Tuesday, 12 December 2017

Reasons for granting planning permission – Supreme Court

There have been several cases in the past year or two, on some of which I have commented in this blog, which have examined the extent of any duty that may be laid upon an LPA to state their reasons for granting planning permission, notwithstanding the removal of the statutory duty to do so which formerly applied.

This issue finally came before the Supreme Court in October of this year, in the case of Dover DC v CPRE Kent (on appeal from [2016] EWCA Civ 936), and the Court’s judgment was given on 6 December ( [2017] UKSC 79 ).

The issue before the Court was succinctly summarised by Lord Carnwath in this way: When a local planning authority, against the advice of its own professional advisers, grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in common law? And what are the legal consequences of a breach of the duty? As he observed, those issues were presented by this appeal in a particularly striking form.

Strong views were expressed both for and against the two major housing proposals that were before the LPA for determination, and these representations were faithfully summarised in the officers’ report to the Planning Committee, which contained a comprehensive exposition of the various elements of the proposed development, the various responses (both public and private) to consultations, and the applicable national and local policies, followed by a detailed appraisal of the relevant issues. The report ended with a recommendation for the grant of conditional planning permission (part outline, part full) for the various elements of the proposal, but with a limit on the number of residential units, and subject to the completion of a 106 agreement to secure various proposed benefits, including a hotel and conference centre.

The applicants, however, fundamentally disagreed with the proposed reduction in the scale of the development, arguing that this would seriously undermine its viability. The committee’s discussion of these issues was recorded in a very full set of minutes, which noted that the Principal Planner had advised the Committee that, having considered the further views of the consultants on both sides, the officers stood by their analysis that a lower density scheme would be viable and would deliver the same monetary benefits as currently on offer. The officers therefore recommended that a lower density scheme should be approved, as it was viable, not excessive for the site and would be compliant with the Core Strategy. The discussion of the application was also summarised in the minutes, and at the end of the discussion a motion was proposed that the officers’ recommendation be approved, but subject to amendment of the number of houses to the larger number originally proposed in the application. This motion was carried. The meeting was adjourned for 25 minutes to enable the officers to re-word their recommendation with consequential amendments. A vote was then taken on the amended recommendation, which was approved. A planning permission was subsequently issued, following execution of the proposed 106 agreement. The permission itself included a long list of approved documents supporting the application, and 183 conditions. It concluded with a note (“for the avoidance of doubt”) that the Environmental Statement accompanying the application had been taken into account, but it contained no reference to any obligation to give reasons under the EIA regulations, nor any formal statement of the reasons for the grant.

An application by CPRE for judicial review of the permission on various grounds was dismissed by the High Court, but permission to appeal to the Court of Appeal was granted solely on the issue of reasons. As I reported here, in a blog post on 10 January this year, the Court of Appeal allowed that appeal and quashed the permission, although I see that I had the temerity to disagree with the Court of Appeal, for the reasons explained in that blog post. In granting permission to appeal that decision, the Supreme Court indicated that it would wish to consider generally the sources, nature and extent of a local planning authority’s duty to give reasons for the grant of planning permission.

The basic rule is that, following the repeal of a previous requirement to do so (which applied only between 2003 and 2013), there is no general statutory duty to state the reasons for granting planning permission. The Explanatory Memorandum that accompanied the repeal of that requirement pointed out that the duty had become “burdensome and unnecessary”. In view of the fact that officer reports “typically provide far more detail on the logic and reasoning behind a particular decision than a decision notice”, the requirement to provide a summary of the reasons for granting planning permission “adds little to the transparency or the quality of the decision-taking process” Attention was also drawn to the “greater level of transparency in the decision-taking process”, resulting from increased ease of access to information, both online and through the Freedom of Information Act 2000.

Nevertheless, since 2014 there has been a duty on a local authority officer making any decision (under delegated powers) involving the “grant [of] a permission or licence” to produce a written record of the decision “along with the reasons for the decision”, as well as “details of alternative options, if any, considered and rejected” ( - Openness of Local Government Bodies Regulations 2014 (SI 2014/2095), Regulation 7(2) to 7(3)). Shortly before the Court of Appeal’s judgment in CPRE Kent v Dover DC, the High Court had drawn attention to this provision in Shasha v Westminster City Council [2016] EWHC 3283 (Admin). (See my blog post of 20 January this year.)

The development in the Dover case was EIA development, and where an EIA application is determined by an LPA, the authority must inform the public of the decision and make available for public inspection a statement, containing -
(i) the content of the decision and any conditions attached to it;
(ii) the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and
(iv) information regarding the right to challenge the validity of the decision and the procedures for doing so ( - regulation 24(1)(c) of the EIA Regulations).

Lord Carnwath also drew attention (by way of background) to Article 6 of the Aarhus Convention, which applies to any activities where public participation is provided for under national procedures for environmental impact assessment, so that when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party must make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.

Lord Carnwath then went on to review the appropriate standard that should be met where a statement of reasons is required. A “broad summary” of the relevant authorities governing reasons challenges was given by Lord Brown in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at para 36, although this referred primarily to decisions by the Secretary of State. In particular, he examined the duty as it applies to the duty to give reasons under the EIA Regulations, as determined by the Court of Appeal in R (Richardson) v North Yorkshire CC [2004] 1 WLR 1920. Lord Carnwath, however, declined to follow the reasoning in that case. In the EIA regulations (as in the Aarhus Convention, which is now expressly referred to in the European Directive to which the EIA Regulations give effect) the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation. Nevertheless, the grant of relief in respect of a breach of the regulations still lies in the discretion of the court. If the claimant has not in practice suffered any substantial prejudice, the court may refuse relief (per Lord Carnwath in R (Champion) v North Norfolk DC [2015] UKSC 52 at para 54, following Walton v Scottish Ministers [2012] UKSC 44 at paras 139 and 155).

Finally, Lord Carnwath turned to the question of whether there is any duty to give reasons at common law. Given the existence of a specific duty under the EIA regulations, and the views he had expressed on its effect, it was strictly unnecessary in the present appeal to decide what common law duty there may be on a local planning authority to give reasons for grant of a planning permission [my emphasis]. However, since it has been a matter of some controversy in planning circles, and since the court had heard full argument, Lord Carnwath felt it was right that they should consider it.

The basic rule is that public authorities are under no general common law duty to give reasons for their decisions; but it is well-established that fairness may in some circumstances require it, even where no express duty is imposed by statute (see R v Home Secretary, Ex p Doody [1994] 1 AC 531; R v Higher Education Funding Council, Ex p Institute of Dental Surgery [1994] 1 WLR 242, at 263A-D; and De Smith’s Judicial Review 7th ed, para 7-099). A principal justification for imposing such a common law duty was seen in those cases was the need to reveal any error that would entitle the court to intervene, and so make the right to challenge the decision by judicial review effective.

In the planning context, the Court of Appeal has held that an LPA generally is under no common law duty to give reasons for the grant of planning permission (R v Aylesbury Vale DC, Ex p Chaplin (1998) 76 P & CR 207, at 211-212 per Pill LJ). Although this general principle was reaffirmed recently in Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 (on which I commented in this blog on 16 February this year), the court held that a duty did arise in the particular circumstances of that case, where the development would have a “significant and lasting impact on the local community”, and involved a substantial departure from Green Belt and development plan policies, and where the committee had disagreed with its officers’ recommendations. In Oakley, the court had clearly been influenced by the fact that the committee was disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people, and this suggested that some explanation was required. 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 ( - para 61).

This conclusion had been reinforced by reference to the United Kingdom’s obligations under the Aarhus Convention ( - para 62) (See also Lord Carnwath’s comments on the relevance of the Convention, in Walton v Scottish Ministers [2012] UKSC 44.). Nonetheless, Sales LJ, whilst agreeing with the result in that case, had expressed concern that the imposition of such a duty might also introduce “an unwelcome element of delay into the planning system” ( - para 76).

In Lord Carnwath’s view, Oakley was rightly decided, and consistent with the general law as established by the House of Lords in Doody. Although planning law is a creature of statute, the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law. In Doody, Lord Bridge also saw the statutory duty to give reasons as the analogue of the common law principle that “justice should not only be done, but also be seen to be done”. As applied to the environment, Lord Carnwath held that this also underpins the Aarhus Convention, and the relevant parts of the EA Directive. In this respect the common law, and European law and practice, march together. In the application of the principle to planning decisions, he saw no reason to distinguish between a public inquiry conducted by the Secretary of State, and the less formal, but equally public, decision-making process of a local planning authority such as in the Dover case.

Lord Carnwath held that the existence of a common law duty to disclose the reasons for a decision, supplementing the statutory rules, is not inconsistent with the removal in 2013 of the specific duty imposed by the former rules to give reasons for the grant of permission. As the explanatory memorandum to that repeal made clear, it was not intended to detract from the general principle of transparency (which was affirmed), but was a practical acknowledgement of the different ways in which that objective could normally be attained without adding unnecessarily to the administrative burden. In circumstances where the objective is not achieved by other means, Lord Carnwath considered that there should be no objection to the common law filling the gap.

Notwithstanding this, Lord Carnwath did concede that his endorsement of the Court of Appeal’s approach in Oakley may be open to the criticism that it leaves some uncertainty about what particular factors are sufficient to trigger the common law duty, and indeed as to the justification for limiting the duty at all (and he referred to the analysis by Dr Joanna Bell in Kent and Oakley: A Re-examination of the Common Law Duty to Give Reasons for Grants of Planning Permission and Beyond in (2017) 22 Judicial Review 105-113). However, the answer to the latter, Lord Carnwath suggested, must lie in the relationship of the common law and the statutory framework. [This would appear to be the most tendentious passage in this judgment.] Putting it diplomatically, he acknowledged that the court should respect what he described as “the exercise of ministerial discretion, in designating certain categories of decision for a formal statement of reasons [but not others]” [ - or, to put it more bluntly, the clear words and intention of a statutory instrument laid before parliament by the Secretary of State in 2013 removing the statutory requirement on LPAs to summarise their reasons for granting planning permission!], but asserted that the court may also take account of the fact that the present system of rules has developed piecemeal and without any apparent pretence of overall coherence. It is appropriate, he said, for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong.

It does seem that Lord Carnwath recognised that he was perhaps going out on a legal limb in expressing this view. As to the charge of uncertainty, he said, it would be wrong to be over-prescriptive in a judgment on a single case and a single set of policies. However, it should not be difficult for councils and their officers, he felt, to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically, he suggested, they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF). Such decisions call for public explanation, not just because of their immediate impact; but also because they are likely to have lasting relevance for the application of policy in future cases.

It was for these reasons that the Supreme Court unanimously dismissed the appeal and affirmed the order of the Court of Appeal.

[I must confess that I have distinct misgivings about this judgment. Lord Carnwath is a judge for whom I have always had the very greatest respect, and he has delivered many important and authoritative judgments over the years, but I feel that in this judgment the Supreme Court has gone too far in purporting to develop the law in this way. One can see the logic of the argument that led to the court’s conclusion in this case (and also the Court of Appeal’s similar conclusion in Oakley), but our planning system is and always has been solely the creature of statute. It is for parliament (and for ministers acting under statutory powers granted to them by parliament) to make and amend planning legislation to govern the planning process and its procedures. Intervention by the courts, unless it is firmly based on the interpretation and application of the statutory code, serves only to introduce uncertainty into an already complex system of development management.

I have not followed the previous course of the Dover litigation in any detail, having concentrated solely on the legal issue that brought the case first to the Court of Appeal and then to the Supreme Court. However, I have gained the impression that the planning permission in this case could (and should) have been quashed simply on the basis of the failure of the LPA to comply with the EIA Regulations, and in particular the statutory requirement to give reasons for their decision. It seems to me that it was entirely unnecessary to import any alleged common law duty to give reasons into a case in which there was a clear failure on the part of the LPA to comply with a simple statutory duty.

I expressed the hope at the beginning of the year that we would get a judgment from the Supreme Court that would finally put this issue of stated reasons to bed. I suppose my unspoken assumption was that the decision of the Court of Appeal would be reversed, for the reasons that I have explained. However, this would have left an arguably undesirable planning permission in place, and I strongly suspect that this was a factor which was at the back of several judicial minds in this case. If so, then it rather confirms the old saying that hard cases make bad law.]


Friday, 8 December 2017

There’s a lot of it about

I’m sorry if you’ve had one of the winter colds that are going around, but what this heading refers to is recent developments in planning law. They seem to be coming thick and fast.

The most significant of these is the important Supreme Court judgment on the statement of reasons for granting planning permission, which we had been expecting. Readers may recall that I had reported on several previous judgments on this topic, and that I flagged up in a brief blog post on Monday, 6 March that this issue was due to be considered by the Supreme Court towards the end of the year. That judgment, in Dover DC v CPRE Kent [2017] UKSC 79 was delivered on 6 December, and I hope to be able to discuss it here shortly.

In the meantime, there have been other judgments in recent months that I have not yet had time to write up. These include –

R (Holborn Studios Ltd) v Hackney LBC[2017] EWHC 2823, regarding the need for further consultation where a planning application is amended;


Braintree DC v SSCLG [2017] EWHC 2743, as to the meaning of "isolated" in paragraph 55 of the NPPF.

Last, but by no means least, a significant consultation paper has been published on Welsh planning law reform. I usually avoid discussing Welsh planning law, because of its increasing divergence from planning law and practice in England, but this consultation paper contains some interesting proposals that may well be a pointer to the way in which the English planning legislation could be consolidated and updated. I hope to be able to take a closer look at the consultation paper here shortly.

Meanwhile, if you still can’t get rid of that cold, try taking max-strength Lem-Sip.


Tuesday, 28 November 2017

Amalgamation of dwellinghouses again

Readers are no doubt aware of the High Court judgments in Richmond-upon-Thames LBC v SSETR [2001] J.P.L. 84 and R (Kensington and Chelsea RBC) v SSCLG [2016] EWHC 1785 (Admin), on which I have commented both in this blog and in my recently published book, The Essential Guide to the Use of Land and Buildings under the Planning Acts, but these rulings continue to cause difficulties in practice.

Notwithstanding the binding nature of these two judicial authorities, which have since been followed by inspectors in a number of planning appeals, I have serious reservations regarding these two judgments. A property owner should be able (with professional advice, if necessary) to know whether a particular adaptation or change to a property is or is not development within the definition in section 55, without having to carry out research to establish whether there is an underlying housing shortage in the area in question which might make the loss of housing units through amalgamation a material planning consideration that may affect the lawfulness of this amalgamation (even where there is no relevant Development Plan policy that addresses this issue).

In light of these two judgments, owners and developers are now faced with a situation in which the amalgamation of two or more dwellings in some LPA areas is not a material change of use for the purposes of section 55, because there is no underlying housing shortage in the area in question which might make the loss of housing units through amalgamation a material planning consideration, whereas in others (notably in various London boroughs), the very same change could be a material change of use, if the Richmond and Kensington & Chelsea cases are followed.

The practical difficulties that could arise in these circumstances were illustrated by two further cases, Royal Borough of Kensington & Chelsea v SSCLG and Noell [2017] EWHC 1703 (Admin) and Royal Borough of Kensington & Chelsea v SSCLG and Larham [2017] EWHC 1704 (Admin). Both were concerned with appeals against the refusal of planning permission (rather than LDC appeals) relating to proposals for the amalgamation of four and two flats respectively to form a single large dwelling in each case. The Inspector determined that the loss of residential units was acceptable, based on his calculation of housing requirements in the borough, and so he allowed both appeals. The LPA challenged those appeal decisions on the basis that the Inspector was mistaken in his calculation of the housing land supply, and both appeal decisions were quashed on this ground. Whilst these appeals turned on planning considerations of a type that is common in section 78 appeals, it is clear that similar disputes could easily arise in LDC appeals, in light of the earlier judgments in Richmond and in the 2016 Kensington and Chelsea case. These latest judgments demonstrate the uncertainty faced by property owners and developers in face of the variable planning judgements that might influence a decision as to whether the amalgamation of particular dwellings is or is not lawful by reference to section 55(2)(f).

What is needed is certainty in the law. Section 55(3)(a) makes it absolutely clear that the use as two or more dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used. It would be an easy matter for a similar sub-clause to be added to section 55(3) declaring with equal clarity that the use as a single dwellinghouse of any building [which by definition includes a part of a building] previously used as two or more dwellinghouses involves a material change of use of the building and of each part of it which is so used.

As I have explained before, but it bears repeating, my objection to the current position in light of the Richmond and Kensington judgments is solely to the legal uncertainty that has arisen as a result of these two High Court decisions. So far as I am concerned, there could be no objection in principle to the proposition that the use as a single dwellinghouse of any building previously used as two or more separate dwellings should be treated as a material change in the use of the building; but any such change in the law should take the form of an amendment to the 1990 Act, rather than depending on the less than certain intervention of the courts. Parliament passed the Town and Country Planning Act 1990, including section 55 in its current form, and if it is felt that the loss of residential units through amalgamation is a problem (particularly in some London boroughs), then it is Parliament who should amend the Act to resolve this issue.


Friday, 24 November 2017


Some readers of this blog may still have the fond illusion that I am a one-man band, ploughing my lonely furrow somewhere out there in the sticks, but that would be a long way from the truth. I am very proud that I have now been a member of KEYSTONE LAW’s planning law team for more than 8 years, and I look forward to being associated with this very successful and dynamic firm for a good few years to come. I have explained on several occasions that this blog is not (and was never intended to be) a marketing tool, but I can’t resist blowing a toot on my trumpet occasionally for the best law firm in which I have ever worked, in what is now a very long career.

Some of you may not be aware how large and successful a firm KEYSTONE LAW is. Our six-strong planning law team is part of the firm’s property law group, which contains over 70 lawyers. Overall, the firm now has more than 250 lawyers (mainly solicitors, but also some barristers, including two in our planning law team) practising throughout England & Wales (with office hubs in London, Bristol, Leeds and Newcastle), as well as Northern Ireland, the Isle of Man and Guernsey. The firm’s associated Australian practice, Keypoint Law, has offices in Sydney, Melbourne and Canberra.

After winning numerous industry awards, KEYSTONE LAW has entered The Lawyer Top 100 law firms this year, with reported annual revenue of more than £25 million. The firm became an ‘ABS’ in 2013, enabling private equity firm Root Capital to invest over £3 million in the firm in 2014, following which the practice has subsequently achieved annual revenue growth of more than 20%.

Now the firm is set to become a listed company, with an initial public offering which should raise around £15 million on a projected placing price of 160p. This puts the total capital value of KEYSTONE LAW at around £50 million. The shares will commence trading on Monday, 27 November. KEYSTONE LAW has a very strong central management team, who will remain very firmly in the saddle. James Knight, founder and Managing Director of the firm will become Chief Executive of the listed plc.

I see that some nay-sayers commenting in the Law Society’s Gazette have muttered darkly about law firms burdening themselves with debt, but city commentators point out that the financial restructuring enabled by this flotation is expected to result in the listed company being debt-free following completion of this re-capitalisation.

Unlike some large law firms one hears about, KEYSTONE LAW is a very happy ship, not least because the firm’s lawyers reap a very fair reward as a proportion of the costs they generate. There is a real ‘family’ feeling within the firm, and a refreshing absence of office politics. And the superb admin back-up from which we all benefit allows Keystone lawyers to get on with what we really enjoy, and do best - practising the law.


Tuesday, 21 November 2017

Prior approval applications under Class Q(a) only

My attention has been drawn to an appeal decision in East Staffordshire [3170228], issued on 3 July 2017, which allowed a prior approval appeal under Class Q(a) only (for the residential conversion of an agricultural building), where it was clear that works under Class Q(b) would also be required. The view was expressed in that decision letter that an application under Class Q(b) could be made at a later date.

The Inspector wrote:

6. The Council’s reason for refusal and evidence focuses on those matters addressed under Class Q(b) in terms of the scale and nature of the works that would be required to convert the building to residential use. However, Class Q.2(2) of the GPDO indicates that an application can be made for the change of use of the building and curtilage only. It is clear from the appellant’s application form and supporting evidence that the application which constitutes this appeal was made on this basis. The appellant has also made it clear that it was always the intention to address matters under Class Q(b) with a separate application.

7. It is evident from the current condition of the building that a further application would be required. However, the GPDO does not state that where building operations are clearly intended or required that a Class Q(a) only application cannot be made. The approach of applying for Class Q(a) only is permissible under the regulations of the GPDO and the appellant can seek approval for the change of use without dealing with building operations. I have therefore considered the appeal on this basis.

I am led to believe that there may have been one or two other appeal decisions to the same effect, but the decision letters I have seen so far do not seem to be on precisely the same point, and so at the time of writing I have only the East Staffs (Uttoxeter) decision to go on.

It has been pointed out to me that my summary of the provisions of Class Q (and of paragraph W) in my first book, A Practical Guide to Permitted Changes of Use (on page 110 in the Second Edition), does not accord with this approach on the part of this inspector (and possibly others?). Nevertheless, having reviewed the legislation, I maintain my stated view on this issue.

The reason for this is that paragraph W.(2)(a) provides in clear terms that the application must be accompanied by a written description of the proposed development, which, in relation to development proposed under Class C, M, N or Q of Part 3 must include any building or other operations. So it is only in relation to those developments where no building operations will in practice be required that a prior approval application may be made under Class Q(a) alone. In light of the wording of paragraph W(2)(a), I really don’t think there can be any scope for making an application solely under Class Q(a) in a case where building operations under Class Q(b) will also be required in order to convert the building for residential use, and an LPA would be fully justified in rejecting a prior approval application made under Class Q(a) alone as invalid in these circumstances (by reference to paragraph W(2)).

If any readers can provide other examples of this Q(a)/Q(b) issue having been considered in other appeals, I would be grateful to have them drawn to my attention, particularly if they contain any explanation or justification for departing from the provision I have quoted from paragraph W(2)(a).

In the meantime, I should record my gratitude to a correspondent for drawing my attention to the East Staffordshire decision, together with other recent appeal decisions on Class Q. I have not named my source, as I have not ascertained whether they would be willing to ‘go public’ in this instance.

UPDATE (22 November): I am grateful to another correspondent for drawing to my attention an appeal decision in North Devon [3146607], issued on 16 July 2016. In his decision letter, the Inspector wrote:

8. Class Q.2 of the GPDO sets out that an application can only be made for: both the change of use and the conversion works; or the change of use only. The application that constitutes this appeal was made for the latter and I am to deal with the appeal on this basis as the GPDO does not state that where building operations are clearly intended that a Class Q(a) only application cannot be made. Therefore, applicants can seek prior approval for the change of use in advance of dealing with the building operations.

I can see why some people (including some inspectors) read the conditions in paragraph Q.2 as if they allow an application to be made under Q(a) alone, even where building operations will be required under Class Q(b). If one goes back to look at the former Class MB in the 2014 amendment order, one finds the same wording, but two inconsistent appeal decisions in Cornwall (one of which asserted that, where building operations would be required, a Class MB(a) application could not be made without a simultaneous application under Class MB(b), and the other accepted that it could) led the government to add the provision in paragraph W(2)(a) in the 2015 Order to which I have drawn attention, which had not previously appeared in paragraph N of the 1995 Order.

Paragraph W(2)(a) was clearly added in the 2015 Order so as to resolve the doubt arising from the wording in Class MB that had led to the two inconsistent decisions on this issue in Cornwall. In the two more recent appeal decisions to which attention has now been drawn [3170228 and 3146607], the Inspectors have both concentrated on the wording of the conditions in paragraph Q.2 regarding prior approval applications, without having paid any attention to paragraph W(2)(a).

I really think that PINS should amend their advice to Inspectors in order to draw attention to paragraph W(2)(a), but if it is the case that PINS are in fact advising inspectors that Class Q(a) applications can be dealt with without an application also being made under Class Q(b) (where building operations will clearly be required in order to convert the building for residential use) then someone in DeCLoG needs to put them right on this, and explain why it was that paragraph W(2)(a) was added to the 2015 GPDO.


Monday, 20 November 2017

Another successful book launch

Photo © Kelly Duncan (Keystone Law)

Like my first book, my new book, “The Essential Guide to the Use of land and Buildings under the Planning Acts” has outsold the original print order and the first reprint, so that we had temporarily run out of copies by the time of our launch seminar in London last Friday. However, anyone who is still awaiting their copy of the book should get it very soon. The book is now on its third printing, and is continuing to sell well. I have had very positive feedback from readers, one or two of whom told me that the book had proved useful to them within days after they received their copy!

The launch seminar that Bath Publishing held at the RIBA in London on 17 November, in association with Keystone Law, was also a great success, with another large audience (but as is so typical of the English, seats were left vacant at the front, while everyone crowded into the seats further back in the hall! – see photo).

I spoke on Lawful Uses (and LDCs), while William Upton of 6 Pump Court gave an extremely interesting talk on Unlawful Uses (including enforcement). My colleague, Ben Garbett then explained a number of judgments handed down in the past year affecting permitted changes of use, and we had two very lively Q&A sessions, which led to an interesting discussion of a number of controversial issues in these areas of planning law.

Clearly there are continuing queries relating to Class Q (residential conversion of agricultural buildings), notably in relation to structural issues. Hopefully, there will be some further clarification, either from the government or from the courts in the not too distant future. I shall certainly cover any developments on this topic in this blog.

Another area of doubt is the precise way in which the time limits under Class P (residential conversion of a warehouse or other storage building) and Class PA (residential conversion of a light industrial building) will work in practice. The deadline for completing conversions under Class P – 15 April 2018 - is fast approaching.


Wednesday, 1 November 2017

Implied conditions and the definition of ‘sport’

In recent weeks, my attention has necessarily been focused on final preparation of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) for publication, and I have not had time to blog on various developments in planning law that have occurred recently.

There are a couple of judgments which came too late for the book but, fortunately, both of them only serve to confirm the law as stated in the text (much to my relief!).

The first of these was the judgment of the High Court in Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin), on 3 October. This related to a condition that, it was claimed, should be implied in a planning permission. The case concerned a permission granted under section 73 (which, although it relates to the removal or modification of conditions in a previous planning permission, takes effect as an entirely new planning permission). The previous permission had been restricted by condition to non-food sales, but the conditions in the section 73 permission did not refer to any such restriction. The LPA refused an LDC for unrestricted A1 use, but this decision was overturned on appeal by an inspector, who granted the LDC sought by the developer. It was this appeal decision that the LPA sought to challenge.

The judgment reviewed the previous decisions mentioned below, but the court rejected the LPA’s contention that a condition preventing the sale of food could be implied in this case. To put it as shortly as possible, the decision of the Supreme Court in Trump International Golf Club Scotland Ltd. v Scottish Ministers [2015] UKSC 74 indicates that a term can be implied in a condition that has actually been attached to the permission, so as to give proper effect to the intention of that condition, but this does not over-ride the well-established principle that a condition that is entirely absent from a permission cannot be implied in that permission. Thus in I’m Your Man Limited v SSE 77 P & CR 251, a ‘temporary’ permission (so described in the description of the development authorised by the permission) could not be interpreted so as to imply a condition in that permission that the use should cease at the end of the period mentioned in the description of the development. In the Lambeth case Mrs Justice Lang drew attention to the subsequent approval of that judgment by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin) and by the Planning Court in Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin). Both of these cases concerned substantive limitations on the permission granted, not merely temporal ones.

The second recent case was the judgment of the European Court of Justice in English Bridge Union Limited v HMRC (Case C 90/16), which was handed down on 26 October. This finally determined a question that has been the subject of repeated litigation over the past few years, namely whether Bridge can be classified as a ‘sport’ for tax purposes. This judgment confirms that, in order to be a ‘sport’, the activity in question must have some element of physical exertion. I mention this judgment because it is analogous to the question of whether various card and board games can be regarded for planning purposes as coming within Use Class D2(e) (“use ……… for other indoor ……….. sports or recreations”). The decision of the ECJ (contrary to the Opinion of the Advocate-General published in June) is in line with the related English cases - English Bridge Union) v Sport England [2015] EWHC 1347 (Admin) and R (English Bridge Union) v Sport England [2015] EWHC 2875 (Admin).

Whilst the English Bridge Union litigation was concerned with the eligibility of Bridge for grants from Sport England, and its treatment for the purposes of tax and VAT, all these judgments (including now the final judgment of the ECJ) are entirely consistent with the conclusion reached in earlier cases relating to Use Class D2, such as Millington v SSETR (1999) 78 P. & C.R. 373; (1999) J.P.L. 644 (subsequently approved by the Court of Appeal – [2000] J.P.L. 297) and Rugby Football Union v SSETR [2001] EWHC 927 (Admin) (subsequently upheld in the Court of Appeal – [2002] EWCA Civ 1169). A leisure activity will only fall within Use Class D2(e) if it involves some physical effort or exertion. Absent this essential physical element, other ‘recreations’ (even if they are competitive in nature) do not fall within Class D2(e).