Saturday, November 22, 2014

‘White van man’ with the flags could be prosecuted

Strood’s ‘white van man’, who achieved overnight fame as a result of a tweet by Labour’s (now ex-) Shadow Attorney General, Emily Thornberry, might possibly be liable to prosecution under section 224(3) of the Town and Country Planning Act 1990. This sub-section provides that if any person displays an advertisement in contravention of the Control of Advertisements Regulations, he shall be guilty of an offence and liable on summary conviction to a fine of such amount as shall be prescribed, not exceeding Level 4 on the standard scale and, in the case of a continuing offence (i.e. if the advertisement goes on being displayed), one-tenth of Level 4 on the standard scale for each day during which the offence continues after conviction.

No doubt some readers already have in mind two possible objections to this proposition. First, is the display of a flag an ‘advertisement’ for these purposes? Secondly, is the display of flags not either exempted or granted deemed consent by the Control of Advertisements Regulations? Let’s look at each of those points in turn.

Without going into chapter and verse, it is well-settled law that if a flag or other display is likely to draw attention to the premises where the flag is displayed (even domestic premises), this counts as an ‘advertisement’. The Control of Advertisements Regulations themselves recognise this by exempting certain flags from control, and by giving deemed consent for the display of various other flags. But here’s the snag; the regulations are quite prescriptive as to what is actually permitted, and if the display does not comply with the conditions prescribed by the regulations, then it is unlawful. Even after Uncle Eric’s much-trumpeted (but in fact very limited) ‘liberalisation’ of the rules in 2012, there are still some quite strict rules as to what, and how, flags may be displayed.

Class H of Schedule 1 (adverts that are exempt from control altogether) allows the display of any country’s national flag, civil ensign or civil air ensign, but neither the flag nor the flagstaff may display any subject matter additional to the design of the flag, other than a black mourning ribbon. Now I know that the permanent addition of a black mourning ribbon to England’s national football flag might well be justified, but if you look at the lowest of the three flags displayed on the house in Strood, it had the England FA’s shield on it. So it doesn’t qualify as the country’s national flag, and it does display subject matter additional to the design of the cross of St George. So this one would not appear to be exempt under Sch 1, Class H.

In any event, it would appear to be implicit in the Control of Advertisements Regulations that a flag is expected to be flown from a flagpole, not draped across the wall of a building like a banner. This is not explicitly stated in Schedule 1, but the deemed consent granted for certain other flags by Schedule 3 (see below) certainly does refer specifically to flags flown from variously located flagpoles. It would also appear to be implicit in Schedule 1 (again, by analogy with Schedule 3) that the exemption granted by Class H applies only to a single flag, not to two or more.

In addition, Standard Condition 3 in the Second Schedule provides that any advertisement displayed shall be maintained in a condition that does not impair the visual amenity of the site. This is, of course, a matter of judgment, and I make no comment on the effect that festooning the house with flags in this case may have had on the visual amenity of the site in this case.

Turning now to Class 7 in Schedule 3 (adverts which have deemed consent), this class (together with several sub-classes) permits an advertisement in the form of a flag, but in each case attached to a single flagstaff, mounted at various angles. Bearing in mind that national flags are covered by Sch 1, Class H, none of the types of flag authorised by Sch 3, Class 7 includes any national flags (although it does include a flag bearing the device of any sports club, so flying the English FA flag from a flagpole would be OK). In any event, this deemed consent certainly doesn’t extend to flags draped over the wall of a house. Furthermore, on sites comprising less than 10 houses, only one flag is permitted.

As readers will have gathered from previous posts in this blog on the subject of flags, I think the whole business of regulating the display of flags under the Control of Advertisements Regulations is a complete nonsense, but if an eager and ambitious enforcement officer in the local planning authority for the Strood area wants to make a name for themselves, then the opportunity to do so is presented by a possible prosecution under section 224(3) of the 1990 Act in this case. The evidence is there in the form of Ms Thornberry’s photograph, and it would merely be necessary to call her to prove the photo. (If she proved to be a reluctant witness, her attendance could be compelled by a witness summons.) This case would be bound to attract huge attention from the media, and so this would be a real feather in the cap for the enforcement officer, and a valuable addition to their CV.

Taking my tongue out of my cheek for a moment - if the display of flags (particularly the flag of St George) were to be thought to be provocative or racist in some areas (and I am not for one moment suggesting that this applies to the example in Strood), then prosecution under section 224(3) of the 1990 Act might be an effective way of nipping it in the bud.

One final thought, particularly bearing in mind the approaching festive season – what about Christmas lights? These, and particularly the more extravagant displays, could also be the target for prosecutions under section 224(3), if they were thought to be objectionable in terms of their effect on the amenity of the area. (November 5th is behind us now, but this is the point at which I should perhaps observe the warning on the fireworks to “Light blue touch paper, and retire to a safe distance”!)


Thursday, November 20, 2014

Further planning changes to go ahead

When does Autumn end, and Winter begin? I would have thought that it must be rather more than three weeks before the Winter Solstice, but the Treasury seems to think that Autumn continues at least until the 3rd December. That is the date (round about the same time as last year) on which the Chancellor will deliver his Autumn Statement.

I have pointed out in previous years that ‘Gorgeous George’ loves to upstage DeCLoG’s Uncle Eric, and it appears that this year will be no exception. De-CLoG Chief Planner, Steve Quartermain, told a conference yesterday that we can expect further planning changes to be announced in this Autumn Statement, just as they have been in almost every Budget and every Autumn Statement in recent years.

The likely content of the announcements is no mystery, as the government published a consultation paper on their further proposals for planning ‘reform’ (“Technical Consultation on Planning”) at the end of July. The consultation period ended several weeks ago, and no doubt the government (having duly ignored any responses that it received to this consultation exercise) is now preparing the necessary statutory instruments by which effect will be given to these proposals. Whether these can be laid before parliament before the Christmas recess depends on how efficient De-CLoG lawyers have been in getting on with the drafting. In any event, it would appear that they will not come into effect until some time in the New Year. It seems to have become the practice to bring new subordinate legislation into force on 6th April or 1st October, but with the General Election due on the 7th May, the government may wish to put the amendment orders to the Use Classes Order and to the General Permitted Development Order into effect rather sooner than early April.

George Osborne will no doubt announce these further planning changes with a flourish, like a conjurer producing a rabbit out of a top hat, in the hope (probably justified, so far as most journalists are concerned) that everyone will have forgotten that all these proposals had already been announced four months ago. As I have said before, politicians love announcing things twice, even three times in some cases, simply in order to grab a passing headline.

The changes to the GPDO will enable further changes of use in addition to those previously introduced within the past two years. These are expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

It is probable that the government will also go ahead with its intention to make permanent those permitted development rights which currently expire in May 2016. In the case of office-to-residential conversions, the existing time limit for completing those conversions will be extended from 30 May 2016 to 30 May 2019. But a revised PD right for change of use from office to residential use is intended to be introduced with effect from May 2016, although whether this will actually survive the General Election may be dependent on who is actually in power after next May. If the government does go ahead with this, it will replace the existing PD right, and the government has said that the exemptions which apply to the current PD right will not be extended to apply to the new PD right. So expect some very unhappy local planning authorities if the government does persist with this proposal.

However, as a sop to the critics, the amended Class J will be subject in future (i.e. after May 2016) to a consideration of the potential impact of the significant loss of the most strategically important office accommodation (although this criterion will be tightly defined), in addition to the impact on highways and transport, flooding and contamination risk.

The right to build larger domestic extensions (under Part 1), currently expiring in May 2016, is also likely to be made permanent. A single storey rear extension or conservatory that extends beyond the rear wall by between four metres and eight metres for a detached house, and by between three metres and six metres for any other type of house, will be PD, subject to neighbour consultation for these larger householder extensions, which will continue to require prior approval by the LPA.

The right to make alterations to commercial premises has not so far been extended to shops, and so the GPDO will be extended to allow retailers to alter their premises. PD rights are also expected to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises.

Whether the government has got enough time to go ahead with a complete consolidation of the GPDO remains to be seen, but we have certainly not been led to expect any more thorough re-drafting, so as to remove the numerous anomalies and ambiguities that it contains.

Turning to the Use Classes Order, contrary to the general trend, but unsurprisingly, it is expected that the scope of Class A2 will be restricted, so that betting offices and pay-day loan shops (both currently falling within this Use Class) will become sui generis uses.

In fact it is quite likely that Use Classes A1 and A2 will be merged in a single new ‘town centre’ use class, so as to create a much more flexible range of uses in our High Streets. This is expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and caf├ęs (A3), drinking establishments (A4), and hot food takeaways (A5). The existing PD right to allow the change of use from A1 and A2 to a flexible use for a period of two years will remain, as will the right to allow for up to two flats above, and the change of use to residential (C3). On the other hand, the Government is expected to remove the existing PD rights applying to the existing A2 use class, so as to allow LPAs to control these developments.

With effect from 10 May 2006, any internal increase in floorspace of 200 square metres or more (including the introduction of mezzanine floors) in a building in retail use has been included within the definition of development under section 55, and requires planning permission. This floorspace limit will be increased, so as to allow retailers to build a mezzanine floor (although I don’t recall that a maximum threshold figure for this has been mentioned yet).

Some changes are also expected to the Development Management Procedure Order, including a requirement for a written justification from the LPA as to why it is necessary for a particular matter to be dealt with by a pre-commencement condition. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions. I have already expressed my scepticism as to the effectiveness of such a requirement in dissuading LPAs from imposing unnecessary pre-commencement conditions, but time will tell. (As regards the government’s proposals with regard to the discharge of conditions, this is dependent on the passage of the Deregulation Bill – currently at committee stage in the House of Lords.)

Some further tinkering with the DMPO can be expected, including the involvement of statutory consultees in the planning process (e.g. a requirement to notify railway infrastructure managers of planning applications for development near railways).

It is possible that there might also be a consolidation of the DMPO, as well as devising some means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination.

Finally, we have been promised an adjustment of EIA thresholds, whereby the requirement for an EIA will affect fewer development schemes in future.

Not all of these proposals are guaranteed to come forward, but the Autumn Statement can be expected to cover most of the items listed above, to be followed with the necessary subordinate legislation, as outlined above.


Thursday, November 6, 2014

Interpreting the National Planning Policy Framework

There has been quite a lot of interest in the case of Redhill Aerodrome v. SSCLG since judgment was given in the High Court in July ([2014] EWHC 2476 (Admin)). That judgment has now been overturned by the Court of Appeal in a decision delivered on 9 October, with reasons handed down on 24 October - [2014] EWCA Civ 1386.

Most commentators have concentrated on the court’s interpretation of Green Belt policy, as set out in the NPPF compared with the former PPG2, but the implications of the Court of Appeal’s judgment would appear to go rather wider than this and may be applicable to the interpretation of the NPPF generally, as compared with the way in which ministerial policy on a number of topics was explained in the various policy guidance that was cancelled when the NPPF was published.

The dispute between the parties centred on these two paragraphs :

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and
any other harm, is clearly outweighed by other considerations.” [emphasis added by the Court]

The question which arose for determination by the court was whether this formulation of Green Belt policy, which differs in its wording from the corresponding ministerial advice formerly set out in PPG2, represents a deliberate change of approach on the part of the government, or whether it is no more than a slightly different way of expressing the same policy without thereby intending any change of policy.

The dispute here focused on the meaning and interpretation of the phrase “any other harm”. The meaning of these words in paragraph 3.2 of PPG2 was considered by Frances Patterson QC (sitting as a Deputy High Court Judge – she has more recently been appointed to the bench) in R (River Club) v SSCLG [2009] EWHC 2674 (Admin), [2010] JPL 584. The claimant in that case had submitted that the “other harm” referred to in the third sentence of paragraph 3.2 meant harm to the purposes or objectives of the Green Belt, so that as a matter of law “any other harm” was confined to Green Belt harm. This submission was rejected. There was a requirement to consider the development as a whole to evaluate the harm that flowed from its being inappropriate (by definition) in the Green Belt, together with any other harm that the development may cause, in order to enable a clear identification of harm against which the benefits of the development can be weighed and on that basis to conclude whether very special circumstances exist (as required by ministerial policy) so as to warrant the grant of planning permission.

The Deputy Judge noted that there were no qualifying words within paragraph 3.2 of PPG2 in relation to the phrase “and any other harm”. Inappropriate development, by definition, causes harm to the purposes of the green belt and may cause harm to the objectives of the green belt also. “Any other harm”, she held, must therefore refer to some other harm than that which is caused through the development being inappropriate. It could refer to harm in the Green Belt context, therefore, but need not necessarily do so. Accordingly, she held that “any other harm” in paragraph 3.2 was to be given its plain and ordinary meaning – it referred to harm which is identified and which is additional to harm caused through the development being inappropriate. Consequently, she rejected the argument that the phrase was constrained so as to apply to harm to the Green Belt only.

The Redhill Aerodrome case came before the same judge (now Patterson J). She accepted the claimant’s submission that the policy matrix is now different, in that all of planning policy is contained within the NPPF which is to be read and interpreted as a whole. For each of the individual considerations a threshold is set which, when it is reached or exceeded, warrants refusal. It is for the decision maker to determine whether the individual impact attains the threshold that warrants refusal as set out in the NPPF. That is a matter of planning judgement and will clearly vary on a case by case basis.

Here, she continued, the individual non-Green Belt harms did not reach the individual threshold for refusal as defined by the NPPF. Was it right then to take them into account either individually or as part of the cumulative Green Belt harm assessments? On an individual basis, given the clear guidance given in the NPPF, her ladyship had no difficulty in concluding that, in this case, it was not right to take the identified non-Green Belt harms into account. The revised policy framework, she found, is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, she said, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in her judgment it would be wrong to include that consideration as “any other harm”.

The learned judge went on to consider whether individual considerations can be considered together as part of a cumulative consideration of harm even though individually the evaluation of harm is set at a lower level than prescribed for refusal in the NPPF. In her judgement, she said, it would not be right to do so. That is because the Framework is precisely as it says - a framework for clear decision making. It is a re-writing of planning policy to enable that objective to be delivered. It has no words that permit of a residual cumulative approach in the Green Belt when each of the harms identified against a proposal is at a lesser level than would be required for refusal on an individual basis. Without such wording, to permit a combination of cumulative adverse impacts at a lesser level than prescribed for individual impacts to go into the evaluation of harm of a Green Belt proposal seemed to her to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the NPPF does not provide for. It is clear, she felt, that the NPPF does contemplate findings of residual cumulative harm in certain circumstances, as is evident in paragraph 32, where it deals with the residual cumulative impact of transport considerations. However, such phraseology does not appear in the Green Belt part of the NPPF.

Pausing there, I have to say that I have considerable sympathy for Patterson J’s view on this point. I have pointed out on several occasions in this blog that the language used in the NPPF seems in various places to differ sufficiently from the wording of the former policy advice which it has replaced that it could justifiably be concluded that (whether or not it was actually intended to do so) it has brought about identifiable changes of ministerial policy. Several cases that have come before the courts since the NPPF was published seem to support this view, such as Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin) (reported here on Friday, 1 November 2013 - Inappropriate development in the Green Belt), and also R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin), to which I drew attention on Tuesday, 21 October 2014. (See Agricultural dwellings - the operational need test ).

Notwithstanding the apparent changes of policy which have (perhaps inadvertently) been effected by the NPPF, Sullivan LJ, in giving the leading judgment in the Court of Appeal, pointed out that excluding non-Green Belt harm from “any other harm” in the second sentence of paragraph 88 of the NPPF would make it less difficult for applicants and appellants to obtain planning permission for inappropriate development in the Green Belt, because the task of establishing “very special circumstances”, while never easy, would be made less difficult. All of the considerations in favour of granting permission would now be weighed against only some, rather than all, of the planning harm that would be caused by an inappropriate development.

Most significantly, he added that if it had been the Government’s intention to make such a significant change to Green Belt policy in the NPPF, one would have expected that there would have been a clear statement to that effect. There has been no such statement. In his lordship’s judgment, all of the indications are to the contrary. He cited three examples:

(1) While there have been some detailed changes to Green Belt policy in the NPPF, protecting the Green Belt remains one of the Core planning principles, the fundamental aim of Green Belt Policy to prevent urban sprawl by keeping land open, the essential characteristics of Green Belts, and the five purposes that they serve, all remain unchanged. By contrast with paragraph 86 of the NPPF, which does change the policy approach to the inclusion of villages within the Green Belt, paragraph 87 emphasises the continuation of previous Green Belt policy (in PPG2) in respect of inappropriate development: “As with previous Green Belt policy.”

(2) The Impact Assessment in respect of the NPPF published by DCLG in July 2012 said that “The government strongly supports the Green Belt and does not intend to change the central policy that inappropriate development in the Green Belt should not be allowed.” Under the sub-heading “Policy Changes”, the Impact Assessment said that “Core Green Belt protection will remain in place.” It then identified four proposed “minor changes to the detail of current policy” which would resolve technical issues, but not harm the key purpose of the Green Belt, “as in all cases the test to preserve the openness and purposes of including land in the Green Belt will be maintained.” On the face of it, paragraphs 87 and 88 of the NPPF would appear to constitute the “central policy” which the Government did not intend to change.

(3) That there was no intention to change this aspect of Green Belt policy is confirmed by the Inspector’s statement in the Redhill Aerodrome appeal decision that the River Club approach to “any other harm” in the balancing exercise is reflected in decisions by the Secretary of State since the publication of the NPPF. The court was not referred to any decision in which a different approach has been taken to “any other harm” since the publication of the NPPF.

On the other hand, Sullivan LJ accepted that the NPPF means what it says, and not what the Secretary of State would like it to mean. Nonetheless, he said, if the NPPF has effected this change in Green Belt policy it is clear that it has done so unintentionally. The claimant (the respondent in the Court of Appeal) did not submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the NPPF. The text of the policy has been reorganised, but all of its essential characteristics remain the same. It had been submitted that the change in policy was to be inferred, not from the wording of paragraphs 87 and 88, but from the other policies in the NPPF which “wrapped around” Green Belt policy, and which were, it was submitted, very different in some respects from previous policies in the earlier policy documents which were replaced by the NPPF. At the heart of the claimant’s case was “Context, context, context.”

It is true, his lordship accepted, that the “policy matrix” has changed in that the NPPF has, in the words of the Ministerial foreword, replaced “over a thousand pages with around fifty, written simply and clearly.” Views may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter. There have been changes to some of the non-Green Belt policies, and there have also been changes to detailed aspects of Green Belt policy, not all of which were identified in the Impact Assessment (Europa Oil and Gas being one example).

However, Sullivan LJ did not accept the premise which underlay the claimant’s case, as Patterson J had done, that the other policies “wrapping around” the Green Belt policy in paragraphs 87 and 88 of the Framework are “very different” from previous national policy, or that, as Patterson J put it, there has been “a considerable policy shift”.

Although this case was primarily focused the interpretation of “any other harm” in the Green Belt context, the Court of Appeal did accept that there are certain respects in which some other details of ministerial policy have been changed by the NPPF. Nevertheless, Sullivan LJ suggested that if it had been the Government’s intention to make any significant changes to policy in the NPPF, one would have expected that there would have been a clear statement to that effect. He accepted, on the other hand, that the NPPF means what it says, and not what the Secretary of State would like it to mean. This judgment therefore seems to accept the possibility that some minor changes to ministerial policy may have been effected by the NPPF unintentionally.

This judgment therefore still leaves an element of uncertainty over the correct interpretation of certain paragraphs of the NPPF, but it would seem that if a particular paragraph of the NPPF appears on the face of it to effect a significant change of policy, this in itself should indicate that no such change of policy was in fact intended, without a clear statement on the part of ministers of their intention to make such a policy change. In cases of this sort, the wording of the NPPF should be taken to be no more than a restatement of previous policy, albeit in slightly different language. The only problem with this approach to the interpretation of the NPPF is that it requires a knowledge of, and reference to, the relevant PPGs or PPSs which the NPPF was intended to replace in order to construe the changed language of the NPPF correctly, which would seem to undermine the intention of publishing the NPPF in the first place.

One other implication of the Court of Appeal decision in Redhill Aerodrome is that one or two decisions that have proceeded on the basis of changes of policy that have apparently been brought about by the NPPF may be open to question. In particular, it seems to me that R (Embleton PC) v. Northumberland CC (which I discussed recently – see above) may have been wrongly decided. The judge was persuaded in that case that the test of operational need for a proposed agricultural dwelling under paragraph 55 of NPPF is different from, and much less prescriptive than, the test under Annex A of PPS7. Applying Sullivan LJ’s approach to this issue, there would appear to be no indication that what would amount to a fairly significant shift in ministerial policy on a matter of substance was intended here, and so (contrary to the court’s decision in Embleton PC), the conclusion must be that an objective test substantially similar to the test laid down by Annex A of PPS7 must still be applied, notwithstanding the apparently less demanding requirement expressed by paragraph 55 of the NPPF.

I always said that it was folly for ministers to jettison the well established and clearly understood policy advice set out in PPGs and PPSs, and that the attempt to boil down statements of ministerial planning policy to a single document that was intended to comprise no more than 50 pages would lead to difficulty and uncertainty, and resulting litigation. So it has proved, and cases of which Embleton PC and Redhill Aerodromeare only a sample will continue to trouble the courts for some time to come, until or unless a future Secretary of State recognises that a more complete statement of ministerial planning policy, substantially in the form of the cancelled PPGs and PPSs, is the only way of resolving the problem.