Tuesday, 21 November 2017
My attention has been drawn to an appeal decision in East Staffordshire , 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 , 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.
© MARTIN H GOODALL
Monday, 20 November 2017
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.
© MARTIN H GOODALL
Wednesday, 1 November 2017
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  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  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  EWHC 174 (Admin) and by the Planning Court in Cotswold Grange Country Park LLP v SSCLG  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  EWHC 1347 (Admin) and R (English Bridge Union) v Sport England  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 –  J.P.L. 297) and Rugby Football Union v SSETR  EWHC 927 (Admin) (subsequently upheld in the Court of Appeal –  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).
© MARTIN H GOODALL
Monday, 23 October 2017
In the past few weeks I have been racing for the finishing line, in getting the text of my new book (The Essential Guide to the Use of Land and Buildings under the Planning Acts) ready for press. I am pleased to say that, with the considerable help of my publisher’s Editor, Helen Lacey, the book was finally sent off to the printers today, and should be ready for distribution in a couple of weeks’ time.
I published a list of chapter headings here in September. It would take up too much space to list the entire contents of the book, but just to give you an indication of the scope of the book’s coverage of the subject, I am printing below an extract from the Table of Contents for just two chapters that deal with Dwellinghouses and with Houses in Multiple Occupation.
13.1 Use Class C3
13.2 The definition of a “dwellinghouse”
13.3 The original 1987 version of Class C3
13.4 The 2010 version of Class C3
13.5 The definition of a “single household” under Class C3(a)
13.6 Small care homes (Class C3(b))
13.7 Other households (Class C3(c))
13.8 The definition of a “single household” under Class C3(b) and C3(c)
13.9 The 6-person limit under Class C3(b) and C3(c)
13.11 Holiday lets
13.12 Short-term lets and time-shares in Greater London
13.13 Subdivision of a dwellinghouse
13.14 Amalgamation of two or more dwellings
13.15 Ancillary and incidental domestic uses
13.15.1 Working from home
13.15.2 ‘Live/work units’
13.15.3 Guest rooms and ‘Bed & Breakfast’
13.15.4 ‘Granny annexes’
13.15.5 Incidental or ancillary use of outbuildings
13.15.6 Extending the domestic curtilage
13.15.7 Hobbies and similar activities
13.15.8 Stationing of a caravan on land for residential use
13.15.9 Caravans within the curtilage of a dwellinghouse
13.15.10 Storage of a touring caravan
13.15.11 Storage of other domestic items
13.16 Changes of use to and from Class C3
HOUSES IN MULTIPLE OCCUPATION
14.1 Use Class C4
14.2 A brief overview of Class C4
14.3 Buildings excluded from the definition of an HMO
14.4 The definition of “a house in multiple occupation”
14.4.1 The standard test
14.4.2 The ‘self-contained flat’ test
14.4.3 The ‘converted building’ test
14.4.4 An ‘HMO declaration’
14.4.5 Persons treated as occupying premises as their only or main residence
14.5 Changes of use to and from Class C4
The actual text of the book (excluding the Tables and Index) comes to some 340 pages, which is 20 pages more than the Second Edition of my other book, A Practical Guide to Permitted Changes and Use, for the same price. So it’s a real bargain, and I very much hope that readers will agree that it lives up to its name as the essential guide to this subject. I can’t pretend that the book is as comprehensive as the Land Use Gazeteer, but at around 20% of the price of that massive work, it is a good deal more affordable.
Buyers who order the book by 31 October will receive both the print edition and the digital edition of the book for the single price of £50.
And don’t forget our seminar in London on 17 November, which is booking up fast. Again, you will benefit from the ‘early bird’ discount if you book no later than 31 October. So don’t delay; you have only a week left to benefit from these bargain prices.
© MARTIN H GOODALL
Friday, 6 October 2017
In addition to publishing my new book, “ The Essential Guide to the Use of Land and Buildings under the Planning Acts”, BATH PUBLISHING are also organising a seminar on The Use of Land and Buildings: Current Legal Issues, in conjunction with Keystone Law, which will held at the RIBA at 66 Portland Place, London W1B 1AD on Friday 17 November.
This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £140 +VAT if you book before 31 October (saving £25 on the full price). This includes a copy of both the print and digital editions of my new book (worth £75), which will be given to all delegates to the event. (The price for the book alone is £50 for the print edition and the same for the digital edition, or £75 for the two together.)
The seminar will cover some of the major issues that affect the use of land and buildings and material changes of use, including unlawful uses. There will also be an update on permitted changes of use, covering legislative amendments and judgments within the past 12 months. Ample time will be allowed for questions, which will be discussed by our expert panel.
You can read more about the programme and venue at:
Professional delegates will be able to claim 2½ hours’ CPD for this event.
Places at the seminar are limited so it will be ‘first come, first served’. Don’t delay. You can book your place now by clicking on the button on the the seminar icon on the left-hand side of this page.
© MARTIN H GOODALL
Friday, 29 September 2017
There have been disputes for a number of years as to whether permitted development rights, such as those for the residential conversion of agricultural buildings under Class Q in Part 3 of the Second Schedule to the GPDO, can be called in aid as a fall-back position where a planning application is submitted for other development on the same site. On 8 September, the Court of Appeal upheld a judgment of the High Court that such PD rights can properly be taken into account as a fall-back position where some alternative form of development is then proposed.
The case in question is Mansell v Tonbridge and Malling BC  EWCA Civ 1314, in which the leading judgment was given by Lindblom LJ. The LPA had granted planning permission in this case for the demolition of an existing agricultural barn and of a bungalow on the application site and to construct four detached dwellings, with garages and gardens. In recommending the LPA’s committee to grant planning permission, the planning officer had advised them that, in practical terms, the permitted development rights under Class Q meant that the existing agricultural barn could be converted into three residential units up to a limit of 450 sq m. Furthermore, the existing bungalow within the site could be replaced in accordance with an adopted policy in the Local Plan with a new residential building, provided that it was not materially larger than the existing building. He advised that, taken together, these factors could, in effect, give rise to the site being occupied by a total of four residential units (albeit of a different form and type to that proposed by this application). This, the officer observed, provided a realistic fallback position in terms of how the site could be developed.
The claimant sought to challenge the grant of planning permission on several grounds. He alleged that the planning officer (and hence the council) had misinterpreted the provisions of Class Q; they had wrongly accepted that there was a real prospect of the fallback development being implemented; and they had also misunderstood or misapplied the “presumption in favour of sustainable development” (as defined by paragraph 14 of the NPPF).
Part of this argument turned on the interpretation of the 450 sq m floorspace limit (which, the claimant argued, applied to the entirety of the building in question, and was not confined to the actual floorspace that is actually converted). This argument was rejected both at first instance and by the Court of Appeal. The argument was that an interpretation of the relevant provisions that confined the floorspace limit to the floor area actually converted would render sub-paragraph Q.1(b) of Class Q redundant, because sub-paragraph Q.1(h) already limits the residential floor space resulting from the change of use under Class Q to a maximum of 450 square metres. I confess that I was originally confused myself by the relationship between paragraph Q.1(b) and paragraph Q.1(h), but I then explained the distinction between these two provisions in the Second Edition of A Practical Guide to Permitted Changes of Use (in paragraph 9.6 on page 103).
At first instance, Garnham J. accepted that the council was entitled to conclude that there was a “realistic” fallback. The evidence had established that there had been prior discussions between the council and the planning consultant acting for the site owners. It was crystal clear from that contact that the owners were intending, one way or another, to develop the site. Alternative proposals had been advanced seeking the council’s likely reaction to planning applications. It was in the judge’s view wholly unrealistic to imagine that were all such proposals to be turned down the owner of the site would not take advantage of the permitted development provided for by Class Q to the fullest extent possible. It was not a precondition to the Council’s consideration of the fall back option that the owner had made an application indicating an intention to take advantage of Class Q. There was no requirement that there be a formulated proposal to that effect [my emphasis]. The officer was entitled to have regard to the planning history which was within his knowledge, and the obvious preference of the owners to make the most valuable use it could of the site.
The claimant sought to criticise this approach by reference to Samuel Smith Old Brewery (Tadcaster) v SSCLG  J.P.L. 1326 (at paragraph 21) and R. v SSE, ex p. P.F. Ahern (London) Ltd  Env. L.R. 189 (at p.196). However, Lindblom LJ could not accept that argument. In his view, the officer did not misunderstand any principle of law relating to a fallback development. His advice to the members was sound.
[I would simply add the observation that a prior approval application is not a necessary pre-requisite to establishing a fall-back position, because planning permission is granted in any event by Article 3(1) of the GPDO. In granting prior approval an LPA is not even approving the permitted development as such, but only those matters that specifically require their attention. On the other hand, a prior approval application would clearly be positive evidence of an intention to develop, and would certainly put the fall-back position beyond doubt. In this case, however, there was other evidence that entitled the LPA to conclude that there was a realistic prospect that the PD rights would be exercised if planning permission was not granted for the alternative development that was now proposed, and so a fall-back position had clearly been established.]
The remaining issue was the presumption in favour of “sustainable development”, as interpreted by paragraph 14 of the NPPF. The decision of the Court of Appeal in Barwood Strategic Land LLP v East Staffordshire Borough Council  EWCA Civ 893 provides the answer (and supersedes all previous judgments on this issue). The “presumption in favour of sustainable development” did not apply to the proposal in this case, and the council’s officer did not advise the committee that it did. The instant case was clearly and materially different from Barwood, and the officer’s report had correctly advised on the application of the NPPF as a material consideration in the determination of this application.
The Court of Appeal unanimously upheld Garnham J’s judgment at first instance and dismissed the claimant’s appeal.
© MARTIN H GOODALL
Monday, 11 September 2017
Apart from noting the litigation relating to the painting of the ‘stripey house’ in Kensington & Chelsea (which involved a section 215 Notice, later quashed by the High Court in April of this year – see House-painting not within the scope of section 215, posted here on Tuesday, 2 May 2017), I have not attempted to follow in any detail the long and convoluted battle between Mrs Lisle-Mainwaring and her neighbours, who had recruited the assistance of the LPA in their struggle to thwart her plans to redevelop the site. It was this that had led to the painting of the house with red and white vertical stripes by way, in effect, of protest against the neighbours’ unrelenting campaign.
I did, however, report the quashing of Mrs Lisle-Mainwaring’s intended development plans in the High Court last November (Stripey house – another twist in the tale, posted here on Wednesday, 2 November 2016). That decision has now been overturned by the Court of Appeal. I do not yet have a note of the neutral citation number of the Court of Appeal’s decision, but the court was clear in their decision to restore the Inspector’s original appeal decision allowing Mrs Lisle-Mainwaring’s appeal against the refusal of planning permission by RBKC for demolition of the house (which had actually been in use as an office) and its replacement by a new dwelling, with the now obligatory double basement without which one simply couldn’t bear to live in London nowadays.
The office use had ceased, and the Inspector had found that there was no realistic prospect of the building being returned to office use. There was therefore no sustainable policy objection to the proposed development. Lindblom LJ, in allowing the appeal, held that the Inspector was entitled to reach such a conclusion, and that his decision was not legally flawed (contrary to the view expressed by the High Court).
The Court of Appeal’s judgment does not impinge in any way on the other High Court decision in which it had been held that the paint scheme applied to a house cannot properly be the subject of a section 215 notice, and so that decision stands. In practice, however, the days of the stripey house are now numbered, because it will disappear on being demolished to make way for its replacement.
Dare we hope that this finally puts an end to this long and convoluted legal saga?
© MARTIN H GOODALL
Friday, 8 September 2017
I am sure that readers have noticed that there has been a longer interval than ever before since I last published a post on this blog, on Wednesday 19 July. The sole reason for this was that I was very fully engaged in completing my next book – The Essential Guide to THE USE OF LAND AND BUILDINGS under the Planning Acts. The book is expected to be published early in November.
My publishers, Bath Publishing describe the new book as the definitive handbook on this subject. It explains the legal rules governing the use of land and buildings as well as material changes of use. The text first sets out the rules that apply to the use of land generally and to material changes of use. It then explains the provisions of the Use Classes Order in detail. Chapters are also included on Permitted Changes of Use, Unlawful Uses and Lawful Use Certificates, including how to apply for a certificate as well as the procedure for appealing against the refusal of an LUC application. The book brings all this together in a convenient and accessible work of reference that will prove invaluable for everyone who needs to know the rules that govern the use of land and buildings and changes of use.
Bearing in mind that my previous book already covers the subject of permitted changes of use very fully, the chapter on this topic in the new book is a fairly brief summary, and so the new book should be seen as a companion volume to that earlier book.
The scope of the book can be appreciated by a glance through the list of chapter headings:
1. General introduction
2. The planning unit and the concept of ‘curtilage’
3. Changes of use - an overview
4. Change of use or operational development?
5. Changes of use prescribed or excluded by statute
6. Restrictions on uses or on changes of use
7. Legal effect of various changes affecting a use
8. The Use Classes Order - an overview
9. Shops and retail services
10. Catering uses
11. Business and industrial uses
12. Non-domestic residential accommodation
14. Houses in multiple occupation
15. Non-residential institutions
16. Assembly and leisure uses
17. Agriculture, horticulture and forestry
18. Permitted changes of use
19. Unlawful uses
20. Lawful use certificates
21. LDC appeals
You have probably noticed already the link in the left-hand margin of this page showing the front cover of the new book. This enables readers of this blog to pre-order the book, and to avail themselves of an excellent bargain. The cover price is only £50 (the same price as the Second Edition of A Practical Guide to Permitted Changes of Use), and for this price you will get not only the new book itself, but a copy of the digital edition of the new book as well. But don’t delay. This bargain will only be available until the publication date; after that, it will cost £50 for the book and another £50 if you also want the digital edition.
We are organising another seminar in connection with the publication of the new book, which will be held in London at the RIBA on Friday 17 November. I’ll publish details of the seminar shortly.
© MARTIN H GOODALL
Wednesday, 19 July 2017
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  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  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  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
Not for the first time, the High Court has been called upon in Steer v SSCLG  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  EWHC 12 (Admin), at .)
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
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
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
On 31 March 2016, I reported on the High Court judgment in R (Khodari) v. Kensington and Chelsea RLBC  EWHC 4084, where it was held (following an earlier judgment Westminster City Council v. SSCLG  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 ( 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  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
[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;  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  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
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
Wednesday, 3 May 2017
As most readers will be aware by now, the Neighbourhood Planning Bill received royal assent immediately before parliament was prorogued last week. Only sections 1 to 7 are concerned with neighbourhood planning, and these provisions will not come into effect for the time being. Sections 8 to 13 deal with local development documents, and these too will have to await implementation until some time after the General Election.
The three sections that are of wider interest are sections 14, 15 and 17, together with Schedule 3. (The remainder of the Act – from section 18 onwards is all about compulsory purchase.)
Section 14 will introduce restrictions on the imposition of planning conditions, but will not come into effect until a commencement order is made. Schedule 3 to the Act will make consequential changes to existing legislation in respect of planning conditions. I have previously commented on this part of the Bill, and will revert to its provisions in a later blog post, when it takes effect.
Section 15 requires the Secretary of State to amend the GPDO “as soon as reasonably practicable after the coming into force of this section” to restrict permitted development rights currently applying to pubs and wine bars, etc., but only if they actually fall within Use Class A4. As I have pointed out before, many of these “drinking establishments” actually fall within Use Class A3 rather than A4, due to the service of food being a significant part of their business.
This section came into immediate effect on the passing of the Act, and DeCLoG has wasted no time in making the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2017 (SI 2017 No.619) on 28 April, which will come into force on 23 May. (I confess to having raised an eyebrow when I saw that this amendment order had been laid before parliament on 28 April, the day after prorogation (albeit before the dissolution of parliament today). I will comment on these provisions in a separate blog post shortly.
Section 17 has also come into immediate effect. It extends the scope of the planning register that must be maintained by LPAs. Again, I have already commented on this in a previous blog post, and I will come back to it later.
And that’s it really. Those concerned with the preparation of Neighbourhood Plans and Local Plans will want to get to grips with the sections of the Act dealing with these topics. Similarly, compulsory purchase specialists will need to get their heads around Part 2 of the Act. But this Act is hardly revolutionary in its effects, and is just another example of the endless tinkering with planning legislation in which successive governments have dabbled for far too many years.
In the meantime, the 1990 Planning Acts, together with the numerous subsequent amendments that have been made to them, remain unconsolidated, so that we now have some pretty nonsensical section numbering in the principal Act. However, I suspect the government will be occupied by far more pressing concerns in the next few years, and so I don’t hold out much hope for a consolidating Act any time soon.
© MARTIN H GOODALL
Tuesday, 2 May 2017
It is an unbreakable law of the universe that whenever I go on holiday some interesting planning law issues suddenly pop up while I am away. The past fortnight has been no exception. Having got back to my desk, I am going to start with the latest episode in the Saga of the Stripey House. (I will look at one or two other new topics over the next week or two.)
As I have explained in previous blog posts on this bout of lengthy legal warfare, I have no intention of taking sides, but am interested in the legal issues that it throws up. If you refer back to the blog post I wrote on Monday 15 August 2016, you will see there my report on the issue that eventually came before the High Court last week, and prompted a fresh round of news stories, most of which entirely missed the point of these particular proceedings.
The LPA (Kensington & Chelsea – “RBKC”) had served a section 215 Notice on the owner of this property after the owner, Mrs Zipporah Lisle-Mainwaring, had painted the whole of the road frontage of the house in vertical red and white stripes. The Council required it to be repainted plain white. This was appealed to the magistrates’ court under section 217, who upheld the notice. A further appeal from there to the Crown Court was dismissed by HH Judge Johnson on 12 July 2016. It was this decision that was the subject of last week’s further appeal to the High Court.- R (Lisle-Mainwaring) v. Isleworth Crown Court and RBKC  EWHC 904 (Admin).
The appellant contended that section 215, which is normally used to require the tidying up of rubbish and detritus on unkempt open land, could not be used for this purpose. The amenity of an area would not normally be adversely affected by the external decoration of a building, but the Crown Court judge had been influenced by the fact that this was a house in a conservation area, and painting the house in red-and-white vertical stripes was, he said, unsightly. His honour had therefore held that the notice had been properly served under section 215 and should be upheld.
It was the appellant’s submission, both before the Crown Court and in the High Court, that a section 215 notice can be used only to require the repair of a property in disrepair which is adversely affecting the amenity of the area. She contended that amenity is adversely affected only in a case that raises issues of repair and maintenance. Therefore, she argued, mere painting of the building did not affect "the condition of land" within section 215.
HH Judge Johnson had been persuaded by the LPA that "amenity" is a broad concept, not defined by the section. He had therefore held that it is a question of judgement on the part of the LPA, taking a broad view of the condition of the site, the impact that this has on the surrounding area and also having regard to the scope of the council’s powers under section 215 (citing Berg v. Salford City Council  EWHC 2599 (Admin)). The "condition of land", his honour had determined, refers to the current state of the land, and a section 215 notice could therefore be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. Something that affects visual amenity, his honour held, is enough to justify issuing a section 215 notice.
The Crown Court appears to have been influenced by the fact that the subject property is in a conservation area. Painting the outside of a building would not in the ordinary way adversely affect amenity. However, his honour had observed that one of the key features of the conservation area in which the subject property was situated was its visual integrity, with only a limited range of neutral colours on painted buildings. Painting the property in garish stripes, he had held, was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly and, in his honour’s judgment, section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.
Notwithstanding these findings, Gilbart J allowed Mrs Lisle-Mainwaring’s appeal in the High Court last week.
At the heart of this case is the issue of statutory interpretation. Gilbart J took as his starting point the words of Lord Scarman in Pioneer Aggregates,when he said:
“ ............If the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole. ”
Gilbart J pointed out that the interpretation of Section 215 is not referable to, or affected by, the fact that a building in issue falls within a Conservation Area. On the other hand, the nature of the surrounding area may be relevant to its application, as consideration of the effects of amenity inevitably involves considering the effect of the condition of the land on its surroundings (bearing in mind that land includes a building - see s 336(1) of the 1990 Act). In that context, in Gilbart J’s judgment it is impermissible for a Magistrates’ or Crown Court sitting on an appeal to take account of the terms of planning policies or of the reason for the designation of a Conservation Area. A Magistrates’ Court or a Crown Court is not the appropriate forum to consider and determine the interpretation or application of planning policies. Had such planning merits been relevant, one would have expected the appellate route in the legislation to have been to the Secretary of State or his Inspectors, as it is in the case of refusal of planning permission. The concern of the Magistrates’ Court or of the Crown Court is to look solely at the facts.
Turning to section 215 itself, Gilbart J pointed out that the origins of this section go right back to the 1947 Act, when this provision was limited to cases where the amenity of the Council’s area, or of an adjoining area, was seriously injured by the condition of any garden, vacant site, or other open land in their area. The definition is now more broadly drawn, but is still limited to cases where the condition of the land (or building) adversely affects the character of the area.
What is meant by “condition of the land?” In his lordship’s judgment, one must be careful to avoid a catch-all definition that exceeds the proper bounds of the power. The purpose of section 215 is to deal with land or buildings whose condition, in the usual sense of that word, is such as to cause an adverse effect on amenity. The section is not designed to deal with questions of aesthetics or taste, nor to exercise a control over development which affects the choice of exterior finish. His lordship did not read the judgment in Berg v Salford City Council (relied on in the Crown Court) as supporting the argument that a local planning authority has the right to use section 215 to deal with a choice of finish which it dislikes.
One issue that has arisen in a number of cases of statutory interpretation is the relevance (or otherwise) of the heading or side note on the statute. (In the case of section 215, the heading to Chapter II of this Part of the Act reads: “Land adversely affecting amenity of neighbourhood”, and the heading to section 215 itself reads: “Power to require proper maintenance of land”.) The House of Lords has issued definitive guidance on the use of such material in R v Montila  UKHL 50. In the words of Lord Hope of Craighead:
“The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and sidenotes are included on the face of the Bill throughout its passage through the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book. .............
The headings and sidenotes are as much part of the contextual scene as these materials, and there is no logical reason why they should be treated differently. That the law has moved in this direction should occasion no surprise. .......... The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used.”
Gilbart J therefore considered the heading to section 215 in this context. It could not be doubted that “proper maintenance of land” is directed to the maintenance of the land, or in the case of a building, of its fabric. In his judgment, given that assistance, it was hard to see how one could criticise a building owner for a want of maintenance on the basis that s/he had chosen a colour scheme which was thought unattractive.
What affected the amenity of the area in this case, and was found to do so by the Crown Court, was the choice of colour scheme. This was, and was only, a matter of aesthetics. Parliament had not sought to prevent landowners, including those in Conservation Areas, from painting their houses in any colour or colours they wish (save where an Article 4 direction has been made).
In Gilbart J’s judgement, to allow an LPA to use section 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation would fall outside the intention and spirit of the Planning Code. An LPA has the power to limit permitted development rights or to discontinue lawful uses, but not without payment of compensation. Here, RBKC had ample steps available to it under the Planning Code which would have protected amenity, and would have exposed it to minimal cost. Under section 102 it could have issued a notice requiring the repainting of the building. Were such a notice upheld, the level of compensation would be the diminution of the interest in the land (section 115 of the 1990 Act). On the basis of RBKC’s own case, that diminution in value must have been effectively Nil. There would at worst be a claim for the cost of the repainting (section 115(3)).
Gilbart J was therefore of the view that it is an improper use of section 215 to use it to alter a lawful painting scheme, when there is no suggestion that there is any want of maintenance or repair in the land. It followed that the Notice and the decision of the Crown Court had to be quashed.
© MARTIN H GOODALL