I have previously expressed some scepticism as to delivery of the government’s avowed intention (dating originally from 2014) to add the demolition and replacement of office buildings to Class O in Part 3 of the Second Schedule to the GPDO.

I referred a few weeks ago to a footnote in an obscure press release that came out during the Tory party conference in October, where this proposal was repeated; but the fact remains that the proposal, if it were to be pursued, would be fraught with all sorts of practical difficulties, and would require the consideration of a whole raft of additional matters in any prior approval application relating to such development. In the circumstances, it seems to me that little, if any, advantage would be gained by this means as compared with a straightforward application for planning permission.

Notwithstanding my scepticism, the government’s intention to pursue this proposal has been repeated in their response to the report of the House of Lords Select Committee on the Built Environment, published in November 2016 [CM 9347], which contains this passage in paragraph 198:

“We are to extent [sic] permitted development rights even further, to allow for demolition of offices and replacement with housing on a like-for-like basis. This could provide around 4,000 new homes by the end of 2021.”

This comment was added, perhaps rather irrelevantly, to the government’s response to an observation by the House of Lords committee (quoted in paragraph 194) that “the Government should also consider strengthening the priority given to brownfield development, including considering the reintroduction of a ‘brownfield first’ policy at national level.”

The 4,000 figure was originally quoted in the October press release referred to earlier, although on what evidence (if any) is unclear. It looks very much like an unsubstantiated guess of the “think of a figure and double it” variety.

At our very successful seminar at the RIBA in November, launching the Second Edition of A Practical Guide to Permitted Changes of Use, Arita Morris, Director of Child Graddon Lewis, architects & designers, delivered an interesting paper on the practicalities of office conversions under Class O, which made it clear that many office conversions require planning permission for physical alterations and extensions in any event, bearing in mind that such operational development is excluded from the development permitted by Class O, so that the only physical alterations that can be carried out to the building without a separate planning permission are internal works not affecting the external appearance of the building, and which do not therefore constitute development by virtue of section 55(2)(a) of the 1990 Act.

In the past 30 years or so, it has been the practice to erect ‘deeper’ office buildings, which do not easily lend themselves to residential conversion, due to the lack of natural daylighting towards the centre of the building. It is presumably these more recent office buildings that would potentially be candidates for demolition and replacement if Class O were to be extended to allow this. There would nevertheless remain a question mark over the commercial viability of such a scheme, and the practicalities of this type of development might, as I have suggested, make a planning application a simpler way of dealing with a development of this sort.

So I am not expecting a further extension of permitted development rights under Class O any time soon. We shall have to see what 2017 brings, but don’t hold your breath.

© MARTIN H GOODALL

One really good piece of news in the Neighbourhood Planning Bill is that ministerial guidance on the use of planning conditions, which has been so widely ignored by local planning authorities for many years, is at last to be given statutory force.

While the Bill is continuing on its passage through parliament (currently awaiting Second Reading in the House of Lords on 17 January, having already completed its passage through the Commons), the government is wasting no time in preparing the subordinate legislation that will be put in place as soon as possible after the Neighbourhood Planning Bill comes into force following Royal Assent, probably in the Spring. The government has consulted on these proposals and has published their response to the consultation with commendable speed.

The first major subject of the consultation is the issue of pre-commencement conditions. Whilst the government recognises the importance and value of certain pre-commencement conditions in ensuring that necessary safeguards are put in place for important matters, including heritage and the natural environment, they remain determined to ensure that the principles in their Planning Practice Guidance (formerly set out in Circular 11/95) are observed by LPAs, and this will include agreeing proposed conditions with an applicant before a decision is taken, and as early in the planning application process as possible.

The Government remains of the view set out in the consultation paper that it should be the responsibility of the LPA to choose the most appropriate time to seek agreement of the applicant to any pre-commencement conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. Nonetheless, the government agrees that there should be a default period to avoid undue delay in the process where there is no response from the applicant. They therefore propose a default period of 10 working days (although there will be an option for LPAs to agree a longer timescale with the applicant).

The intention is that the default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and has sought the agreement of the applicant. The default period would then elapse 10 working days (two weeks) later, unless a longer period had been agreed between the LPA and the applicant.

The alternative of introducing a dispute resolution procedure (such as a fast-track mechanism for appeals) would only add a further formal step to the process which would be likely to cause delays, and could actually discourage effective discussions between applicants and local authorities, who might simply wait to use the mediation route as an alternative to meaningful engagement early in the process.

The government expects that the new approach will reduce the workloads of authorities following the issue of a planning permission, by reducing the number of pre-commencement conditions that then have to be discharged.

The second main issue dealt with in the consultation document is the proposed prohibition of conditions that infringe the principles laid down in the ministerial guidance on the use of conditions. Planning officers predictably asserted in response to the consultation document that the guidance is already sufficient without further provision being made in legislation, but experience over many years has shown that in practice this guidance is widely ignored. The government believes (and I entirely agree) that it is necessary to ensure that conditions applied by local planning authorities meet the six policy tests in the NPPF. The government has therefore confirmed its intention to do this through secondary legislation, expressly prohibiting each of the following types of condition:

1: Conditions which unreasonably impact on the deliverability of a development - e.g. disproportionate financial burden;
2: Conditions which reserve outline application details [i.e. details that should have been specified as reserved matters at the outline permission stage];
3: Conditions which require the development to be carried out in its entirety;
4: Conditions which duplicate a requirement for compliance with other regulatory requirements - e.g. the Building Regulations;
5: Conditions requiring land to be given up; and
6: Positively worded conditions requiring payment of money or other consideration

The second of these prohibitions will not restrict the ability of local authorities to impose conditions on outline applications requiring the submission of details of reserved matters for approval at a later date. What it is aimed at is conditions attached to a full permission or to consent to details (i.e. the approval of matters that should have been reserved by an outline permission) which require the subsequent approval of further details. The latter type of condition should be entirely unnecessary.

However, what the government’s proposals do not appear to address is the unnecessary requirement in many conditions for certain details to be approved before the commencement of development, when the condition could simply require that certain matters be approved at a later stage in the development; it could indeed to be adequate that the approval of a few matters should simply be required “prior to the first occupation of any part [or of the relevant phase] of the development.

With regard to the prohibition of conditions requiring the completion of a development in its entirety, there is no reason why a developer should be under a legal obligation to carry out the whole of a development that has been approved. LPAs already have the ability to serve completion notices, to encourage the completion of partially-built development. The Government has therefore confirmed its intention to prohibit this type of condition.

As regards conditions that duplicate other regulatory requirements (in particular the Building Regulations), this is an issue on which many of us feel strongly. There is no excuse for trying to drag into the development management process matters that are properly the subject of compliance with the Building Regulations or other legislation. The government, however, does seem to have conceded (inadvisedly, in my view) that a condition might legitimately impose a requirement over and above the minimum standards stipulated by the Building Regulations. The answer, surely, if there are circumstances where a higher standard of construction is required, is to vary the Building Regulations themselves. There has been an unfortunate tendency in recent years to attempt to regulate through the planning system matters that should not properly feature in the development control process. The government really ought to set its face firmly against this trend.

Responses to the consultation exercise included a number of other conditions which it was suggested should be prohibited. These included:

- Conditions which duplicate or split conditions across different regulatory regimes;
- Conditions which restrict hours/methods of working on a building site;
- Conditions which require a completion date;
- Conditions which require material samples to be agreed up front before development can commence;
- Conditions which require pre-approved drawings to be duplicated and re-submitted for approval; and
- Conditions attached to temporary permissions, when the development has a short lifespan.

Some of these suggested prohibitions fall within the conditions that the government intends to prohibit in regulations, including conditions added upon the approval of reserved matters, conditions that duplicate other regimes and conditions requiring a completion date, all of which are covered by the government’s proposed prohibitions mentioned above.

There is perhaps just one other type of condition that requires specific prohibition. This relates to conditions attached to a prior approval under a relevant part of the Second Schedule to the GPDO (particularly Part 3) if it purports to deal with issues that go outside the scope of the specific matters requiring approval under the relevant Class of permitted development. Section 100ZA (which will be added to the 1990 Act by the Neighbourhood Planning Bill) makes it clear that the permissions referred to include development permitted by a development order, and so this provision will include conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended accordingly. However, the subordinate legislation ought specifically to prohibit such conditions, in order to reinforce the provision in paragraph W(13) in the GPDO that the conditions must be “reasonably related to the subject matter of the prior approval”.

© MARTIN H GOODALL

In wishing readers a Happy New Year, I am well aware that after 2016’s double disaster of the European Referendum and then the election of President Trump, the New Year promises at best to be an uncertain one.

I honestly believe that our country currently has the most incompetent government since Lord North’s administration managed to lose the American colonies in the 1770s. When the PM tells us that “Brexit means Brexit”, and then clarifies this by pronouncing that what she wants is “A Red, White and Blue Brexit”, this can only be translated in plain English as “I’m sorry; I haven’t a clue.” This is hardly surprising, when managing Brexit is in the hands of the Three Stooges (Boris the Clown, ‘Dangerous’ Davis and Dr Liability Fox MD, all of whom appear to be equally clueless).

Unfortunately, we have an equally incompetent Loyal Opposition, which seems incapable of opposing anything, let alone calling the government to account for its manifest errors and omissions.

Anyway, enough of politics; this year is also likely to be interesting on the legal front. Very early in the New Year we shall have the Supreme Court’s decision on the procedure required to invoke Article 50 of the Lisbon Treaty. Although this case is solely focused on this question (and is not concerned with the referendum result, or with how Brexit is to be managed once Article 50 has been activated), it is a case of immense juridical importance, because it goes to the heart of the constitutional relationship between Parliament and the Executive.

Montesquieu was probably wrong when he wrote about the separation of powers. There has always been an element of common membership and interaction between Parliament, the Executive and the Judiciary, although the independence of the judiciary remains of paramount importance, and has been reinforced in recent years by a change in the person and functions of the Lord Chancellor, and the creation of the Supreme Court to take over the judicial function formerly exercised by the House of Lords.

Another fundamental constitutional principle, which continues to be of the greatest importance to the protection of our liberties, is the sovereignty of Parliament over the Executive. It is this essential principle which lies at the heart of the case on which the Supreme Court is currently deliberating.

No-one who has ever studied Constitutional and Administrative Law will have been the least bit surprised by the judgment of the High Court in this case (handed down by the most strongly constituted Divisional Court that I can ever remember). I find it hard to believe that the government stands any chance whatever of overturning that decision in the Supreme Court, and the only remaining question is whether it will be an 11-0 decision in favour of the Respondents (which seems most likely), or whether there could possibly be just one, or maybe two, dissenting judgments.

I am bound to say that David Pannick had four centuries of overwhelming judicial authorities on his side, by contrast with which the Attorney General’s case seemed largely to consist of bluff and bluster. On the other hand, it seems to me that the respective cases for the Scottish and Northern Irish governments, whilst persuasively argued, stand much less chance of being accepted by the court, because the law would not appear to be on their side so far as their constitutional relationship with the UK government is concerned. I have a great deal of sympathy with both of these regional governments; they have a strong moral case in favour of a separate settlement with the EU for their own countries. But it will have to be argued in the political arena, rather than through the courts.

One final point before we get back to Planning Law. I mentioned above the crucial importance of the independence of our judiciary; it is an essential component of the Rule of Law in this country. It is therefore immensely damaging when ill-informed newspaper editors print scurrilous allegations that senior judges are “Enemies of the People”, and question their integrity and their personal character. As I have observed above, the decision of the Divisional Court was inevitable; it flowed naturally from the law that the Court had to apply. There is no question of the judges having allowed their personal opinions, political affiliations or leanings or any other extraneous factors to influence their judgment; they were under a duty to apply the law as it exists to the facts before them, and they did so fearlessly and fairly. I am in no doubt that what the Daily Mail subsequently printed was a gross contempt of court, and the Editor and others concerned in writing and publishing this scurrilous material can count themselves lucky that they were not hauled before the Court and committed to prison until they had purged their contempt, by making a grovelling apology in person to the Court and printing an unqualified retraction of their statements. There must certainly be no repetition of this conduct in the wake of the Supreme Court judgment. In the event, however, that it were to be repeated, the journalists concerned should be swiftly proceeded against for any such contempt of court.

After the expected excitement of the Supreme Court judgment on Article 50 in January, there are two other cases that may well prove interesting. In February, the High Court is expected to hear the case of East Herts DC v. SSCLG. If judgment is reserved, we may expect to get the result by early March. This is a challenge by the LPA to ministerial advice in the online PPG that ‘sustainability of location’ should not be taken into account in determining a prior approval application under Class Q in Part 3 of the Second Schedule to the GPDO. The legal people at East Herts got rather hot under the collar when I suggested in a blog post a few months ago that they appeared to be ‘spoiling for a fight’ on this issue, but this case seems to suggest that this is precisely the exercise on which they were embarked. However, I have to say that if I were a gambling man, my money would be on the Secretary of State to win this one.

Then in mid-March, the Court Appeal is due to hear the appeal in Dunnett Investments v. SSCLG. This concerns preclusive conditions in planning permissions which may, or may not, have the effect of preventing either changes of use within the same use class (under section 55(2)(f)) or permitted development under the GPDO (or both). There is no doubt as to the preclusive effect of a condition that contains a clear reference to one or other of these statutory provisions; the difficulty arises where the condition is prohibitively worded, but without clearly referring either to section 55(2)(f) [or Art. 3(1) of the UCO] or to the GPDO.

I won’t rehearse the issue in any more detail here; I blogged on it a few months ago in light of the High Court decision in Dunnett Investments, and I have also discussed this case in detail in Appendix A to the Second Edition of A Practical Guide to Permitted Changes of Use (see paragraph A.5). I don’t know how counsel intends to argue his case before the Court of Appeal, but one point that appears to me to be relevant (and possibly determinative) is the distinction to be made between the legal effect of section 55(2)(f), compared with the legal effect of Art. 3(1) of the GPDO. Previous judgments, including the first instance judgment in Dunnett Investments, seem to have conflated the effect of allegedly preclusive conditions in relation to these two separate and rather different statutory provisions.

In light of later judgments, the proposition put forward in the judgment in Carpet Décor may have been too sweeping in embracing both section 55(2)(f) as well as the GPDO. However, it seems to me that the proposition accepted by the court in Royal London Mutual Insurance should be construed only as precluding the operation of section 55(2)(f), but not as such to precluding the operation of the GPDO in accordance with Art. 3(4) of that Order. In my view, the Court of Appeal decision in Dunoon Developments remains the leading authority, so far as the GPDO is concerned.

I imagine that a reserved judgment in Dunnett Investments can be expected before (or perhaps just after) Easter. No doubt other judgments will be forthcoming on a number of planning topics during the next twelve months. The flow of cases never stops.

Meanwhile, the Neighbourhood Planning Bill will continue its passage through parliament, and can be expected to receive royal assent this spring (and certainly before the current parliamentary session ends in May). Early amendment to the DMPO can then be expected to give effect to the government’s intention to bring the use of conditions in planning permissions under more effective legal control.

It remains to be seen what further amendments may be made to subordinate legislation. Further amendment of Part 3, Class O in the GPDO cannot be ruled out, although I remain sceptical about this (as previously explained). The possible consolidation of the Use Classes Order was canvassed when the UCO was further amended during 2015. It is certainly overdue for consolidation in view of the many amendments it has undergone in the past 30 years. I have a more than passing interest in this, as the writing project on which I am currently engaged deals extensively with the UCO, and we naturally do not want to go to press later this year, only to find that the UCO is then extensively overhauled.

Further primary legislation is also in prospect. A planning bill (whatever its title) seems to have become an annual event in recent years, and one wishes that ministers would resist the temptation of endlessly tinkering with the planning legislation. The Planning Acts are also arguably overdue for consolidation, having suffered a plethora of amendments since 1990, starting as early as 1991 when the ink was hardly dry on the principal Act. We shall just have to wait and see, although with so much else going on in government, it would be understandable if consolidation of the primary legislation remains on the back burner for the time being.

So, Happy New Year (even, dare we hope, a prosperous one). We’ll just have to keep our heads down and keep on with the work in hand, despite whatever nonsense the politicians and the press are getting up to.

© MARTIN H GOODALL

Planning professionals among my readers will no doubt recall that some years ago a requirement was introduced in the planning legislation for LPAs to give written reasons for the grant of planning permission, in the same way as reasons are required for the imposition of each condition attached to the permission, and similarly reasons for refusal are stated in a notice of refusal.

The requirement to state the reasons for granting permission gave rise to challenges to the grant of planning permission in a number of cases, and this statutory requirement was eventually dropped, so that there is no longer a statutory requirement for the LPA to state its reasons for granting planning permission.

The decision of the Court of Appeal in R (CPRE Kent) v Dover DC [2016] EWCA Civ 936, in which judgment was given on 14 September 2016, therefore came as something of a surprise. It was alleged in the grounds of appeal that the Committee had failed to give legally adequate reasons for the grant of permission. However, the underlying claim was that it was impossible to understand from the minutes of the committee meeting at which it had been resolved to grant planning permission why one of the principal issues that were in contention had been determined in that way.

The point at issue is not an easy one. Notwithstanding certain judicial statements to the contrary (including those of the Court of Appeal in this case), I would still maintain that there is no legal duty on an LPA and, in particular on the person or persons taking the decision on behalf of the authority (a committee or sub-committee or an officer acting under delegated powers) to state their reasons for reaching their decision to grant planning permission (although they are under an obligation to state the reasons for a refusal of planning permission and also for imposing conditions on a planning permission). This is in contrast to the duty of the Secretary of State, or of an inspector determining a planning appeal on his behalf, to explain in sufficiently clear terms the reasoning on which their appeal decision is based.

On the other hand, all actions and decisions of a public body or authority (or a failure to act or to take a decision) are potentially subject to the supervisory jurisdiction of the courts by way of an application for judicial review, which may lead to the court making a quashing order, a mandatory order or a prohibitory order or, in some cases, granting a declaration. In such a case, the adequacy of the authority’s reasoning in reaching that decision may well be called in question, and compliance with the well-known Wednesbury principles may be an issue to be considered. To this extent, the authority’s reasons for reaching its decision will inevitably be called in question. But it is the adequacy of the decision-making process itself from a legal and procedural point of view that will be in question, rather than whether the reasons for the decision were explicitly stated, either adequately or at all.

Where there is a committee report which clearly explains the reasons for the recommendation of the council’s officers, and the relevant committee accepts that recommendation, for example to grant planning permission, the committee report itself has often been accepted by the courts as a sufficient explanation of the reasons that led councillors to determine the application in that way, and there is really no need for the committee minutes to expand on that. However, difficulties do potentially arise in a case where a decision made by councillors differs from that which their officers recommended. In such a case, it may not be clear why the committee came to a different conclusion, and it is in that type of case that there may well be a legal challenge based on the apparent perversity of the decision. It may also be alleged that the committee took into account immaterial considerations or failed to take account of considerations that should have been material to their decision. Misinterpretation of, or a failure to apply, relevant planning polices might also be a factor. In all these cases, it may be important to the authority’s defence of its decision to be able to show lawful and proper reasons for the committee’s decision, and (bearing in mind that the committee report may be of only limited, if any, assistance in these circumstances) the best defence would be a clearly written minute that explains the reasoning of the councillors in debating the matter in committee. It was the absence of sufficiently clear minutes that ultimately led the Court of Appeal to quash the planning permission in the Dover case.

This may perhaps seem like legal hair-splitting on my part, because irrespective of whether there is a legal duty on the part of a public body or authority to state explicitly in its Minutes the reasons for decisions being reached, a failure to do so may make it difficult to defend those decisions in the event of legal challenge, especially where the decision departed significantly from the recommendation in a relevant committee report.

So far as R (CPRE Kent) v Dover DC is concerned, I therefore find myself in disagreement with the Court of Appeal’s conclusion that the Committee failed to give legally adequate reasons for their decision to grant planning permission, but I do nevertheless agree that the Committee’s reasons for reaching that decision were in fact legally inadequate (which is not quite the same thing), so that the grant of planning permission in this case had to be quashed.

That being the case, this judgment was effectively dependent on its facts, and it would be unsafe to cite the judgment as authority for the proposition that reasons must be explicitly stated for the grant of planning permission. It is particularly misleading to cite in this context Lord Brown’s speech in South Bucks v Porter (No 2) [2004] 1 WLR 1953, which was concerned with the quality of reasons given by the Secretary of State’s inspector on a planning appeal.

The observations of Lang J in R (Hawksworth Securities) v. Peterborough City Council [2016] EWHC 1870 (Admin) (also cited in the Dover case) appear to me to be more apposite to the position where the grant of planning permission by an LPA is in question. However, the alleged need for reasons actually to be stated even in these circumstances is, as I have suggested above, a red herring.

Nevertheless, as the Court of Appeal recognised in the Dover case, a difficulty can clearly arise in those cases where a Planning Committee does not accept their officers’ recommendation but departs from it. Reference was made in this context to the judgment of Hickinbottom J in R (Mevagissey Parish Council) v. Cornwall Council. [2013] EWHC 3684 (Admin). Like the Dover case, this concerned an application for a housing development in an AONB. However, even in that case, we find the judge opining that in coming to a different conclusion from that of the officers (which they were perfectly entitled to do) the committee could not do so "without, in their summary reasons, indicating that they had correctly identified, understood and applied the relevant policies and explaining, if only briefly, why they had come to the conclusion they had, and thus why they considered the officer’s conclusion wrong".

I fully accept that in defending a decision that is under challenge in the courts, the authority may be called upon to satisfy the court on these points, and a written summary of the elected members’ reasons for reaching that decision duly recorded in the Minutes of the committee meeting would clearly be the most efficacious way of doing so. But such a written record is not in itself a legal requirement.

As the Court of Appeal made clear, this judgment should not be read as imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions, far removed from the approach outlined by Lang J in Hawksworth. The case does, however, illustrate a practical need to minute the reasons leading to a grant of planning permission against officers’ recommendations.

© MARTIN H GOODALL

My colleagues and I in Keystone Law’s planning law team are currently wrestling with a point that has arisen in two separate cases that have come across our desks recently, and which has also been raised by a correspondent in this blog.

The question can be briefly summarised, but the answer is not quite so simple. The question is this - Where prior approval has been sought and given in respect of the specified matters under the relevant Class of permitted development in Part 3 of the Second Schedule to the GPDO, is it open to the LPA (after having given that prior approval) to assert subsequently that the proposed development is not in fact permitted development by reason of its not meeting the qualifying criteria for that Class of development?

A short time ago, I set out my preliminary view on this point in a response to a comment posted under my recent blog post on the ‘convertibility’ of agricultural buildings in light of the judgment in Hibbitt v. SSCLG . It is an issue that several local planning authorities seem to have latched onto following that judgment. However, a discussion with my colleague Ben Garbett has convinced me that the legal position may not be so straightforward as it originally seemed to be.

There is no doubt as to the position where the legal status of the land or building has changed since the prior approval was given, for example by reason of the subsequent listing of the building under section 1 of the Listed Buildings Act, or designation of the area in which the site is located as a conservation area. The decision of the Court of Appeal in R (Orange Personal Communications Services Ltd) v Islington LBC [2006] EWCA Civ 157 made it clear that once prior approval has been given, this has the effect of ‘crystalising’ the planning permission granted by Article 3(1) of the GPDO, so that any subsequent change in the status of the land cannot affect the right to carry out the permitted development, even if that development does not commence until after the status of the land has changed by reason of a designation that would otherwise disqualify it from permitted development.

However, my initial view was that the Orange case does not assist a developer where the alleged disqualification of the site from PD does not arise from a subsequent change in its status or designation, but was an existing factor that would have disqualified the site from PD even before the prior approval application was determined. I originally took the view that a grant of prior approval cannot be relied upon in these circumstances, because if the site does not in fact qualify for permitted development then a purported prior approval by the LPA of those matters specified for prior approval cannot overcome that disqualification.

The basis for my earlier opinion was that the actual planning permission for the development is granted by Article 3(1) of the GPDO and it is this permission that is dependent on the qualifications in the GPDO being met. The LPA is not itself granting planning permission, nor in giving its prior approval is it approving the development as such; it is merely approving the submitted details in respect of those matters that specifically require prior approval. It follows (or so I originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD. However, I have now come round to the view that that there may be other factors to consider.

It seems clear that in relation to Part 3 (and also to Parts 6 and 16) of the Second Schedule to the GPDO, planning practice guidance, as well as certain judicial dicta, both indicate that there is at least an implied requirement that the LPA, in dealing with a prior approval application, should also consider whether the proposed development does in fact qualify as permitted development, or whether it is disqualified or precluded for any reason. I will discuss this below, but if this proposition is correct, the argument is that after it gives its prior approval it is not then open to the LPA to claim that the proposed development does not in fact qualify as PD, so as to prevent the development being carried out.

Even the wording of the relevant statutory provisions seems to support this alternative view. So, for example, in Part 3, paragraph W(3) provides that the local planning authority may refuse an application where, in the opinion of the authority, the proposed development does not comply with, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question.

There is a clear implication in paragraph W(3) that the LPA will consider not only the specific matters requiring prior approval but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It is therefore arguable that in giving its prior approval in respect of the prescribed matters, the LPA thereby also accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. Ergo, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I am sure I am not alone in finding the government’s online Planning Practice Guidance next to impossible to navigate, which renders it practically useless. So far as I have been able to ascertain, current practice guidance does not advise LPAs as to how they should consider and determine prior approval applications, and so in researching this issue I was driven back on previous ministerial policy guidance (now withdrawn) that dealt with this type of development. For example, paragraph E.14 in Annex E to the former PPG7 (which was not finally cancelled until the publication of the online PPG in March 2014) advised in relation to prior notification applications under Part 6 that in determining whether their prior approval would be required to the siting or design of the proposed development, local planning authorities should also use the determination procedure to verify that the intended development does benefit from permitted development rights. As I have indicated, I have been unable to ascertain whether this advice has been carried over to the online PPG, but it seems to me that the principles expounded in Annex E to PPG7 are still applicable (notwithstanding that they no longer have the ministerial imprimatur). If so, then this is a further example of the implication mentioned above that the LPA’s prior approval (or a determination that their prior approval will not be required) necessarily involves acceptance that the development does qualify as permitted development.

Off-hand, I can’t recall whether there was a circular on prior approvals under Part 3 before the great bonfire of ministerial guidance conducted by Eric Pickles, and I no longer have the 13-page list of cancelled circulars that was issued when the online PPG was launched in March 2014. If any reader is aware of any past or present ministerial guidance on the determination of prior approval applications (other than that in Annex E of PPG7 mentioned above), I would be grateful to have my attention drawn to it.

Further support for the proposition put forward above is to be derived from the judgment of May J in R. v. Sevenoaks DC ex p Palley [1994] E.G. 148 (C.S.).

This was a case that concerned development that was allegedly permitted agricultural development under Part 6. The LPA had confirmed that their prior approval of siting and design would not be required (and so, it was argued, had accepted as matter of law and of fact that the development in question qualified as permitted development). However, a neighbour successfully applied to the High Court to quash that determination on the grounds that the development did not in fact qualify as PD under Part 6. The case turned on whether the site qualified as “agricultural land”, but the Court first had to consider whether this question was a matter of precedent fact or whether it was a question for consideration by the LPA in determining whether their prior approval would be required.

The parties agreed that the question whether the relevant land is “agricultural land” [and so whether it qualifies for PD under Part 6] has to be considered before the development is carried out. Counsel for the LPA submitted that the same question did not strictly have to be answered at the time a determination was made by the LPA. In May J’s judgment, however, it was clear that the question does have to be asked and answered at the time of determination. If there is a material delay between the determination and the works the question may have to be considered again and may not in any particular case have the same answer. [This implied that a subsequent change of circumstances might disqualify the development as PD, but this judgment was long before the Court of Appeal decision in Orange.]

The definition of “agricultural land” includes that the land is “in use for agriculture” and that it is so used “for the purposes of a trade or business.” Counsel for the neighbouring objector submitted that these are matters of precedent fact such that the Court can make a factual determination on the evidence and is not limited to reviewing the LPA’s factual determinations on Wednesbury grounds.

He referred first to a passage in R. v. Home Secretary ex p. Khawaja [1984] A.C. 74 at 97, in the speech of Lord Fraser of Tullybelton, who had opined (in agreement with Lord Bridge and Lord Scarman) that whether a person was an illegal immigrant was “a precedent fact which has to be established”. It was not enough that the immigration officer reasonably believed him to be an illegal entrant if the evidence did not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief. [The House of Lords nevertheless recognised that this decision was at variance with a train of decisions culminating in R. v. Home Secretary ex p. Zamir [1980] A.C. 930 to the contrary effect, namely that that the function of the court was only to see whether there were reasonable grounds for the decision of the immigration officer.]

May J therefore turned to R v. SSE ex p. Davies (1991) P. & C. R. 487, where the Court of Appeal held that the question whether a person had an interest in land within section 88 of the Town and Country Planning Act 1971 was a question going to the jurisdiction of the Secretary of State to hear an appeal. The Court was therefore entitled to determine the question itself and was not limited to reviewing the decision of the Secretary of State on grounds of perversity or unreasonableness. Neill LJ said (at 492): “It seems to me that, in such circumstances, where the decison impugned involves a question as to the jurisdiction of the decision maker, and where the primary facts are contained in documents and do not involve any questions of credibility or policy, the Court should look at the matter afresh and make up its own mind.”

Reference was also made to R v. Oldham MBC ex p. Garlick [1993] A.C. 509, a case which turned on whether an applicant for housing (on grounds of homelessness) did or did not have the mental capacity to make that application. Lord Griffiths said (at page 520) that it was understandable to regard this as a question of fact to be decided by the Court. But if the relevant Act only imposed a duty on the housing authority in respect of applicants of sufficient mental capacity to act upon the offer of accommodation, then it seemed to him that Parliament must have intended the housing authority to evaluate the capacity of the applicant. It followed that the authority’s finding could only be challenged on judicial review if it could be shown to be Wednesbury unreasonable.

In R. v. South Hams DC ex p. Gibb (The Times June 8th 1994), the Court of Appeal had to consider whether applicants were gypsies within the meaning of the Caravan Sites Act 1968. Neill LJ held that the possibility of applying the Khawaja principle in a case such as that before the Court had been rendered impossible, certainly in the Court of Appeal, by the House of Lords decision in ex p. Garlick. Neill LJ was satisfied that Parliament must have intended that, if as a matter of law local authorities had applied the right test, the question whether particular persons or groups of persons were, as a matter of fact, gypsies was pre-eminently a matter for the authorities concerned.

In any matter which a public authority has to decide, there will always be initial facts to be established. It was, in May J’s view, clear that the mere fact that a particular fact or group of facts is logically the first consideration does not constitute it as a “precedent fact”. The passage relied upon by counsel for the neighbouring objector in ex p. Davies referring to primary facts contained in documents and not involving any questions of credibility or policy suggested that the Court was unlikely to look afresh at matters which require detailed investigation and factual judgment. The passage quoted above from ex p. Garlick said that the Court must look at the intention of Parliament, and that where very immediate investigations are needed to make the system work, the likely conclusion is that they can only be carried out by the authorities concerned. In his judgment, that applied to the instant case. A question whether land is in use for agriculture and so used for the purposes of a trade or business is not likely to be a straightforward paper enquiry. It may require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people. In his judgment, it was plain that the legislative intention was that these matters should be considered (subject to any question of perversity) by the planning authority alone.

In the event, May J found that the LPA’s determination that the site in question was agricultural land was legally flawed (due to only the most perfunctory consideration having been given to the site’s actual status), and it was for this reason that their determination was quashed. It is clear, however, that absent this legal flaw, it was for the LPA to determine, as a matter of fact and degree, whether the land in question was “agricultural land” so as to qualify for PD under Part 6, as part of their determination as to whether their prior approval would be be required in repect of the siting and design of the proposed development. As noted above, this would have reflected the ministerial guidance in Annex E of PPG7 [or the equivalent guidance that would have been applicable in 1992] to which I have drawn attention above.

It would therefore appear from the judgment in ex p. Palley, following the judicial authorities cited in that judgment, that the question as to whether proposed development qualifies as PD (in those cases where the LPA has to determine whether their prior approval will be required, and if so whether or not it will be given) is not “a matter of precedent fact”, but is a matter of fact and degree to be determined by the LPA as part of their determination of the prior approval application. In particular, in the case of permitted changes of use under Part 3, the provisions of paragraph W(3) clearly envisage this approach.

Arguably, therefore, where a prior approval has been given, the LPA must be taken to have confirmed that the proposed development complies with the conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, so that it duly qualifies as PD. It will not thereafter be open to the LPA to argue that the development does not in fact qualify as PD for any reason. The only exception to this would be deliberate deceit on the part of the applicant, whereby they had misled the authority as to the true factual position, in which case (in accordance with the Connor principle, as applied in the planning context by the Supreme Court in Welwyn Hatfield) the applicant’s deceit would prevent them in those circumstances from relying on the benefit of the planning permission granted by Article 3(1) of the GPDO.

© MARTIN H GOODALL

Very shortly after I had published my post on Reasons for granting planning permission on 10 January, I saw a report of the High Court judgment in Shasha v. Westminster City Council [2016] EWHC 3283 (Admin), in which judgment was given on 19 December last year.

The Deputy Judge confirmed that a local planning authority is not under any statutory obligation to give reasons, or to give any summary of their reasons, for the grant of planning permission (as they once were), whereas they are required to give their reasons for refusing permission and for any conditions imposed on a planning permission that they may grant. In such circumstances, the Court of Appeal has found that there is no general obligation at common law requiring reasons to be provided for the grant of planning permission: see R v Aylesbury Vale DC ex p Chaplin (1998) 76 P&CR 207.

The Deputy Judge went on, however, to draw attention to several potential exceptions to this general rule, where there may be circumstances in which reasons need to be provided as a matter of fairness: see e.g. R v Mendip DC ex p. Fabre (2000) 80 P&CR 500 (pages 509 to 513), and Oakley v S Cambs DC [2016] EWHC 570 (Admin) (at [35]-[41]). This may mean, as Lang J stated in R (Hawksworth Securities PLC) v Peterborough City Council [2016] EWHC 1870 (Admin) (at [80]), that a requirement to give reasons may only arise "exceptionally" to meet the requirements of fairness. Article 6 of the European Convention on Human Rights may also require reasons to be provided to a person whose civil rights are determined by the grant of permission.

However, counsel for the claimant advanced a different point, which seems to have been widely overlooked until now. This submission was that there was an obligation here to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 [SI 2014 No. 2095]. These regulations were made under sections 40 and 43(2) of the Local Audit and Accountability Act 2014.

Regulation 7 [Recording of decisions] provides that the decision-making officer must produce a written record of any decision if it would otherwise have been taken by the relevant local government body [which includes councils that are local planning authorities], or by a committee or sub-committee of that body, or a joint committee in which that body participates, but it has been delegated to an officer of that body either under a specific express authorisation, or under a general authorisation to officers to take such decisions, and the effect of the decision is to grant a permission or licence, or affect the rights of an individual, or award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.

The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain information as to the date the decision was taken, a record of the decision taken along with reasons for the decision, and details of alternative options (if any) considered and rejected. Where the decision falls under a specific express authorisation, the record of the delegated decision must include the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.

If there is already a statutory requirement [under other legislation] to produce a written record of the date the decision was taken and a record of the decision taken along with reasons for the decision, then the duty of the decision-making officer under the 2014 Regulations is satisfied, without the need also to record in those circumstances details of alternative options (if any) considered and rejected.

Regulation 8 provides that the written record referred to in Reg. 7, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public at all reasonable hours at the offices of the authority, and also on its website (if it has one), and by such other means that the authority considers appropriate. On request and on receipt of payment of postage, copying or other necessary charge for transmission, the authority must provide to the person who has made the request and paid the appropriate charges a copy of the written record and a copy of any background papers. The original written record must be retained by the council and be made available for inspection by the public for six years from the date of the decision. Any background papers must be retained by the council and made available for inspection by the public for four years from the date of the decision.

In the present case, the decision to grant planning permission had been delegated under a general authorisation to officers to take such decisions and its effect was to grant a permission. Accordingly, the claimant submitted, the decision fell within regulation 7(2)(b)(i) and it followed that the decision-making officer was required to produce a written record of the decision taken along with the reasons for it by virtue of regulation 7(3)(b).

The Council attempted to resist this, and to argue that there was no duty to give reasons for the grant of planning permission under that regulation. They submitted that, as Lord Scarman put it in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at p141, "Parliament has provided a comprehensive code of planning control" and that it would be "beyond anomalous" if there was a requirement to give reasons for the grant of permission only under delegated powers when the requirement in all cases to provide merely summary reasons for the grant of planning permission had been revoked. Counsel also submitted that, even if there was any duty to give reasons under regulation 7, it would be satisfied (given regulation 7(4)) by a notice provided in accordance with Article 35 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 containing the reasons for any conditions imposed.

However, the Deputy Judge was in no doubt that Regulation 7 is applicable to a decision taken under delegated powers to grant planning permission. There is no basis for holding that a decision to grant planning permission is not a decision the effect of which "is to…..grant permission" (to which regulation 7(2)(b)(i) applies).

The Deputy Judge observed that it is true that planning legislation provides a comprehensive code of planning control; but that legislation does not by itself provide a comprehensive code that governs by whom and how planning decisions are to be taken by local authorities. Those matters are also governed by the primary legislation applicable to the discharge of their functions by local authorities including, in particular, (in England) Parts V, VA and VI of, and Schedule 12 to, the Local Government Act 1972 and Part 1A of the Local Government Act 2000, and subordinate legislation made under those Acts, and in this case also the Local Audit and Accountability Act 2014.

The suggestion that imposing a requirement to give reasons for the decision to grant planning permission under delegated powers with effect from 6 August 2014 under the 2014 Regulations sits ill with the earlier removal on 25 June 2013 of the requirement in all cases to give summary reasons for the grant of planning permission provides no reason to construe regulation 7 of the 2014 Regulations other than in accordance with its terms. The Explanatory Memorandum to the order which had removed this requirement generally - the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 - explained the change on the basis that officer reports typically provided more detail on the logic and reasoning behind a particular decision to grant planning permission than the decision notice, and that the requirement to provide summary reasons for that decision added little to the transparency and quality of the decision making process but that it did add to the burdens on local planning authorities.

It is at least consistent with the explanation for that change that reasons should nonetheless be required to be provided for delegated decisions. Whereas officer reports are almost invariably produced when decisions are taken by members of planning authorities, an equivalent document or one with the content that regulation 7(3) requires need not be produced when an officer takes a decision to grant planning permission. But, whether or not that provides an explanation for regulation 7 of the 2014 Regulations, and whether or not the requirement it imposes may be thought anomalous given the removal of the requirement to give summary reasons in all cases, the Deputy Judge held that there is no basis for reading the words "other than a planning permission" into regulation 7(2)(b)(i), where they do not appear, or to exclude decisions to grant planning permission from those falling within Regulation 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions.

For these reasons, the Deputy Judge held that there was an obligation on the decision-making officer in this case to produce a record of the decision to grant planning permission and the reasons for it as soon as practicable after the decision-making officer made the decision. In this case that did not happen.

Where members of an authority take a decision, it is a reasonable inference, in the absence of contrary evidence, that they accepted the reasoning in any officer's report to them, at all events where they follow the officer's recommendation: see Palmer v Herts CC [2016] EWCA Civ 1061(per Lewison LJ at [7]). In the Deputy Judge’s view, the same inference in the like circumstances is reasonable when one officer takes a decision having received a report from another officer containing a recommendation.

The Deputy Judge went on to consider the standard of reasons required from an officer acting under delegated powers for a decision to grant planning permission, and the admissibility of evidence about the reasons for a decision when there is an obligation to have provided them, but I don’t propose to discuss those aspects of the judgment in this article.

Turning to the actual decision to grant planning permission, the claim succeeded on all of the four grounds that were pleaded, but the Council sought to argue that it was highly likely that the outcome for the Claimants would not have been substantially different if the conduct which had been found to be unlawful had not occurred, so that the Court ought not to grant the relief sought. However, the Deputy Judge disagreed, and for the reasons given in the judgment, this claim for judicial review succeeded.

Just to add a couple of brief comments, there can be no doubt as to the applicability of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 to planning permissions granted by officers under delegated powers, and local planning authorities will have to take on board the requirement to comply with this rule. When I worked in local government (a good many years ago now), it always concerned me that no proper record was kept of decisions taken by officers under delegated powers. I felt that some sort of minute ought to be kept to record the decision. The 2014 Regulations now confirm this requirement.

In practice, some LPAs do already deal with delegated decisions in much the same way as they do in respect of planning applications that are being reported to committee. Bristol City Council, to take just one example, produces a full “delegated report” for each such application which deals thoroughly with the issues considered and the reasons for the decision. Bristol’s delegated reports almost certainly comply with Regulation 7, even though they have been compiled since long before the 2014 Regulations were made. I am not usually in the habit of praising BCC, but this is an example of good practice that other authorities would do well to follow, although Regulation 7 actually requires rather less detail than Bristol habitually includes in its delegated reports.

If LPAs do not ensure that minutes are kept of decisions to grant planning permission taken by officers under delegated powers, including the reasons for granting permission, they may well face legal challenges like this one in Westminster. In practice, it is to be hoped that any LPAs that do not yet comply with Reg. 7 of the 2014 Regulations will take steps to do so, in order to avoid such difficulties arising in future.

© MARTIN H GOODALL

In my second post on this topic, on 20 January, there was a brief passing reference to the High Court decision in Oakley v S Cambs DC [2016] EWHC 570 (Admin) (at [35]-[41]). That judgment has now been reversed by the Court of Appeal in a judgment handed down yesterday (15 February) - [2017] EWCA Civ 71.

In the High Court, Kay J had referred to a passage in the decision of the Court of Appeal in R v Aylesbury Vale DC, ex p. Chaplin (1997) 76 P&CR 207 (at page 212) which, he accepted, offered some weak support for the proposition that there may be cases – perhaps multiple issue cases – where a duty to give reasons may arise. Chaplin was decided before the advent of a statutory duty to give reasons, but he did not believe that this altered the approach he should be taking to it. The correct, and “parsimonious”, approach to Chaplin, he observed, is that it is not authority for the proposition that complexity is the touchstone. In his view, there might be situations where planning committee decisions do appear aberrant, and in that specific context the complexity of the case may be a relevant factor. Thus, he was not to be understood as holding that a duty to give reasons could never arise; he was “simply keeping the judicial powder dry”.

The present case, involving the development of a football stadium, was one in which a planning committee had resolved to grant planning permission against the recommendation of their officers that it should be refused. In the Court of Appeal, Elias LJ noted that, as Mr Justice Kay had pointed out, between 2003 and 2013 there was a statutory duty to give summary reasons for all planning decisions, but this was removed for planning approvals. The statutory obligation now is to give reasons only where permission is refused, although if it is granted subject to conditions, reasons must be given explaining why the conditions have been imposed. However, it was common ground (both at first instance and in the Court of Appeal) that although there is no statutory obligation to give reasons where permission is granted, it does not follow that there is never any obligation to do so. A common law obligation may arise in appropriate circumstances. The decision of the Court of Appeal in ex p. Chaplin held that there is no general common law duty to give reasons in planning cases; the question in issue was whether it arose in the particular circumstances here.

Following R v. Home Secretary ex p. Doody [1994] AC 531 and R v HEFC ex p Institute of Dental Surgery, Kay J agreed that these authorities showed that there are two distinct circumstances where reasons should be given. The first, as in Doody, was where the nature of the decision required it on grounds of fairness; the second was where, to use the terminology of Sedley J in the Dental Surgery case, there was something “aberrant” in the particular decision which called out for explanation. The former justifies the imposition of a duty to give reasons in a class of case whereas the latter justifies it by reference to the particular decision in issue.

It was submitted by the appellant before Kay J that the present case was similarly “crying out for an explanation”, given that the planning committee had departed from the considered recommendation of the officer. The judge had rejected that submission. He did not accept that there was anything intrinsically peculiar or aberrant in the committee disagreeing with the officer’s recommendation. He had therefore held that this fact alone was not enough to trigger a duty to give reasons.

Moreover, in the judge’s view, there were good reasons for not imposing a common law duty given the nature and character of the decision-making process. The judge had referred to observations made by Sedley J in the Dental Surgery case when he said that giving reasons “may place an undue burden on decision makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments”. In the judge’s view, that fairly characterised the position here.

In the Court of Appeal, the argument that the committee’s decision had been “aberrant” was not pursued, and would clearly not have met with the court’s sympathy. Elias LJ agreed with the judge at first instance that a decision could not fairly be characterised as aberrant simply because the committee disagrees with an officer’s recommendation. However, for the reasons that Elias LJ went on to explain, the fact that the committee has departed from the officer’s report may in some contexts be a relevant factor supporting the conclusion that a common law duty to give reasons should be imposed.

There were two distinct issues in the present case which needed to be considered. The first was whether it is possible to infer the reasoning of the committee from the materials in the public domain, and in particular the officer’s report. The second, assuming that this is not possible, is whether there is a duty on the committee to explain its reasoning. The latter issue raises a point of general principle whilst the former was particular to the facts of this case.

There are arguments for and against a common law requirement to give reasons. On the one hand, it may generally be desirable for administrative bodies to give reasons for their decisions. It would focus the mind of the decision-making body, thereby increasing the likelihood that the decision will be lawfully made, thereby promoting public confidence in the decision-making process; it would provide, or at least facilitate, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and it would respect the individual’s interest in understanding (and perhaps thereby more readily accepting) why a decision affecting him has been made. This last consideration, Elias LJ observed, is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.

On the other hand, the disadvantage (accepted by Kay J in this case) is that having to provide reasons, particularly where they have to withstand careful scrutiny by lawyers [!], might involve an undue burden on the decision maker.

Statute frequently, and in a wide range of circumstances, obliges an administrative body to give reasons, although the content of that duty, in the sense of the degree of specificity of the reasons required, will vary from context to context. However, absent some statutory obligation, the question whether reasons are required depends upon the common law.

Elias LJ accepted that it is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in ex p. Doody . However, the tendency increasingly is to require them rather than not. Indeed, almost twenty years ago, when giving judgment in Stefan v GMC (No.1) [1999] 1 WLR 1293, at 1300, Lord Clyde observed: “There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.”

In view of this, his Lordship said, it may be more accurate to say that the common law is moving to the position that, whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.

A further basis for requiring reasons to be given arises where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not (see e.g. Norton Tool Co. Ltd v Tewson [1973] 1 WLR. 45). Elias LJ felt that there is a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review. However, if this were always to ground a basis for requiring reasons to be given, it would be inconsistent with the lack of any general common law obligation to give reasons. Nonetheless, he observed, there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt.

If reasons are not given, there are considerable difficulties facing a potential claimant who suspects that something may be wrong with a decision but is unsure. Unless the decision is plainly perverse, the assumption will necessarily be that the decision was lawfully made. There is a presumption to that effect, given that the burden of establishing illegality is on the applicant. No doubt there will be cases where a party has sufficient material to be able to mount some sort of legal challenge and get beyond the leave stage. In those circumstances, the respondent will effectively be compelled to provide reasons in order to defend the case, because if no reasons are given, the court may infer that the decision is bad (see the House of Lords decision in Padfield [1968] AC 997). Even then, however, the applicant may not be given full reasons, merely such explanation of the reasoning as meets the particular ground of challenge. Moreover, if the basis of the claim is too speculative - as it may well be where no reasons are available - the application is likely to fail at the leave stage.

Elias LJ then reviewed the circumstances in which a statutory requirement to give summary reasons for the grant of planning permission had been introduced in 2003, and the justifications for that change. However, that duty was removed in June 2013. The reason for doing so was explained in an Explanatory Memorandum prepared by DCLG and laid before Parliament. It was thought that the requirement to provide a summary statement of reasons added little to the officer’s report “and therefore adds little to the transparency or the quality of the decision-making process, but it does add to the burdens on local planning authorities”. The memorandum pointed out that much of the relevant documentation relating to planning applications was now available on-line. It explained that the removal of the duty sought “to reduce the regulatory burden and offer time-saving benefits to local authorities, without reducing the transparency or accountability of the decision-making process”. The assumption, therefore, was that where permission is granted, typically the reasoning will be sufficiently transparent since it can be gleaned from the available materials so that there is no need for a formal statement of reasons.

It seems clear that the Court of Appeal’s decision in the present case was influenced by the fact that the decision under challenge had a number of distinct features relied upon by the appellant. Not only had the committee disagreed with the officer’s recommendation, but in addition it had done so in circumstances where its decision was not consistent with the local development plan and involved development in the Green Belt. Prima facie this is inappropriate development and the planning committee was required to conclude that the adverse effects “by reason of inappropriateness and any other harm” are clearly outweighed by other considerations.

In these circumstances, public policy requires strong countervailing benefits before such a development can be allowed, and affected members of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In Elias LJ’s judgment, these considerations demanded that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there was in his judgment an overwhelming case for imposing the duty here.

That conclusion was, in his judgment, reinforced where the committee had departed from the officer’s recommendation. The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required. As Elias LJ said, he would not impose the duty to give reasons on the grounds that the committee’s decision appears to be “aberrant”, but the dictates of good administration and the need for transparency were particularly strong here, and they reinforced the justification for imposing the common law duty on the committee to state their reasons for the grant of planning permission.

Sales LJ gave a reasoned judgment in agreeing with Elias LJ. Patten LJ also agreed. The appeal was therefore allowed unanimously.

As the Court of Appeal recognised, there are arguments both for and against imposing a common law duty on LPAs to give reasons for the grant of planning permission. The position after this judgment clearly remains that there is no general duty to give reasons, but the Court of Appeal appears to have widened further the circumstances in which reasons will nevertheless be required.

I can fully understand why the court came to their decision in the particular circumstances of this case, but I have misgivings in principle about a common law duty to give reasons for the grant of planning permission (as distinct from such a duty to give reasons in other situations where public law principles apply). My reason for this is that planning law is entirely the creature of statute. Planning law is not derived from our common law, and when the courts have been tempted to apply common law principles to planning cases, it has been necessary for the House of Lords (or now the Supreme Court) to correct this tendency, for example in Reprotech, which confirmed that the general law of estoppel has no application in planning law. Other examples could be cited.

What makes it particularly undesirable that LPAs should be put under an obligation by the courts to give reasons for granting planning permission is that a specific statutory requirement to do so (or at least to give a brief summary of their reasons) was imposed in 2003, and then removed in 2013 for reasons that were clearly explained to parliament. Planning law is a single and comprehensive body of statutory provisions governing every aspect of the planning system. It seems to me, therefore, that it is for parliament in primary legislation and ministers in subordinate legislation made under powers granted to them by parliament to determine whether or not reasons for the grant of planning permission should or should not be made explicit by an LPA, and if so to what extent. Both ministers and the courts appear to be in agreement that there is, and should be, no general duty to this effect; on the other hand, there may well be very good grounds for imposing such a duty in certain circumstances (such as those canvassed in this case and in other judgments which were drawn to the attention of the court), but I would still maintain that is for parliament and/or ministers, not for the courts, to impose such a duty on LPAs.

© MARTIN H GOODALL

Time has not allowed me previously to note here the arrival of the latest addition to Keystone Law’s planning law team. This is Gareth Hughes, who joined us late last year, bringing our planning law team up to six in number.

Gareth is a skilled barrister who acts for an impressive portfolio of clients in the hospitality and entertainment sectors on both licensing and planning matters. He regularly acts as an advocate on behalf of clients before licensing committees all over the country and on appeal to the Magistrates’ Court, having dealt with cases right up to the Court of Appeal and the House of Lords on major points of law.

With over 25 years’ experience acting for many of the leading companies and individuals in the hospitality sector he has built up a significant network of relationships with elected councillors, council officers and police as well as residents groups particularly in the City of Westminster.

Gareth’s arrival is just one element in Keystone Law’s continuing growth. The firm now numbers over 200 lawyers in its ranks (both solicitors and barristers), and has recently extended its practice to Northern Ireland. This leaves Scotland as the only jurisdiction in the British Isles in which Keystone Law does not yet practise (having previously established offices in the Isle of Man and the Channel Islands). The continued expansion of the firm has prompted a move of our London headquarters to smart new offices in Chancery Lane, and there is no sign of the pace of growth slowing down.

As I have said on several previous occasions, this blog is not (and never has been) intended as a marketing tool, but it is nevertheless a source of pride and satisfaction to be part of this award-winning and innovative legal practice, and so I make no apologies for blowing a small toot on the trumpet occasionally.

© MARTIN GOODALL

Readers may be wondering why there has been such a deafening silence on my part since the publication of the Housing White Paper, while other planning professionals have busied themselves in publishing briefing notes and organising seminars left, right and centre.

However, the plain fact is that this was only a White Paper – a statement of various aspirations on the part of government, some of which may be realised in due course while others are quietly forgotten. I really see no point in wasting time on the White Paper itself, preferring to comment on particular changes in planning law and procedure when they come forward in due course.

Meanwhile, I remain sceptical of the government’s stated aim of building a million new homes by 2020. This would require an annual completion rate as high as, if not higher than, the building rate achieved under the dynamic leadership of Harold Macmillan as Minister of Housing and Local Government in the early 1950s, which included a substantial proportion of publicly funded social housing [“council houses” – remember them?]. Does the government seriously expect the private sector now to match that building rate without such a significant public sector input? Let’s be realistic – it simply won’t happen.

© MARTIN GOODALL

In my book (A Practical Guide to Permitted Changes of Use), I warned both in paragraphs 13.0 and 14.10 of the consequences of commencing development before the happening of one or other of three events – (a) notification that the LPA’s prior approval will not be required, (b) notification that prior approval is granted, or (c) the expiry of 56 days following the date on which the application was received by the LPA. I cited as an example an appeal decision [3136527] in February 2016, and I made the point that this was only one of a number of such appeal decisions where the developer had “jumped the gun”.

A judgment of the High Court in Winters v. SSCLG [2017] EWHC 357 (Admin), which was issued on 24 February, has provided further confirmation of this point. This case involved the erection of a larger domestic extension under Part 1, Class A of the Second Schedule to the GPDO, but exactly the same principle applies to developments requiring prior approval under Part 3 (Classes C, J, M, N, O, P, PA, Q, S, T and, in some cases, R).

In Part 1, Condition A.4(2) stipulates that “Before beginning the development” the developer must make a prior approval application, including all the information prescribed by this condition. In the same way, each of the Classes in Part 3 mentioned above is “subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required” as to the matters specified in respect of that Class of permitted development.

Furthermore, in Part 1, Condition A.4(10) clearly states that –

“The development must not begin before the occurrence of one of the following—
(a) the receipt by the developer from the local planning authority of a written notice that their prior approval is not required;
(b) the receipt by the developer from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 42 days following the date on which the information referred to in subparagraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.”

In Part 3, paragraph W.(11) similarly provides that :

“The development must not begin before the occurrence of one of the following—
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

It is therefore clear that the judgment in Winters is equally applicable to developments under Part 3. The provisions in Part 3, including paragraph W.(11), are unequivocal. Before beginning the development the developer must make a prior approval application and, furthermore, the development must not begin before the occurrence of one of the three events mentioned above.

In Winters, the LPA did not give notice of their determination within the 42-day period that applies under Part 1, and it was contended on behalf of the claimant that this entitled her to continue with and to complete the development. However, as the learned Deputy Judge observed, whilst it is true that once the 42-day period [56 days in the case of Part 3] has expired without receipt by the developer of written notice that prior approval is not required or has been granted, the developer’s proposed development can be carried out in accordance with the details provided in the application, the planning permission granted by the GPDO does not authorise the carrying out of any development any part of which was begun before an application for prior approval was made to the LPA. Accordingly, in the Winters appeal, the Inspector was not obliged to allow the Claimant’s appeal if works to provide the extension had begun before she submitted her application to the Council.

It was contended on behalf of the claimant in that case that the Inspector had erred in law in finding that development had in fact commenced, but the court found nothing amiss in the Inspector’s treatment of the evidence or in respect of his observations on his site visit, and so the challenge to the Inspector’s conclusion that works on constructing the extension had begun before the claimant applied to the Council therefore failed and, for the reasons given in the judgment, the claimant’s challenge to the Inspector’s appeal decision was dismissed.

© MARTIN H GOODALL

I have reported on several cases in the past few weeks in which the need for a local planning authority to state its reasons for granting planning permission has been reviewed by the courts. On Tuesday, 17 January, I reported on the case of R (CPRE Kent) v Dover DC [2016] EWCA Civ 936, in which judgment was given on 14 September 2016. The Supreme Court has now given permission to the LPA and the developer to appeal against the Court of Appeal’s decision.

The appeal should be heard in the Supreme Court towards the end of the year, and it is to be hoped that a definitive ruling will then be given as to whether or not an LPA is under any legal obligation to state its reasons for granting planning permission and, if so, in what circumstances and to what extent.

Watch this space around the end of the year.

© MARTIN H GOODALL

On Friday, 13 May 2016, I published a post on this topic in which I drew attention to the fact that, notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there were still some LPAs seeking to resist permitted development under Class Q on the basis of ‘sustainability of location’. The appeal decision that prompted me to pen that piece was at Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675]. The LPA had attempted to argue that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The appeal was nevertheless allowed, and I speculated that East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. (This rather upset the legal people at East Herts, and I got a tetchy email from them about it.)

The Sawbridgeworth appeal decision was pretty-well judge-proof on this issue, because as a matter of fact and degree the Inspector had found that the location was not unsustainable in any event. Whether the LPA were deliberately spoiling for a fight on this issue or not, they did later find another appeal decision (at Broxbourne Common ) which they decided to take to the High Court. This challenge was heard on 1 February, and judgment was given by Dove J yesterday, 9 March - East Herts DC v. SSCLG [2017] EWHC 465 (Admin). I wrote in my review of forthcoming cases on New Year’s Eve that my money would be on the Secretary of State to win this one, and so it proved.

The dispute, as before, centred around the words of paragraph Q2(1)(e) - “whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within class C3 (dwelling houses)”, and the gloss put on these words by the Secretary of State in the revision of the online PPG published in March 2015. This stated that “The permitted development right does not apply a test in relation to location as it is recognised the many agricultural buildings are not likely to be in villages and are unlikely to rely on public transport for their daily needs.” It suggested that the LPA should therefore judge whether the location and siting of the building would make it impractical or undesirable to change use to a house, and explained that impractical or undesirable are not defined in the regulations but the LPA should apply a “reasonable ordinary dictionary meaning”. Impractical would mean “not be sensible or realistic” and undesirable would mean “harmful or objectionable”, and it emphasised that if the building is in a location “where the local planning authority would not normally grant planning permission for a new dwelling” this is “not a sufficient reason for refusing prior approval”. The developer had argued that if the meaning of these words is to be an ordinary dictionary definition found in the English dictionary this would not refer to planning definitions, so that the use of the word “Harmful” would not automatically mean harmful to the green belt.

The Council, on the other hand, relied on the NPPF (and in particular paragraph 55). The planning officers considered that the location of the building was in an unsustainable location and no significant enhancement would be achieved by the conversion. They had reviewed the changes made to the PPG, in terms of what is meant by impractical or undesirable for the change to residential use, but remained of the view that the site was undesirable, in that it would be harmful and objectionable to allow a change of the use of the building to residential in a fundamentally unsustainable location. The Council therefore refused the prior approval application on the grounds that: “the proposal would create an isolated dwelling in the countryside away from key services and infrastructure such as public transport, schools and shops. The location of the building is undesirable for use falling within Class C3(dwelling houses) of the Schedule to the Use Classes Order and it would result in an unsustainable form of development contrary to the provisions of the National Planning Policy Framework.”

In the appeal that followed, the LPA contended that there was conflict between the PPG’s guidance and the terms of the Order. It was contended that the guidance could not alter the proper interpretation of the 2015 Order. The Council had sought legal advice as to whether its interpretation of this matter was correct as a matter of law. The advice received stated that as a matter of law, the GPDO requires the Council, when considering whether or not to grant prior approval for the conversion of an agricultural barn to a dwelling, to take into account all policies of the NPPF that would ordinarily be relevant to the question of the practicality or desirability of allowing such development in whatever location is proposed. They therefore argued that paragraphs. 108 and 109 of the PPG (which suggested that an LPA must exclude such policies of the NPPF from consideration) were wrong. For that reason the Council had taken account of the NPPF in determining this prior approval application, as required by the Order.

In allowing the appeal, against this decision, the Inspector pointed out that the Planning Practice Guidance (PPG) provided the most up-to-date guidance on the interpretation of Class Q and she had attached substantial weight to paragraphs 108 and 109 of this document. In the appeal, the Council had contended that the proposal would create an isolated dwelling in the countryside, and that the location of the building was unsustainable. On this basis, the Council stated that the building is undesirable for a use falling within Class C3. However, in the Inspector’s view, the PPG makes it clear that it does not apply a test in relation to the sustainability of the location. As such, she could not agree with the approach adopted by the Council in terms of the sustainability issues raised in relation to paragraphs 49 and 55 of the NPPF. The Council claimed that there was a conflict between the PPG and the requirements of the Order. However, in the Inspector’s view there is no conflict between the general presumption in favour of sustainable development set out within the NPPF and the very clear guidance identified at paragraphs 108 and 109 of the PPG in relation to this part of the GPDO. In light of all the evidence, it could not therefore be argued that it would be impractical or undesirable to convert the building to residential use.

Whilst the PPG spoke in terms of “sustainability” of location it was agreed between the parties at the hearing before the Court that in truth what is being addressed in paragraph 108 is “accessibility” of location, both in terms of the generation of travel demand and distances to work, services and facilities and also in terms of the ability to obtain access to destinations by choice of modes of travel and in particular slow modes. This concept is of course a key ingredient in the much broader multi-faceted concept of sustainable development.

Counsel for the Secretary of State drew the judge’s attention to the Explanatory Memorandum to the GPDO at the point when the class was introduced. He submitted, based on the Explanatory Memorandum, that the purpose of introducing this class of permitted development was to promote the provision of new homes. Thus he submitted that the interpretation of the term “undesirable”, and the application of the NPPF, had to be undertaken bearing in mind that the purpose of introducing this class of permitted development was to enable the change of use of agricultural buildings to dwellings in circumstances where permission might not be granted pursuant to a conventional application. On this point, having considered the provisions of the Explanatory Memorandum, his lordship was satisfied that the purposes of the creation of this new permitted development right was clearly to “deliver more homes” and to increase housing supply. The outcome which the legislation has in mind is clear and is intended to lead to the development of residential uses in locations which would not ordinarily be contemplated by the undiluted application of, for instance, policies in the NPPF relating to location.

Turning to the meaning of the term “undesirable” in this context, the judge was satisfied that it is a word that calls for an exercise of planning judgment. He had reached that conclusion since it is an adjective with a potentially broad meaning and purview, used within the context of an approval process in planning legislation. The planning judgment to be made arises in the context of the qualified entitlement that Class Q creates. Given that conclusion, an error of law could only arise if that planning judgment were affected by one of the traditional public law grounds of challenge.

The assessment of location, as distinct perhaps from other aspects of the desirability of location such as the impact of odour or dust from adjacent developments, has to be examined through the prism of the purpose of the legislation. To apply to the Class Q prior approval process, in making this planning judgment, the policies of the NPPF with the same rigour in respect of accessibility of residential development as would be applied to an application for planning permission for residential use would have the potential to frustrate the purpose of the introduction of the class, namely to increase the supply of housing through the conversion of agricultural buildings which by definition will very frequently be in the open countryside. Thus whilst accessibility is not an irrelevant consideration when considering paragraph Q2(1)(e), the bar in relation to the test of unacceptable inaccessibility will necessarily be set significantly higher than it would in the context of an application for planning permission.

His lordship did not consider that this approach to the exercise of the planning judgment of what may be “undesirable” about the location of the agricultural building in the context of Class Q is in any way undermined by the reference within paragraph W(10)(b) to the requirement for the local planning authority to have regard to the NPPF when considering a prior approval application “as if the application were a planning application”. That application of the NPPF must be undertaken in the context of a proper understanding of the test being considered, namely in this case undesirability of location. It is in the context of an understanding of paragraph Q2(e) that the NPPF must be applied. The NPPF cannot be applied so as to frustrate the purpose of identifying the class of permitted development in the first place.

He therefore concluded that the PPG, in paragraphs 108 and 109, reflects this approach. These paragraphs helpfully explain that there is no specific requirement within paragraph Q2(1) in relation to accessibility of location, and also that the fact that an agricultural building is in a location where planning permission would not normally be granted for accessibility reasons will not amount to a sufficient reason for refusing prior approval. Both of those observations are apposite and reflect the approach to requiring a far stronger objection on accessibility grounds than would be required to resist a planning application, for the reasons which have already been set out above.

The judge specifically rejected the LPA’s argument that, by virtue of paragraph 55, the location of the agricultural building to be converted was in a location which was unacceptable for accessibility reasons, and that the application of paragraph 55 to the location leads to the conclusion that the proposal should be refused. In essence this argument was the equivalent of an argument that the prior approval should be refused because the agricultural building was in a location where the LPA would not normally grant planning permission for a new dwelling on accessibility grounds. That was a contention which was contrary to the guidance in paragraphs 108 and 109 which, for the reasons he had already given, his lordship accepted is consistent with sensible parameters for the exercise of the planning judgment required. It followed that the Inspector was entitled, as she did in her decision letter, to conclude that the Council’s objections based on paragraph 55 of the NPPF could not be maintained. Having rejected that contention, the Inspector was entitled to form the view that it could not be argued that “it would be impractical or undesirable to convert the building to residential use”.

It followed that the Inspector was entitled to form the conclusions which she did. Her rejection of the LPA’s argument that paragraph 55 of the NPPF should be applied with full rigour to this prior approval in forming her planning judgment on whether the change of use of this agricultural building was in an “undesirable” location, was clearly open to her and reflected the particular context in which her judgment had to be reached.

In the appeal, an application for the costs of the appeal was made on behalf of the developer, on the basis that the LPA had ignored the “precise and specific” PPG guidance and continued to take decisions contrary to earlier appeals where their views had been rejected. The Inspector had made an award of costs for this reason. On this basis, her decision on the costs application was also unassailable. Having reached the justifiable conclusions which she did, and having disagreed with the approach of the Council for entirely proper reasons, she was entitled to form the view in reliance upon earlier appeal decisions of a like nature that the Council’s refusal in the present case was one which was unreasonable and that costs should be awarded.

The Council’s challenge to both the appeal decision and the costs decision was accordingly dismissed.

Bearing in mind that a number of similar planning appeals had already been allowed where LPAs had sought to resist permitted development under Class Q on grounds similar to those canvassed by East Herts in this case, applying the very clear ministerial guidance in paragraphs 108 and 109 of the PPG, it is hardly surprising that the Council lost this appeal, with costs, and that their challenge to that decision in the High Court then failed. East Herts have, however, done us all a favour by putting an end to any lingering doubts that LPAs may have had on this issue.

© MARTIN H GOODALL

Country Life magazine is not exactly a bundle of laughs, but it did make me laugh out loud last week, when I read an interview in the magazine with Christopher Boyle QC of Landmark Chambers.

In the course of this he is reported to have said on the subject of town planning: “There’s almost no law in it. Most of the public law principles were established in about 1965 and haven’t changed since.” My wife spotted this article, and handing it to me with a broad grin said, “So you’ve been wasting your time for the past 35 years on all those cases you’ve fought, and doing all that writing about planning law!”

Actually, I think I know what Christopher Boyle meant, because he added, “It’s about evidence, facts arguments, and particularly expert opinion.” If one thinks purely in terms of section 78 appeals against the refusal of planning permission, I wouldn’t disagree with this second remark. In the past, I did a fair number of housing appeals, and major retail appeals (superstores), and quite frankly I found it rather boring, precisely because it involved so little law. This is why I moved away from that sort of work into what I would broadly describe as “troubleshooting” – enforcement, compliance, lawful uses, and the legal interpretation of the voluminous body of legislation, both primary and subordinate, that makes up the corpus of our planning law.

Those of us who enjoy a good legal argument (and I certainly include my colleagues in Keystone Law’s planning law team among this number) find the law involved in town and country planning absolutely fascinating, not least because it is ever-changing. Quite apart from endless tinkering with the legislation by successive governments, there is a constant flow of judgments from the superior courts on all sorts of planning law topics, often involving issues of interpretation (of which the East Herts case on which I reported last week is a typical example).

Actually, the interview in Country Life (written by Clive Aslet) is an entertaining read. I see that Christopher Boyle and I do in fact have two interests in common. His favourite building is the Radcliffe Camera (I agree), and we clearly share a love of P G Wodehouse’s Blandings Castle novels. I suspect, however, that our political views might be rather different.

But enough of this airy persiflage; I must get back to the riveting contents of the Town and Country Planning (Use Classes) Order 1987 (as amended), which will form a central part of my next book, currently in draft and due to be published later this year. I’m afraid it won’t be as much fun to read as one of Wodehouse’s period farces. But it’s what I do.

© MARTIN H GOODALL

Followers of this blog, and readers of my first book (“A Practical Guide to Permitted Changes of Use”) will be aware of my considerable interest in this topic. An appropriately worded condition in a planning permission can preclude the operation of the General Permitted Development Order. The operation of section 55(2)(f) of the 1990 Act (and Article 3(1) of the Use Classes Order) can be similarly precluded by such a condition. But difficulties have arisen where the wording of an allegedly preclusive condition does not refer expressly to the GPDO and/or to section 55(2)(f) and the UCO.

I commented on this issue at some length on 30 August 2016, when I blogged on the first instance decision in Dunnett Investments Limited v. SSCLG [2016] EWHC 534 (Admin), in which judgment was handed down on 11 March last year. I won’t repeat what I wrote there, but readers may wish to refresh their memory by looking at that blog post.

One particular aspect of the case that caused me concern was that this judgment seemed to continue an unfortunate trend in conflating the arguments relating to two separate statutory provisions (section 55(2)(f) of the 1990 Act, on the one hand and, on the other hand, Article 3(4) of the GPDO which precludes permitted development contrary to a condition in a planning permission).

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither of these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the Classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. Contrary to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

It is understandable that a preclusive condition need not necessarily refer expressly to section 55(2) (f) or to Article 3(1) of the UCO. This would appear to be confirmed by those judicial authorities that have dealt with this issue, such as City of London Corporation v SSE (1971) 23 P. & C. R. 169, and also Rugby Football Union v SSETR [2001] EWHC 927 and R (Royal London Mutual Insurance Society Limited) v SSCLG [2013] EWHC 3597 (Admin)). But a planning permission (such as that granted by Article 3(1) of the GPDO) should not in my view be precluded except by clear words, and I would still call in aid the observations, in particular, of Farquharson LJ and of Sir David Nicholls in this regard in Dunoon Developments v. SSE (1993) 65 P&CR 101.

However, I am sorry to say that today’s decision by the Court of Appeal in Dunnett Investments Ltd. v. SSCLG [2017] EWCA Civ 192 has gone the other way, and the first instance judgment in that case has been upheld. It is clear that the Court of Appeal, like the judge at first instance, placed considerable reliance on the decision of the Supreme Court in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, which encourages the concept of ‘implied’ conditions (contrary to the previously accepted position, per Widgery LJ, in Trustees of Walton on Thames Charities v Walton and Weybridge DC[1970] 21 PMCR 411 at 497).

The wording of the condition in Dunnett Investments was :

“The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

The view of the Court of Appeal was summed up in this passage from the judgment of Hickinbottom LJ:

“Looking first at the words used, I do not consider the construction of the condition either difficult or unclear. Read straightforwardly and as a whole, as Patterson J found (notably at [43]-[44]), the natural and ordinary meaning of the words used is that the condition allows planning permission for other uses but restricted to that obtained upon application from the Council as local planning authority, and excludes planning permission granted by the Secretary of State by means of the GPDO. In particular, with due respect to Mr Katkowski’s submissions to the contrary, in my view, “express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”

In his view, the interpretation he favoured did not require the reading in, or reading out, of any words. On the other hand, the construction pressed by Mr Katkowski would take away all substance from the condition, leaving it entirely empty; the first part (“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987…”) merely reiterating the scope of the grant, no more than emphasised by the second part (“…and for no other purpose whatsoever…”), whilst the third part or tail (“… without express planning consent from the Local Planning Authority first being obtained”) would be empty because it would include all means of granting planning permission whether by the planning authority or the Secretary of State. The condition would thus have no discernible purpose. It is a tenet of construction, falling within the umbrella of “sensible” interpretation as championed in Trump International, that it must have been the intention that a condition has some content and purpose. In context, this condition could not sensibly have been merely emphatic, which is all it would be if Mr Katkowski’s submission were correct.

Hickinbottom LJ added that the context in which the condition must be construed included the planning history of the Site – which, importantly, showed that the Council was anxious to maintain close control over the planning use to which the Site was put – and, more importantly still, the reason for the condition as set out in its own paragraph 2. That confirmed that it was imposed to enable the Council to maintain control over the use of the Site, by considering the merits of any proposal, in the light of its “particular character and location”. In other words, as Patterson J put it at first instance, “the sensitivity of the area to potentially unsympathetic uses was protected”. That was inconsistent with reliance by an applicant upon rights under either the GPDO or the UCO. Again, his lordship did not see any force in the submission that this clear reason is undermined by the reason expressed in the 1982 permission for the use then permitted, namely “to enable the [Council] to exercise proper control over the development and because the site is in an area where new industrial development would not normally be permitted”. The 1982 use was highly restricted, and the reason explained why a very narrow industrial use was being permitted. In his view, it did not undermine the clear words of the reason given for the more relaxed, but nevertheless considerably restricted, use permitted in 1995.

For all those reasons, Hickinbottom LJ was quite satisfied that the condition did properly exclude the operation of the GPDO; and that Patterson J was correct to reject the appellant’s argument to the contrary. Patten LJ agreed, and the appeal was accordingly dismissed.

© MARTIN H GOODALL

In a piece that I posted on Friday 29 July last year (“Enlarged part of the dwellinghouse”) in which I commented on the judgment of the High Court in Hilton v SSCLG [2016] EWHC 1861 (Admin), I suggested in an addendum that if any ambiguity may possibly arise from the use of the phrase “the enlarged part of the dwellinghouse” in Part 1, Class A, of the Second Schedule to the GPDO, this could readily be resolved by a simple amendment to the GPDO, rather than resorting to the Court of Appeal in an effort to reverse the High Court decision in Hilton.

As briefly noted in a couple of recent comments on that piece, DeCLoG has indeed taken the opportunity to deal with the issue by way of an amendment to the GPDO. This amendment, together with certain amendments to Part 4 of the Second Schedule to the GPDO, was included in the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2017 [SI 2017 No. 391], which was made on 14 March, laid before Parliament on 15 March and comes into force today (6 April).

The amendments to Part 1, Class A now make it clear that the limit on the maximum dimension of a domestic extension under this Class applies to the total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined). This total must not exceed the limits set out in sub-paragraphs (e) to (j). This is what I (and no doubt others) had always understood to be the intention of the legislation, but this amendment puts the matter beyond doubt.

The limitation that applies to Article 2(3) land (land within a Conservation Area, an Area of Outstanding Natural Beauty, a National Park, a World Heritage Site or the Broads), i.e. a domestic extension at the side of a house, or a single storey extension at the rear of the house, is similarly clarified. In these two cases, the total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) must not exceed the limits set out in sub-paragraphs (b) and (c).

The opportunity has also been taken to change paragraph A.3(c), so that it now provides that where the enlarged part of the dwellinghouse has more than a single storey, or forms an upper storey on an existing enlargement of the original dwellinghouse, the roof pitch of the enlarged part must, so far as practicable, be the same as the roof pitch of the original dwellinghouse.

In order to enable the LPA to ensure compliance with these limits on the size of extensions, there is an additional requirement as to the information to be supplied when making a prior approval application for a larger domestic extension. This must now include (in accordance with paragraph A.4(2)(a)) information in respect of the total enlargement (being the enlarged part together with the existing enlargement to which it will be joined). Similarly, the plan provided in accordance with paragraph A.4(2)(b) must show not only the extension in respect of which the prior approval application is made, but also any existing enlargement of the original dwellinghouse to which the enlarged part will be joined; and the LPA, in notifying adjoining owners or occupiers of the application under paragraph A.4(5)(a), must describe the development by setting out all the information provided to the authority by the developer under paragraph A.4(2)(a), and this would include the information as to the total size of the existing and proposed extensions to the property compared with the size of the original dwellinghouse.

The changes made by this amendment order to Part 1, Class A, are not retrospective in their effect. So they do not apply to development where a prior approval application in respect of a larger domestic extension was made to the LPA before 6 April 2017; nor do they affect building operations which began before 6 April 2017, provided the development is completed by 6 April 2020.

Changes to PD for Schools

As regards Part 4, Class C, which (up to now) has permitted the use of a building and any land within its curtilage as a state-funded school for a single academic year, this is now extended to use for up to two academic years, but this permitted development right may still only be used once in relation to a particular site. The site must revert to its previous lawful use at the end of the second academic year or when it is no longer required for use as a state-funded school, whichever is earlier.

Where, on or before 6 April 2017, a building is or has been used as a state-funded school under a permission granted by Class C of Part 4, the permitted development right granted by Class C, as amended by this 2017 amendment order, applies to such a building as if the reference to “two academic years” were a reference to “a further academic year”. So the previous one-year use, where it has been implemented, is automatically extended to two years. In addition, a new class of permitted development has now been added to Part 4. This is Class CA, which permits the provision of a temporary state-funded school on previously vacant commercial land. The permission is for the provision of temporary school buildings on vacant commercial land and the use of that land as a state-funded school for up to three academic years. [“Vacant commercial land” means any land on which all buildings have been demolished; and which was last used for a purpose falling within Use Class B1 (business), C1 (hotels), C2 (residential institutions), C2A (secure residential institutions) or D2 (assembly and leisure), or as a school.]

Development is not permitted by Class CA if the new buildings provided would cover more than 50% of the total area of the site, or if the total floor space of the new buildings provided would exceed 2,500 square metres; nor is development under this class permitted if the land was last used more than 10 years before the date on which the developer applies for prior approval under paragraph CA.2(1)(b) [see below]. Development is also precluded where the site is, or forms part of a site of special scientific interest, a safety hazard area, or a military explosives storage area. [For the definition of these terms, see my book - A Practical Guide to Permitted Changes of Use.]

Development under Class CA cannot be carried out where any land adjacent to the site is used for a purpose within Part C of the Schedule to the Use Classes Order (residential purposes), if any part of any temporary building provided is within 5 metres of the boundary of the curtilage of that residential land. The reference to “Part C of the Schedule” is to all or any of the use classes in that part of the Schedule to the UCO, namely C1 (hotels, guest houses, etc.), C2 (residential institutions, including care homes, hospitals, nursing homes, and residential schools, colleges or training centres), C2A (secure residential institutions, such as prisons and detention centres, other secure accommodation and military barracks), C3 (dwellinghouses), and C4 (houses in multiple occupation). The height of any new building provided must not exceed 7 metres.

The permitted development under Class CA is subject to the condition that the site must be approved for use as a state-funded school by the relevant Minister. There is also a requirement for the developer, before beginning the development, to make a prior approval application to the LPA in respect of:

(i) transport and highways impacts of the development,
(ii) noise impacts of the development,
(iii) contamination risks of the site,
(iv) flooding risks on the site, and
(v) the siting and design of the development.

As with other permitted development where a prior approval application is required, the provisions of sub-paragraphs (2) to (13) of paragraph W of Part 3 of Schedule 2 to the GPDO apply in relation to that application, subject to some minor modifications of the wording. Development under Class CA must begin within a period of 3 years starting with the prior approval date and, as noted above, the permission is granted for a maximum of three academic years, but it may be used only once in relation to a particular site. In contrast with the position under Class M of Part 7, any building erected as permitted development under Class CA must be removed from the land at the end of the third academic year or, if earlier, when it is no longer required for use as a state-funded school, and the land must be restored to its condition before the development took place, or to such other condition as may be agreed in writing between the local planning authority and the developer.

Amendments have also been made to Class M of Part 7 (relating to the erection, extension or alteration of a school). These amendments to Part 7 apply to all school buildings built or extended under Part 7, Class M. The limits in respect of the cumulative gross floor space of any buildings erected, extended or altered have been changed. These were (i) 25% of the gross floor space of the original school, college, university or hospital buildings; or (ii)100 square metres, whichever is the lesser. The latter has been replaced by a limit of 250 square metres in the case of a school, and 100 square metres in all other cases. The limit still applies to the lesser of these two alternatives.

Paragraph M.1(b) precluded development that would be within 5 metres of a boundary of the curtilage of the premises, but this limitation now applies only to a college, university or hospital building. Paragraph M.1(ba) now provides that development is precluded in the case of a school, where any land adjacent to the site is used for a purpose within Part C of the Schedule to the Use Classes Order (residential purposes), if any part of the proposed development is within 5 metres of the boundary of the curtilage of that residential land. [See above for the reference to “Part C” of the schedule to the UCO.]

The development permitted by Part 7, Class M, is precluded where a building has changed use by virtue of Class S of Part 3. This exclusion of permitted development under Class M of Part 7 now extends also to a building which was erected by virtue of Class CA of Part 4, but this exclusion does not apply to a building erected under Class C of Part 4 (see paragraph O in Part 7).

© MARTIN H GOODALL

It is an unbreakable law of the universe that whenever I go on holiday some interesting planning law issues suddenly pop up while I am away. The past fortnight has been no exception. Having got back to my desk, I am going to start with the latest episode in the Saga of the Stripey House. (I will look at one or two other new topics over the next week or two.)

As I have explained in previous blog posts on this bout of lengthy legal warfare, I have no intention of taking sides, but am interested in the legal issues that it throws up. If you refer back to the blog post I wrote on Monday 15 August 2016, you will see there my report on the issue that eventually came before the High Court last week, and prompted a fresh round of news stories, most of which entirely missed the point of these particular proceedings.

The LPA (Kensington & Chelsea – “RBKC”) had served a section 215 Notice on the owner of this property after the owner, Mrs Zipporah Lisle-Mainwaring, had painted the whole of the road frontage of the house in vertical red and white stripes. The Council required it to be repainted plain white. This was appealed to the magistrates’ court under section 217, who upheld the notice. A further appeal from there to the Crown Court was dismissed by HH Judge Johnson on 12 July 2016. It was this decision that was the subject of last week’s further appeal to the High Court.- R (Lisle-Mainwaring) v. Isleworth Crown Court and RBKC [2017] EWHC 904 (Admin).

The appellant contended that section 215, which is normally used to require the tidying up of rubbish and detritus on unkempt open land, could not be used for this purpose. The amenity of an area would not normally be adversely affected by the external decoration of a building, but the Crown Court judge had been influenced by the fact that this was a house in a conservation area, and painting the house in red-and-white vertical stripes was, he said, unsightly. His honour had therefore held that the notice had been properly served under section 215 and should be upheld.

It was the appellant’s submission, both before the Crown Court and in the High Court, that a section 215 notice can be used only to require the repair of a property in disrepair which is adversely affecting the amenity of the area. She contended that amenity is adversely affected only in a case that raises issues of repair and maintenance. Therefore, she argued, mere painting of the building did not affect "the condition of land" within section 215.

HH Judge Johnson had been persuaded by the LPA that "amenity" is a broad concept, not defined by the section. He had therefore held that it is a question of judgement on the part of the LPA, taking a broad view of the condition of the site, the impact that this has on the surrounding area and also having regard to the scope of the council’s powers under section 215 (citing Berg v. Salford City Council [2013] EWHC 2599 (Admin)). The "condition of land", his honour had determined, refers to the current state of the land, and a section 215 notice could therefore be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. Something that affects visual amenity, his honour held, is enough to justify issuing a section 215 notice.

The Crown Court appears to have been influenced by the fact that the subject property is in a conservation area. Painting the outside of a building would not in the ordinary way adversely affect amenity. However, his honour had observed that one of the key features of the conservation area in which the subject property was situated was its visual integrity, with only a limited range of neutral colours on painted buildings. Painting the property in garish stripes, he had held, was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly and, in his honour’s judgment, section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

Notwithstanding these findings, Gilbart J allowed Mrs Lisle-Mainwaring’s appeal in the High Court last week.

At the heart of this case is the issue of statutory interpretation. Gilbart J took as his starting point the words of Lord Scarman in Pioneer Aggregates,when he said:

“ ............If the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole. ”

Gilbart J pointed out that the interpretation of Section 215 is not referable to, or affected by, the fact that a building in issue falls within a Conservation Area. On the other hand, the nature of the surrounding area may be relevant to its application, as consideration of the effects of amenity inevitably involves considering the effect of the condition of the land on its surroundings (bearing in mind that land includes a building - see s 336(1) of the 1990 Act). In that context, in Gilbart J’s judgment it is impermissible for a Magistrates’ or Crown Court sitting on an appeal to take account of the terms of planning policies or of the reason for the designation of a Conservation Area. A Magistrates’ Court or a Crown Court is not the appropriate forum to consider and determine the interpretation or application of planning policies. Had such planning merits been relevant, one would have expected the appellate route in the legislation to have been to the Secretary of State or his Inspectors, as it is in the case of refusal of planning permission. The concern of the Magistrates’ Court or of the Crown Court is to look solely at the facts.

Turning to section 215 itself, Gilbart J pointed out that the origins of this section go right back to the 1947 Act, when this provision was limited to cases where the amenity of the Council’s area, or of an adjoining area, was seriously injured by the condition of any garden, vacant site, or other open land in their area. The definition is now more broadly drawn, but is still limited to cases where the condition of the land (or building) adversely affects the character of the area.

What is meant by “condition of the land?” In his lordship’s judgment, one must be careful to avoid a catch-all definition that exceeds the proper bounds of the power. The purpose of section 215 is to deal with land or buildings whose condition, in the usual sense of that word, is such as to cause an adverse effect on amenity. The section is not designed to deal with questions of aesthetics or taste, nor to exercise a control over development which affects the choice of exterior finish. His lordship did not read the judgment in Berg v Salford City Council (relied on in the Crown Court) as supporting the argument that a local planning authority has the right to use section 215 to deal with a choice of finish which it dislikes.

One issue that has arisen in a number of cases of statutory interpretation is the relevance (or otherwise) of the heading or side note on the statute. (In the case of section 215, the heading to Chapter II of this Part of the Act reads: “Land adversely affecting amenity of neighbourhood”, and the heading to section 215 itself reads: “Power to require proper maintenance of land”.) The House of Lords has issued definitive guidance on the use of such material in R v Montila [2004] UKHL 50. In the words of Lord Hope of Craighead:

“The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and sidenotes are included on the face of the Bill throughout its passage through the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book. .............

The headings and sidenotes are as much part of the contextual scene as these materials, and there is no logical reason why they should be treated differently. That the law has moved in this direction should occasion no surprise. .......... The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used.”

Gilbart J therefore considered the heading to section 215 in this context. It could not be doubted that “proper maintenance of land” is directed to the maintenance of the land, or in the case of a building, of its fabric. In his judgment, given that assistance, it was hard to see how one could criticise a building owner for a want of maintenance on the basis that s/he had chosen a colour scheme which was thought unattractive.

What affected the amenity of the area in this case, and was found to do so by the Crown Court, was the choice of colour scheme. This was, and was only, a matter of aesthetics. Parliament had not sought to prevent landowners, including those in Conservation Areas, from painting their houses in any colour or colours they wish (save where an Article 4 direction has been made).

In Gilbart J’s judgement, to allow an LPA to use section 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation would fall outside the intention and spirit of the Planning Code. An LPA has the power to limit permitted development rights or to discontinue lawful uses, but not without payment of compensation. Here, RBKC had ample steps available to it under the Planning Code which would have protected amenity, and would have exposed it to minimal cost. Under section 102 it could have issued a notice requiring the repainting of the building. Were such a notice upheld, the level of compensation would be the diminution of the interest in the land (section 115 of the 1990 Act). On the basis of RBKC’s own case, that diminution in value must have been effectively Nil. There would at worst be a claim for the cost of the repainting (section 115(3)).

Gilbart J was therefore of the view that it is an improper use of section 215 to use it to alter a lawful painting scheme, when there is no suggestion that there is any want of maintenance or repair in the land. It followed that the Notice and the decision of the Crown Court had to be quashed.

© MARTIN H GOODALL

As most readers will be aware by now, the Neighbourhood Planning Bill received royal assent immediately before parliament was prorogued last week. Only sections 1 to 7 are concerned with neighbourhood planning, and these provisions will not come into effect for the time being. Sections 8 to 13 deal with local development documents, and these too will have to await implementation until some time after the General Election.

The three sections that are of wider interest are sections 14, 15 and 17, together with Schedule 3. (The remainder of the Act – from section 18 onwards is all about compulsory purchase.)

Section 14 will introduce restrictions on the imposition of planning conditions, but will not come into effect until a commencement order is made. Schedule 3 to the Act will make consequential changes to existing legislation in respect of planning conditions. I have previously commented on this part of the Bill, and will revert to its provisions in a later blog post, when it takes effect.

Section 15 requires the Secretary of State to amend the GPDO “as soon as reasonably practicable after the coming into force of this section” to restrict permitted development rights currently applying to pubs and wine bars, etc., but only if they actually fall within Use Class A4. As I have pointed out before, many of these “drinking establishments” actually fall within Use Class A3 rather than A4, due to the service of food being a significant part of their business.

This section came into immediate effect on the passing of the Act, and DeCLoG has wasted no time in making the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2017 (SI 2017 No.619) on 28 April, which will come into force on 23 May. (I confess to having raised an eyebrow when I saw that this amendment order had been laid before parliament on 28 April, the day after prorogation (albeit before the dissolution of parliament today). I will comment on these provisions in a separate blog post shortly.

Section 17 has also come into immediate effect. It extends the scope of the planning register that must be maintained by LPAs. Again, I have already commented on this in a previous blog post, and I will come back to it later.

And that’s it really. Those concerned with the preparation of Neighbourhood Plans and Local Plans will want to get to grips with the sections of the Act dealing with these topics. Similarly, compulsory purchase specialists will need to get their heads around Part 2 of the Act. But this Act is hardly revolutionary in its effects, and is just another example of the endless tinkering with planning legislation in which successive governments have dabbled for far too many years.

In the meantime, the 1990 Planning Acts, together with the numerous subsequent amendments that have been made to them, remain unconsolidated, so that we now have some pretty nonsensical section numbering in the principal Act. However, I suspect the government will be occupied by far more pressing concerns in the next few years, and so I don’t hold out much hope for a consolidating Act any time soon.

© MARTIN H GOODALL

I usually resist the temptation to comment on topics outside the scope of town and country planning, but recent events have prompted me to pen this little verse:

T’resa, T’resa, (Quite a teaser!),
How does your Brexit go?
With empty threats and hopeless bets,
And a “car crash” waiting to go.

“Coalition of chaos” seems to be a favourite buzz-phrase at the moment, and it does seem to sum up our present government and governing party, and their UKIP fellow-travellers.

I am no fan of Jeremy Corbyn but if you listen to what he has actually been saying, it is both reasonable and sensible, and represents a rather more realistic approach to the forthcoming negotiations with the EU than the pointless posturing and grandstanding of May & Co. Unsurprisingly, our European friends (and they really are our friends) have been utterly bemused by the antics of our current government.

This General Election should be about much more than Brexit, but one cannot avoid the fact that Brexit will be a major concern for voters. If and to the extent that this election is about who would be best able to reach a successful conclusion in our EU negotiations, so as to safeguard this country’s vital economic interests, I wouldn’t even put Theresa May and her colleagues on the short-list!

© MARTIN H GOODALL

[Revised and corrected 10.5.17] In response to widespread concerns about the loss of pubs to redevelopment, even where pubs were trading profitably and remained a much appreciated local asset, a provision was incorporated in the recent Neighbourhood Planning Act which seeks to provide additional protection for existing pubs. But I have added a question mark to the title of this piece, because this legislation may not in practice give effective protection to the vast majority of pubs.

Section 15 of the Act was introduced by the government at a late stage in the Bill’s passage in response to a House of Lords amendment that had sought to amend the Use Classes Order by making a drinking establishment (“public house, wine‐bar or other drinking establishment”) a sui generis use, thereby abolishing Use Class A4. This amendment also purported to require the amendment of the GPDO, before the Bill was enacted (!), so as to remove permitted development rights for the change of use or demolition of drinking establishments.

The substituted clause (now section 15 of the Act) does not call for the amendment of the Use Classes Order, and so Use Class A4 is to be preserved, but (although it was wider in scope than the provision that has been enacted) the Lords amendment would not have achieved its purpose, because the vast majority of pubs were already serving food as an integral part of their business when the catering use classes were reorganised in April 2005, and all of these establishments, even though they could still be described as ‘pubs’, fell into the new A3 use class by reason that they were supplying food and drink and did not therefore fall within the new Use Class A4, which is confined to those establishments that serve only drink, with no more than a very limited amount of food (if any).

In any event (as explained below), quite a few of the premises that may originally have fallen into the new Class A4 in 2005 will already have changed their use from A4 to A3 by starting to serve food since then under what was formerly Class AA in Part 3 of the Second Schedule to the 1995 GPDO (now Class B in the 2015 Order).

As noted above, following the re-organisation of the catering use classes in 2005 (by cutting down the scope of Class A3, and introducing Classes A4 and A5), Use Class A3 still includes “the sale of food and drink”. Thus the current version of Use Class A3 embraces a range of uses in which the sale of drink for consumption on the premises may be a substantial part of the business.

Paragraph 12 of Circular 03/2005 pointed out that it is the primary purpose of the use which must be considered, but a use will still fall within Class A3 if the primary use is clearly “use for the sale of food and drink for consumption on the premises”; it is not simply a question of whether the sale of food or the sale of drink comprises more than 50% of the business. A primary/ancillary relationship between uses is not dependent on the proportion or ratio of one use to the other, either in terms of turnover, or in terms of the floorspace devoted to the respective elements of these uses, but is solely dependent on their functional relationship. (See Main v. SSE (1998) P&CR 300; [1999] JPL 195.)

The sale of food for consumption on the premises is likely to be ancillary to the sale of drink only if it is functionally dependent on the sale of drink. If it represents a substantial part of the business which is not dependent on the sale of drink as such (which it may well do in many licensed premises nowadays) it is likely to be an independent element of the use in its own right, even if it represents less than 50% of the total turnover of the business. In the absence of the UCO, this might well have been regarded as a ‘mixed use’, but bearing in mind that the definition in Class A3 refers to the sale of both food and drink, any business consisting of a substantial element of both types of sale, without one necessarily being functionally dependent on the other (i.e. without any primary/ancillary relationship between the two uses), would nevertheless appear to come within the current version of Use Class A3.

In my view, therefore, the amended wording of Class A3 introduced in 2005 is still wide enough to cover many public houses and wine bars where the service of food is a substantial part of the business, in circumstances in which it cannot realistically be said to be purely ancillary to the sale of drink. Such premises would therefore appear to come within Class A3 rather than A4.

For these reasons, I would disagree with the suggestion, formerly printed in paragraph 12 of Circular 03/2005, that in the case of premises which incorporate a restaurant use as well as a pub or bar use, it is necessary to determine whether the existing primary use of the premises is as a restaurant (A3), or as a drinking establishment (A4), or a mixed use. The paragraph went on to state that this would depend on such matters as “whether customers come primarily to eat, or drink, or both - it is the main purpose of that use that is to be considered”. However, this would appear to be a misinterpretation of the correct legal position, in light of the wording of Use Class A3 and the clear legal authority in Main v SSE.

Thus it would seem that Use Class A4 covers only a very narrow (and, in practice, now very rare) category of drinking establishments, where only a very limited quantity of hot food (if any) is served. Furthermore, such an A4 use may already have changed to Class A3, which (until 6 April 2015) was not subject to any restriction or condition (unless imposed in a planning permission or an Article 4 Direction), simply by starting to serve a significant quantity of food on the premises. As mentioned above, if the nature of the sale of food for consumption on the premises is such that it cannot realistically be said to be purely ancillary to the sale of drink, the overall operation may well be a use which in practice now falls within Use Class A3, rather than A4. It also follows that the post-2005 wording of Class A3 means that a use that involves the service of both food and drink cannot be a mixed ‘A3/A4’ use (and therefore sui generis), but will fall wholly within Class A3.

Bearing these points in mind, the protection intended to be afforded to pubs by section 15 of the Neighbourhood Planning Act, and by the amendment to the GPDO that has been made in accordance with that section, will in practice prove to be extremely limited (because it applies only to the very small number of premises that do still fall within Use Class A4).

What the latest amendment to the GPDO actually provides is that the permitted development right under Class A in Part 3 of the Second Schedule to the GPDO to change the use of various catering premises to use as a shop within Use Class A1 or an office within Use Class A2 will now apply only to Use Classes A3 and A5, but will no longer apply to premises falling within Use Class A4. This will protect a small number of pubs, but will not protect the vast majority of them, which actually fall within Use Class A3.

Similarly, the permitted development right under Part 3, Class B to change the use of a pub or take-away to use as a café or restaurant within Use Class A3 will now apply only to Use Class A5, but will no longer apply to premises falling within Use Class A4.

As a result of removing Use Class A4 from these provisions, the slightly complicated procedure as to notifications relating to listing or nomination as an asset of community value, have now been deleted from Classes A and B of Part 3. A pub that actually comes within Use Class A3 has never been subject to these restrictions in any event, although the other protections (such as they are) that apply to ACVs would still apply to such premises where those premises have been nominated or listed as an ACV.

There are, however, transitional provisions that preserve the existing PD rights under Part 3 Class A or B and under Part 4 Class C or D, where notification of proposed permitted development has been given in respect of a change of use of A4 premises (seeking information from the LPA as to any nomination of the building as an ACV). Where notification of the proposed development has been given, and the 56-day notification period [not to be confused with the 56-period relating to a prior approval application] has already expired before 23 May 2017, then the change of use permitted by these classes in Parts 3 and 4 can still be relied upon.

In addition to the changes explained above, the latest amendment to the GPDO introduces a new class of permitted development under Part 3. This is Class AA, which permits development consisting of a change of use of a building and any land within its curtilage from a use falling within Use Class A4 (drinking establishments) to a mixed use falling within Class A4 and Class A3 (restaurants and cafes). The resulting use is referred to as “drinking establishments with expanded food provision”. The converse change of use is also permitted by Class AA, from use “as a drinking establishment with expanded food provision” to a use falling within Class A4. No limitations, restrictions or conditions are placed on these changes of use under the terms of Class AA.

I can only assume that this is intended to address the potential problem identified above regarding the relationship between Use Classes A4 and A3. But it smacks of an attempt to shut the stable door long after the horse has bolted. This provision in the GPDO cannot reverse the position where pubs are already in use under Class A3, rather than A4. However, in future, bearing in mind that a change of use from A4 to A3 will no longer be permitted development under Part 3 Class B, the small number of pubs that are still with Class A4 can introduce or expand the service of hot food without falling foul of the new prohibition on a change of use from A4 to A3.

The drafting of Class AA appears to me to be extremely awkward, and refers quite unnecessarily to a mixed use embracing both Class A4 with Class A3. It would have avoided possible legal difficulties that may well arise from this wording if Class AA had simply provided that a drinking establishment within Class A4 can in future introduce or expand the service of hot food without this being taken to be a material change of use, so that (notwithstanding the introduction or expansion in the service of hot food) the use of the premises would remain solely within Use Class A4.

As a general rule, a mixed use is sui generis, although there are one or two statutory exceptions (e.g. Article 3(4) of the UCO, which allows for a use falling within both Use Classes B1 and B2 to be treated as a single class provided the extent of the B2 use is not substantially increased as a result). However, in the absence of any amendment of the UCO, there does not appear to be anything to prevent the change of use permitted by Class AA(a) in the GPDO from falling out of the UCO altogether, and being regarded as a sui generis use, notwithstanding the reference in Class AA itself to a change of use to “a use falling within Class A4 (drinking establishments) with a use falling within Class A3 (restaurants and cafes)”. The alternative interpretation (for the reasons stated above) would be that the use would in fact fall wholly within Use Class A3. This bit of drafting really hasn’t been properly thought through.

This change does, however, remove the ratchet effect of Class B, which does not in itself permit a change of use from Class A3 to A4, although the wording of Class AA(b) does suggest that it applies only to the reversal of the change of use permitted by Class AA(a), so that it would not appear (or is not intended) to permit a change of use of premises which serve both food and drink but which, for the reasons explained above, fall wholly within Use Class A3, to be changed to Use Class A4, i.e. to use solely as a drinking establishment. In practice, however, very few businesses (if any) are likely to want to make such a change from A3 purely to A4, because the effect of the reference in Class A3 to the sale of food and drink allows a licensed restaurant or café which sells drinks as a separate element of its business (but which, having regard to the overall nature of the business, falls within Class A3 rather than A4) to expand the ‘drinks’ side of the business substantially while remaining within Class A3, provided that the nature of the sale of food for consumption on the premises is not such as to be merely ancillary to the sale of drink.

Here too, there is a transitional provision. Where an Article 4 direction is in force immediately before 23 May 2017 which removes PD rights for the change of use of a building from Use Class A4 to Class A3, the Article 4 Direction will not have the effect of removing the change of use permitted by the new Class AA [see above] until 23 November 2018. [This is presumably in order to avoid compensation claims arising in relation to the removal by the Article 4 Direction of this new PD right.]

There are also consequential changes to PD rights for demolition under Part 11, but by the time I began to get my head round this bit, I was rapidly losing the will to live. Suffice it to say that these too apply only to the very limited number of buildings that fall within Use Class A4.

As I have sought to explain, the effect of these changes to the GPDO is extremely limited and, in practice, they will afford protection to only the very small number of premises that do actually fall within Use Class A4. For the reasons set out above, the vast majority of pubs and similar premises will continue to fall entirely outside the scope of this intended protection from changes of use or demolition. No amount of tinkering with the GPDO and/or the Use Classes Order will change this.

If it is intended to afford effective protection to pubs, separate legislation would be required that specifically provides that no development (as defined by section 55 in the 1990 Act) of any licensed premises in which drink is sold for consumption on the premises may be carried out without express planning permission, notwithstanding the provisions of the Use Classes Order or of the GPDO. This could involve the abrogation of certain existing use rights currently enjoyed by these premises, and so provision would need to be made for compensation where (within a specified period after this legislative amendment takes effect – probably one year) planning permission for development that could otherwise have been carried out as of right is refused. Frankly, I don’t believe the present government has any serious intention of affording effective protection to pubs from redevelopment (including changes of use), and so we are very unlikely to see legislation of the sort I have just described.

[UPDATE (10.5.17) : I have revised the text of this blog post following a very helpful note from Richard Lemon MRTPI, Director (Planning) at CBRE Ltd in London, who queried what I had written regarding possible continuance of the wider use rights under the pre-2005 version of Use Class A3 in light of paragraph 22 of Circular 3/2005. After I had prepared this revised version of my article, I also received a comment on the same lines from “Dinny S”, which I will publish with other comments below.

Richard made the point that the heading to the section comprising paragraphs 20 to 23 in Circular 3/2005 was “Unimplemented permissions”, and that paragraph 24 stated that, after the amended UCO came into effect, uses [under previously implemented planning permissions] that previously fell into the former A3 use class would then fall into one of the new classes: A3, A4 or A5. I have now had the chance to trawl through various texts, and whilst I have not found any judicial authority specifically on this point, I have identified an apparent consensus as to the effect of the UCO (and amendments to it) which differs from my previous understanding of the position.

To put it briefly, the starting point is the rule that once a planning permission for change of use has been implemented it is ‘spent’ (Cynon Valley BC -v- SSW (1987) 53 P&CR 68). It is well settled law that the initial use could only be for the purposes expressly described by the permission (e.g. as a restaurant) (see Wilson v. West Sussex CC [1963] 2 Q.B. 764). But then (in the case of a planning permission implemented before 21 April 2005), by virtue of section 55(2)(f), the use could later have been changed to any other use within the broad A3 use class that existed prior to April 2005. If such a change of use had been made, it would have been lawful and, following the change in the UCO in April 2005, the actual use will then have fallen into the appropriate use class applying after that date – A3, A4 or A5. However, I now accept that whilst the use might lawfully have been changed to a pub or to a hot-food take-away before 21 April 2005, if no such change of use had been made before that date, the lawful use of the premises would thereafter have been restricted to the new, narrower A3 use class.

This does not alter the general thrust of my article, which (taking on board the point discussed above) is that most pubs would have been within the new A3 use class from the outset in April 2005, if they were then selling both food and drink for consumption on the premises, or that they have subsequently changed use from A4 to A3 under what was formerly Class AA in Part 3 of the Second Schedule to the 1995 GPDO (now Class B in the 2015 Order) by starting to serve food since April 2005.]

© MARTIN H GOODALL

On 31 March 2016, I reported on the High Court judgment in R (Khodari) v. Kensington and Chelsea RLBC [2015] EWHC 4084, where it was held (following an earlier judgment Westminster City Council v. SSCLG [2013] EWHC 690 (Admin)) that a covenant in a section 106 agreement that purported to prohibit tenants of a residential development from applying to the council for residents’ parking permits was outside the scope of that section, so that matters of this nature cannot be governed or controlled by this means.

Mr and Mrs Khodari were challenging two different planning permissions for alternative redevelopment schemes affecting the block of flats where they live. They succeeded in one case (because of the section 106 point) but failed in the other, where there was no section 106 agreement. Both parties cross-appealed to the Court of Appeal, with the LPA seeking to overturn the quashing of one permission, while Mr and Mrs Khodari sought to reverse the High Court’s refusal to quash the other permission.

In a decision on 11 May ([2017] EWCA Civ 333), the Court of Appeal dismissed Mr and Mrs Khodari’s challenge to the ‘non-section 106’ permission, but the appeal by the LPA [“RBKC”] against the quashing of the permission that had been dependent on the section 106 agreement was allowed, so that this planning permission has also been allowed to stand.

It is the latter appeal that is of real interest in the legal context. The requirements in the 106 that were in contention were (a) a covenant not to apply for parking permits for the three additional residential units authorised by the planning permission, nor knowingly to permit any owner or occupier of the permit free units to do so; and to surrender any permit issued in respect of those units; (b) to notify prospective owners or occupiers of the additional units that they would not be entitled to apply for parking permits and (c) to include a covenant in any lease of the additional units preventing the lessee from applying for a parking permit and entitling RBKC to enforce that obligation as a third party. In addition, there was an obligation to pay a one-off “monitoring fee” of £500 on execution of the agreement.

Lewison LJ (with whom the other two Lord Justices agreed without comment) did not disagree either with the judgment in the Westminster case or with the judgment at first instance in the present case, so far as section 106 itself is concerned, and held that the judge at first instance was right to reject reliance on section 106 to validate the obligations dealing with parking permits. Those obligations were not capable of being planning obligations under this section.

However, the planning agreement in this case had been made not only under section 106 of the 1990 Act, but also under section 111 of the Local Government Act 1972, section 16 of the Greater London Council (General Powers) Act 1974, section 2 of the Local Government Act 2000 “and all other powers so enabling”. Lewison LJ therefore went on to consider section16 of the Greater London Council (General Powers) Act 1974, on which the judge at first instance had not commented (because this section had not been drawn to his attention).

This section provides that :

“(1) Every undertaking given to a local authority by the owner of any legal estate in land and every agreement made between a local authority and any such owner being an undertaking or agreement—

(a) given or made under seal in connection with the land; and

(b) expressed to be given or made in pursuance of this section;

shall be enforceable not only against the owner joining in the undertaking or agreement but also against the successors in title of any owner so joining and any person claiming through or under them.”

In Lewison LJ’s judgment, if the obligations about parking permits fell within section 16 they would be legally valid. The requirement of section 16 is that the agreement must be made “in connection with the land”. Thus it is not a requirement of section 16 that the agreement regulates the use of the land itself. The phrase “in connection with” is one of wide meaning. There was, in his judgment, a “connection” between use of the three additional units for residential purposes and the potential for the grant of additional parking permits, not least because a qualification for a parking permit is residence within the borough. Accordingly, he considered that there was a sufficient connection between the requirements imposed by the deed and the proposed development.

There was, however, also the question of the “monitoring fee”. In this case, the monitoring fee was held to be lawful. Whilst the covenant against applying for parking permits fell outside the scope of section 106, the obligation to pay the monitoring fee, which was ancillary to those obligations, could not survive as a free-standing obligation under section 106. There could be no question of its being enforced against successors in title of the original parties to the deed. In a sense, therefore, section 106 was irrelevant here. However, since section 106(1)(d) expressly authorises an obligation to pay money, the obligation to pay the monitoring fee fell within the literal scope of the section. But because there was no need to enforce it against successors in title to the original parties, its validity depended simply on RBKC’s power to contract for its payment. As the LPA submitted, the original parties to the deed were bound by it as a matter of contract. RBKC’s power to enter into such a contract was validated either by section 111 of the Local Government Act 1972 (“a local authority shall have power to do any thing ……… which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”) or by section 1(1) of the Localism Act 2011 (“a local authority has power to do anything that individuals generally may do”).

There are several points to be derived from this judgment. The first and most important point is that the validity and enforceability of a planning agreement depends entirely on the powers under which it is made. The agreement in this case was only saved by the fact that it was not solely dependent on section 106, but was also made under section 16 of the Greater London Council (General Powers) Act 1974 (which enabled the prohibition against applying for parking permits to be made) and section 111 of the Local Government Act 1972 (which saved the monitoring charge from being held to be ultra vires).

It is clear from this judgment that, outside Greater London, a covenant cannot be inserted in a planning obligation that seeks to prevent residents from applying for residents’ parking permits, but this can be done within Greater London if (but only if) the agreement is also made under section 16 of the Greater London Council (General Powers) Act 1974.

Secondly, a monitoring charge or other charges (including liability to pay the council’s costs of preparing the agreement) can be included in the agreement, subject to Regulation 122 of the Community Infrastructure Regulations 2010 not being infringed; but reliance would have to be placed on other legislation, such as section 111 of the 1972 Act or perhaps section 1(1) of the Localism Act 2011, and the agreement should be expressed to be made under one or other of these sections.

Counsel for RKBC told the Court of Appeal that this leaves local authorities outside Greater London without the ability to permit the creation of new residential units on terms that no residents’ parking permits will be issued in relation to those units. Leaving aside the possibility that such powers might perhaps exist under other statutes in some cases, Lewison LJ observed in his judgment that in R (AS Property Investments Ltd) v Hounslow LBC [2008] EWHC 1631 (Admin), where a developer was unwilling to enter into a planning obligation preventing the grant of parking permits to residents of new flats, the solution was found by the exclusion of each new flat from the schedule of streets in the statutory instrument that created the Controlled Parking Zone. That alone would preclude the residents, not being within the CPZ, from applying for parking permits within the CPZ. Sullivan J upheld that solution.

© MARTIN H GOODALL