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 cafés (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.

© MARTIN H GOODALL

Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates

James Ming Chen, Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates, available at http://ssrn.com/abstract=2532800:

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.

© MARTIN H GOODALL

‘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”!)

© MARTIN H GOODALL

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 cafés (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.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL

Green Belt policy – the need for reform

Last week I came across a useful contribution to the Green Belt debate by Peter Village QC and Jonathan Darby, which you can access at http://www.39essex.com/docs/general/pv_and_jda_green_belt_article_final_.pdf

They call (as I and other commentators have done recently) for a sensible rethink of Green Belt policy, rather than the die-hard defence of existing Green Belt boundaries that ministers have lately adopted (undoubtedly for what they perceive as their short-term electoral advantage in the run-up to the General Election), irrespective of its proper role and value in policy terms, and irrespective of the consequences of such an unyielding approach in terms of unbuilt homes to meet the urgent needs of our population.

There are two important points that must be understood about the Green Belt. First, our Green Belts have been massively expanded within the past 30 to 40 years. The Green Belt was never intended to cover such vast swathes of land as it does now, and it really does need to be objectively reviewed and rolled back in some areas. Secondly, until the late 1980s, there was some flexibility in the application of Green Belt policy.

This was well illustrated by the judgment in Cranford Hall Parking Ltd v. SSE [1989] J.P.L. 169. Relevant policy at that time was set out in Circular 14/85, which was couched in language not dissimilar to later policy statements in PPG2, yet not in such absolute terms. The Circular pointed out quite clearly that the fact that a site was Green Belt land did not in itself constitute a clear-cut and sound reason for refusing permission. The court, in quashing an appeal decision which had refused planning permission for development in the Green Belt, held that the Inspector should have considered whether or not this development would bring about demonstrable harm to the Green Belt. Thus (at that time) development was not automatically unacceptable in the Green Belt; it was a question for the judgment of the decision-maker.

A similar decision was reached in Barnet Meeting Room Trust v SSE (1990) 60 P. & C.R. 137. In that case an Inspector had recommended that the Secretary of State should allow an appeal against the refusal of development in the Green Belt in these terms:

“I conclude that the development would not significantly detract from the character and appearance of the area, nor significantly threaten the integrity of the Metropolitan Green Belt, and that positive benefits would flow from the proposed landscape treatment of a former derelict site.”

The Inspector did recognise that, in a strict sense, the proposal would be unlikely to “preserve or improve the open nature of the area” in terms of the requirements set by para. 9.16 of the Greater London Development Plan. Nonetheless he recommended that on balance, and bearing in mind the established need for the development, the appeal should be allowed.

By this time, PPG2 in its original form had been published, and the Secretary of State’s decision letter, rejecting the Inspector’s recommendation, ended with the words: “The Secretary of State is of the opinion that, on balance, there are not the special circumstances to justify development in a Green Belt. Accordingly he disagrees with the recommendation.”

The Deputy Judge (Sir Frank Layfield QC) found that the Secretary of State had paid no great attention here to the need for consistency of decisions in comparable instances or to the need, when related decisions are cited to him, to provide reasons why those decisions should be regarded as either of no or limited value to the case under consideration. The learned Deputy Judge held that, very importantly in the Green Belt, the general presumption in favour of development applied (at that time) in favour of allowing applications for development as it did in other areas (relying on Cranford Hall Parking).

In that previous case there was a presumption derived from earlier circulars that were still current at that time that inappropriate development would not be permitted within the Green Belt and there were, no doubt, cases where the fact that the proposals were inappropriate and damaging to the interests of Green Belt policy would be self-evident. But the circular pointed out, quite clearly, that the fact it was in Green Belt land did not in itself constitute a clear cut and sound reason for refusing permission. The right approach was a presumption that planning permission would always be allowed which would be overridden where it was shown that the development would cause demonstrable harm to the Green Belt policy. In this regard, no reason or explanation had been given as to why the provisions of Circular 14/85 (which included the general presumption in favour of development) were not considered. Since development in the green belt was a question of fundamental importance, it was for that reason alone that this decision was quashed in the absence of adequate reasoning in that regard.

Those two cases were, of course, decided within a rather different policy context compared with that which obtains at present, and they have no practical application within the current policy regime; but they both serve to show that an alternative policy approach is perfectly workable, and would not involve a ‘free-for-all’ approach to development in the Green Belt. If the principles illustrated by those two cases were to be re-applied now (by means of revised ministerial policy on this issue), there would in future be an objective examination, as there used to be until the late 1980s, of the site’s ‘Green Belt value’, and consideration as to whether its development would cause demonstrable harm to the openness of the Green Belt (which is the primary objective of its designation as such). As I can clearly recall from the early days of my career as a planning lawyer, going back as far as 1979, appeals could be and in practice were allowed in appropriate cases where the site made no material contribution to the Green Belt and/or where its development would not cause any demonstrable harm to the openness of the Green Belt. The present rigid resistance to any development in the Green Belt, save only in the most exceptional circumstances, is unnecessary and undesirable.

© MARTIN H GOODALL

Agricultural dwellings - the operational need test

On Monday 2 April 2012 , I published a post entitled “Agricultural development after the NPPF” in which I suggested that there need not be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions.

I felt that without referring to the detailed guidance set out in Annex A of PPS7, it would be difficult in practice to give effect to the policy set out in paragraph 55 of the NPPF, which simply provides that isolated homes in the countryside should be avoided unless there are special circumstances such as (among other things) the essential need for a rural worker to live permanently at or near their place of work in the countryside. Unlike PPS7, the NPPF offers no guidance as to how “the essential need for a rural worker to live permanently at or near their place of work” is to be assessed in practice, whereas Annex A of PPS7 was notably prescriptive in setting out the criteria that would have to be met in order to prove that need.

I concluded that De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annex A of PPS7 in the form of a Circular. Failure to do so, I surmised, could lead to legal disputes which might otherwise be avoided.

I am grateful to a correspondent for drawing my attention to just such a dispute. This was an application for judicial review of a planning permission in the High Court in R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin). It was what can only be described as a ‘root and branch’ attack on the grant of planning permission in this case, which included a temporary permission for an agricultural dwelling. I propose, however, to confine myself to the challenge regarding the operational justification for an agricultural dwelling. This, as well as every one of the other grounds of challenge, was rejected by the court.

It was common ground between the parties that government guidance was a material planning consideration to be taken into account by the Committee in reaching a decision. The relevant guidance was contained in PPS7 prior to 27th March 2012 and paragraph 55 of NPPF thereafter. Under Annex A, paragraph 12(iii) of PPS7 the applicant had to provide clear evidence that the proposed enterprise has been planned on a sound financial basis, whereas Paragraph 55 of NPPF is merely expressed in the terms I have quoted above. Thus, the judge observed, the guidance in paragraph 55 of NPPF is significantly less onerous than it was in PPS7.

The judge accepted that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular he did not accept the claimant’s submission that the NPPF requires that the proposal is economically viable. As the LPA pointed out, this was a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there [although, in my own view, this seems to beg the question as to how that essential need is to be objectively assessed]. In the event, the judge agreed that the evidence was that there was a need for a rural worker to take care of the livestock once calf rearing commenced. In his view the Committee were entitled to accept that evidence. It was not an irrational decision.

His lordship equally agreed that the decision was not invalidated by the failure to provide the agricultural expert’s figures to the Committee. The figures were not available at the date of the meeting. It was not in dispute that the Committee were provided with an expert report and that a principal objector had the opportunity to address the meeting. In the course of his submissions the objector criticised the expert’s report, so the issue was before the Committee. The Committee were nevertheless entitled to reject that submission and plainly did so.

The learned judge held that, whilst it was no doubt open to the Committee to reject the planning application it could not in his view be said to be irrational to have granted it. It was open to them to hold that there was an essential need for a rural worker to live permanently at or near the livestock building. It was a matter for their judgment whether such a need could be satisfied by a short term let. A short term let is terminable after 6 months, which is far shorter than the 3 years for which the temporary permission was granted. In those circumstances the decision to grant the permission could not in his view be said to be irrational or unreasonable.

This judgment would tend to suggest that my supposition that an objective test substantially similar to the detailed test required by Annex A to PPS7 would still have to be applied in order to give effect to paragraph 55 of the NPPF may not be supported by the courts, in light of the much less prescriptive language used in that paragraph of the NPPF. I cannot believe that this is what ministers intended, but it would appear that their insistence on cutting the statement of ministerial planning policy to the bare bone may have come back to bite them.

[UPDATE: In light of the Court of Appeal decision in Redhill Aerodrome v. SSCLG (see now Interpreting the National Planning Policy Framework (6 November 2014), there must be some doubt as to the correctness of the approach taken by the High Court in Embleton PC.]

© MARTIN H GOODALL

lawlessgal

lawlessgal

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

Control of demolition

The rules relating to demolition continue to cause confusion, particularly as regards the demolition (in whole or in part) of walls, gates and fences in conservation areas. The rules changed on 1 October 2013, and so (if one is dealing with an enforcement situation) it will depend on whether the demolition took place before or after 1 October 2013 as to which set of rules must be applied.

The demolition of buildings constitutes ‘building operations’ (see section 55(1A) of the 1990 Act) and therefore comes within the definition of ‘development’. However, by section 55(2)(g), some types of demolition are exempted from the definition of development where a Direction to that effect is made by the Secretary of State. The scope of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 was considerably cut down by the decision of the Court of Appeal in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334, so that after that judgment the only demolition that was still exempt from the definition of development under that Direction was the demolition of any building with a cubic content not exceeding 50 cu m, and the whole or part of any gate, fence, wall or other means of enclosure, but the latter exemption did not extend to the whole or part of any gate, fence, wall or other means of enclosure in a conservation area. The Town and Country Planning (Demolition – Description of Buildings) Direction 2014 (replacing the 1995 Direction) is intended to regularise the position, in line with the SAVE judgment.

Most types of demolition that are not exempt from the definition of development under the ministerial Direction are Permitted Development under Part 31 of the Second Schedule to the GPDO, Class A of which covers any building operation consisting of the demolition of a building (other than gates, fences, walls or other means of enclosure - the demolition of these is dealt with under Class B).

By Article 1(1)(a) of the GPDO, the word “building” includes part of a building, except in a few specified parts of the Second Schedule to the Order, including Part 31, Class A (which permits the demolition of most buildings). Thus the demolition of part only of a building is not permitted development under Part 31, Class A.

By Article 1(1)(b) the word “building”, although it does not include any gate, fence, wall or other means of enclosure for most purposes under the GPDO, does include gates, fences, walls or other means of enclosure for the purposes of Class B of Part 31. Thus the combined effect paragraphs (a) and (b) of Article 1(1) is that the demolition of part only of any gate, fence, wall or other means of enclosure (other than in a conservation area – see below) is permitted by Part 31, Class B, because it is a building for the purposes of Class B, and the definition of a building includes part of a building (bearing in mind that the exclusion of part only of a building applies only to Class A, not to Class B).

[If you think this is a piece of absolute gobbledygook, you should try reading the legislation itself, of which this is an attempted translation into more or less plain English!]

Development is not permitted by Class A where the building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the building stands, if it is practicable to secure safety or health by works of repair or works for affording temporary support.

The permitted development under Part A is subject to a requirement that the developer must before beginning demolition apply to the LPA for a determination as to whether their prior approval will be required to the method of demolition and any proposed restoration of the site. (The detailed requirements of this procedure are set out in the text of the GPDO.)

There are several points to note here. First, in common with all other permitted development that is subject to prior notification (or prior approval) requirements under the GPDO, commencement in advance of such notification (or approval, where required) cannot be retrospectively validated or ratified. Failure to give the required notice before commencing the work (or to obtain prior approval where required) renders the entire operation unlawful. It cannot then be permitted development and will be vulnerable to enforcement action. On the other hand, under Part 31, Class A, the developer is entitled to proceed with the demolition after the expiry of 28 days following the date on which the application was received by the LPA, if by that time they have not made any determination as to whether their prior approval is required or they have not notified the applicant of their determination. [I suggest that ‘or’ has to be construed as ‘and’ in this context – i.e. the LPA must notify the applicant within the 28-day period, failing which the demolition can proceed in any event.]

The LPA’s control over demolition under these provisions is strictly limited. They cannot prevent the demolition if it falls within Part 31, Class A (unless, of course, they have made an appropriate Article 4 Direction, or in the unlikely event that there is a condition attached to a relevant planning permission that is effective in removing this particular PD right); they can only approve or disapprove the method of demolition and any proposed restoration of the site. This largely duplicates the local authority’s role under the Building Act 1984, section 80 of which requires that six weeks’ notice be given to the local authority’s building control section before commencing the demolition of any building. Nonetheless it is necessary to comply with both of these requirements.

Bearing in mind the definition of “building operations” in section 55(1A), and the definition of “building” for the purposes of the 1990 Act in section 336(1), which includes any part of a building, it might appear that the demolition of part of a building, is thereby included in the definition of development and that, being excluded from the permitted development authorised by Part 31, Class A, the demolition of part only of a building (other than any gate, fence, wall or other means of enclosure) requires planning permission.

However, it was held in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481 (admittedly in a slightly different context) that demolition of only part of a building not amounting to demolition of the whole or substantially the whole of the building is to be regarded as an alteration of the building rather than as demolition. The practical effect of the Shimizu judgment is very limited, because partial demolition of a building, i.e. alteration of the building (assuming that it is not purely internal and/or that it does materially affect the external appearance of the building) also comes within the definition of “building operations” in section 55(1A). The effect of the judgment in Burroughs Day v. Bristol City Council [1996] 1 PLR 78 should, however, be borne in mind in determining whether or not such partial demolition (i.e. alteration) materially affects the external appearance of the building for the purposes of section 55(2)(a).

Whilst partial demolition of a building is excluded from permitted development under Class 31, Part A, it may (bearing in mind its classification by Shimizu as an alteration) be permitted development under some other part of the second schedule to the GPDO (e.g. Parts 1, 2, 6, 8 or 41, among others). Failing that, however, planning permission will be required.

The Shimizu judgment did not affect the need for Listed Building Consent for the partial demolition of a listed building, because this is required for any works to a listed building which would affect its character as such, but it did have the effect of removing the need for what used to be known as ‘Conservation Area Consent’ for the partial demolition of an unlisted building in a conservation area, although this now has to be considered in the light of further legislative changes in 2013 (as explained below).

Before discussing these changes, however, there is one point that requires further discussion. Nowhere in the legislation (either primary or subordinate) is “demolition” actually defined. We must therefore interpret the word according to its plain and ordinary meaning, subject to any relevant judicial authorities. One judicial authority that is clearly relevant in this context is the decision of the House of Lords in Shimizu.

The case was concerned with a listed building, and the decision of the House of Lords turned very much on precisely what was meant by a “listed building”. The definition of “demolition” fell to be considered in that context, but some of their Lordships’ observations on the meaning of “demolition” are of wider application. Lord Hope of Craighead pointed out that in the Court of Appeal Russell L.J. had said that the question whether a particular activity was “demolition” or “alteration” of a building was essentially a question of fact to be determined in the light of all the relevant circumstances. It was noted by Lord Hope that the discussion in the Court of Appeal was conducted throughout on the basis that the expression “building,” (except in so far as the context otherwise requires) includes “any part of a building”.

As Lord Hope put it, works of alteration to a building may take various forms, and the description which is to be applied to them will vary according to whether these works are to be seen in the context of their effect on the whole building or on the parts only of the building where the work is to be done. An architect who is asked to design a scheme to alter a building in order to modernise it or improve its accommodation may propose that parts of the existing structure should be removed. He may say that he needs to do this in order to replace that part with a different part or that he needs to do so in order to accommodate a new design which will not involve any replacement. He may describe what he proposes as the taking away or removal of that part, or he may say that that part needs to be demolished. But the various proposals which he makes and the words which he uses to describe them will all fall within the general description of works of alteration to the whole building [emphasis supplied]. The architect would no doubt resist the idea that he was proposing demolition of the building just because his scheme of alteration required the removal or demolition of parts of it in order to accommodate his scheme.

After examining the term “listed building”, Lord Hope then went on to consider the meaning of “demolition” in more detail. According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. Lord Hope agreed, therefore, with Millett L.J. (when this case was before the Court of Appeal) when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone. The problem which had led the majority in the Court of Appeal to hold that the works which were proposed to the chimneybreasts in this case amounted to works of demolition and not alteration arose when they applied these words to a part only of the listed building, i.e. to the chimney-breasts, not to the whole building.

Lord Hope did make a distinction in the case of what is popularly known as ‘façadism’, where the façade is left standing while clearing the remainder of the site for redevelopment. This would amount to the demolition of the building for all practical purposes. It would go far beyond what could reasonably be described as its alteration, as the works would be so extensive and so much would be pulled down and taken away, although the façade would be retained. It is, however, a question of fact for the decision of the relevant tribunal and so his lordship did not think that any more precise definition of this expression was required.

The House of Lords was referred by counsel to Lord Diplock's observations in Customs and Excise Commissioners v. Viva Gas Appliances Ltd [1983] 1 W.L.R. 1445 , where he said that the word “demolition” meant destroying the building as a whole. That case was concerned with a phrase in the description of an item in Group 8 of Schedule 4 to the Finance Act 1972 relating to value added tax, where there was no reference to “any part of a building.” What had to be construed was the meaning of “demolition” when it appeared in the phrase “in the course of the construction, alteration or demolition of any building.” Lord Hope preferred not to take Lord Diplock's observation out of its context, but the present writer would respectfully suggest that what Lord Diplock said in that case does lend weight to the distinction between “demolition” and “alteration”.

We come then to the special rules that apply to the demolition of unlisted buildings in a conservation area. [To avoid repeated references to ‘unlisted buildings’, I don’t propose to use this expression again below. The provisions that are about to be discussed do not apply to listed buildings, because Listed Building Consent is required under sections 7 and 8 of the Listed Buildings Act for both the demolition of and most (but not all) alterations to a listed building.]

Authorisation is required (under section 74 of the Listed Buildings Act) for the demolition of a building in a conservation area. With effect from 1 October 2013, it is Planning Permission that is now required, instead of the previous ‘Conservation Area Consent’ (which has been abolished), but the statutory provision under section 74 was in place before the House of Lords delivered their decision in Shimizu, yet clearly the provision in section 336 of the principal Act whereby the use of the word “building” includes any part of a building, did not prevent them from deciding that removing only part of a building does not amount to “demolition” but only to “alteration”.

The definition of a “building” for the purposes of section 74 of the Listed Buildings Act is the same as the definition in section 336(1) of the principal Act and includes any structure or erection and any part of a building as so defined, and so is wide enough to include gates, walls and fences within the conservation area (if they do not constitute part of a listed building). Thus the requirement for planning permission for demolition applies also to the demolition of the whole or substantially the whole of these structures in a conservation area, although (as noted above), following the Shimizu judgment, what used to be ‘Conservation Area Consent’ was not required for their partial demolition, because this was seen only as an alteration of the building or structure.

The question, however, now arises as to whether the further legislative changes that took effect on 1 October 2013 have had the effect of abrogating the rule in Shimizu, so far as concerns gates, fences, walls or other means of enclosure in a conservation area.

Prior to 1 October 2013, Class B of Part 31 authorised the demolition in whole or in part of any gate, fence, wall or other means or enclosure, whether inside or outside a conservation area, and this was not subject to any exclusions or conditions. Furthermore, no prior notification under Part 31 was required in this case. However, with effect from that date, by Article 2 of the Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013, Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (relating to the demolition of buildings) was amended by adding at the end of Class B:

“Development not permitted: B.1 Development is not permitted by Class B where the demolition is “relevant demolition” for the purposes of section 196D of the Act (demolition of an unlisted etc building in a conservation area).” Section 196D(3) defines “relevant demolition” as the demolition of a building that is situated in a conservation area in England, but is not a listed building, an ecclesiastical building to which the ecclesiastical exemption applies, or a scheduled ancient monument.

However, various buildings may be exempted under section 75 by a direction made by the Secretary of State, and Paragraph 31 of Circular 01/2001 contains such a direction under that section which exempts various descriptions of building from the effect of section 74, including "any gate, wall, fence or means of enclosure which is less than one metre high where abutting on a highway (including a public footpath or bridleway), waterway or open space, or less than two metres high in any other case". I have checked the list of cancelled circulars appended to the government’s on-line planning procedure guidance, and Circular 01/2001 does not appear on that list, so this direction remains in force. Thus the demolition of structures that come within that category is not “relevant demolition” for the purposes of section 74, and does not therefore require planning permission. This preserves the previous position, whereby Conservation Area Consent was not required for the demolition of such structures (i.e. the same category of structures that may be erected as Permitted Development under Part 2, Class A).

As noted earlier, by virtue of the definition of a “building” in Article 1(1) of the GPDO (and also section 336(1) of the principal Act), the word “building” includes part of a building. (The exclusion of part of a building by Article 1(1)(a) of the GPDO, applies only to Class A of Part 31, not to Class B). So demolition of part only of a gate, fence, wall or other means of enclosure in a conservation area is “relevant demolition” for the purposes of Section 196D of the principal Act, and thus (by virtue of paragraph B.1) is not permitted development. But this does not dispose of the question as to what actually constitutes “demolition” (in the absence of any statutory definition of that word).

Subject to the exclusion from permitted development of the demolition on or after 1 October 2013 of the whole or part of any gate, fence, wall or other means or enclosure in a conservation area, Part 31, Class B continues to apply to the demolition in whole or in part of any other gate, fence, wall or other means or enclosure (i.e. other than in a conservation area), and this remains free of any exclusions or conditions. As noted, prior notification under Part 31 is not required in that case.

The key to the question I have posed lies in the lack of any statutory definition of “demolition”. Because of this, it seems to me that the decision of the House of Lords in Shimizu must continue to apply, so far as concerns the identification of the precise type of development that is involved in a particular case, i.e. as to whether it is “demolition” or is “alteration”.

If it is the latter, then Part 2, Class A of the Second Schedule to the GPDO applies, rather than Part 31. Class A of Part 2 permits not only the erection or construction of a gate, fence, wall or other means or enclosure, but also its maintenance, improvement or alteration. It seems to me that if a part of a wall is removed in order to insert new gates, the removal of that part of the wall (even though it may be described in purely colloquial terms as “partial demolition”) is in fact merely an alteration, as there remains a wall or other means of enclosure, now with new gates inserted in it, after the works are completed. Bearing in mind Lord Hope’s observations in Shimizu, and viewing the works as a whole, none of these works can realistically be described as “demolition”. They are clearly authorised in their entirety by Part 2 of the Second Schedule rather than any part of them having to rely on Part 31, Class B for their authorisation. It follows that, in this case, the provisions of paragraph B.1 in Part 31 do not apply, and it also follows that no “relevant demolition” for the purposes of Section 196D of the principal Act has taken place.

This would apply equally to other alterations to a wall, gate or fence in a conservation area, for example if it was simply lowered in height. In light of Shimizu, it is an alteration, rather than demolition, because there is still a gate, wall, fence or other means of enclosure in place after the works have been completed. This too, I would submit, is therefore development that is wholly authorised by Part 2 (subject to the conditions and limitations set out there). On the other hand, the entire demolition of a length of the wall without its being replaced (for example, by the insertion of gates) might perhaps be seen as demolition, rather than as the maintenance, improvement or alteration of the wall, and would therefore be governed by Part 31, Class B, and would be subject to the exclusion in paragraph B.1, and section 196D (if it is in a conservation area), although this is by no means certain. As always this is bound to be ‘a matter of fact and degree’, and so any judgment on this issue will inevitably be fact-dependent in any particular case. Planning officers should therefore proceed with caution when dealing with such cases, and not jump to the conclusion that unauthorised demolition has necessarily taken place.

If any readers can add to this discussion by reference either to the interpretation of the legislative provisions or by reference to the applicability of Shimizu or any other relevant judicial authority, I would welcome their comments. Meanwhile, I must go and lie down in a darkened room.

[UPDATE (9.10.14): I am grateful to two correspondents who have drawn my attention to the direction in Circular 01/2001 exempting the demolition of many walls, gates, fences, etc. from the effect of section 74. The text above has been now been amended to include a reference to this direction.]

© MARTIN H GOODALL

DAVID EVANS 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 lawyer, David Evans, joined KEYSTONE LAW yesterday. This brings the number of planning lawyers in the firm to four, all of whom have substantial experience in this area of the law, and further strengthens our well-established planning law team.

Before joining KEYSTONE LAW, David had been a partner in the firm of Geoffrey Searle Planning Solicitors, and has joined forces with us following Geoffrey Searle’s recent retirement, having worked with him for the past eight years.

David, who will be based in our London office, is an experienced planning lawyer with particular expertise of residential, mixed-use, office and leisure projects in London and the South East. David advises on a strategic and detailed basis on all types of planning applications and appeals; the negotiation of planning and highways agreements; managing court challenges and advising on blight and compulsory purchase issues. He has a proven track record in obtaining valuable planning permissions, securing costs awards, advising on environmental statements and resisting village green applications.

We are all looking forward to working with David, who brings valuable additional planning expertise to our team, and in fact his arrival is a very welcome relief, after a period when the pressure of work within the team has been relentless.

© MARTIN H GOODALL

“Other indoor and outdoor sports or recreations”

- The scope of Use Class D2(e) in the Use Classes Order

I have recently been considering the precise scope of Use Class D2 (assembly and leisure). This use class contains several specific categories of use, and there is then a final ‘sweeping up’ item, which reads – “(e) [use as] a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms”.

This category covers a wide range of indoor sport-related or exercise uses, including both commercial and other gymnasia open to the public, health and fitness clubs, leisure centres, indoor sports facilities (such as squash courts or real tennis courts) and indoor training facilities for sports of all kinds, as well as outdoor sports and training facilities, but the exclusion from this class of those uses that involve motorised vehicles or firearms applies equally to both indoor or outdoor facilities, so that an indoor go-karting circuit or an indoor shooting gallery or rifle range, even if it is fully sound-proofed, will still be outside the scope of Class D2 and will therefore be a sui generis use (a use of its own kind).

In addition to all forms of sport (including those attended by spectators) as well as sports training facilities, the inclusion of ‘other indoor or outdoor........recreations’ might be thought to broaden the scope of Class D2(e) considerably, but these words must be read in the specific context of Class D2(e), which is clearly dealing with physical activities rather than hobbies, interests, or recreational activities of an artistic or creative nature. It cannot cover all those ways in which a person can enjoy recreation in a broad sense without becoming so broad as to render the rest of Class D2 otiose, or creating the possibility of uncontrolled changes of use.

So the words “other indoor or outdoor sports or recreations” should be seen as relating to that group of activities listed in Class D2(e), rather than to all those in Class D2 as a whole. The connotation and context of D2(e) is sport and physical recreation, the role of physical recreation being to cover those many situations where the physical activity would not be described as a sport. (See Rugby Football Union v SSETR [2001] EWHC 927. This judgment was subsequently upheld in the Court of Appeal - [2002] EWCA Civ 1169 - where the Court held that it is right to incorporate some physical effort to the phrase “recreation”, otherwise it would be so wide as to be ineffective as a planning tool.)

These judgments, both in the High Court and in the Court of Appeal, confirmed that the phrase “a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations” in Class D2(e) is to be construed ejusdem generis (i.e. the individual elements in the list are to be construed as being ‘of the same kind’ as each other). The Court of Appeal both in RFU and also in the earlier case of Millington (cited below) firmly rejected a wider dictionary definition of ‘recreation’, and insisted on the element of physical exercise or effort involved in a sport. The definition of ‘sport’ in the OED is “a game or competitive activity, especially an outdoor one, involving physical exertion, e.g. cricket, football, racing, hunting.” Thus the dictionary definition requires both a competitive element and physical exertion but, because the use specified in the Use Classes Order embraces not just sport but other forms of physical exercise, the courts have not insisted on a competitive element being present, provided that the use does involve some physical effort.

A subsidiary definition of “sport” also given in the OED is “amusement, diversion, fun”, but this can have no application in the context of Class D2(e) in view of the emphatic rejection of a similarly wide definition of ‘recreation’ by the Court of Appeal both in Millington and in RFU. On the other hand, the exclusion from Class D2(e) of indoor or outdoor sports or recreations which involve motorised vehicles or firearms would seem to confirm that motor sports and shooting would embrace a sufficient element of physical effort to come within Class D2(e) had they not been expressly excluded. This may perhaps assist in determining whether activities of a similar nature, not caught by that exclusion, come within Class D2(e).

It was also held in RFU that the presence or absence of spectators is immaterial to Class D2(e). A sports ground or stadium is within Class D2(e) because it is an area used for outdoor sport. It is not the presence of more or less passive spectators which brings it within the purpose of Class D2(e). They may enjoy watching sport. For them, in common sense language, watching sport may be one of their recreations, but they are not themselves engaged in physical recreation. A sports ground or stadium is not, for Class D2(e) purposes, an area used for outdoor recreation by the spectators.

Similarly, the audience at an open air pop concert is not participating in ‘other outdoor recreations’, nor are the performers, no matter how energetic their performance may be, because the performance or event is not in the nature of a sport. On the other hand, any fully enclosed building in which a pop concert or other musical performance is held is being used as a concert hall within Class D2(b). The building does not need to be adapted in any way for the purpose, other than as may be required by the terms of any public entertainment licence. [The court ruled in RFU that a sports stadium cannot be used as a 'concert hall' within Class D2(b), because it is not a ‘hall’ i.e. not a fully enclosed building.]

As indicated above, the judgment in the RFU case is in line with the earlier judgment of the High Court in Millington v SSETR (1999) 78 P. & C.R. 373, (1999) JPL 644 (subsequently approved by the Court of Appeal – [2000] JPL 297), where it was held that the test of whether a use of land is an area for outdoor sports or recreations is not determined by whether the activity may probably be described as recreational in nature. It is not sufficient that the area should be used for purposes which may be called recreational purposes, as opposed to commercial or educational purposes. Thus a house or garden open to the public is not an area used for, respectively, indoor or outdoor sports or recreations.

I do not have time to discuss other examples at the moment, but it does seem to me that a number of uses which appear to have been accepted as coming within Class D2(e) in the past do not in fact properly fall within Use Class D2, due to the lack of a sufficient element of physical exercise, effort or exertion being involved so as to bring them within the definition of “other indoor or outdoor sports or recreations”.

© MARTIN H GOODALL