Martin Goodall's Planning Law Blog

The Cities and Local Government Devolution Bill received royal assent on 28 January. The power to make statutory instruments for the purposes of the Act came into effect immediately. The Secretary of State may also make regulations (by statutory instrument) containing saving, transitory or transitional provisions in connection with the coming into force of any provision of the Act. Subject to this, the other provisions of the Act come into force at the end of the period of two months (i.e. on 28 March).

The Act is concerned mainly with revised local government structures, leading (the government hopes) to more elected mayors, as well as some combined authorities (primarily in city regions), and does not contain any specific provisions relating to town and country planning as such, and does not amend existing planning legislation. Its practical effect on the exercise of planning powers will therefore be confined to the practical consequences of any restructuring of local government under the terms of the Act in the areas affected.

Section 23 gives revised powers to National Park Authorities.

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I reported on the Supreme Court decision in R (Champion) v. North Norfolk DC [2015] UKSC 52 on Friday, 7 August 2015 (Lack of EIA not fatal to planning permission). As the title of that piece indicated, I was concentrating in that article on the substantive issue that was before the Court, namely the legal effect of a failure to obtain a screening opinion in a case where it had been a legal requirement to do so. However, the decision clearly has wider implications for judicial review generally.

I am not a regular reader of Solicitors Journal but I spotted an interesting article by Robert McCracken QC in this week’s issue which discusses the wider implications of Champion. He identifies an inherent tension between two alternative judicial approaches to the issue of granting relief when the Court accepts that a legal error on the part of a decision maker has been shown to have occurred. It has long been the practice of the courts in this country to uphold the principle that the Court has a discretion as to whether or not to grant relief in such cases, and Champion is a clear demonstration of this approach.

Whether or not relief should be granted in a particular case is never an arbitrary decision, and certain broad principles have become well established. I don’t propose to rehearse all of these here, but some of the more important considerations are whether there was an alternative means available to the claimant to secure a review of the decision (for example a statutory appeal process), whether the claimant has been substantially prejudiced by the decision and whether, if the decision were to be quashed, there is a reasonable chance that a different decision would be reached upon the matter being redetermined. The second of these points appears to have been given particular weight in Champion (i.e. lack of substantial prejudice). [See my earlier blog post, mentioned above.]

In his article, McCracken points out that the Supreme Court (per Lord Carnwath) appears to be saying in Champion that, not only must there have been substantial prejudice, but the claimant must also show that the decision would have been different were it not for the legal error. I have already drawn attention in my earlier article to Lord Carnwath’s suggestion that a court considering an application for permission to bring judicial review proceedings should take into account the likelihood of relief being granted, even if a legal error were to be clearly established. I observed that, if this suggestion is followed, permission to bring such cases in future may be refused at the outset if the view is taken that, upon a full hearing of the case, relief is unlikely to be granted. This would seem to me to amount to a ‘pre-trial’ of the substantive issues, which would effectively undermine the purpose of the permission stage, and could lead to longer permission hearings, which were originally intended solely as a filter to knock-out unarguable cases.

The main thrust of McCracken’s argument, however, is that Lord Carnwath’s suggestion may not comply with European law, in light of the decision of the European Court of Justice in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311, which suggests that it is not for the claimant to be required to show that the decision would have been different in the absence of legal error. However Altrip was specifically considered by Lord Carnwath in his judgement in Champion, and it is difficult in light of his conclusions to see how it can now be argued that the Supreme Court’s decision is incompatible with Altrip. I haven’t got time to go into this here in any more detail, but the judgment in Champion seems to me to be very much in line with previous decisions on similar matters in our domestic courts, (for example judgments such as R (Hart DC) v. SSCLG [2008] EWHC 1204 (Admin), and the Court of Appeal’s decisions in Gillespie v Secretary of State for Transport Local Government and the Regions & Ors [2003] Env LR 30 ([2003] EWCA Civ 400) and in R (Catt) v Brighton and Hove City Council & Anor [2007] EWCA Civ 298, in light of Waddenzee judgment).

The general thrust of Lord Carnwath’s judgment in Champion therefore appears to me to be perfectly valid, namely that in the absence of substantial prejudice to the claimant, the Court has discretion to withhold relief from a ‘successful’ claimant for JR. The fact that the error of law under challenge involved a technical breach of a European directive does not alter the position, for the reasons that were clearly stated by Lord Carnwath.

On another point, following the well known decision of the House of Lords in R v. Hammersmith & Fulham LBC (ex p Burkett) [2002] UKHL 23, it has been a rule that the challengeable event in the case of a decision to grant planning permission is the actual issue of the planning permission itself, rather than the decision (taken quite a lot earlier in some cases) that planning permission should be granted. This is relevant for the purpose of calculating the 6-week time limit for bringing forward an application for JR. It had previously escaped my notice that Lord Carnwath suggested at the end of his judgment in Champion that there might be an earlier ‘challengeable’ event (in this case the absence of a screening opinion for the purposes of EIA) in respect of which time should run for the purposes of JR. He simply reserved the Court’s position as to whether failure to challenge that earlier error in a timely manner might (contrary to Burkett) bar a challenge to a subsequent grant of planning permission on the same grounds.

Finally, McCracken reminds us in his article of section 31(2A) of the Senior Courts Act 1981 (inserted by the Criminal Justice and Courts Act 2015), which prevents the High Court from granting relief or costs on a claim for JR if the Court takes the view that it is “highly unlikely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. However, there is an exception where the Court determines that there are “reasons of exceptional public interest”. This new provision effectively puts into legislative form the principle that Lord Carnwath was expressing in his judgment in Champion.

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It is slowly dawning on people that if this country votes to leave the European Union on 23 June, there will be numerous knock-on effects, most of which will be unwelcome at best and in many cases seriously damaging to our wider interests both at home and abroad.

One of the canards the ‘outers’ frequently peddle is the idea that, as members of the EU, we can’t make our own laws in this country. This is complete nonsense, as anyone who is familiar with our legislative process is well aware. It is entirely proper that as members of the Single Market we should, so far as practicable, harmonise our legislation with that of other members, so as to create a level commercial playing field, but in practice we have done no more than that. If we wish to remain in the Single Market (like Norway) in the event of a vote to leave the EU itself, we will still have to comply with the rules that apply in the EEA (the European Economic Area), and this will necessarily involve compliance with European law in order to maintain the required level of legal harmonisation. The same would apply to any bilateral agreement that the UK might attempt to negotiate with EU countries as an alternative (which puts paid to one of the delusions from which Boris Johnson and others seem to be suffering – which might be termed “the BMW argument”).

It cannot realistically be argued that compliance with EU rules imposes any significant burden on this country in legal or economic terms. Arguments about ‘sovereignty’ are just so much hot air – entering into any treaty obligations involves accepting some limitations on the freedom of action of any country, whether it is in connection with membership of the UN, NATO or any other international organisation (including various international trade pacts).

European law has comparatively little direct effect on our planning legislation in this country, because, like the planning systems in each of the other member states, our development management regime is purely home-grown, and is tailored to the specific needs of the three separate jurisdictions in this country – England & Wales, Scotland and Northern Ireland (with the Welsh planning system now becoming increasingly divergent). This is a legal planning framework over which Brussels has no direct control, either in its formulation or in its practical operation.

Where European law and European directives are relevant to town and country planning in this country is in relation to environmental protection, and in particular the protection of rare and endangered species and their natural habitats. This European law has not been written into our primary planning legislation, but operates through our subordinate legislation governing the practical operation of development management procedures. The objective is to ensure that an appropriate level of environmental protection (especially for vulnerable species and their habitats) is maintained when considering development proposals.

The primary means by which this is secured is through the requirement in appropriate cases for an Environmental Impact Assessment (EIA). EIA is not automatically required. There are clear criteria for judging those cases where EIA may be required. In those cases where an EIA may (or may not) be required, the first step in confirming that requirement is by means of a screening opinion from the LPA (or a screening direction from the Secretary of State). Despite some whingeing from some sections of the development industry, the procedural requirements are not unduly demanding, and they are no more than is necessary if we are to afford some protection to the natural fauna and flora in our countryside. I don’t propose to go into all the detail, but an adverse environmental impact is not an absolute bar to development; a judgement is required to find the balance of public interest in any particular case.

It is interesting to note how our courts have dealt with planning and environmental cases involving a European dimension. Far from a kow-towing to an allegedly all-powerful Brussels-based Eurocracy (as the Europhobes would have it), our courts have demonstrated their long-established independence, and have applied European law in a proportionate and restrained manner. It is clear even from the decisions of the European Court of Justice itself that the application of European directives (such as the Birds Directive and the Habitats Directive) requires a balancing exercise, in which the public interest may in fact favour the approval of a development project, even where it may impinge to a greater or lesser extent on nature conservation interests.

I strongly suspect that what is dressed up as opposition to alleged over-regulation at the behest of Brussels is in reality just another manifestation of the free market dogmatism espoused by the right-wing of the Tory party and their financial supporters, who yearn to see the untrammelled operation of market forces, irrespective of the economic, social and environmental consequences.

These people may turn out to be frustrated in their aspirations, even if we do leave the EU. It cannot realistically be supposed that all the environmental protection that has been written into our subordinate planning legislation will instantly be repealed. In fact, there is a very strong case for its retention in substantially the form in which it is currently framed, and I rather doubt whether even a Tory government would dare to dismantle these environmental safeguards, which will clearly still be needed in order to afford appropriate protection to our fauna and flora.

As in so many other areas of economic activity, leaving the EU would make no practical difference to the level of regulation to which development is subject in this country, and from that point of view ‘Brexit’ would serve no useful purpose whatsoever. On the contrary, it would in fact be extremely damaging in its consequences in all sorts of ways.

One final point is worth emphasising. Leaving the EU would have no effect whatsoever on our treaty obligation to comply with the European Convention on Human Rights. This is because neither the European Union, nor any of its institutions (including the European Court of Justice – the ECJ) have any role in the enforcement of the Convention. The European Court of Human Rights (ECHR) has no connection with the EU and, nothing at all to do with the ECJ. It is the same right-wing elements in the Tory party (and their allies in the press) who are so Europhobic and chauvinistic, who also whinge about our adherence to the European Convention on Human Rights. There is no connection other than this.

For internal party reasons, Cameron and the current party leadership have felt it necessary to pander to these Neanderthal elements in the party, and so they have embarked on an attempt to draft amending legislation which is intended in some way to lessen the influence of the ECHR on our affairs. However, by all accounts, government lawyers are finding it difficult to frame legislation that would strike the sort of balance the government apparently wants to achieve. As with the environmental protection mentioned above, there is clearly a need to protect human rights (including workers’ rights), and to preserve the long-established concept of the rule of law in this country. Right-wing ministers seem to be irritated by the ability of the courts to call in question the lawfulness of the government’s actions, but this is an essential bulwark of our liberty, and must be preserved. Our continued adherence to the European Convention on Human Rights (and compliance with the rulings of the European Court of Human Rights) is an essential element in that protection.

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There seems to be an immutable Law of Nature that as soon as my back is turned something dramatic happens on the legal front. Over the past week I have been kept out of the office every day until today, at a series of meetings, site visits, etc., so that it was not until this afternoon that I had the chance to catch up on the legal news. Whereupon I discovered that at the end of last week, without any kind of fanfare or announcement, the government had made and laid before parliament the long-awaited Amendment Order to the GPDO. This is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (SI 2016 No. 332), which comes into force on 6 April.

I will look at the most important changes in today’s article, and will defer to a future post the other amendments to the GPDO that this new Order makes.

As expected, the wording of Class M has been amended to include launderettes among the types of building uses that may be converted to residential use under this Class. Paragraph M.2(1)(d)(i) has been amended to refer additionally to launderettes in relation to the test as to the impact of the change of use on adequate provision of services of the sort that may be provided by such a building.

However, the most eagerly awaited amendments are the changes in the rules relating to the residential conversion of offices under Class O.

The previous deadline for the completion of a residential conversion under Class O (31 May 2016) is entirely removed, by the deletion of paragraph O.1(c), which had imposed this deadline. However, there is now a condition (which is already found within a number of other Classes of permitted development in Part 3) that the development under Class O must be completed within a period of 3 years from the prior approval date. Where prior approval under Class O has already been given, this means that the three-year time limit for completion of the development is calculated from that date, which in some cases may not leave developers who got prior approval some time ago with too much extra time within which to complete their development. I have discussed the calculation of time limits and what constitutes “completion” in my book (A Practical Guide to Permitted Changes of Use), so I won’t repeat that material here.

One of the promised changes was the removal of the exclusion of permitted development under Class O in the ‘exempted areas’ (Article 2(5) Land). As previously announced, this exclusion of exempted areas is to be extended in order to give LPAs the opportunity to put Article 4 Directions in place in those areas. The government seems to have been in two minds as to how long should be allowed for this purpose, but they have now decided to extend this period for a further three years. A prior approval application in respect of the proposed residential conversion of offices in one of the exempted areas cannot therefore be made before 30 May 2019 (or, as the GPDO amendment puts it, the change of use will not be permitted development if the prior approval application is made before that date).

Article 2(5) will then disappear with effect from 31 May 2019, as will the list of exempted areas (currently in Part 3 of Schedule 1 to the GPDO). For the sake of good order, the prohibition on prior approval applications under Class O in exempted areas before 30 May 2019 will also disappear from the Order on that date.

Note also that the impact of noise from commercial premises on the intended occupiers of the development has now been added to the matters requiring prior approval in all cases under Class O (in addition to the existing requirement for prior approval in respect of transport and highways impacts, contamination risks on the site, and flooding risks). For this purpose, “commercial premises” means any premises normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application, and includes any premises licensed under the Licensing Act 2003 or any other place of public entertainment.

And now we come to the big surprise. Despite very clear ministerial promises, the revisions to Class O make no provision for any demolition or rebuilding of the office building. The position remains, therefore, that any building operations (whether for partial or more substantial demolition, or for any new build, even of quite a minor nature) will still require a separate planning permission. In principle, there is no reason why such a planning application for ‘associated works’ should not accompany (or follow shortly after) the prior approval application, and this has already been the practice for several years under the existing provisions. Any such planning application will have to be dealt with on its own merits, but the change of use itself will not be a material consideration in the determination of that application, because the change of use is in any event permitted development, subject only to the prior approval of the specified matters relating to that change of use.

I have not seen or heard any ministerial excuses for this apparent volte face. It will be interesting to see how this is ‘spun’ if or when ministers are challenged about it.

On the other hand, ministers have kept their promise to add a new Class of permitted development (Class PA) that will allow the residential conversion of premises that have been in light industrial use, although there is only a limited window of opportunity within which this can be done. A prior approval application under Class PA must be made to the LPA no later than 30 September 2017. As with the various other Classes of PD in Part 3, the provisions are quite detailed, and I will explain these in a future blog post.

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Having fired off my last blog post in a great hurry at the end of a hectic week, I have now had the chance to look a little more carefully at the recent GPDO amendments (which come into force on 6 April).

I am grateful to readers for pointing out a couple of matters that I missed or misinterpreted in my haste. I have already corrected the references to the new Class PA in my original post, and so readers who have not already seen these corrections should perhaps revisit that blog post, where they will see the corrected text.

I promised that I would look at Class PA in more detail in a future blog post, but in view of the fact that it will not take effect for another 18 months, I think further discussion of Class PA might as well await the second edition of my book (“A Practical Guide to Permitted Changes of Use”). In the meantime, anyone eager to carry out a residential conversion of a light industrial building is just going to have to be patient for the next a year and half.

Turning back to the residential conversion of office buildings, and the strange omission of demolition and rebuilding from the amendments to Class O, I am grateful to Jennie Baker and her colleagues at Nathaniel Lichfield & Partners for doing a bit of sleuthing to reveal the real reason behind this glaring omission, following the very definite announcement by ministers last October that demolition and reconstruction of office buildings was to be included in the GPDO.

As readers are well aware, the Housing & Planning Bill is slowly wending its way through parliament, and is currently at its committee stage in the House of Lords. I have deliberately refrained from commenting on the Bill up to now, because it has (as I predicted) been subject to numerous government amendments during its passage, and we may see yet more amendments to the Bill before it finally reaches Royal Assent.

However, one clause which Nathaniel Lichfield & Partners have drawn to my attention is Clause 138 (as currently numbered), which will amend section 60 of the 1990 Act. Section 60 allows the inclusion in a development order of certain specific provisions. It is, of course, purely an enabling power, and it is the actual provisions of the development order that govern the relevant permitted development itself. As currently drafted, section 60(2) provides that where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.

As things stand at present, therefore, any inclusion in the GPDO of a permitted development right for the demolition and reconstruction of office buildings could only require prior approval of the design or external appearance of the building. The building operations, including limited demolition, permitted by certain other Classes in Part 3 (notably Class Q) were clearly felt not to present any problem, whereas ministers and their advisers have presumably concluded that the wholesale demolition and reconstruction of office buildings will necessitate the prior approval of a rather wider range of matters, such as the method of demolition among other things.

The new section 60(1A) in the 1990 Act will provide that where planning permission is granted by a development order for building operations in England, the order may require the approval of the local planning authority, or the Secretary of State, to be obtained for those operations, or with respect to any matters that relate to those operations, or to the use of the land in question following those operations, as specified in the order. This is a fairly subtle change, but it will give ministers power to include a requirement in the GPDO to obtain prior approval of a wider range of matters than they can at present.

Incidentally, this power relates to all those PD rights in the GPDO where prior approval is required in respect of building operations (including demolition), and so it would be open to ministers, if they were so minded, to require in any future amendment of the GPDO that prior approval of additional matters should be sought by applicants not only in respect of Class O but also in respect of other Classes in Part 3 that include building operations, and also under other parts of the Second Schedule (such as Part 1 – larger domestic extension, Part 11 – demolition, and Part 16 – telecoms developments).

With a following wind, the Housing & Planning Bill should receive Royal Assent within a few weeks, so that De-CLoG should be able to make a second amending order dealing with Class O in Part 3 of the Second Schedule to the GPDO (and perhaps one or two other things) by this Autumn, although it could just as easily be postponed until next Spring. The precise extent of this extended PD right still remains uncertain for the time being, and there must also remain some uncertainty as to its precise timing. But ministers have already indicated that the demolition and reconstruction of office buildings through the mechanism of the GPDO is still on the agenda, so we can expect these proposals to emerge in one form or another at some time within the next year or so.

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My retired colleague David Brock recently posted an item in his blog drawing attention to two High Court decisions which confirm that a covenant in a section 106 agreement (or unilateral planning obligation under that section) that seeks to prevent residents from applying to the council for a parking permit in a CPZ is unlawful, because such a restriction is not within the scope of section 106.

The recent case to which David’s blog post refers is R (Khodari) v. Kensington and Chelsea RLBC [2015] EWHC 4084, in which judgment was given on 18 November 2015. David reminds his readers that this is nothing new. The point was decided as long ago as March 2013, in Westminster City Council v. SSCLG [2013] EWHC 690 (Admin), on which David had also commented in his blog at that time.

In the earlier case, it had been the LPA that was challenging the grant of planning permission on appeal, where the planning inspector had taken into account a planning obligation proffered by the appellant, in which they undertook “not to apply to the Council for a Parking Permit in respect of the Land nor to knowingly permit any owner or occupier of the Land to apply to the Council for a Parking Permit and if such a permit is issued in respect of the Land it shall be surrendered to the Council within 7 days of written demand”. The illegality of the obligation led to the quashing of the appeal decision.

In the recent case involving Kensington & Chelsea, it was a third party objector who successfully challenged a grant of planning permission by the LPA. The council had granted permission for development of a neighbouring property on the basis of a section 106 agreement which contained a covenant in exactly the same terms as those in issue in the earlier Westminster case, except that the obligation required this term to be written into the leases of the new dwellings as cross-covenants on the part of both the lessor and the lessees. Given the judge’s findings in respect of the invalidity of the section 106 agreement, it followed that the planning permission had to be quashed.

The legal consequences of an unlawful planning obligation (such as those in both the cases cited above) can be markedly different, depending on the circumstances. Clearly a planning permission granted by an LPA or by a planning inspector on appeal is vulnerable to challenge in the High Court (and the same would apply to a prior approval under Part 3 of the Second Schedule to the GPDO) if it was dependent on an unlawful planning obligation, but in all these cases there is a six-week time limit for launching such a challenge. Time can be extended in exceptional circumstances, but only for a short period in most cases.

Absent a timeous legal challenge, however, the planning permission or prior approval will stand, but the unlawful section 106 agreement will be unenforceable. Thus, whilst it would be inadvisable for a developer to offer or agree to a planning obligation that seeks to prevent applications for residents’ parking permits, because of the risk of the permission being quashed if challenged in the High Court, where there is an unlawful 106 but there has been no High Court challenge to the planning permission, there would appear to be nothing to prevent residents applying for parking permits, notwithstanding the purported prohibition in the section 106 agreement. (It should be borne in mind, however, that the lease term that was to be entered into in the Kensington & Chelsea case might have proved more difficult to break.)

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Michael Bach has kindly drawn my attention to two early day motions that have been put down in the Commons following the recent amendment order to the GPDO (which is due to take effect on 6 April). The first of these seeks to annul the Statutory Instrument by which these changes to the GPDO are made.

Before anyone gets too excited about this, I should make it clear that I don’t seriously think this attempt to resist the current changes to the GPDO stands any realistic chance of getting the amending order rescinded. At best, it may get the Opposition a debate on the subject in the Commons but, on recent performance, I doubt whether they will make anything of it, and on this occasion it is extremely unlikely that they would have the support of the Scottish Nationalists (who are entirely unaffected by English planning law), even if a few discontented Tory back-benchers could be persuaded to join in opposing these changes to the GPDO.

I can’t help feeling that this early day motion is simply tilting at windmills, as the time to oppose the liberalisation of permitted development would have been when these provisions were first introduced, and then successively widened, in 2013, 2014 and 2015. As explained in my recent post on the current GPDO changes, the effect of the amendment order is a good deal less dramatic than was expected, due to the omission of permitted development rights for the demolition and reconstruction of office buildings. Making the permitted development right for the residential conversion of offices permanent after it has already been in force for three years hardly seems sufficiently controversial to justify an attempt to overturn it. LPAs in the exempted areas have been given a further three years in which to get Article 4 Directions in place to prevent the loss of office space in the most vulnerable locations, and other LPAs can do likewise, although in those cases a year’s delay would be necessary in order to avoid compensation claims.

The other early day motion notes that launderettes continue to be a vital part of our communities as well as being an important safety net for many people, especially those on low-incomes or living in privately-rented housing; regrets the Government's decision to remove planning protections that currently prevent launderettes from being changed to other types of shop or housing without the owners obtaining planning permission; and calls on the Government to remove launderettes from the scope of the GPDO.

Whilst I am not entirely unsympathetic to this argument, the previous omission of launderettes from the permitted development right for residential conversion under Class M was purely the consequence of their having been made a sui generis use by the Use Classes Order, not because they are in need of special protection, but because a change of use from A1 (shop) to launderette was thought to give rise to possible problems for neighbours. Their exclusion from the UCO simply made it necessary to apply for planning permission for any change of use to or from use as a launderette.

All other ‘town centre uses’ i.e. A1 (shops) and A2 (‘retail services’, i.e. offices open to the public, such as banks, building societies, etc.), as well as amusement arcades and casinos, are already open to residential conversion under the GPDO, and in light of this it does seem anomalous to continue to exclude launderettes from this PD right. This second early day motion really serves no useful purpose, other than to allow the Opposition to make a political point, and it remains to be seen if any parliamentary time can be found to debate it on the floor of the house.

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The BBC reported on Thursday that Mr Fidler has begun to demolish the house he built in the Green Belt, in order to comply with the High Court injunction requiring him to do this by early June. According to the BBC, Mr Fidler has now confirmed that demolition has begun, after initially denying this.

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I wonder whether it is the imminent release of the film of this name (a thriller starring Helen Mirren and the late Alan Rickman) that prompted the Daily Torygraph’s Chief Political Correspondent, Christopher Hope, to pen a piece in Monday’s paper on the use by local authorities of drones for various purposes, including planning. It seems that some 10 or more councils have bought or hired these machines (correctly referred to as “unmanned aerial vehicles” – UAVs). No doubt more local authorities will do so in the future.

The Telegraph spoke to Epping Forest DC, who explained that theirs would be used for various photographic purposes, not just planning control. Other authorities are believed to be using them for a wide variety of functions, including looking at coastal erosion, examining dangerous structures and surveying the state of repair of council buildings (where it obviously saves the expense of erecting scaffolding). The use of drones for planning purposes seems to be fairly limited at the moment. For example, Moray Council in Scotland say they can help them get a better impression of application sites where permission is being sought for wind turbines.

The use of drones nevertheless raises concerns about the possibility of ‘snooping’ for the purposes of planning enforcement. The Lib Dems seem to be particularly exercised by this possibility, and their spokesman is reported by the Telegraph to have said that councils should not be spending tax-payers money on owning or renting drones. “It is busy-body government at its worst”, he is reported to have said, and went on to suggest that there should be a code of practice on the use of UAVs by councils.

Others have expressed concerns, including the intrusion on privacy and possible safety issues if these machines are to be flown over built-up areas. The Information Commissioner is also said to be concerned, and is reported to have suggested that local authorities should consider whether the use of drones is “necessary and proportionate”.

The use of drones for the purposes of planning enforcement will require careful consideration. As a general rule, notice ought to be given to owners and occupiers of property which it is intended to overfly and/or photograph. Any covert surveillance would be governed by the legislation in RIPA.

There are no reports so far of drones having been used in connection with planning enforcement, as opposed to ordinary development management, and they are unlikely in practice to be able to yield any useful information that could not be gained by an orthodox site inspection. (It does occur to me, on the other hand, that they might be used to photograph illegal advertisements mounted on farm trailers, which one frequently sees stationed on farmland near motorways.)

One area in which aerial photography has proved to be helpful is in establishing whether particular buildings, structures or other objects were present on land either before or after a particular date. Aerial photographs (both vertical and oblique) are available from several sources, both public and private, although their coverage is not always complete. This source has been supplemented in recent years by satellite imagery, although there have been issues about the reliability of the recorded dates of satellite images, which have proved to be inaccurate in some cases.

Using drones to supplement this existing information may be a helpful tool in future, not only for councils but for the owners and occupiers of land and buildings. If drones were used for this purpose, as distinct from ‘spying’ on any one property, I cannot see any serious objection to their use for that purpose.

Nevertheless, the use of drones by local authorities is likely to remain controversial until some clearer ground rules are established that will specify the precise purposes and the circumstances in which they may be used, and also the procedures for giving notice to property owners who could potentially be affected by their use. Several different bodies are likely to be involved in this, including the Civil Aviation Authority, the Information Commissioner, and also the Home Office in relation to the operation of RIPA and other legislation governing the use of investigatory powers. It may be necessary to convene a working party, possibly under the auspices of De-CLoG as the department primarily responsible for planning and local government, to hammer out these issues.

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I am acutely aware of the hiatus in posting material on this blog in the past couple of weeks. As longer-standing readers will be aware from previous experience, this happens from time to time when I am really busy.

There are several topics on which I intend to blog “when I get a round tuit”. One of these is (or was) the important Court of Appeal decision in Suffolk Coastal DC v Hopkins Homes [2016] EWCA Civ 168, which clarified the interpretation of paragraphs 47 and 49 of the NPPF in relation to how the requirement to demonstrate that the LPA has a 5-year housing land supply is to be dealt with, and the consequences that follow where such a 5-year supply cannot be shown.

I have written “was” above, because both Cheshire East DC (who were involved in a similar case) and Suffolk Coastal DC are seeking permission to appeal to the Supreme Court. They have first to surmount the hurdle of actually getting permission to go to the Supreme Court, but I would guess that they stand a reasonable chance of getting that permission in view of the importance of the issues that this and other related cases have thrown up. If so, then the two councils are hoping that the case will be heard by the Supreme Court later this summer.

In the circumstances, I may delay for the time being commenting on the Court of Appeal decision in Suffolk Coastal, until we know whether this case will in fact be going to the Supreme Court.

In addition to this, there are several issues arising from the amendments to the GPDO that came into effect earlier this month which I still want to cover (not to mention some points that arise from the 2015 Order itself).

There are also some other judgments that deserve attention, involving the non-applicability of the ejusdem generis rule in construing a planning permission and, in another case, the issue of agricultural buildings in the Green Belt. There has also been an interesting appeal decision on concealed development, and one or two other appeal decisions which readers and colleagues have drawn to my attention.

Finally, the Housing and Planning Bill is close to completing its passage through parliament, and should receive Royal Assent before the end of the parliamentary session next month. I have refrained from commenting on the Bill while it was still subject to amendment but, once it is on the statute book, it would clearly merit attention.

So watch this space in the coming weeks and months.

© MARTIN H GOODALL

The House of Lords are currently playing ‘ping-pong’ with the Commons over amendments to Housing and Planning Bill. Those readers who are not familiar with parliamentary procedure will no doubt be utterly mystified by this apparent reference to a table tennis match, but it is the process whereby Lords’ amendments are sent back for consideration by the Commons. Many of these are government amendments that go through ‘on the nod’, but in the case of opposition amendments, the Commons will usually not accept them, and these have to go back to the Lords again for further consideration.

By convention, the Lords generally do not insist on their amendments to a Bill in face of resistance to them by the Commons, and can be expected to give way gracefully to the will of the elected House, having made their point. However, it seems that the Lords are not in a mood to roll over quite so easily in the case of the Housing and Planning Bill, and so the ‘ping-pong’ may go on a little bit longer before the offending amendments are duly withdrawn, and the Bill can then go for Royal Assent.

It seems a little unlikely that the Lords will maintain their stance on this Bill à outrance, but government business managers must be looking anxiously at the calendar, as the end of the parliamentary session rapidly approaches. If it cannot be passed before parliament rises, the Bill will not be lost, but can be carried over into the next session, which begins with the Queen’s Speech later this month. But if this happens, it will not endear the House of Lords to the government, who are already looking for a way to curb the powers of the Upper House to frustrate or delay the will of the Commons.

As I have indicated before, I will look at the actual provisions of the Bill so far as it affects planning, once it has completed its passage through parliament and has reached the statute book.

UPDATE (13.5.16): As predicted, the government stood its ground on unacceptable amendments to the Bill, and the Lords eventually had to back down on these. The Bill thus completed its parliamentary passage in the nick of time to avoid its having to be carried over into the next parliamentary session. It finally received Royal Assent yesterday and is now the Housing and Planning Act 2016. I will take a look at its planning provisions as soon as I have a bit more time.

© MARTIN H GOODALL

In November 2014 the government published a written ministerial statement on affordable housing. The government’s online Planning Practice Guidance was subsequently amended to reflect this revised policy.

The new policy proposed that:

(1) developments of no more than 10 homes (with a gross floorspace not exceeding 1,000 sq m) would be exempted from levies for affordable housing and tariff-based contributions,

(2) but in designated rural areas, National Parks and AONBs, the exemptions would apply only to developments not exceeding 5 new homes; developments of 6 to 10 homes could pay a commuted sum, either at or after completion of the development;

(3) redevelopment of a vacant building, or its demolition for redevelopment, would give rise to a credit (calculated in terms of floorspace) that could be off-set against any affordable housing contribution.

Ministers were hoping by this means to assist in preserving the commercial viability of small housing schemes.

Two LPAs, West Berks DC and Reading BC, were so concerned about the implications of this policy that they challenged it in the High Court. They feared that they (and other authorities) would have to find even more housing land to counteract the effect of this new ministerial policy in potentially depriving their areas of sites that could otherwise contribute to affordable housing.

The two councils won in the High Court in July 2015, and secured the quashing of the new policy. However, the Court of Appeal has today handed down its decision on the appeal by the Secretary of State against the quashing order ([2016] EWCA Civ 441). The Court of Appeal has allowed the Secretary of State’s appeal on all four of his grounds of appeal.

Ground 1 - Inconsistency with the statutory scheme

On the one hand, a decision-maker must not fetter their discretion, but on the other hand, a policy-maker (notably central government) is entitled to express their policy in unqualified terms. They are not required to spell out the legal fact that the application of the policy must allow for the possibility of exceptions. The question for the Court was whether the ‘offending’ ministerial statement on its face sought to countermand or frustrate the effective operation of sections 38(6) and 70(2) or whether it merely expressed the Secretary of State’s substantive planning policy in unqualified, though trenchant, terms.

The language of the ministerial statement is in mandatory terms: “… a threshold beneath which affordable housing contributions should not be sought”. However the Court of Appeal accepted that the articulation of planning policy in unqualified or absolute terms is not in principle repugnant to the proper operation of section 38(6), and so this use of language was unobjectionable.

In the Court’s judgment, the policy expressed in the ministerial statement was not to be faulted on the ground that it does not use language which indicates that it is not to be applied in a blanket fashion Its place in the statutory scheme of things is simply a material consideration for the purposes of section 38(6) of the 2004 Act and section 70(2) of the 1990 Act, and no more. It does not countermand or frustrate the effective operation of those provisions.

Ground 2 - Failure to take into account material considerations

In making planning policy, the Secretary of State is exercising power given to the Crown not by statute but by the common law. The Court accepted that the statutory planning context to some extent constrains the Secretary of State. It prohibits him from making policy which would countermand or frustrate the effective operation of section 38(6) or section 70(2). It would also prevent him from introducing into planning policy matters which were not proper planning considerations at all. Subject to that, his policy choices are for him. The planning legislation establishes a framework for the making of planning decisions; it does not lay down merits criteria for planning policy, or establish what the policy-maker should or should not regard as relevant to the exercise of policy-making.

In those circumstances the Secretary of State was not, in the Court’s judgment, obliged to go further than he did into the specifics, and in consequence was not to be faulted for a failure to have regard to relevant considerations in formulating the policy set out in the written ministerial statement.

Ground 3 - Inadequate consultation

It had been acknowledged by the Secretary of State that the real driver for the change in policy was the view that affordable housing requirements imposed a “disproportionate burden” on small sites, but the essential legal principles applying to this ground of challenge were not in dispute. The consultation document must contain sufficient information to enable an intelligent response. A consideration of whether a non-statutory consultation process such as this contravened the requirements of procedural fairness will always be fact and context sensitive. The test is whether the process has been so unfair as to be unlawful.

The Court found no unfairness in the procedure adopted by the Secretary of State. In their judgment, the present case was not one involving a failure to make plain, and to disclose, fundamental detail. On the contrary, the relevant paragraphs of the consultation document, together with its broadly based question, did not focus narrowly on strict viability issues. The question was posed in the context of broader-based impacts of the existing section 106 contribution regime upon small-scale building developments.

As to the question of whether appropriate consideration was given to the consultation responses, the Court did not accept that this obligation translates into an obligation on the Minister to adopt the submissions made to him by respondents. In their judgment, the Minister was entitled to consider the whole range of responses made to him, (together with all relevant information), and to form his own conclusion independently of the views of any particular section of consultees or indeed the views of his own advisers. The relevant paragraph in the minister’s response to the consultation represented the balance struck by the Minister after weighing up the various submissions made to him.

Ground 4 - Breach of the public sector equality duty

The written ministerial statement was not accompanied by any Equality Impact Assessment. However, when this omission was pointed out, a formal Equality Statement was produced, and the Secretary of State announced that, having considered the findings of the Equality Impact Assessment, he was satisfied that the policy changes announced in the ministerial statement were compatible with the requirements of section 149 of the Equality Act 2010 and, accordingly, after reconsideration he had decided to maintain the policy changes.

In light of this retrospective impact assessment, ministers concluded that the proposed policy would not have a negative impact on discrimination, fostering good relations or advancing equality of opportunity. They recognised that this policy may impact on the delivery of affordable homes, but drew attention to the expected delivery of 170,000 new affordable homes between 2011 and 2015, and to a further £38 billion of public and private investment that will help ensure another 270,000 new affordable homes are provided between 2015 and 2020.

The Court accepted that this Statement demonstrated a consideration of the potential for adverse impacts on protected groups. The requirement to pay due regard to equality impact under section 149 is just that. It does not require a precise mathematical exercise to be carried out in relation to particular affected groups or, for example, urban areas as opposed to rural areas. The Assessment undoubtedly acknowledged the effect of the proposals upon protected groups, but sought to place that in context by reference to other policies impacting on affordable housing. As such, it complied with section 149.

The judgment of the High Court was accordingly reversed.

© MARTIN H GOODALL

Notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there are still some LPAs that seek to resist permitted development under Class Q on the basis of ‘sustainability of location’. I am grateful to my correspondent William Ashley for drawing my attention to an example of this in a recent appeal in Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675].

There was no dispute in this case that the qualifying criteria of Class Q had been satisfied, and the LPA raised no concerns in relation to noise, contamination, flood risk, design or the transport or highways impacts of the proposal. The appeal therefore turned solely on whether or not the location or siting of the building made it otherwise impractical or undesirable for residential use.

The LPA submitted that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The LPA claimed that their view was supported by (undisclosed) legal advice stating that its interpretation of the GPDO was correct as a matter of law, and they relied on paragraph W.10(b) of Part 3 that LPAs must have regard to the NPPF, so far as relevant to the subject matter of the prior approval, as if the application were a planning application. However, the Inspector rejected this narrow approach. The PPG (as updated in March 2015) is clear that Class Q does not apply a test in relation to sustainability of location, given the inherent rural location of agricultural buildings.

His view was that Class Q needs to be seen as part of a wider and more positive approach in considering appropriate opportunities, such as the re-use of rural buildings, to meet housing need in rural areas. This is reflected in paragraph 109 of the PPG as follows. “That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.”

On this basis, the Inspector found that the amended PPG on permitted development rights for the change of use of agricultural buildings, in a specific and defined way, complements the growth agenda advocated in the NPPF rather than necessarily introducing an in-built tension. He was not therefore persuaded that, in applying paragraph W.10(b) with regard to the NPPF, the provisions of paragraphs 108 and 109 of the PPG should be regarded as erroneous and that they should consequently be discounted.

In this particular case the appeal site was readily accessible, services could be made available and it was not truly isolated from other households. The Inspector was also satisfied that there were no agricultural operations or activities taking place nearby that might harm the living conditions of future occupiers. Accordingly, he considered that the location and siting were neither undesirable nor impractical, and so the provisions of Class Q(a) and (b) would be satisfied.

It occurs to me to wonder whether East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. They have just under six weeks left now in which to apply for permission to proceed in the High Court. It all depends what counsel advises, if they are minded to take that course, although I would be surprised if such a challenge were to succeed, particularly bearing in mind the Inspector’s finding that this location was not in fact unsustainable in any event.

© MARTIN H GOODALL

It seems that a Bill that makes further changes to planning legislation is now an annual event. This year it is to be a “Neighbourhood Planning and Infrastructure Bill”

The very brief mention of the Bill in the Queen’s Speech has been supplemented by a briefing note from the government that doesn’t really give us much more to go on, although there is enough there to show that the contents won’t be exactly what it says on the tin. They seem to be a fairly miscellaneous rag-bag of further planning changes, and yet more changes to CPO procedures.

The meaningless guff about the purpose and alleged benefits of the Bill is best ignored. The headline provisions of the Bill relate to further amendments to the Neighbourhood Planning process which, it is claimed, will further strengthen neighbourhood planning and give “even more power” to local people. [Excuse my cynical snigger as I type this.] The new legislation, they say, would also strengthen neighbourhood planning by making the local government duty to support groups more transparent and by improving the process for reviewing and updating plans.

A more interesting proposal concerns the imposition of conditions on planning permissions. The intention is to ensure that pre-commencement planning conditions are only imposed where they are absolutely necessary. The government recognises that excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission. The Bill will tackle the over-use, and in some cases, misuse of certain planning conditions, with the aim of ensuring that development, including new housing, can get underway without unnecessary delay. This deserves at least one small ragged cheer. LPAs have ignored ministerial advice on the appropriateness of planning conditions for far too long. Legislation is certainly needed to enforce this discipline on the planners.

In this Bill the government will also embark on yet another attempt to make the compulsory purchase order process clearer, fairer and faster. This will include reform of the context within which compensation is negotiated – often a very significant and complex part of finalising a compulsory purchase deal. The proposals are intended to consolidate and clarify over 100 years of conflicting statute and case law. The government hopes to establish a clear, new statutory framework for agreeing compensation, based on the fundamental principle that compensation should be based on the market value of the land in the absence of the scheme underlying the compulsory purchase (a long-established principle that is well understood by professionals practising in this field).

The opportunity will also be taken in this Bill to establish the independent National Infrastructure Commission on a statutory basis. Chronic under-funding of public infrastructure by successive governments has been a national disgrace for a generation. Unfortunately, past performance, coupled with the present government’s insane insistence on hair-shirt austerity does not engender any confidence in their willingness or ability to deliver the public infrastructure the country really needs, despite the fine words with which they have trumpeted the provisions of this part of the Bill.

Finally, the government intends in this Bill to press ahead with their controversial and dangerous proposal to enable the privatisation of the Land Registry (which handles the official registration of all landholdings in this country, and the official records of all transactions affecting land and buildings, including people’s own homes). The risks to property owners and to people buying or selling their home will be huge if this proposal goes ahead. This is one proposal in the Bill which I hope will be seen off by a combination of expert opinion and back-bench opposition. The government has already been forced into a series of U-turns in response to increasingly assertive back-bench opinion, compounded by their comparatively modest working majority in the Commons, and it is to be hoped that this is one more daft idea that will bite the dust. Aux barricades, citoyens!

© MARTIN H GOODALL

As most readers are no doubt aware, the Housing and Planning Act 2016 was passed on 12 May. Many of the Act’s provisions will not come into force until the making of a commencement order, and we can no doubt look forward to a series of these commencement orders dribbling out over the coming months, and even years.

I am concentrating here solely on Part 6 of the Act, where most of the planning provisions are to be found (sections 139 to 171), but two important provisions relating to planning permission for the provision of starter homes and the duty to grant planning permission for self-build and custom housebuilding are to be found in sections 5 and 10 respectively (although both of these sections must await an appropriate commencement order before they are brought into force, with the relevant subordinate legislation). I am going to confine myself for the time being to those provisions in Part 6 that took immediate effect on 12 May, and I will also mention some other sections that will come into force on 12 July.

Sections 139 to 142 deal with neighbourhood planning. Sections 139 and 140 are now in force. These simply make minor procedural changes to the neighbourhood planning process, and I wonder whether they might in fact be overtaken by the further provisions that are now promised in the new Bill which the government intends to introduce in the current parliamentary session.

Section 149, also now in force, gives additional powers to the Mayor of London over called-in planning applications. I suspect that this section was intended to give Boris even greater freedom to override the wishes of London Boroughs, but the election of Sadiq Khan may effectively have taken the sting out of this section.

Section 150 is the section that will introduce ‘permission in principle’ for the development of land, in the form of new sections 58A and 59A inserted in the 1990 Act, and it will make consequential amendments to section 70 of that Act. The importance of these provisions would justify a separate article, and so I won’t attempt to summarise them here. Sub-sections (1) to (3) will come into force on 12 July, but sub-sections (4) and (5) will have to await a commencement order. Subsection (4) will provide that no regulations may be made under section 59A(9) unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament; and sub-section (5) will bring Schedule 12 of the 2016 Act into force. This will make additional minor and consequential amendments to the 1990 Act.

Section 151, which came into force on the passing of the Act, is a supreme paradigm of obfuscatory parliamentary drafting. If I had been paying attention as the Bill went through parliament or had read any of the issued briefing material, I might not be quite so clueless as to its meaning and effect, but all I can say without ferreting around to find the relevant explanation is that under this section the Secretary of State may make regulations requiring a local planning authority in England to prepare, maintain and publish a register of land within (or partly within) the authority’s area which is of a prescribed description, or which satisfies prescribed criteria. (Clear so far?) The regulations may make provision permitting the local planning authority to enter in the register land within (or partly within) the authority’s area which is of a prescribed description or satisfies prescribed criteria, but which is not required by the regulations to be entered in the register. (Are you paying attention at the back?) The regulations may require or authorise a local planning authority to carry out consultation and other procedures in relation to entries in the register, specify descriptions of land that are not to be entered in the register, confer a discretion on a local planning authority, in prescribed circumstances, not to enter in the register land of a prescribed description that the authority would otherwise be required to enter in it, require a local planning authority exercising the discretion referred to above to explain why they have done so, specify information to be included in the register, and make provision about revising the register. There’s more, but I won’t go on. It doesn’t get any better. (And no, I really don’t have any idea what this about.)

Section 152(1) also came into force with the passing of the Act on 12 May. It gives the Secretary of State power to make further provisions in the GPDO regarding operational development that is permitted by the Order. This is the power the Secretary of State needs in order to facilitate the proposed introduction of a permitted development right (in Part 3, Class O) for the demolition and reconstruction of offices. The purpose of the section is to allow the Secretary of State to prescribe additional matters requiring prior approval in this connection. As I pointed out in an earlier blog post, such additional requirements need not necessarily be confined to Class O, and it is possible that the GPDO could be amended to require the prior approval of additional matters where other operational development is permitted by various Parts and Classes in the Second Schedule.

Section 153 comes into force on 12 July. It amends the details of section 62A of the 1990 Act, which enables applicants for planning permission to apply direct to the Secretary of State in cases where the LPA has been made to sit on the Secretary of State’s ‘naughty step’, because of their allegedly poor performance in processing planning applications.

Section 157, already in force from 12 May, allows for the fees regulations made under section 303 of the 1990 Act to be varied so that different application fees may be charged in some areas compared with others. Without the addition of sub-section (8A) to section 303, any such local variations might lead to the regulations being treated as a hybrid instrument for the purposes of the standing orders of the House of Commons or of the House of Lords. Section 157 simply provides that any such statutory instrument is to be dealt with in parliament as if it were not a hybrid instrument.

Section 161, another section that came into force on 12 May, is one of the more controversial provisions in the Act. It enables regulations to be made by the Secretary of State to bring about the privatisation of development management services. At this stage it is proposed that where this occurs it will only be on a temporary basis as a pilot scheme in particular areas to test the practicality and desirability of competition in the processing (but not determining) of applications to do with planning. This is undoubtedly the thin end of a very thick wedge. The idea is that in specified LPA areas the applicant may, if they so choose, have their application processed, not by the authority but by a designated person. Sections 162 to 164 contain supplementary provisions.

I have already commented on the outsourcing of development management services by some authorities. The danger is that if great care is not taken, the delegation of the processing function may go too far, so that the application is, in effect, unlawfully pre-determined. I have previously drawn attention to a case in Dorset some years ago where a housing authority fell into this trap in relation to the processing of homelessness applications, resulting in the authority’s determination of the application being quashed by the court because its outsourced provider had in effect presented the authority with a cut-and-dried case, leaving the authority with no real discretion in the matter.

Finally sections 166 to 168 (also now in force) amend the procedure for the designation of urban development areas and the establishment of urban development corporations.

I will explore section 150 (‘permission in principle’) in a later post, but I shall postpone consideration of other provisions in Part 6 of the Act until the relevant commencement orders are made in due course.

© MARTIN H GOODALL

The Housing and Planning Act 2016 (Commencement No. 1) Regulations 2016 were made on 25 May, and brought sections 64, 65, 67, 68 and 145(5) of the Act into force on 26 May.

Section 145(5) relates to intervention by the Secretary of State in the development plan process. Sub-section (5) inserts after section 21 of the Planning and Compulsory Purchase Act 2004, a new section 21A, which allows the Secretary of State to make a temporary direction pending possible use of his intervention powers in relation to the preparation by an LPA of development plan documents. If the Secretary of State is considering whether to give a direction to an LPA under section 21 in relation to a development plan document or other local development document, he may direct the authority not to take any step in connection with the adoption of the document until the time (if any) specified in the direction, or until the direction is withdrawn. In meantime a DPD to which a direction under this section relates will have no effect while that direction is in force. .

The Secretary of State has already made use of this new power. He has made a temporary holding direction to Birmingham City Council requiring it not to take any step in adopting its development plan until the Secretary of State has decided whether he should intervene in this plan.

This is only a small part of the wider powers over the development plan process that the Secretary of State will be given by the 2016 Act. .

© MARTIN H GOODALL.

As readers are well aware, the permitted development right granted by Class O of Part 3 in the Second Schedule to the GPDO, which allows the residential conversion of office buildings (subject to prior approval) has been bitterly opposed by several London Boroughs. An attempted legal challenge to this provision got short shrift in the High Court, and LPAs were driven back on the expedient of making Article 4 directions in those areas that were not specifically exempted by the GPDO itself. However, if an LPA wishes to avoid potentially substantial compensation claims, it must give not less than 12 months’ notice of the Article 4 Direction.

The protected areas (which are not confined to London, although most of them are to be found in the capital) will cease to be protected in 2019. LPAs in those areas therefore have almost three years in which to get Article 4 Directions in place, although as the London Borough of Islington discovered, blanket Article 4 directions are liable to be struck down by the Secretary of State, using his default powers under that article. Any such directions will therefore have to be selective, and must be justifiable on objective criteria. Any direction that is too wide in its application is liable to suffer the Secretary of State’ s veto.

However, the new Mayor of London (Sadiq Khan) issued a press release today announcing that he will put new measures in place to help protect and expand office space for small businesses, start-ups and entrepreneurs in London. Sadiq Khan made the announcement following the publication of new City Hall figures which show that since 2013, over 1.47 million square metres of office space could have already been converted into residential units in London using the Government’s permitted development rights, “which allow uncontrolled office-to-residential developments”. This means space for nearly 94,000 jobs in London could be lost through this process (the press release says).

When it comes to specifics, it is clear that the Mayor has very little power to prevent the operation of Class O. Amending the London Plan “so that there is stronger protection for small businesses and start-up workspace” will not in fact prevent residential conversions under Class O, nor will it enable LPAs in London to refuse prior approval of these conversions. The statement simply says, rather weakly, that the Mayor will “work with the Government on changes to permitted development rights”. I rather doubt whether he will get a very sympathetic hearing from De-CloG ministers.

Sadiq Khan is quoted as saying: "These new figures lay bare the impact that the Government’s misguided policies are having on space for business in London. Of course we need new homes, but this does not need to be at the expense of the space we need for the businesses that provide our jobs and drive our prosperity. Space which is genuinely surplus to commercial needs should be identified authoritatively and its release carefully managed so that it does not undermine local business.” (One can almost hear the collective yawn from Marsham Street.)

What Khan would like to do (although, as I have pointed out above, it will not in practice prevent the exercise of PD rights under the GPDO) is to change the London Plan “in order to protect viable business space and to create new start-up spaces in housing developments”. He asserts that there needs to be more control over where office space can be converted to residential use. Well, dream on, Sadiq.

I am sorry to be so ‘down’ on London’s newly elected Mayor, especially since if I lived in London I would undoubtedly have voted for him (and I rejoiced at his replacement of the ghastly Boris, and the defeat of a very divisive and equally right-wing candidate who had been put up to replace him). But politicians of all hues must learn not to promise what it is not within their power to deliver.

It seems to me that local politicians are, in any event, all too often a long way behind the curve in recognising changing needs and demands for various types of accommodation, and this now applies to office space in the same way as it has done for some years to industrial land, not to mention retail premises. Time and again we still see local plans that seek to protect employment land, for which there is no longer any need or demand, and which seek to ‘protect the vitality and viability’ of shopping areas which have been dying on their feet for years, as a result of changing patterns of retail activity combined with developing technology.

Studies have clearly shown a steadily reducing demand for office space, due to different patterns of working, again driven by technology – a trend that will only accelerate. The offices that Sadiq Khan and other local politicians are so keen to protect simply aren’t going to be needed in the future. Policies that seek to resist the redevelopment of industrial land and office premises, and changes of use away from retail in designated shopping areas, will only serve to create empty and increasingly derelict sites, when those sites could be making a positive economic contribution if redeveloped for other purposes.

Whether this was in the government’s thinking in using the GPDO as the vehicle for liberalising the planning regime to facilitate changes of use in a way that would prevent local planning authorities from resisting or obstructing such changes is not clear, but the significantly expanded PD rights for changes of use in Part 3 undoubtedly have the beneficial effect of accelerating the desirable elimination of office space which, if not immediately redundant, would have been likely to become so in the fairly near future.

Far from seeking to resist the changes of use permitted by Part 3 of the Second Schedule to the GPDO, local authority planners and their elected members should welcome this trend, and the contribution which the amended GPDO is making to bringing about these necessary and desirable changes.

© MARTIN H GOODALL

Unfortunately, the note on the top bar explaining how Comments are dealt with in this blog disappeared when I tried to amend it a few weeks ago, and I still haven’t had time to sort this out.

In the meantime, in view of the number of comments and queries still being received, I thought I had better explain again how these are dealt with.

First, no comment appears in the blog until it has first been ‘moderated’. This ensures that spam and other rubbish is excluded. Pressures on my time usually lead to a delay of between two to three days and a week before a comment is published, and occasionally a lot longer.

Secondly, my practice is only to publish those comments and queries that are likely to be of some interest to other readers of the blog. The comments facility is not (and never has been) a means of obtaining free advice on individual planning problems.

Thus queries that are focused solely on a particular problem encountered by a reader, and on which they are trying to find advice, is likely to be deleted without being published. On the other hand, if an identified problem is a common one, then I may decide to publish it with my response, simply to illustrate the point that has been raised. However, this is always strictly on the basis that my comments in response to the question are not to be treated as legal advice, and that no responsibility can be accepted either by me or by Keystone Law for any loss or damage resulting from reliance being placed on such comments.

If a reader wishes to obtain specific advice on a planning problem they have encountered, the comments facility on the blog is not the appropriate means of doing so. The ‘Blogger’ software does not allow me to ascertain the enquirer’s email address, and so I could not respond personally in any event.

The way to seek specific advice is to send me an email at Keystone Law [martin.goodall@keystonelaw.co.uk]. However, I must make it clear that I (or one of my colleagues in our planning law team) will only be able to give advice on the basis of full instructions on a fee-paying basis. We cannot offer free advice, nor can we “just give a few moments’ advice on the telephone”. We can only deal with substantive matters on the basis of a full professional retainer. We simply haven’t got time to deal with ‘quick’ queries.

If you wish to make use of our professional services, we shall need your full contact details (full name, home address [or business address where you are instructing us on behalf of a company], telephone numbers, etc.) and we shall also need to see emailed copies of all the relevant documents and/or correspondence that will be required in order to enable us to assess the matter.

Due to my own commitments, it will not usually be possible for me to deal personally with any resulting instructions, but readers of this blog may rest assured that all my colleagues in our planning law team are as knowledgeable and experienced in planning law as I am. (We have no juniors or trainees in the team, and so all instructions are dealt with at a senior level).

Our hourly charging rate is £310 (plus VAT). We have set this charging rate “because we’re worth it” (as one well-known advertising slogan puts it), and it does enable us to keep our workload under some sort of control by ensuring that the kind of instructions we get are substantial matters which really do need our legal input. In practice, our fees for the simplest advice are unlikely to be less than £1,500 (plus VAT), subject to a consideration of the relevant background facts by the member of our planning law team who would be handling the matter. Dealing with various formal procedures in addition to this advice (e.g. corresponding with the local planning authority or dealing with an application or appeal) would, of course, be significantly more expensive. However, before commencing work on the matter, we always agree the fee budget with our client and the scope of what is included within that sum.

Upon our receiving sufficient details of the matter to enable us to assess an appropriate fee budget, we will send you an engagement letter confirming the fee budget and setting out our standard terms of business. Your liability to pay fees for our services will commence upon our receiving a signed copy of that letter back from you.

I hope this note is helpful in clarifying the basis on which comments and queries are handled in this blog, and in explaining how readers who wish to obtain our professional advice can do so.

© MARTIN H GOODALL

After last Thursday’s referendum result, there is a great deal of head scratching going on, in an effort to understand the mind-boggling ramifications of the decision to leave the EU. As many of us were well aware, this is going to be far more complicated than the Brexiteers pretended, and the effects will include more than a few unintended consequences. The task of unravelling all these complexities is daunting, and I suspect may even prove to be impossible. Don’t be surprised if the government (of whatever composition or complexion) eventually decides that the only practical solution is for the UK to remain a full member of the European Union after all, and introduces legislation to abrogate the result of the referendum!

For the time being, we remain in the EU, and despite the political and economic turmoil that has ensued (again, as expected), there is no change yet either in the UK’s status as a member of the EU, nor in any of the legislative provisions that apply domestically, including those that give effect to European law and to directives from the European Commission. As both the Prime Minister and leading Conservative members of the ‘Leave’ campaign have made clear, the timing of any notice to invoke the Article 50 procedure that would lead in a few years to our eventual departure from the EU is entirely within the control of the British government, and there is every reason to delay the commencement of that process, notwithstanding the strongly expressed preference of some of our European partners that it should be fast-tracked.

I pointed out in an article a few months ago (Planning Law – the European dimension posted on Monday 7 March) that European law has only a marginal effect on our domestic planning laws, and is mainly focused on environmental issues. The environmental protection that this legislation gives to endangered species and their natural habitats is designed precisely in order to ensure that an appropriate level of environmental protection (especially for vulnerable species and their habitats) is maintained when considering development proposals. Our current subordinate legislation was drafted in compliance with the relevant European directives on these matters, but it is in any event based on sound and sensible principles, and I see no reason why we should wish to depart from those principles, whether or not the UK is a member of the EU. There is therefore no reason to repeal or amend the various statutory instruments that govern these matters, such as the Conservation of Habitats and Species Regulations 2010 and the Town and Country Planning (Environmental Impact Assessment)Regulations 2011 among others that are designed to ensure the appropriate protection of environmental interests.

As I have pointed out before, the European Convention on Human Rights, which is relevant in the context of planning law as it is in many other areas of our law and administrative procedures, has absolutely nothing to do with the EU or our membership of that organisation, and so this will continue to apply with full force and effect whether or not the UK is a member of the EU. The repeal or amendment of the Human Rights Act 1998 would therefore be neither necessary nor appropriate in connection with the UK’s departure from the EU. This is a separate issue that our right-wing Tory government seems to want to pursue, although government lawyers are finding it very difficult to come up with any viable alternative. There is, frankly, no reason at all to interfere in any way with the existing legislation or to seek to resile from our long-established adherence to the Convention, and to the principles that it enshrines.

There are other less tangible effects which last Thursday’s unexpected and unwelcome referendum result is likely to have in the coming months. The political turmoil that has ensued, and in particular the Tory leadership contest that is now to take place, will prolong the legislative and administrative paralysis that has afflicted several government departments since the referendum campaign began, leading to further uncertainty. I don’t propose to speculate as to the effect on house prices or on house-building, but there must now be a question mark over certain major infrastructure projects, such as the nuclear power station at Hinkley Point, the third runway at Heathrow and HS2. While mentioning infrastructure, there will clearly be no more European funding going to deprived areas such as the Welsh valleys or the North-east. Demands (or promises from the Brexiteers, which they are already denying) that Whitehall should fill the gap may prove to be a forlorn hope. It is ironic that it was these areas, which have benefited the most from European grant funding and would have continued to do so, that voted the most strongly in favour of leaving the EU. [It rather lends weight to one referendum poster I saw proclaiming “Vote Leave”, to which someone had added “ – if you’re stupid”.]

My main concern at the moment is to know whether De-CLoG will continue to make progress on its project to introduce further amendments to the GPDO, and in particular the amendment of Class O in Part 3 of the Second Schedule so as to permit the demolition and replacement of office buildings. They got the amendment to the 1990 Act in May which they needed to enable them to make the appropriate provisions in an amending statutory instrument, and so it would now be only political uncertainty or indecision in light of the Tory Party leadership contest that might prevent or delay this. Until last Friday, I had assumed that we would see this further amendment to the GPDO in September, coming into effect on 6 October. But now we shall just have to wait and see what happens.

We do indeed live in ‘interesting’ times.

[UPDATE 29.6.16: It has been announced today that the election of the new Tory leader (who will thereby become Prime Minister) will be completed by 2nd September. All ministerial posts will then be at the disposal of the new PM, and so a cabinet reshuffle can be expected over that first weekend in September. This is bound to affect the timing of any further amendments to the GPDO, unless De-CLoG rushes to make the intended amendment order by the end of August. An early General Election is also then a possibility, which could further delay any changes to subordinate legislation that have not been made by 2 September. So if the GPDO is not amended before the end of August, it is impossible to say when it might happen, if at all.]

[UPDATE 30.6.16: The deadline for completion of the Tory party leadership contest has been put back one week to 9 September, which means that any cabinet reshuffle will therefore be dealyed for one further week. Meanwhile a decision on a third runway at Heathrow has been put off until after that date (which could mean postponement to the end of the year, or maybe forever). Electricité de France say they are still committed to making a final decision by September on financing Hinkley Point C, but that does not necessarily mean a decision to go ahead with it. Meanwhile De-CLoG has confirmed that it intends to press on with various planning reforms, including the introduction of the Neighbourhood Planning and Infrastructure Bill in parliament. However, there must still be a question mark over the timing of these further planning changes, which may well be affected by the election of a new Tory leader, and if a General Election were to follow in the Autumn all bets would then be off.]

© MARTIN H GOODALL

Despite an occasional urge to blog on topics outside the scope of planning law and practice, I have always resisted such temptations – until now. However, I feel so strongly about the subject on which I am writing today that I will make this a one-off exception to my usual rule.

Few, if any, of the benefits that the charlatans running the Brexit campaign were promising to gullible voters would be forthcoming if we were to leave the EU. The money that would allegedly be ‘clawed back’ from Europe, would be a good deal less in net terms than some of the figures being bandied about by the Brexiteers, and is very unlikely to reach the NHS, or match the EU support currently paid to farmers, or to replace the structural funds currently paid by the EU to deprived areas. As for immigration, even if we were no longer to be in the EU, net in-migration is likely to be every bit as high as it is now, and the promised ‘control’ of our borders may prove to be illusory.

As for red-tape and EU bureaucracy, there is a widespread consensus that nearly all of the rules that have been made in compliance with EU law would in practice have to be retained in our legislation, because the interests that they protect would need to be protected whether or not we were an EU member. Even fishing quotas are unlikely to change. So all those people who rejoiced last Friday that “we’ve got our country back” had been badly misled, both in believing that we had somehow lost our independence in the first place and in thinking that we would in practice have any greater freedom of action as non-members of the EU than we have now.

Like quite a few other people I know, I feel so upset by the European referendum result, and its disastrous consequences for this country, that I cannot accept this outcome, and feel that we must find some way of reversing last Thursday’s decision. I believe strongly in parliamentary democracy. Referenda, on the other hand, do not represent genuine democracy and are far too prone to be swayed by demagoguery, as was all too apparent in the case of last week’s referendum. I do not accept for one moment that it is ‘undemocratic’ to seek to overturn the result of that referendum, so as to ensure our continued full membership of the EU. In the end, it must be parliament that decides. [And in case anyone believes that MPs are there simply to give effect to the wishes of their constituents, I suggest they should re-read Edmund Burke’s classic Address to the Electors of Bristol.]

I was interested to see that there are other lawyers who are thinking on the same lines as me. The first point that should be clearly understood is that the result of last week’s referendum is not binding in any way. It has no legal status, and does not oblige the government or parliament to give effect to its outcome. Secondly, eminent constitutional experts have pointed out that Article 50 of the Lisbon Treaty can only lawfully be invoked by an Act of Parliament. The royal prerogative that ministers exercise on behalf of the Crown, which includes (at least nominally) the power to make treaties and to declare war, does not extend to the formal procedure for leaving the EU, because our membership of the EU is enshrined in our primary legislation, and an amending Act would therefore be required to start the process leading to the UK’s departure from the EU.

The government was very wise not to seek to invoke Article 50 for the time being, and it is clearly very much in our interests to delay doing so for a number of reasons, not least to allow for the possibility of a change of mind that might avoid the Article 50 procedure having to be invoked at all. Michael Zander QC (Emeritus professor of law at the London School of Economics), in a letter to The Times, has suggested that if the mood of the country towards Brexit has changed by the time the government seeks to invoke Article 50 of the Lisbon Treaty, MPs would have “a constitutional right, even a duty”, to refuse to give the will of the people effect. I entirely concur with that view.

[I really don’t propose to permit myself any further digressions from planning law in this blog, and I shall similarly limit discussion in the comments section below. As the French say - Retournons à nos moutons.]

© MARTIN H GOODALL

Cities and Local Government Devolution Act 2016

Legal challenges to planning decisions after Champion

Planning Law – the European dimension

The GPDO is amended at last

Demolition and reconstruction of offices under the GPDO

Residents’ parking permits banned by 106

Parliamentary challenge to GPDO changes

Mr Fidler’s castle comes down

Eye in the Sky

Time marches on

Housing and Planning Bill

Reduced affordable housing contributions upheld

Class Q – Sustainability of location

Yet another Planning Bill in the Queen’s Speech

Housing and Planning Act 2016

2016 Act – further provisions in force

Residential conversion of offices in London – the Mayor wades in.

Comments and queries

Planning law after Brexit

Is Brexit inevitable?