Wednesday, 19 July 2017

Court considers curtilage


I have not posted any new items on this blog for a while, because I have been extremely busy finishing the text of my next book, which I am hoping to send off to the publishers this week. (It is due for publication in the late Autumn.) But there is one case in particular that I have been wanting to write about here, which brings me back to one of my favourite topics – the issue of “curtilage”.

In Burford v SSCLG [2017] EWHC 1493 (Admin), in which judgment was given on 23 June, the High Court had to consider the definition of “curtilage” in the context of Part 1, Class E of the Second Schedule to the GPDO. This arose from a decision in an enforcement notice appeal, which the claimant was seeking to challenge under section 289.

I have written ad nauseam on the distinction between the planning unit and the curtilage of a building that stands within that planning unit. The two are not synonymous. In the instant case, an LDC had been issued that confirmed that an area of land (which included the land on which an outbuilding was subsequently built, purportedly as PD) was within the residential planning unit, and it was contended that the wording of the LDC confirmed in effect not only that the land in question was within the planning unit but also that it formed part of the residential curtilage.

It is well understood that the “curtilage” of a building (such as a dwellinghouse) does not represent a use of the land for the purposes of the planning legislation. Thus, it is not possible to obtain a Lawful Development Certificate that will confirm that part (or the whole) of a particular piece of land is within the curtilage of the dwelling as such. [In practice, this can be achieved by applying for an LDC under section 192 in respect of the intended erection of an outbuilding or swimming pool, etc. If the LPA believes it is not within the domestic curtilage, and cannot therefore be PD under Part 1, Class E, they will refuse to issue a certificate. In the event of a dispute, the refusal to grant an LDC may be tested by way of an appeal under section 195.]

The basis of the legal challenge in Burford was that the Inspector’s decision, dismissing a section 174 appeal against an enforcement notice directed at the erection of the building in question, was irreconcilable with the terms of an LDC that the LPA had previously issued, confirming the lawfulness of “use of the land and buildings within the land edged red on the plan for purposes incidental to the enjoyment of the dwelling house known as Oakcutts”. However, in his decision letter in the enforcement appeal, the Inspector stated :- “All that the LDC confirms is that all of the land edged red (which is all within the ownership of the appellants) may be used for the purposes stated in the LDC; that may be garden-type use or it may be some other incidental use, e.g. a paddock for horses, or it may be a mix of several incidental uses. Further, curtilage is not a land use at all and does not necessarily comprise all of the land in someone’s ownership or all of the land forming a planning unit. What constitutes the curtilage of any dwelling is a matter that has been before the courts on a number of occasions and is a matter of law. Whilst I will make a determination on the curtilage in this decision, it is ultimately for the courts to determine in any given case.”

There was no dispute between the parties that all the land forming the LDC application and decision was one planning unit or that its use was now residential; i.e. a dwelling and other uses and buildings that were incidental to the residential use of that dwelling. However the Inspector concluded that, whilst this was now an accepted fact, it did not appear to him that the land was curtilage. The domestic curtilage of the house was confined to the clearly physically separate land immediately to the north, west and south of the dwelling. All the other land was physically separated from it by fences and hedges at least until November 2015. Prior to October 2014 there seem to have been just paddocks on the large area to the east and northeast of the dwelling except for the mobile home and other buildings close to the northern boundary. That use, albeit with others, may have continued until November 2015.

This led to the Inspector’s finding that, whether looked at in terms of how it appears on the ground or the uses to which it was and is put, and taking into account the way in which the courts have considered what is and what is not the curtilage of a building, the large rectangular area that lay to the east of the dwelling could not be described as curtilage. It was used as horse paddocks, with the animals being kept separate from the much smaller garden area that constituted the curtilage.

Even without this case having come to court, I would unhesitatingly have said that, based on his findings of fact, the Inspector was absolutely right.

When this matter came before the High Court, the judge rather surprisingly made no mention of the judgment that I have always regarded as the locus classicus in relation to this issue - Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P.& C.R. 195. Instead, he cited the Court of Appeal decision in Attorney General ex rel Sutcliffe v Calderdale BC (1982) 46 P.&C.R. 399 (a case on which it would be unwise to place too much reliance). He also mentioned Dyer v Dorset CC [1989] 1 QB 346 (complete with its misleading reference to the dictionary definition of “curtilage”), although he did then draw attention to the Court of Appeal’s reservations about this, as expressed in Skerritts of Nottingham Ltd v SSETR [2001] QB 59. In that Court of Appeal judgment, Robert Walker LJ went on to say this: “.........the curtilage of a substantial listed building is likely to extend to what are or have been, in terms of ownership and function, ancillary buildings. Of course, as Stephenson LJ noted in the Calderdale case, 46 P&CR 399, at 407, physical ‘layout’ comes into the matter as well. In the nature of things the curtilage within which a mansion’s satellite buildings are found is bound to be relatively limited. But the concept of smallness is in this context so completely relative as to be almost meaningless, and unhelpful as a criterion.

Nevertheless I still retain my reservations about Calderdale.

The challenge in the instant case was based on a submission that in determining the curtilage for the main dwelling house at the Site, the Inspector erred by reaching a conclusion on the curtilage issue which was irreconcilable with the extant LDC (or CLEUD) granted by the LPA in respect of the Site in December 2015 or, alternatively, by failing adequately to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed. This involved arguing that the paddock area should properly be included within the curtilage, a proposition which seems to me to have been pretty hopeless in view of numerous findings over the years that have reached a contrary conclusion in relation to such areas.

Supperstone J rejected the contention that the Inspector’s conclusion concerning the curtilage of the dwelling house was irreconcilable with the LDC. All that the LDC determined was that the Site may lawfully be used for purposes incidental to the enjoyment of the dwelling-house. The LDC did not consider whether the land was within the curtilage of the dwelling house, nor did it accept that the land (including the Site) fell within the “garden” of the dwelling-house. His lordship accepted the counter-submission made on behalf of the Secretary of State and the LPA that whilst the function of the land is relevant to the question of curtilage, it is not determinative. The LDC simply certified that the land in question had been used “for purposes incidental to the enjoyment of the dwelling house known as Oakcutts”. It was determinative only of one necessary condition of the Site forming part of the curtilage, and the Inspector treated it as such. The LDC was of no assistance in resolving the question of whether the land is attached to the dwelling house forming one enclosure with it.

Nor did his lordship accept the Appellant’s contention that the Inspector failed to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed. It was clear from the Inspector’s analysis in his decision letter that he did so. Supperstone J observed that the challenge to the Inspector’s decision was essentially a rationality challenge. Whether something falls within a “curtilage” is a question of fact and degree and thus primarily a matter for the decision maker. It was for the Inspector to decide what weight should be given to each of the relevant factors. The judge was satisfied that, on the evidence, the Inspector was entitled to conclude that the land on which the building subject to the enforcement notice was erected was not within the curtilage of the dwelling house because it “was physically separated from other land by fences and hedges at least until November 2015”. The land was therefore unattached to the land surrounding the dwelling house and not forming one enclosure with it.

Accordingly, for the reasons given in the judgment, the Inspector did not err in deciding that the building did not benefit from the permitted development right in Part 1, Class E of the Second Schedule to the GPDO because it was not “within the curtilage of the dwelling house”.

On balance, I do not believe that this takes the law on the definition of “curtilage” any further. It simply follows the well-known rules that have become established over the past 70 years or so. It seems to me that the judge was bound to reach the conclusion he did, as was the Inspector, whose original appeal decision was clearly unassailable. The one point which the case does perhaps amplify is that the identification of a building’s curtilage is not solely dependent on its functional relationship with the building in question (under the Sinclair-Lockhart test), but that it must also be within an area of land surrounding the building that forms one enclosure with it. To that extent, the judgment in Dyer may still be relevant, provided that one bears in mind that other aspects of the Dyer judgment were expressly rejected by the Court of Appeal in Skerritts of Nottingham.

© MARTIN H GOODALL

Monday, 26 June 2017

Setting of a Listed Building


Not for the first time, the High Court has been called upon in Steer v SSCLG [2017] EWHC 1456 (Admin) to consider the duty of a decision-maker under section 66 of the Listed Buildings Act to have special regard to the desirability of preserving (among the other things listed in that section) the setting of a listed building. The glossary annexed to the NPPF defines the “setting of a heritage asset” as:

The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral.

Paragraphs 128 to 134 of the NPPF explain how section 66 is expected to work in practice, and further guidance is to be found in the government’s online Planning Practice Guidance, in addition to a publication by Historic England: “The Setting of heritage Assets (Historic Environment Good Practice Advice in Planning: 3)” Although the last of these does not constitute a statement of government policy, it is intended to provide information on good practice in implementing historic environment policy in the NPPF and PPG. I don’t propose to include quotations here from these documents, which will be found in the judgment.

The instant case concerned the setting of Kedleston Hall, Derbyshire – a Grade I Listed Building owned by the National Trust (who objected to the proposed development because, in its opinion, it would have a harmful impact on the setting and significance of the heritage asset, which would not be outweighed by the benefits of the housing). The NT, however, was not a party to these proceedings, but Historic England appeared by counsel as an interested party.

The claimant (a local resident) had objected to the two planning applications that had been the subject of appeals allowed by the Secretary of State’s planning inspector. The first application was for outline planning permission for the erection of up to 400 dwellings and a convenience store. The second application was for outline planning permission for the erection of up to 195 dwellings in the southern half of the same site.

The Claimant’s principal ground of challenge was that the Inspector erroneously applied a narrow interpretation when determining the setting of Kedleston Hall, in which a physical or visual connection was needed, despite the existence of an historical, social and economic connection between the Hall and its agricultural estate lands. This approach, it was claimed, was inconsistent with the broad meaning given to “setting” in the NPPF, the PPG and Historic England’s ‘Good Practice Advice’. At the Inquiry, there was a body of expert evidence stating the historical connection did bring the appeal site within the setting of the Hall.

In her conclusions, Mrs Justice Lang noted that there was a significant amount of material before the Inspector in support of the submission that the appeal site formed part of the setting of both Kedleston Hall and the Park because of the historical, social and economic association between the Hall and the agricultural lands of its Estate and drew attention to Historic England’s observations on the issue of the setting of Kedlestone Hall and its Park, the significance of that setting and the impact of the proposals on the significance of the setting, which Historic England had set out in a written response to consultation by the LPA. English Heritage’s position was that the proposed housing development would harm the significance which Kedleston Hall and the Grade 1 registered Park and Garden derives from its setting.

The National Trust had also drawn attention to the significance of Kedleston Hall’s setting, a point that was also reiterated by the Gardens Trust, who had pointed out that “............the setting of a heritage asset is a much wider concept than mere visibility” and that “Historic England defines setting as the surroundings in which [the asset] is experienced [their emphasis]. Views, while they may be an important part of this experience and clearly identify the presence of a setting, do not constitute its totality, or even the greater part of it..”. The Development Control Archaeologist at Derbyshire County Council expressed a similar view.

Mrs Justice Lang pointed out that the Inspector was required to address this evidence in his decision letter, whether or not he agreed with it. It related to a main issue in the appeal, on which the developer disagreed with the objectors. Much of the evidence was given by experts. Historic England was a statutory consultee and a “decision-maker should give the views of statutory consultees … ‘great’ or ‘considerable’ weight. A departure from those views requires ‘cogent and compelling reasons’. (See Shadwell Estates Ltd v Breckland DC [2013] EWHC 12 (Admin), at [72].)

The Inspector accepted the evidence as to the historic social and economic connections between the Hall and Park and the area in which the appeal site was situated, but he rejected the evidence and submissions that the appeal site was part of the setting of the Hall, despite the historic social and economic connections. The Inspector concluded that the appeal site was not part of the Hall’s setting because of the lack of a physical or visual connection, which he treated as essential to the identification of “surroundings in which a heritage asset is experienced” (NPPF definition of “setting”). The Inspector recorded that it had been argued that the historical, social and economic connection – the appeal site being part of the estate of which the Hall and Park were the hub – brought the appeal site within the setting of the Hall. He determined, however, that there has to be more of a physical or visual connection than that, otherwise land completely remote from the Hall could be deemed within its setting.

In the judge’s view, the Inspector’s findings clearly indicated that his focus was upon identifying a visual connection, and assessing the proposal’s impact upon it. The historic social and economic connections were set to one side in this exercise. (The judge did not therefore accept the Secretary of State’s submission that the Inspector merely formed a planning judgment that the historic social and economic factors were of insufficient weight, as there was no assessment of the weight to be accorded to them in the Inspector’s decision-making process. In her view, the Inspector’s approach to the other heritage assets also confirmed that he treated the physical and visual connection as determinative.)

Thus the Inspector had adopted a narrow interpretation of setting which was inconsistent with the broad meaning given to setting in the relevant policies and guidance which were before him. Whilst a physical or visual connection between a heritage asset and its setting will often exist, it is not essential or determinative. The term setting is not defined in purely visual terms in the NPPF which refers to the “surroundings in which a heritage asset is experienced”. The word “experienced” has a broad meaning, which is capable of extending beyond the purely visual (as confirmed by the policy and practice guidance that had been referred to).

Mrs Justice Lang therefore agreed with the submission of the claimant and Historic England that the Inspector had adopted an artificially narrow approach to the issue of “setting” which treated visual connections as essential and determinative. In adopting this approach, the Inspector made an error of law, and his appeal decision was accordingly quashed.

This case is clearly important in establishing the wide scope of the term “setting” where it is used in section 66 of the Listed Buildings Act, and in the various advice on this issue published by ministers and by Historic England.

© MARTIN H GOODALL

Tuesday, 13 June 2017

Qualifying use of agricultural building under Class Q


I am grateful to Nathan Dickinson for drawing to my attention a problem that seems to have arisen over the interpretation by certain LPAs of the rules relating to the qualification of agricultural buildings for residential conversion under Class Q in Part 3 of the Second Schedule to the GPDO. I explained the rules in Chapter 9 of my book, “A Practical Guide to Permitted Changes of Use” (which can still be ordered by clicking on the link on the left-hand side of this page.).

Paragraph Q.1(a) puts this in the negative. Development is not permitted by Class Q if the site [i.e the building and an area no larger than its footprint] was not used solely for an agricultural use as part of an established agricultural unit on 20th March 2013, or (in the case of a building which was in use before that date but had ceased to be used for agriculture by that date) when it was last in use.

I really don’t think there can be much doubt as to what this means. The building must have been in agricultural use on, or at some date before, 20 March 2013, but it still qualifies if it is no longer used for agricultural purposes, provided it has not been used for any other purpose since ceasing to be used for agriculture. Thus a redundant or disused agricultural building does qualify for conversion under Class Q, but this permitted development right is lost if the building has been put to some other use since it ceased to be used for agriculture.

I can therefore find no justification whatsoever for the bizarre interpretation that Breckland DC (to name just one LPA) has sought to put on Class Q. They have entirely ignored the words of paragraph Q.1(a) and have seized instead on the operative words of Class Q(a), namely “Development consisting of - (a) a change of use of a building and any land within its curtilage from a use as an agricultural building [their emphasis] to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order……..” Thus, they claim, the building has to be in current agricultural use, and they demand that the applicant should demonstrate that this is for a trade or business purpose.

I understand that the Council bases this interpretation on the definition of “agricultural building” in paragraph X, viz: “a building (excluding a dwellinghouse) used for agriculture and which is so used for the purposes of a trade or business”. This, they seem to assume, means that to be an agricultural building as specified in Class Q(a) the building must now be used for agriculture (and it is not disputed that this necessarily requires that this use is or was commercial, and would not include a use that only amounted to hobby farming). However, if present and continued agricultural use were to be a necessary qualifying criterion, it would render the words of paragraph Q.1(a) entirely otiose. The inclusion in that paragraph of a reference to a building which was in use before 20 March 2013 but had ceased to be used for agriculture by that date was clearly intended to show that the building qualifies if it was last in use for agriculture, but has since been disused.

Clearly, if anyone gets a nonsense decision from any LPA which purports to find that the building in question is disqualified from residential conversion under Class Q because it is not currently in agricultural use, even though it was last used for an agricultural trade or business and was so used on or before 20th March 2013, they should have no hesitation in appealing to the Planning Inspectorate against this decision under section 78, and coupling this appeal with application for an award of costs, bearing in mind that an LPA will be held to have behaved unreasonably if its refusal of planning permission (or in this case prior approval) is based on a misunderstanding or misinterpretation of the law.

© MARTIN H GOODALL

Tuesday, 30 May 2017

Election blues


Like most people, I shall be heartily pleased when we’ve got the General Election behind us. But it seems that the little verse I wrote a few weeks ago (“Doggerel” – 4th May) has been borne out sooner than I expected. Theresa May has certainly been giving a graphic demonstration of what her spin doctors should have called “wrong and feeble government”. U-turns, and wobbly decision-making seem to be her specialities, but a screeching U-turn on a policy commitment when the ink was hardly dry on the manifesto in which it was printed is a wholly new innovation in British politics!

What really concerns me is that this is the person who (if she is still PM after 8 June) will be directing our negotiations with the EU over Brexit. She seems to have no idea of what negotiation actually involves, nor any realistic understanding of the relative strengths and weaknesses on both sides (a fundamental prerequisite for anyone entering into any form of negotiation). Maybe she should read Donald Trump’s book on the Art of the Deal (!)

Meanwhile, if you read what Jeremy Corbyn has been saying (rather than taking any notice of the increasingly desperate attempts at character assassination by the Tory press), he comes across as being both reasonable and sensible, and might prove to be a far more sound and sensible negotiator than the Maybot.

For the most unfortunate of reasons, security has clearly been seen as an issue in the past week, but I could not help smiling when that old political war-horse, Michael Fallon, went off the deep end at any suggestion that our foreign policy and foreign military adventures might possibly have increased the risk of terrorism, only to have it pointed out to him that the words that had been quoted to him which he was so self-righteously condemning came from a speech by the current Foreign Secretary, Boris Johnson. He seemed even more discombobulated when it was also pointed out to him that a former head of MI5 had made a very similar observation. Several other party leaders have also made this point within the past few days. So it is rather silly to condemn Corbyn for making the same sensible observation in a foreign policy speech late last week. There is, in fact, no reason to suppose that a Labour-led government would be any less strong in guarding against terrorism than this or any other government. As Corbyn pointed out, on this issue governments do what they have to do.

One encouraging sign is that the Great British Public doesn’t seem to be swallowing the facile campaign message being pushed for all it’s worth by Lynton Crosby. The May campaign (which has largely excluded the Conservative Party, except in a most marginal role) seems to consist of little more than a handful of monotonously repeated empty slogans. It is not surprising that by comparison the Labour manifesto appears to have much more substance, and offers what voters actually want, although both parties are in denial over the need to fund their policy commitments from general taxation, which is going to have to go up whichever party wins. Let’s face it, 20p in the pound is a ridiculously low rate of taxation even by Tory standards, and is unsustainable if we want even half-decent public services in the future. It is only fair that the rich should pay higher taxes, but it is unrealistic to suppose that this alone would be sufficient to fund even Tory spending plans. We are all going to have to pay a higher standard rate of income tax, and possibly higher NI contributions as well.

Well, in just over a week, all this electioneering will be over, and we can return to worrying about just how grisly the Brexit negotiations could be, and about the dire economic consequences of Brexit. I wonder whether a point may be reached when the government of the day may decide that the sensible thing to do would be to withdraw from the Article 50 process, and abandon Brexit altogether.

So back to Town and Country Planning, then, and bashing my brains over the Use Classes Order and its fascinating ramifications.

© MARTIN H GOODALL

Wednesday, 17 May 2017

Parking permits prohibited by 106 agreements


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

Monday, 8 May 2017

More protection for pubs (?)


[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

Thursday, 4 May 2017

Doggerel


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