to be built on its nice green fields just to meet the housing needs of their despised neighbours in the Borough of Clagthorpe.

There is a suggestion that further use will be made of development corporations to deliver higher-density development in designated areas. The government says it will consider how policy can support higher density housing around key commuter hubs. There is also a welcome intention to devise policy guidance to secure the release of commercial and industrial land for housing. Local planning authorities are all too prone to resist the ‘loss’ of employment land on which future commercial or industrial development is very unlikely ever to take place, and for which there is no demand in practice.

There is a more radical proposal for ‘brownfield’ sites (previously developed land), where the government is promising “an urban planning revolution”, including funding to provide infrastructure, strong local leadership to shape development and assemble sites, and the removal of unnecessary planning obstacles. The real problem, as anyone who has been involved with such sites is well aware, is the cost of remediation of site contamination where there has been an interesting and varied history of industrial uses. Developers have been known to bankrupt themselves in the process of trying to clean up sites of this sort.

Ministers contend that the planning system can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build, where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny. The government says it is clear on the need to promote the use of brownfield land, and that it will remove all unnecessary obstacles to its re-development, including these sorts of planning obstacles. To this end, as well as legislating for statutory registers of brownfield land suitable for housing, the government proposes to legislate to grant automatic permission in principle on brownfield sites identified on those registers, subject to the approval of a limited number of technical details. On brownfield sites, this will give England a ‘zonal’ system, like those seen in many other countries, reducing unnecessary delay and uncertainty for brownfield development. (Hands up those of you who are old enough to remember ‘zoning’ in this country, and its abolition under ‘new-style’ development plans in the 1980s.) There is also a suggestion that compulsory purchase powers may be used to assemble housing sites on brownfield land.

The assertion is repeated that delays in processing planning applications may be a significant factor preventing housing supply from responding to upturns in the market. So the government proposes to legislate to allow major infrastructure projects with an element of housing to apply through the Nationally Significant Infrastructure Regime (i.e. taking the project out of the normal planning system and shoving it through the fast-track procedure for Development Consent).

There is a threat to further tighten the thumb-screws of the planning performance regime, so that local authorities making 50% or fewer of decisions on time are at risk of designation. The performance regime will also be extended to minor applications, so that local authorities processing those applications too slowly will be at risk of designation.

An unspecified fast-track certificate process is also proposed for establishing the principle of development for minor development proposals, coupled with an intention to significantly tighten the ‘planning guarantee’ for minor applications (whatever that means).

Section 106 agreements have also been identified as a delaying factor, and so the government proposes to introduce “a dispute resolution mechanism” [sic] for section 106 agreements, to speed up negotiations and allow housing starts to proceed more quickly. There isn’t supposed to be a ‘dispute’ about a draft section 106 agreement; it is intended to be negotiated, but where an LPA is proving difficult, I suppose some means of shifting the log-jam may be helpful (although an appeal against non-determination may still be the most practical way forward).

Finally, in order to bring forward more ‘starter’ homes, the government intends to extend the current exception site policy, and to strengthen the presumption in favour of Starter Home developments, starting with unviable or underused brownfield land for retail, leisure and institutional uses. These starter developments will be exempted from the Community Infrastructure Levy, and from the requirement to provide or contribute towards affordable housing. Tariff-style general infrastructure funds will not be sought from them.

How this will all be brought about will become clear over the next year or so. We will presumably see yet another Planning Bill later in this parliamentary session, and some re-writing of ministerial policy to give effect to the government’s stated intentions. How effective all this will prove to be is open to doubt, and I have already heard some very sceptical views expressed as to the actual delivery of all those new houses.

The government has still not addressed some of the real bugbears of the planning system, such as the nonsenses over the ‘validation’ of planning applications. Nor have they addressed the chronic under-funding of planning departments in local authorities and the consequent lack of sufficient experienced planning officers to handle planning applications quickly and effectively. If local authorities are squeezed even harder by the Treasury (as seems likely) things will only get worse. It is not enough for ministers to will the end; they must also will the means.

© MARTIN H GOODALL

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