Judicial Review of office to residential changes

The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

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Earth moving for garden landscaping

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

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

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

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

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

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

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

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

© MARTIN H GOODALL

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Government’s U turn “to save the Green Belt”

You can tell there’s an election coming. Even though ministers and their advisers are well aware that there is an urgent need to release land, including Green Belt land, to meet the requirements for housing land, De-CLoG has issued a statement in which they once again trot out the old mantra that, once established, Green Belt boundaries should only be altered in exceptional cases.

Eric Pickles is quoted as saying: “Protecting our precious green belt must be paramount. Local people don’t want to lose their countryside to urban sprawl, or see the vital green lungs around their towns and cities lost to unnecessary development.” [Translation: “We know the NIMBYs are wrong really, but they might go and vote for UKIP, so at all costs we are going to say and do whatever it takes to get the Tory defectors back into fold, even though it makes a complete nonsense of our pledge to get more houses built. Getting ourselves re-elected has to come first.”]

Uncle Eric and his friends have suddenly re-discovered ‘Localism’ and are claiming that “Local Plans are now at the heart of the reformed, democratic planning system, so councils can decide where development should and shouldn’t go in consultation with local people.”.

Planning officers can naturally be expected to take a more objective view of these matters, because they have to work out a way of planning for the housing needs of their localities, but this had led them (unsurprisingly) to recommend to their authorities that some Green Belt land will have to be released in order to meet objectively assessed targets (even though these are no longer set by central government.) But to counter this, the government’s on-line guidance has been amended to read that assessing need is just the first stage in the preparation of a council’s local plan, and that in assessing the suitability of land to meet the identified need for housing over the plan period, they “should take account of any constraints such as Green Belt which indicate that development should be restricted and which may restrain the ability of an authority to meet its need”.

This makes it quite clear that having objectively assessed housing need in their area, LPAs should feel free to ignore it, if is politically inexpedient to release green field sites (and particularly some parts of the Green Belt) in order to allocate sufficient land to meet their housing need. If this advice is to be taken at face value, it would appear that the government is abandoning the requirement that LPAs must demonstrate that they have a five-year housing land supply, plus a 5% margin (six years’ supply in cases where council’s have failed to produce sufficient housing land in the past, in the form of committed schemes) if they can excuse themselves by pointing to constraints such as the Green Belt (or any other plausible excuses). It also seems to let them off the hook of having to co-operate with neighbouring authorities in the provision of housing land, even though the 2011 Act requires them to do so.

This is bad news for house-builders, and it is bad news for first-time buyers. It also makes a nonsense of recent legislative and policy changes which were directed at securing the provision of adequate housing land. But then, as I said, we are now in the run-up to the General Election, and I did predict a major U-turn sooner or later in this pre-election period. This latest ministerial statement seems to herald that U-turn, and there will no doubt be more to come, as an increasingly panic-stricken Tory Party thrashes about trying to find something, anything, that might secure a few more votes and get them across the winning line next May.

© MARTIN H GOODALL

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