Thursday, December 18, 2014

Running out of time

One of the problems with having a fixed-term parliament is that the final stages of the parliamentary term risk degenerating into a fag-end of miscellaneous business, while ministers increasingly focus their attentions on the forthcoming election campaign. Commentators have already noted that the current parliamentary session contains a significantly reduced number of Bills compared with an average session but, despite this, time is rapidly running out in which to clear up remaining legislative proposals that the government would like to bring into force before the election. There certainly isn’t time now to introduce any new Bills, and so it is just a question of taking pending Bills through their remaining stages, and laying statutory instruments in parliament to deal with the various subordinate legislation that the government has announced its intention of making.

In the meantime, ministers seem to be resorting to the rather pointless exercise of putting down resolutions to record their future intent in the event that they were to be re-elected, in a vain attempt to commit a future government to a certain course of action, or simply to try to ‘wrong foot’ the opposition on particular issues.

The House of Commons rises for the Christmas recess today and will return on Monday 5 January. The Lords rose yesterday and will return on 6 January. There will then be a ‘half-term’ recess for both houses from 12 to 23 February, and Parliament will be dissolved on Monday 30 March 2015. This may be preceded by prorogation, marking the formal end of the parliamentary session, although the House of Commons may decide that it will not prorogue prior to dissolution. In any event there is now precious little parliamentary time left in which to complete unfinished business – barely 5 weeks in January/February, and then another 5 weeks to the end of March – 10 weeks in all for Bills to complete their remaining stages and obtain Royal Assent.

One piece of legislation that is of interest to planners (and to property owners in Greater London) is the Deregulation Bill. It contains a clause (currently Clause 33) which will come into immediate effect upon Royal Assent, and will give the Secretary of State power to make a statutory instrument relaxing, to some (as yet unspecified) extent, section 25(3) of the Greater London (General Powers) Act 1973, so as to allow some types of short-term lettings in Greater London that are currently prohibited by that sub-section of the 1973 Act. If the government wants to give effect to this change before the General Election, they will need to be drafting the necessary statutory instrument now, so that it can be laid before parliament without delay after the relevant section of what will then be the Deregulation Act 2015 comes into force.

In order to give sufficient time for parliamentary scrutiny of the SI (admittedly theoretical rather than actual, as an SI of this sort is never actually debated), it should be laid before both houses no later than mid-February, bearing in mind the impending dissolution at the end of March. But the Bill is still going through its committee stage in the Lords, and it must be a moot point as to whether it can complete its remaining stages in time to gain Royal Assent before the half-term break which starts on 12 February.

This is not the only problem now facing the government as the sands of time run out. The same timetabling considerations would apply to other subordinate legislation that the government has announced its intention to introduce. The Chancellor of the Exchequer uncharacteristically resisted the temptation to re-announce these proposals in his Autumn Statement earlier this month, but there is no reason to believe that the government has abandoned their intention to make further planning changes by fresh amendments to the General Permitted Development and to the Use Classes Order. On the other hand, the proposal to consolidate the GPDO, the UCO and also the Development Management Procedure Order may have to await the attention of the next government.

We have been promised a further amendment to Part 3 of the Second Schedule to the GPDO to permit 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 certain sui generis uses to restaurants (C3) and leisure uses (D2), plus the change of use to a 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).

On the other hand, the intention to make permanent those permitted development rights which currently expire in May 2016 could be postponed for the time being. If the present government were to find themselves still in power after May 7 (which does seem a little improbable) there would be plenty of time before 30 May 2016 for them to make these further changes.

The right to make alterations to commercial premises so as 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 may or may not feature in the expected subordinate legislation in the New Year, and the same may apply to the proposed changes to Classes A1 and A2 of the Use Classes Order, which may involve the merger of these two use classes in a single new ‘town centre’ use class, so as to create a much more flexible range of uses in our High Streets, while at the same time restricting the scope of what is currently Class A2, so that betting offices and pay-day loan shops (both currently falling within this Use Class) will become sui generis uses.

I confess that I am a little hazy when it comes to the finer details of the negative resolution procedure, but I believe that a 40-day period has to be allowed for this purpose in most cases, even though such statutory instruments come into effect more or less automatically, without ever having been discussed or debated. If that is right, then Uncle Eric would need to lay these further statutory instruments before parliament between 6 January and 12 February in order to be sure that they can take effect before the General Election.

So we shall just have to watch and wait, to see whether the expected subordinate legislation does come forward in the coming weeks. If not, then it will depend on the policies of the ministers who are in office after the General Election as to whether these and the other planning changes that the present government has proposed will ever be brought forward.


Monday, December 1, 2014

Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates

Bar exam

James Ming Chen, Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates, available at

There are few truly “national” law schools in the United States. Most American law schools in the United States have a “dominant” state bar. A greater number of the graduates of nearly any law school take the bar examination administered by one state than any other bar examination. The American Bar Association and U.S. News and World Report's law school rankings rely on bar passage rates for the single largest cohort within any school’s graduating class. But the modal passage rate is misleading as a measure of any one school’s overall bar passage rates. The modal passage rate also fails to facilitate direct comparisons of bar examination performance at different schools.

To evaluate the overall bar examination performance of the graduates of any law school, I propose the use of weighted-average methodologies. Ideally, we should be able to measure, by use of weighted averages, each school’s bar passage z-score. Since the data needed to conduct proper standard scoring is extremely difficult, if not impossible, to procure, I propose a simplified weighted-average methodology. The weighted average of school-specific bar passage rates by jurisdiction, minus the weighted average of passage rates from all jurisdictions where its graduates, enables us to evaluate each school's bar exam performance, relative to the bar passage rate in its modal state, and relative to the weighted average bar passage rate across the entire United States.

In the interest of completeness, I propose two other methodologies. One of those methodologies is based on ratios, in emulation of U.S. News and World Report’s law school rankings. The other is based on what I consider a reasonable parametric estimate of standard deviations in state-wide bar passage rates weighted by school, through which we can estimate z-scores for bar exam passage rates for all states and all schools.

Barn conversions again (Part 6)

[The first five parts of this saga were posted here in March 2013.]

In the last of my 5-part series reviewing the development of the law on barn conversions, which was posted on 13 March 2013, I reported on the High Court decision in Williams v. SSCLG. I expressed some misgivings about this judgment and, although I did not spell it out in that article, I had very much expected that the LPA and/or the Secretary of State would take the case on to the Court of Appeal. At that point, being very busy with other matters, I took my eye off the ball and failed to spot that the Court of Appeal did in fact overturn this judgment on 26 July 2013, only four months after my article on the High Court decision was published.

I am very grateful to my colleague David Evans for drawing my attention to the Court of Appeal’s judgment - [2013] EWCA Civ 958. The leading judgment, with which the other judges agreed without comment, was given by Beatson LJ.

The Secretary of State and the Council both argued before the Court of Appeal that the Deputy Judge at first instance had failed to respect the Inspector’s statutory role as the primary decision-maker on questions of fact and degree, that he wrongly became embroiled in questions of planning policy, and that he adopted an approach to the construction of an enforcement notice which risked undermining the certainty that is required in such notices.

The respondent (Mr Williams, the original appellant in the planning appeal which was under challenge) argued that the Inspector’s decision erred in law, because requiring demolition of the building exceeded what was necessary to remedy the breach of planning control (pursuant to his Ground (f) appeal) and that the Inspector failed to give adequate reasons for his decision. It was submitted on his behalf that the most that could be required by the Council and the Inspector was the alteration of the existing building to make it conform to the planning permission granted.

A point which did not emerge from the judgment in the court below was that it was accepted on all sides that the planning permission for the ‘barn conversion’ had not in fact been implemented. It was common ground between the parties that the development that had been carried out went outside the scope of the planning permission. Non-payment of the appeal fee led to the Ground (a) appeal (that planning permission ought to be granted) lapsing, although the appeal was consolidated with a contemporaneous section 78 appeal against the LPA’s refusal of retrospective planning permission. In the section 174 appeal there was, however, as noted above, a Ground (f) appeal (that the requirements of the enforcement notice exceeded what was necessary to remedy the breach, or to remedy any injury to amenity).

Perhaps most importantly, the Inspector found as a matter of fact and degree that the previous building had been substantially demolished and a new one erected in its place, whereas the planning permission had authorised only the adaptation and alteration of the existing building, and not the erection of a new structure. As a matter of fact and degree, the inspector therefore found that the development could not reasonably be called a conversion of the original building. It followed that all of the building operations were unauthorised. In light of that, Mr Williams’ appeals under Grounds (b) and (c) had unsurprisingly been dismissed.

So far as the Ground (f) appeal was concerned, Beatson LJ drew attention to the Inspector’s material findings in the section 78 appeal, which was dismissed but was not challenged in these proceedings. These included a finding that the subject building with its livery business had little or no relationship with the predominantly agricultural use of the surrounding farm, and the Inspector was not satisfied that the location for a full livery business was necessarily dependent upon the use of the land at this farm.

In particular, the Inspector found that the increase in bulk and mass of the new building had reduced the openness of the Green Belt and, although the footprint of the building was similar to what was approved in 2006, the new building’s siting had had a significant impact on the openness of the Green Belt because of its materially larger scale. The decision letter referred to the visibility of the development from the surrounding area, and found that the building did not assimilate into the countryside because of its bulky appearance, due to the roof’s effect on the skyline, and that the building had a jarring effect because of its blocky form and appeared over-dominant because of its bulk. Furthermore, the mansard roof and skylights were found to be atypical of the form and shape of nearby buildings, and intrusively large.

The Inspector considered whether modifications to the roof form and external appearance of the building could overcome the objections, but was unpersuaded by Mr Williams’ arguments. Crucially, when dealing with Mr Williams' Ground (f) appeal under section 174, the Inspector cross-referred to his findings on the section 78 appeal. In dealing with the argument that the steps required exceeded what was necessary to remedy any breach of planning control, the Inspector stated that the purpose of the enforcement notice was to remedy the breach of planning control and that this required full compliance with the terms of the enforcement notice. He stated that, in light of his findings on the section 78 appeal, he did not accept that modifications to the building’s external appearance and fabric would be acceptable. This cross-reference to the decision on the section 78 appeal was perfectly adequate to explain the Inspector’s reasons for refusing the appeal under section 174(2)(f)

In light of the foregoing, it is unsurprising that the Court of Appeal allowed the Secretary of State’s (and the LPA’s) appeal on the principal ground that they had pleaded, namely that the Deputy Judge had gone behind the Inspector’s findings of fact, which the courts are not permitted to do. The Deputy Judge was also held to have erred in going behind the Inspectors’ planning judgement in determining that modifications to the building’s external appearance and fabric would not be acceptable as a means of remedying the breach of planning control. It lies beyond the powers of the court to ‘second guess’ the Inspector’s planning judgment in this way. Only if a decision-maker reaches a decision which no reasonable decision-maker properly informed of the facts could properly have reached (in other words, only if the decision-maker’s judgment on the merits can be truly categorised as ‘perverse’) can the court then intervene on legal grounds.

Where this judgment is of some importance, in relation to the questions that were considered in my previous series of articles on this topic, is with regard to the way in which a planning permission for a barn conversion is to be construed. Beatson LJ criticised the Deputy Judge’s interpretation of the planning permission based on the absence of express directions or restrictions in the planning permission, rather than the fact that permission was given for “alterations” and “conversion”. The Deputy Judge had stated that, because no condition limited or directed the building method to be used, the sequence of work, or the parts of the existing structure or proportion to be retained in the light of the approved plans, the implementation of the planning permission involved both the substantial demolition of the old barn and the provision of what would be tantamount to a new building in its place. It is an argument that I have put forward myself in the past, but Beatson LJ made it clear that this approach is inconsistent with the principle, set out, for example, in Slough Estates Ltd v Slough BC [1971] AC 958 at 962. The apparent meaning of the terms “alteration” and “conversion” was not to be modified by reference to what was not in the planning permission. [I would comment that this is very much in line with the Inspector’s reasoning in the Bridgend appeal decision, referred to in an earlier episode in this series of articles.] To do that would detract from the certainty that is needed in such documents because they are relied on by third parties.

It was argued on behalf of Mr Williams that the Inspector’s finding of fact that the original barn was “substantially demolished” did not amount to a finding that the building was entirely demolished or that the demolition was either in fact or in law a separate operation to the construction of the new building. Counsel for Mr Williams maintained that, because the works resulting in the substantial demolition were so integral to the construction of the new building, the breach of planning control included both elements. Accordingly, ordering the demolition of the building went beyond what was necessary to remedy the breach of planning control and, in so ordering, the Inspector erred in law.

These submissions were rejected. It was not an error for the enforcement notice to allege that the relevant breach of planning control was the erection of a new building, because that was the effect of what had happened (and, as noted above, the planning permission could not be construed as authorising such a development). Beatson LJ also rejected the submission that the Inspector’s use of the phrase “substantially demolished” meant he did not find it was entirely demolished. Read fairly, the Inspector’s decision was that the barn had been demolished. The evidence before the Inspector was that, in proportional terms, 99% of the building was new. Determining whether changes to a building constitute a “conversion” or a “new building” is a classic fact-sensitive matter involving evaluation. The Inspector’s finding that the barn had been demolished and could not be restored was unchallengeable in a section 289 appeal.

This Court of Appeal decision would appear to put an end to arguments based on the approach taken by the inspectors in the South Hams and Woodspring appeals (see earlier articles in this series), and so it seems that the Cheshire Cat (whose views on this topic were originally canvassed in “More development in Wonderland” posted on 15 July 2011) has finally got his come-uppance. It is clearly going to be more difficult in future to argue that a planning permission for a barn conversion that does not require in terms that the pre-existing structure should be retained can therefore be construed as a permission that authorises in effect the creation of a new building. It has to be accepted that “alterations” and/or “conversion” does mean only alterations and conversion, and not substantial demolition and rebuilding.

UPDATE: On further reflection, I do not believe that the Court of Appeal’s decision in Williams altogether disposes of the proposition that was accepted by the High Court in Basildon. I have dealt with at least one case which was on all fours with Basildon, in the sense that the barn conversion that was authorised would have resulted in a building in which only the basic steel frame of the pre-existing barn structure would have been retained, and this frame would be entirely hidden from view (both externally and internally) when the development was completed. In the event, due to storm damage during the conversion works, it did not prove possible to retain the original steel frame and so it was removed and replaced with an entirely new frame. The development was then completed substantially in compliance with the approved drawings. After some argument, the LPA did eventually grant an LDC confirming the lawfulness of the development as executed. I stress, however, that the facts in this case were almost identical to the facts in Basildon, whereas the Williams case clearly differed on its facts and would not have fitted the Basildon scenario, even if that judgment had been cited on Mr Williams’ behalf.