Some Blog Post Postscripts

I’m conscious that these posts (this is the 149th) sometimes don’t age well – they try to capture a point in time and I don’t go back to change them unless I’ve got something really wrong or, worse still, there’s a misplaced apostrophe (they’re written on an ipad, on a train or at the kitchen table, as fast as my two fingers can move, so bear with).

So I thought I’d take the opportunity to note a few post-post updates…

CIL

Since my 15 December 2018 CIL Life post, the claimant in Giordano has applied to the Court of Appeal for permission to appeal, having been refused it by Lang J. Will 2019 see the Court of Appeal grapple for the first time with the joys of CIL liability?

Since my 9 November 2018 An Update On CIL: Reform Promised, Meanwhile Continuing & Increasingly Expensive Uncertainties post the Government published Reforming developer contributions: technical consultation on draft regulations (20 December 2018). The purpose of the consultation is to “ensure that the draft regulations deliver the intended policy changes and do not give rise to unforeseen consequences.” The consultation runs until 31 January 2019. Supporting guidance will accompany the final regulations.

As well as delivering on the proposals announced in October 2018 (I assume – I haven’t yet worked through some of the algebraic amendments), the draft regulations exempt starter homes from the levy, where the dwelling is sold to individuals whose total household income is no more than £80,000 (£90,000 in central London). The draft regulations also make a number of other clarifications to address various glitches.

The Trinity One litigation

My 8 September 2018 What If? The Trinity One Case post commented on a situation where a developer had sought to resist a claim for an affordable housing commuted payment on the ground that the basis for calculating the payment, the Total Cost Indicator figures previously published by the Housing Corporation, had ceased to exist. I mentioned that the position could change as a result of separate litigation underway in relation to the developer’s attempt to reduce its section 106 liability by way of the section 106BA/BC procedure.

Well, the position did indeed then change as a result of R (City of York Council) v Secretary of State (Kerr J, 22 October 2018). The case is of little general interest now given that it concerns the mechanism whereby developers could apply for modification or discharge of affordable housing obligations in a section 106 agreement on the basis that modification or discharge was required to achieve an economically viable development, which mechanism was brought to an end on 30 April 2016. But it will have been immense interest to the parties. Kerr J accepted Trinity One’s position that (1) its appeal against refusal of its section 106BA application was not out of time because it was sufficient for the application to have been made by 30 April 2016 and (2) the application could be made even after the development had been completed.

Land value capture

My 31 August 2018 Market Value Minus Hope Value = ? post was written whilst the House of Commons Communities and Local Government Select Committee was taking evidence in relation to its land value capture inquiry. The committee reported on 13 September 2018 and the Government’s response was published on 29 November 2018.

The Committee urged that the Government should consider appropriate mechanisms:

Our view is that there is scope for central and local government to claim a
greater proportion of land value increases through reforms to existing taxes and charges, improvements to compulsory purchase powers, or through new mechanisms of land value capture
.”

However, the response is a classic straight bat:

“The Government agrees that there is scope for central and local Government to claim a greater proportion of land value increases. The Government’s priority is delivery, in line with the Housing Minister’s commitments to provide more higher quality housing more quickly.


Changes to land value capture systems can have profound impacts on the land market in the short term, even where they are sensible for the longer term. Accordingly, the Government’s priority is to evolve the existing system of developer contributions to make them more transparent, efficient and accountable. It will of course continue to explore options for further reforms to better capture land value uplift, providing it can be assured that the short-run impact on land markets does not distract from delivering a better housing market
.”

Raynsford Review

My 9 June 2018 Judicious Review post commented on the interim report published by the Raynsford Review. The final report was published on 19 November 2018.

Public procurement

Finally, a long time ago, in my 6 September 2016 section 123…Go! post, I commented on Holgate J’s ruling in Faraday. That judgment has now been overturned in R (Faraday Development Limited) v West Berkshire Council (Court of Appeal, 14 November 2018) – see the Landmark Chambers summary.

2019

Plenty happened in planning law in 2018, despite much political focus being away from domestic issues. What will 2019 bring? Feel free to subscribe to this blog to get one quick take a week on what seems interesting to me at least. (And, shameless plug, do subscribe as well to Town Legal’s weekly updates of planning law cases and/or of Planning Inspectorate appeal decision letters).

Here’s to another year.

Simon Ricketts, 28 December 2018

Personal views, et cetera

The Office For Environmental Protection

And through it all the Office for Environmental Protection

A lot of love and affection

Whether I’m right or wrong..”

The Secretary of the Environment, Food and Rural Affairs, Michael Gove, presented the draft Environment (Principles and Governance) Bill to Parliament on 19 December 2018.

It is important that we understand the new regime that is proposed and start to form views as to whether it is fit for purpose, given that (1) its provisions will replace the environmental protections currently provided by way of EU law and that (2) it would be unfortunate if any new system were to introduce additional uncertainties, unnecessary requirements or causes of delay. What will the implications be for the English planning system?

Having said that we don’t yet have the full picture.

First, because (following a commitment given by the prime minister in July 2018) this draft Bill is going to be rolled into a wider Environment Bill in 2019 which, according to the draft Bill’s foreword by Michael Gove, “will contain specific measures to drive action on today’s crucial environmental issues: cleaning up our air, restoring and enhancing nature, improving waste management and resource efficiency, and managing our precious water resources better.”

Secondly, because this draft Bill does not yet include the Government’s commitment in the withdrawal agreement to “non regression” from current EU environmental laws (see my 16 November 2018 blog post Big EU News! (Latest CJEU Case on Appropriate Assessment & A Draft Withdrawal Agreement))although of course we wait to see what happens to that agreement, yet to be approved by Parliament.

Thirdly, because the provisions in the draft Bill are a framework for more detail to come forward by way of, for instance, a Government policy statement on environmental principles and a strategy to be prepared by the proposed Office for Environmental Protection setting out how it intends to exercise its functions. More on this later. What this draft Bill does do is discharge the requirement in section 16 of the EU (Withdrawal) Act 2018 for draft legislation to be published setting out the way in which environmental principles will be maintained post-Brexit, and the statutory body that will be established to police them (see my 18 September 2018 blog post Planning, Brexit).

Deal or no deal?

The intention is that this new legal regime should in place ready for when we leave the jurisdiction of EU law. Whilst if we have a withdrawal agreement this will be at the end of any transition period, we could be left with a potential hiatus in the case of a “no deal” Brexit. If there’s no deal there will be more urgently newsworthy issues than the implications of that situation for the environment (it was noteworthy that the publication of the draft Bill last week attracted no real attention from the mainstream media as far as I could see) but this was rightly a matter of concern for the House of Commons Environmental Audit Committee in its report on the Government’s 25 Year Plan for the Environment, to which the Government in its 6 November 2018 Response said this:

Government is confident of leaving the EU with a deal on an implementation period, which the EU has also confirmed it would like to agree. However, we are stepping up preparations within government and Defra to make sure that a new statutory body is in place as soon as is practically achievable in the event of a no deal exit, with the necessary powers to review and, if necessary, take enforcement action in respect of ongoing breaches of environmental law after the jurisdiction of the CJEU has ended. This will mean that the Government will be held accountable as under existing EU law from the day we leave the EU.

As mentioned previously, the EU (Withdrawal) Act will ensure existing EU environmental law continues to have effect in UK law after exit, providing businesses and stakeholders with maximum certainty as we leave the EU. Until the new body is in place, for example, existing mechanisms will continue to apply: the Parliamentary Ombudsman will process complaints about maladministration; and third parties will be able to apply for Judicial Review against government and public authorities.”

The draft Bill

If you click into the draft Bill – and please do because this blog post is not a complete summary – you will see that the draft legislation itself (34 clauses and a schedule) is sandwiched between:

⁃ Michael Gove’s foreword – the first paragraph will give you an idea of the tone:

Leaving the European Union is a once-in-a-lifetime opportunity for this country to help make our planet greener and cleaner, healthier and happier. We are seizing this chance to set a new direction for environmental protection and governance, in line with the government’s ambition to leave our environment in a better state than we inherited it.”

⁃ A long set of explanatory notes which include an explanation of the policy and legal background as well as a detailed commentary on the provisions of the draft Bill, including much by way of statements of what is intended that is absent from the draft Bill itself.

The foreword describes the two main strands of the draft Bill (although in the reverse order to how they are actually dealt with).

Firstly, we will establish a world-leading, statutory and independent environment body: the Office for Environmental Protection (OEP). This body will scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly implemented.

Secondly, we will establish a clear set of environmental principles, accompanied by a policy statement to make sure these principles are enshrined in the process of making and developing policies

Definitions

The “environment” can often have a broad meaning.

For instance in the Environmental Impact Assessment Directive the following factors need to be addressed in environmental impact assessment:

“(a) population and human health;
(b) biodiversity, […];
(c) land, soil, water, air and climate;
(d) material assets, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).”

However, in the draft Bill a much narrower definition is adopted:

“31 (2) Environmental matters are—

(a)  protecting the natural environment from the effects of human activity;

(b)  protecting people from the effects of human activity on the natural environment;

(c)  maintaining, restoring or enhancing the natural environment;

(d)  monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”

So this is just about the “natural environment“, defined in clause 30 as

“(a)  wild animals, plants and other living organisms,

(b)  their habitats,

(c)  land, water and air (except buildings or other structures and water or
air inside them),

and the natural systems, cycles and processes through which they interact.”

Environmental law” is even narrower, as it is defined as any legislative provision (other than legislation devolved to the Scottish Parliament, Welsh Assembly or, without the Secretary of State’s consent, the Northern Ireland Assembly) that is mainly concerned with an environmental matter and that is not concerned with an excluded matter – excluded matters are:

⁃ greenhouse gas emissions;

⁃ access to information;

⁃ the armed forces, defence or national security;

⁃ taxation, spending or the allocation of resources with government.

The Secretary of State can by regulations specify specific legislative provisions as falling within or outside the definition of “environmental law“.

The explanatory notes to the draft Bill say that, based on these provisions “most parts of legislation concerning the following matters, for example, would normally be considered to constitute environmental law:

⁃ air quality (although not indoor air quality);

⁃ water resources and quality;

⁃ marine, coastal or nature conservation;

⁃ waste management;

⁃ pollution;

⁃ contaminated land.

They go on to assert that the following matters would not normally constitute environmental law:

⁃ forestry;

⁃ flooding;

⁃ navigation;

⁃ town and country planning;

⁃ people’s enjoyment of or access to the natural environment;

⁃ cultural heritage;

⁃ animal welfare or sentience;

⁃ animal or plant health (including medicines and veterinary products);

⁃ health and safety at work.

“”Environmental principles” means the following principles—

(a)  the precautionary principle, so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  the principle of public access to environmental information,

(h)  the principle of public participation in environmental decision-making, and

(i)  the principle of access to justice in relation to environmental matters”

What the Secretary of State must do

The draft Bill provides that Secretary of State must prepare a policy statement on environmental principles. “The statement must explain how the environmental principles are to be interpreted and proportionately applied by Ministers of the Crown in making, developing and revising their policies.” It may also explain how ministers, “when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.” Ministers must “have regard” to the policy statement “when making, developing or revising policies dealt with by the statement“. Nothing in the statement shall require a minister to take (or to refrain from taking) any action if it “would have no significant environmental benefit” or “would be in any way disproportionate to the environmental benefit“.

Wow! Regardless of how robust or otherwise the policy statement turns out to be, count the get-outs in that last paragraph.

The draft Bill also provides that the Secretary of State must prepare an environmental improvement plan. The first one will be the current document entitled “A green future: our 25 year plan to improve the environment” (11 January 2018). It must be kept under review, with the next to be completed by 31 January 2023 and thereafter at least every five years.

The Office for Environmental Protection

Details of the membership, staffing and functions of this new body are set out in the schedule to the draft Bill.

The Office for Environmental Protection would monitor and report on environmental improvement plans, monitor the implementation of environmental law, and advise on proposed changes to environmental law. It would also have an important enforcement role.

It must prepare a strategy setting out how it intends to exercise its functions, including its complaints and enforcement policy, having regard to “the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases—

(a)  that relate to ongoing or recurrent conduct,

(b)  that relate to conduct that the OEP considers may cause (or has caused) significant damage to the natural environment or to human health, or

(c)  that the OEP considers may raise a point of environmental law of general public importance.”

The explanatory notes suggest that individual planning decisions will not be a focus of the OEP’s attention:

The definition of national implications will be for the OEP to determine, but this provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of primarily local concern. For example, an individual local planning or environmental permitting decision would not normally have national implications, whereas a matter with impacts or consequences which go beyond specific local areas or regions could have.

Anyone except public bodies can raise a complaint with the OEP where a public authority has failed to comply with environmental law. The public authority’s internal complaints procedure must first have been exhausted. The explanatory notes state:

A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures which will apply to their functions concerned with the implementation of environmental law.”

Complaints must be made within a year of the failure complained of, or within three months of when any internal complaints procedure was exhausted. The OEP “may” carry out an investigation if in its view the complaint indicates that the authority has failed to comply with environmental law and “the failure is serious“. It must provide to the authority a report as to whether it considers that the authority has failed to comply with environmental law, its reasoning and recommendations (whether for the authority or generally) in the light of its conclusions. There will be a process of information notices and decision notices. The authority receiving a decision notice must respond within two months or such later timescale is given, setting out whether it agrees with the notice and what steps it intends to take.

There is then a curious clause, clause 25, which deals with enforcement. Within three months of the deadline for the authority responding to the decision notice, the OEP can make an application to the High Court for judicial review. After any such proceedings, the relevant authority must publish a statement “that sets out the steps (if any) it intends to take in light of the outcome of those proceedings“.

So what would these proceedings seek to achieve? A declaration from the court or something more, some kind of enforcing order? Would the authority’s decision that is the subject of the complaint be liable to be quashed? If so, plainly concerns arise that decisions will no longer be able to be safely relied upon by parties where the usual judicial review period has expired – it would be worrying if decisions could be at risk for much longer via this elongated OEP complaints procedure.

Concluding thoughts

Without seeing the rest of what will be in the eventual Environment Bill, and without see the nature of any “non regression” commitment (if indeed it survives the current politics), I’m left feeling entirely unclear what practical role the mechanisms in the draft Bill will really have. There are certainly numerous questions:

⁃ Are the definition of environmental matters and environmental law too narrow?

⁃ Will the policy statement on environmental principles either be too weak or alternatively extend its reach into other regimes, for instance leading to the risk of causing confusion as to the application of principles set out in the National Planning Policy Framework?

⁃ Are there too many get-outs on the part of Government?

⁃ Will the OEP really be able to influence the Government’s approach when it comes to politically contentious issues? The Committee on Climate Change has not been a good precedent.

⁃ Is there confusion as to the role of the OEP when it comes to investigating possible breaches of environmental law, in that surely this is a matter for existing enforcement bodies such as the Environment Agency and for the courts?

And whilst from the explanatory notes the intention appears to be that this regime would not directly affect town and country planning, in reality matters such as environmental impact assessment, strategic environmental assessment and the treatment of protected nature conservation sites are central to the planning process, so it seems to me that unfortunately this isn’t a debate that planners and planning lawyers can ignore.

Simon Ricketts, 22 December 2018

Personal views, et cetera

CIL Life

One of the many frustrating aspects of the Community Infrastructure Levy regime is the confusing and limited nature of any right to appeal, which is particularly concerning given the varying interpretations given to the Regulations by different collecting authorities.

The first difficulty is working out what the appeal route in any particular situation is.

Appeals lie to the Valuation Office Agency in relation to:

⁃ Regulation 114 (where an interested person has asked the collecting authority for a review of the chargeable amount as is aggrieved at the decision on the review)

⁃ Regulation 115 (apportionment of liability)

⁃ Regulation 116 (charitable relief)

⁃ Regulation 116A (exemption for residential annexes)

⁃ Regulation 116B (exemption for self-build housing).

Recent VOA appeal decisions are here.

Appeals lie to the Planning Inspectorate in relation to:

⁃ Regulation 117 (decisions by the collecting authority to impose a surcharge)

⁃ Regulation 118 (determinations by the collecting authority of a deemed commencement date)

⁃ Regulation 119 (imposition by the collecting authority of a CIL stop notice).

Recent Planning Inspectorate appeal decisions are here.

A common theme in relation to the VOA and PINS appeals decisions is the frequency of misunderstandings as to the CIL regime on the part of those carrying out minor developments, the frequency of notices being missed or overlooked and forlorn attempts to avoid or reduce liability at a stage when development has already commenced and the horse has bolted.

Appeals can then proceed to the High Court if either of the parties considers that the decision of the VOA or PINS was wrong in law.

In relation to decisions of the collecting authority which are not listed above, for instance as to whether any exemption or relief should be granted other than charitable relief, the exemption for residential annexes and self-build housing – say social housing relief – the only possibility for challenge is for by way of an application to the High Court for judicial review. Not only is that a disproportionately cumbersome route for challenge when the issue could surely be dealt with by the VOA or PINS but, given that the possibility for claiming a relief or exemption is lost if it is not granted before development is commenced, few developers have the luxury of being able to wait for resolution of a disagreement over the relief or exemption before starting construction.

Surely all of this needs looking at again and simplifying as part of the Government’s current review.

I started thinking about all of this when reading what may be only the third High Court ruling in relation to CIL liability issues, R (Giordano Limited) v London Borough of Camden (Lang J, 13 December 2018). It’s a pretty straightforward case but I’m still not sure whether there was a VOA decision (and if not why the challenge was allowed to proceed) – maybe someone out there can help?

The issue was whether, in determining the relevant floorspace within the chargeable development, the test in Regulation 40 (7) (ii) was met as to whether there were “retained parts where the intended use following completion of the chargeable development is a use that is able to be carried on lawfully and permanently without further planning permission in that part on the day before planning permission first permits the chargeable development.” The floorspace represented by such parts wouldn’t attract CIL.

The claimant was intending to implement a planning permission for “change of use of third floor offices (class B1a) and vacant first and second floors (class B8) to create 3 x three bedroom flats.” Having received a liability notice for £547,419.09, it argued that the test was met because there was a previous planning permission which had been lawfully commenced for “change of use of third floor offices (class B1a) and vacant first and second floors (class B8) to create 6x two-bedroom flats (class C3), including rear extensions at first, second, third and fourth floors and associated external alterations.

Under the previous (pre-CIL) permission, the rear extension and alterations to the elevations of the building had been completed, and steel beams refitted internally, but the first, second and third floors were just stripped out, unpartitioned floors and were not yet capable of being used for residential purposes.

The claimant was attempting to rely on the floorspace deduction provided for in Regulation 40 (7) (ii) because it couldn’t show that any part of the building had been lawfully occupied for at least six months in the previous three years.

Lang J found that because the floorspace was currently incapable of being used for residential purposes it did not meet the test – a “potential” future use was not sufficient.

Stepping back, I would say that was a pretty large windfall for the local authority!

The only other two High Court cases I’m aware of are:

R (Orbital Park Swindon Limited) v Swindon District Council (Patterson J, 3 March 2016), where the claimant succeeded in mitigating its potential CIL liability by securing two separate planning permissions for its proposed works to a retail store, one of which permissions, for the introduction of additional space by way of a mezzanine, was not liable for CIL.

Patterson J had no difficulty with the deliberate CIL mitigation strategy adopted:

There is […] no manipulation of the system for any ulterior and/or illegal motive in accordance with the submissions of the defendant. Rather, the claimant has taken advantage of the legislative scheme which permits it to submit, in this case, two separate planning applications for each act of operational development that it wished to pursue. If it was not the intention of the legislature to permit that to occur then it is for the legislature to change it. At present, in my judgment, that is the consequence of the current statutory scheme.”

R (Hourhope Limited) v Shropshire Council (HHJ David Cooke, 2 March 2015), where the claimant failed in its submissions that the “in lawful use” requirement for deduction of floorspace would be met by anything less than actual use – it was not sufficient that the building (a former pub) was still available for lawful occupation, or that there was some residual storage of items left behind from when the pub had closed.

Is anyone aware of any others?

MCIL2

While talking about CIL, I thought it might be worth a brief post script about the Mayor of London’s MCIL2 (previously covered in part of my 9 November 2018 blog post An Update On CIL: Reform Promised, Meanwhile Continuing & Increasingly Expensive Uncertainties). The report of the examiner, Keith Holland, has now been published, recommending, with one minor modification, that the submitted charging schedule is appropriate, meaning that we can expect it to be adopted and take effect on 1 April 2019.

Despite the increasingly big question mark that there must be over whether Crossrail 2 (the basis for MCIL2) is politically deliverable at present (see my 1 July 2017 blog post Crossrail 2, Where Are You?) Mr Holland has no difficulty on that score:

In 2016 the National Infrastructure Commission recommended that Crossrail 2 be taken forward as a priority with the aim of opening in 2033. Costings for the project have recently been subject to an independent review. The results of the review are not yet public and at this stage there is no formal government approval for Crossrail 2. However, the need for new infrastructure to support the region’s growth was endorsed by the Secretary for State for Transport in July 2017 and there is no doubt that an extremely strong case can be made for Crossrail 2. Moreover, there is general endorsement for Crossrail 2 from those making representations.”

Of course many of us want to see Crossrail 2 proceed. But what if it doesn’t? That’s a lot of money being raised without a defined objective as to the transport projects to which it is to be applied and surely it would be wrong for it to end up being used, for instance, to address cost overruns in relation to Crossrail 1?

Simon Ricketts, 15 December 2018

Personal views, et cetera

Charles Alfred Meurer, Still life with money, pipe and letters, 1914

Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel?

Time now to look at some of the proposals to extend permitted development rights and to amend the Use Classes Order that are set out in the Planning Reform: Supporting the high street and increasing the delivery of new homes consultation paper published alongside the Autumn budget on 29 October 2018, and strongly criticised in Nick Raynsford’s final review of planning in England (November 2018):

The government’s announcement of its intention to extend even further this permissive ‘shadow’ planning process appears to reflect its model for the future direction of the system; and this has real implications for people and for the nature of both planning and planners. This reflects the tension recorded in evidence presented to the Review as to whether planning is a form of land licensing, which implies one set of skills and outcomes, or the much more complex and creative practice of shaping places with people to achieve sustainable development. The former task is like painting by numbers; the latter is like painting the Sistine Chapel. The difference in outcomes for people is equally stark.”

I’m not sure that sort of language (describing traditional planning applications as equivalent to painting the Sistine Chapel, a spectacularly inapt comparison, or indeed TCPA interim chief executive Hugh Ellis’ language in the accompanying press release: “‘Permitted development is toxic and leads to a type of inequality not seen in the Britain for over a century.“) is helpful to the debate.

It seems to me that the two key issues which need to be addressed in relation to permitted development rights that enable additional residential development (whether by way of conversion or construction) are the need for some control at a national or local level over room sizes and the need to provide a proportion of affordable housing whether on site or by way of financial contribution. Aside from those obvious issues (not addressed in the latest consultation paper), what is wrong with the Government looking to streamline development management processes where appropriate? Surely the question is where is the appropriate dividing line. Surely deemed planning permission should be for types of development where, given the public benefit in seeking to encourage them, the local planning authority should not need to question the principle of what is proposed up to a defined scale at a particular location (with more general powers to restrict rights available by way of Article 4 Direction) and where wider issues do not arise that cannot be resolved within a 56 day period for prior approval of specified aspects which are, as far as possible, not open to differing subjective views? Don’t we need to define some sort of principle along these lines before then considering different common types of development?

Allow greater change of use to support high streets to adapt and diversify

The Government proposes that uses in classes A1 (shops), A2 (financial and professional services), and A5 (hot food takeaways) (as well as uses as betting shops, pay day loan shops and laundrettes) should be allowed to change to “office use (B1)” (do they mean “office use” or do they mean B1 which also encompasses light industrial and R&D?). Hot food takeaways will be allowed to change to residential use (C1) as is already the case with the other uses referred to. There would be the requirement for prior approval, as with existing change of use permitted development rights.

Alongside this, the current “pop up” temporary permitted development rights to change the use from shops (A1) financial and professional services (A2), restaurants and cafes (A3), hot food takeaways (A5), offices (B1), non-residential institutions (D1), assembly and leisure uses (D2), betting shops and pay day loan shops to change to shops (A1) financial and professional services (A2), restaurants and cafes (A3) or offices (B1) will be extended from two years to three years. The temporary permitted development rights are proposed now to extend to changes to certain community uses, namely as a public library, exhibition hall, museum, clinic or health centre.

All of these proposals are put forward in the context of “supporting the high street” but no geographical limitation to the proposed changes is indicated that would prevent their application to any building in the relevant use, wherever it is located – shades of the original proposal in relation to the office to residential permitted development right, which was couched in terms of underused and empty office premises, when of course the right turned out not to have any such limitation. There is no indication of any floorspace cap. Might a department store, or supermarket, turn into an office? Nor indeed any cap on the proportion of any shopping area that might be converted to offices.

The document goes on to explore whether changes could also be made to the Use Classes Order, namely to:

“simplify the A1 shops use class to remove the current named uses and allow for a broader definition of uses for the sale, display or service to visiting members of the public.”

⁃ consider whether there is “scope for a new use class that provides for a mix of uses within the A1, A2 and A3 uses beyond that which is considered to be ancillary, which would support the diversification of high street businesses. This would replace the existing A1, A2 and A3 and result in a single use class to cover shops, financial and professional services, restaurants and cafes. This would mean that movement between these uses was no longer development and not a matter for the planning system to consider. It would bring greater flexibility but reduce the ability of communities and local planning authorities to distinguish between shops and restaurant uses“.

I agree that these parts of the Use Classes Order potentially need reform (within boundaries – is it really workable for there to be no distinction at all between A1 and A3?) but can’t this be as part of broader reform of the Order? The B, C and D classes all give rise to equivalent issues in that the old distinctions between uses have become increasingly difficult to apply.

A new permitted development right to support housing delivery by extending buildings upwards to create additional homes

This idea has been around since February 2016 without civil servants arriving at draft legislation, which is surely going to be the practical test.

Looking back, I covered this proposal most recently on 13 October 2018 in my blog post The Up Right, before that in my 17 March 2017 blog post Permitted Development: À La Recherche Du Temps Perdu and before that in my 15 June 2016 blog post Permitted Development: What Next? However, this latest version of the proposals is certainly the most far-reaching.

The permitted development right would allow additional storeys to be built above buildings in a wide range of uses, including residential, retail and offices. The Government indicates:

We want to explore whether there may also be other buildings whose use is compatible with the introduction of new homes. Given they are usually located in residential areas or high streets, would premises such as health centres and buildings used for community and leisure purposes be suitable for inclusion in the permitted development right? Out of town retail parks with a mix of shopping and leisure uses may also be suitable for upward extensions to provide additional homes.”

The consultation paper asks for “examples of how this permitted development right might be used in practice, and particularly of how the use of local design codes could help to encourage take up of the proposed right and improve the design quality and acceptability of upward extensions.”

It’s sounding complicated already. Then add the question of how far upwards the permitted development right could allow development to go. The consultation paper offers two alternatives, both of which could lead to significant factual disputes:

⁃ “A permitted development right could apply to the airspace above premises in a terrace of two or more joined properties where there is at least one higher building in the terrace. The roof of the premises extending upward would be no higher than the main roofline of the highest building in the existing terrace.”

⁃ “An alternative approach would be to permit upward extensions more widely to a height no higher than the prevailing roof height in the locality. While this may extend the proposed right to a greater number of properties, it would not be possible to define prevailing roofline in regulations. Therefore it would be a matter to be considered by the local authority as part of the prior approval. In doing so, the local authority would be able to define what it considered to be the prevailing roofline taking account of the local building types and heights and the extent of the area over which it should be determined.”

To add to the complications:

Where premises are not on level ground the impact of adding additional storeys can be significantly greater on the amenity of neighbouring premises, for example from overlooking and overshadowing and on the character of the area. We would welcome views on how best to take account of the topography of specific areas.”

The consultation paper proposes that there should be a maximum limit of five storeys from ground level for a building once extended (so the extension could be up to four storeys!). But there would be an even broader permitted development right for purpose built, free standing blocks of flats of over five storeys. “The government would also like a permitted development right to apply to such buildings, and is interested in views, including whether there should be a limit on the number of additional storeys that could be added, for example 5

The permitted development right would allow for the physical works required to construct or install additional storeys on a building. It could also, for instance, allow for “works within the curtilage where it is necessary for access to the additional new homes“.

The prior approval requirements would include appearance, ie “considering whether the proposed development is of good design, adds to the overall quality of the area over its lifetime, is visually attractive as a result of good architecture, responds to the local character and history of the area and maintains a strong sense of place, as set out in paragraph 127 of the National Planning Policy Framework. We expect prior approval on design to be granted where the design is in keeping with the existing design of the building.

Prior approval would also consider the impact of the development on the amenity of neighbouring premises, for example, from obscuring existing windows, reducing access to light or resulting in unacceptable impact on neighbours’ privacy from overlooking. It would also consider measures to mitigate these impacts, and enable the neighbours, including owners and occupiers of premises impacted, to comment on the proposal.

This is asking a lot of the 56 day prior approval process – sounds like a job for a traditional planning application to me.

Finally, yet another extension of the previous proposals: “We are seeking views on whether the proposed right to build upwards to create new homes should additionally allow householders to extend their own homes.”

This all sounds like it’s on a collision course with what the Government has set in train with the establishment of the ‘Building Better, Building Beautiful‘ Commission.

The permitted development right to install public call boxes and associated advertisement consent

I may come back in a later blog post to the Government’s proposal to remove permitted development rights for the installation of public call boxes. Since earlier blog posts on the subject, I’m now off-side from commenting in detail due to acting for an electronic communications code operator, but I would briefly note that the need for additional apparatus is about enabling electronic communications both present (3G, 4G and wifi) and future (5G) rather than just being about the old phone box concept and in that respect the terminology in Part 16 and the references in the Control of Advertisements Regulations probably do need updating without throwing the baby out with the bathwater.

Supporting housing delivery by allowing for the demolition of commercial buildings and redevelopment as residential

Well this proposal dates back to October 2015! As with the upwards extensions proposal, is it simply too difficult to draft in legislative form? The wording in the consultation paper is certainly tentative:

⁃ “It may be that a right focused on smaller sites may be more practical...

⁃ Despite the Government having set its face against affordable housing requirements in relation to the office to residential permitted development right, with this right it is said that the Government “would be interested in views on how developer contributions expected towards affordable housing and other infrastructure could be secured.

⁃ “We would welcome views as to the design of a right which could operate effectively to bring sites forward for redevelopment. The responses to these questions will inform further thinking and a more detailed consultation would follow.”

To be provocative, if additional storeys of residential development are to have deemed permission, and if new residential developments are to have deemed permission if they replace commercial buildings, what is the logic for not granting deemed permission for residential development on brownfield land more generally – what is inherently more complex or controversial arising from that than from the development that could come forward under these new rights? Why the prior complications with brownfield land, but not with these other rights, of land having to be placed by a local planning authority on a register before there is permission in principle?

The deadline for consultation responses is 14 January 2019.

Simon Ricketts, 8 December 2018

Personal views, et cetera

Is It A Listed Building? No Statuary Right Of Appeal

Or, before you sell your garden ornaments best to check that they aren’t listed buildings.

I missed the 50th anniversary, on 25 October 2018, of the enactment of the Town and Country Planning Act 1968. Part V of the Act introduced our modern system of listed buildings, and the prohibition on the demolition of any listed building, or its alteration/extension in any manner that would affect its character as a building of special architectural or historic interest, without listed building consent. The background to the provisions, which replaced a much weaker system of building preservation notices, is well described in an Institute of Historic Building Conservation blog post.

I was only reminded of the anniversary by an interesting ruling by the Court of Appeal, Dill v Secretary of State (Court of Appeal, 26 November 2018).

The facts are odd. Two early 18th century limestone piers, each surmounted by a lead urn, were moved to Idlicote House, a grade II listed building, in 1973 by the appellant’s father. The two sets of piers and urns were separately grade II listed in 1986. The appellant came into ownership of Idlicote House on 1993, didn’t appreciate that the items were listed and sold them abroad in 2009 for £55,000. He does not know where they are now. Stratford-On-Avon District Council found about this in 2014. Correspondence ensued. The appellant made an application for retrospective listed building consent to remove the items, which was refused in 2016. The council issued a listed building enforcement notice requiring their reinstatement and the appellant appealed against both the refusal and the notice.

An inspector dismissed the appeals and in so doing rejected submissions that it was open to him to conclude that they were not listed buildings. The decision was challenged and Singh J agreed with the inspector at first instance.

Singh J’s judgment (28 September 2017) contains some interesting additional factual context (as well as usefully quoting from most of the inspector’s report). These items had previously been at four other country houses before being placed at Idlicote House:

The items were originally at Wrest Park in Bedfordshire. In 1939 Mr J G Murray sold Wrest Park and took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire. In 1954-5, following the death of Mr Murray, the estate was left to a trust, with his grandson, Major R P G Dill, being a lifetime beneficiary. In 1955-6, under Major Dill, Coles Park was sold and the items went with him to the Dower House, Buntingford. Major Dill sold Dower House in 1962 and moved to Badgers Farm, Idlicote. Again the items went with him. He positioned them at Badgers Farm. The farmhouse at Badgers Farm was listed in 1966 but the list description makes no mention of the items.

In 1973 Major Dill sold Badgers Farm and bought Idlicote House. These items followed him. These two items were positioned on either side of a path in the gardens which had served as the front drive to the house since the 1820s. No alteration was made to the garden design to accommodate the items.”

Back to the Court of Appeal. The judgment of Lord Justice Hickinbottom goes through the statutory regime, noting that “building” isn’t defined in the Listed Buildings Act but rather in the Town and Country Planning Act 1990. It “includes any structure or erection, and any part of a building, as so defined, but does not include plant and machinery comprised within a building“.

Hickinbottom LJ agrees with the inspector and Singh J: the decision-maker cannot determine that something on the list is not in fact a building. The list is determinative. Whilst the question as to whether something is a building does involve questions as to the purpose and degree of annexation to the land or property, such issues eg as to the application of property law concepts (see London Borough of Tower Hamlets v London Borough of Bromley (Norris J, 8 July 2015) – the Henry Moore’s Old Flo statue case) or the approach taken to what was part of a building in other rating and planning cases (eg see Skerrits of Nottingham Limited v Secretary of State (Court of Appeal, 22 March 2000) – marquee in grounds of listed building) were not relevant here. He separates out the three ways in which something may qualify as a listed building:

⁃ by being listed in its own right, as here.

⁃ by being an object or structure fixed to a listed building.

⁃ by being an object or structure which lies within the curtilage of a listed building.

So, Mr Dill now has a problem. How to comply with a listed building enforcement notice, and potential criminal sanctions, when no one knows where in the world these objects now are.

The case is a reminder of a couple of things:

⁃ The absence of a time limit for service of listed building enforcement notices, which when taken with the criminal offence arising from doing works without listed building consent, leads to complications for those of us carrying out legal due diligence in relation to transactions concerning listed buildings.

⁃ The curiosity of the definition of “building” which enables a wide range of structures or erections to become “listed buildings“.

By coincidence DCMS on 19 November 2018 updated its principles for selection of listed buildings. More on that in due course perhaps (particularly on the implications for modern buildings) but in the meantime the advice in paragraph 5 is relevant to this blog post:

For the purposes of listing, a ‘building’ includes any structure or erection and a ‘listed building’ includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1st July 1948, unless the list entry expressly excludes such things. In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act.

The Dill case reminds us that in practice the stage to argue that something is not a “building” is obviously when listing is being considered, not when you are facing enforcement or making a listed building consent application. Surely listing of such itinerant objects, with no historical connection with Idlicote House, would not have been an obvious procedure to follow? Of course applications for de-listing can also be made when it is considered that the listing was in error in some way, but the Historic England guidance warns that applications for de-listing will not normally be considered when enforcement is in hand – so perhaps not an easy route for Mr Dill.

Simon Ricketts, 1 December 2018

Personal views, et cetera

A Helpful Case On The Scope Of Section 73

I was pleased to read Finney v Welsh Ministers (Sir Wyn Williams, 15 November 2018), or the Rhydcwmerau wind turbines case, as I hope we’ll call it for ease.

Sir Wyn Williams provides the answer to a question I raised in my 3 March 2018 blog post, A Change Is Gonna Come (But Should It Really Need A Fresh Planning Permission?): can you use a section 73 application when the changes to conditions that you are seeking also entail a change to the description of development on the previous permission?

The implied answer from Singh J in R (Wet Finishing Works Limited) v Taunton Deane Borough Council (20 June 2017) was yes but the point was not specifically addressed in his judgment. Sir Wyn Williams has to deal with the point head-on as it was one of the two grounds of challenge.

In the Rhydcwmerau wind turbines case there was a planning permission granted where the description of the development that was thereby approved was as follows:

Installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hardstandings, substation, upgraded site entrance and temporary construction compound upon a site situated to the north of the village of Rhydcwmerau, Carmarthenshire

The description of development appears simply to have been incorporated in the permission by reference to the description of development on the application form, but I don’t think anything turns on that.

The permission was subject to a number of conditions. Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and documents which were specified. One such was a “figure” described as “3.1 Typical Wind Turbine Elevation 1:500 @ A3“. It is common ground that this showed a wind turbine with a tip height of 100m.”

The promoter of the project then made an application under section 73 of the Town and Country Planning Act 1990 to substitute plan 3.1 with a plan showing a wind turbine with a tip height of 125m. The local planning authority treated the application as valid but refused it. An inspector allowed the promoter’s appeal.

The claimant challenged the inspector’s decision:

“It is argued that the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a “fundamental alteration” of the prior permission“.

On the first ground of challenge, Sir Wyn Williams held that “the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.” The section 73 permission was not unlawful simply because necessarily the permission entailed a change to the original description of development which had referred to a tip height of 100m rather than 125m.

He also referred to the test formulated by Sullivan J in R v Coventry City Council, ex p. Arrowcroft Group plc (2001): “the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”

Applying that test to the decision letter:

Although I am not entirely convinced that the Inspector had in mind that it was necessary for her to consider in terms whether the variation sought would create a fundamental alteration to the original proposal I am prepared to conclude, on balance, that she was aware of that obligation and considered it.”

But even if she had not, it was highly likely that the decision would have been the same. “I have no doubt that had the Inspector considered whether the variation to the condition would have constituted a fundamental alteration to the original proposal she would have concluded that it did not. The whole tenor of her decision letter leads inexorably, in my judgment, to that conclusion as a careful reading of it makes abundantly clear.”

So, a pretty clear signpost for us all to follow – particularly a number of local planning authorities which presently take a plainly too restrictive approach to the use of section 73.

Simon Ricketts, 24 November 2018

Personal views, et cetera

Town Library, New Wing: Decision Letters

Town announcement

One of the joys of starting up Town Legal with colleagues has been the opportunity to play with technology so as to see how up to date information relevant to planners and planning lawyers can be made more readily available, with a little bit of focus on where the gaps are. We have constantly asked ourselves what may be useful to increase people’s understanding and ability to predict outcomes, but which may not be fully accessible?

That was the rationale for the Planning Court Judgments weekly update (with its click through to a full, searchable, list of Planning Court judgments since 2014), announced in my 2 August 2018 blog post . The update now has around 370 subscribers. The latest update, for the week ending 16 November 2018, is at this link. Free subscription is still available via this link. I am really grateful for the hard work of Susie Herbert and other Town associates in preparing, to a weekly deadline, the various case summaries.

We can now announce another Town Library service: a weekly list of decision letters issued in the preceding week by the Secretary of State or Planning Inspectorate. The list comprises section 77 and 78 appeals in relation to proposals for major development that have been determined following a public inquiry, rather than informal hearing or written representations. The latest update, for the week ending 16 November 2018 is at this link. Free subscription is available via this link.

This latest service goes beyond the Planning Court judgments service in that it is fully automated. It was again devised by us in association with legal engineers Wavelength Law, drawing upon the Planning Inspectorate’s website. We are grateful to the Planning Inspectorate for its online service and hope that our weekly updates will assist people both in accessing its content and in generally gaining a better understanding of likely appeal outcomes. Not part of the free update service but with Wavelength’s help we can re-cut the PINS data (which we have in a searchable database going back to 2012) in all manner of ways for individual requirements – if this would be useful for a particular project that we are acting on do let me know – or another Town partner.

Please bear with us as we continue to experiment with update formats and continue to iron out various issues but, as always, comments and suggestions are very welcome. We have plenty more strands of development underway.

I have always loved libraries.

Simon Ricketts, 22 November 2018

Personal views, et cetera