Use Classes Order – SIMONICITY

Dead Cert?

This week I wasn’t sure whether to write about the Government’s 21 February 2023 response to its consultation on the proposed biodiversity gain regulations or about the Government’s 23 February 2023 action plan for reforms to the nationally significant infrastructure projects process.

But both of these documents, important as they are, are largely self-explanatory – and have been covered in various summaries which are out there. So I ditched those ideas.

Instead I will focus on another interesting recent case, involving one of my favourite buildings (a “megastructure” according to the judge): the Brunswick Centre, Camden.

Lazari Properties 2 Limited v Secretary of State (Lane J, 21 February 2023) is nothing to do with the architecture of the building, but rather the architecture of the planning system itself. Whilst only a preliminary ruling by Lane J as to whether there were arguable grounds of challenge, some interesting practical issues arise as to:

⁃ the need for precision in framing lawful development certificate applications

⁃ the proper interpretation of conditions restricting uses by reference to superseded Use Classes Order descriptions.

The centre “contains 2 linked blocks of 560 flats above a shopping centre with rows of shops at raised ground level. The shops (which include a supermarket) are situated over a basement, which contains car parking, a service area and a cinema. Ramps and steps provide access to the central boulevard from several surrounding streets.”

Uses in the building are controlled in part by condition 3 of a planning permission in 2003 for the centre’s refurbishment:

“”Up to a maximum of 40 percent of the retail floorspace, equating to 3386m2 (excluding the supermarket and eye-catcher), is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.”

Old use classes A2 and A3 are now of course subsumed within the new use class E. So, given that retail uses also fall within class E, does that mean that this condition no longer has any effect such that the whole of the retail floorspace can now be used for any purposes falling within class E?

The owner submitted an application to the local planning application for a certificate of lawfulness of existing use or development (“CLEUD”), with a red line around the whole of the centre and with the proposal described as follows:

“Application to certify that the existing use of the Brunswick Shopping Centre within Class E and without compliance with Condition 3 of Planning Permission: PSX0104561 is lawful”.

Uh oh. I wrote about the perils and constraints of CLEUDs and CLOPUDs (certificates of lawfulness of proposed use or development) in my 12 June 2021 blog post I’m Sorry I Haven’t A CLEUD.

Quite aside from the legal question arising as to whether the references to classes A2 and A3 in the condition should now be read as references to class E, was the description of the existing use sufficiently precise?

The London Borough of Camden didn’t determine the application within the statutory period and the owner appealed. The inspector dismissed the appeal in a decision letter dated 27 July 2022:

⁃ the reference to use class E was not a sufficiently precise description of the existing uses of the units within the centre. Whilst the owner’s objective was clearly to establish that class E use of any of the units would not be in breach of the condition, that was not the role of lawful development certificates: “It is a long established principle that LDCs enable owners and others to ascertain whether specific uses, operations or other activities are or would be lawful. They do not enable anyone to ask the general question, “what is or would be lawful?“

⁃ the reference simply to the whole of the centre, which encompassed various uses plainly not falling within class E, was not sufficiently precise, and was not remedied by a plan excluding defined areas.

⁃ In accordance with case law, condition 3 was to be interpreted having regard to the natural and ordinary meaning of the words used, viewed in their particular context (statutory or otherwise) and in the light of common sense. The inspector considered that the purpose of Condition 3 is “clear from its stated reason. It is to safeguard the retail function and character of the Brunswick Centre. It does this by stating a maximum amount of floorspace that is permitted to be used for A2 and A3 purposes.

“Condition 3 only makes sense if there is an implied exclusion of the Use Classes Order or else it has no purpose. The purpose of Condition 3 is clear and it remains enforceable since the uses that are restricted are known, those being the uses set out as falling within Class A2 and A3 when planning permission was granted.”

Both parties made costs applications against the other. The inspector rejected the owner’s costs application and made a partial award of costs in favour of the council.

So what did Lane J make of all this? Without giving any reasoning, he considered that it was arguable that condition 3 was not to be interpreted in the way arrived at by the inspector. However, he found that the inspector’s conclusions as to the inadequacy of simply describing the existing use by reference to class E, as to the inadequacy of the submitted plans and as to costs were all unarguably correct.

An interesting procedural question as to why it was still appropriate for the interpretation question (referred to as grounds 1 and 2) to go to a full hearing, given the fundamental flaws in the formulation of the CLEUD application and appeal:

“I must accordingly explain why I have concluded that, on the facts of the present case, permission should be granted for grounds 1 and 2 to be determined at a substantive hearing. I accept Mr Taylor’s submission that grounds 1 and 2 are, in effect, severable and that there is a real purpose in permitting the claimant to argue them substantively, so that the High Court can reach a decision on the correct interpretation of condition 3. Given that a fresh application by the claimant under section 191 is highly likely, if not inevitable, and that condition 3 is likely to be relevant to the determination of any such application, it plainly makes sense that the issue of interpretation is settled before such a fresh application is made.

I accept that, as matters stand, the claimant has not sought a declaration, which will be needed on the above basis, given that the inspector’s decision should not be quashed. The claimant will need to do so. I do not, however, consider that the claimant’s failure, so far, to seek a declaration should be destructive of its case in respect of grounds 1 and 2.”

Like the judge, I’m not sure that the inspector’s conclusions in respect of condition 3 were necessarily correct and it will be useful to have a final ruling in due course on the issue, which may potentially assist with other interpretation questions arising from the introduction of class E in situations where conditions contain restrictions based on previous use classes. But I’m surprised that the case has gone so far on the basis of such a loose approach to the CLEUD process. Might a simpler approach have been to show all the retail units on a plan and to make a CLOPUD application proposing retail use in respect of each of them? That would have indirectly led to a ruling as to whether condition 3 was legally effective. But as it turns out, maybe the eventual outcome of these proceedings will end up getting to the same position for the owner, albeit at additional expense for all concerned.

Incidentally, if you would like much better summaries than this of planning law cases on a weekly basis, do subscribe to our free Town Library service if you haven’t done so already. Each week my Town Legal colleagues prepare summarise of any rulings handed down the previous week by the Planning Court, together with subsequent appeal rulings. Subscribe here.

Simon Ricketts, 25 February 2023

Personal views, et cetera

Photo of Brunswick Centre courtesy of Wikipedia

Live/Work, Repeat

Do you get that blurry feeling too?

I could have been dictating this piece for the overnight typing pool, slipping into the firm’s library to check the case references and tricky spellings, being brought printouts of drafts by a messenger in a firm-logo-branded shirt before the desktop publishing department do their weird stuff on The Firm’s Only Apple Mac.

Those were the days, working in a law factory, as we used dismissively to call our daytime workplace over an overpriced drink in a city bar after hours, incommunicado until the next morning.

Or I could be writing it at home in an hour or two of self-discipline away from an overnight stream of emails and an intertwined social media timeline of planning, law, politics, music, football and hopefully an amusing cat video or ten.

I don’t even know whether writing this blog is work or not.

We’re all grappling more than ever before with questions such as:

⁃ Where are the boundaries between work and home?

⁃ What is the continuing role for formal workspaces when the necessary components for core “office” work are simply a laptop, mobile phone and quiet space; for lockup shops when everyone can be their own etsy or e-bay business, or for studios and workshops where the work carried out may largely rely on nothing more than manual dexterity plus some tech?

⁃ In an age where the average household is having multiple home deliveries of all sorts of goods, what level of business activity is to be regarded as normal or appropriate for a residential area? Can you even generalise – or does it depend on the nature of the area and its dwellings?

⁃ Is this all a Good thing or a Bad thing and to what extent is it any business of the planning system? If it was the industrial revolution that brought about such a sharp delineation between where we live and where we work, are we now in a post-industrial revolution and are there indeed environmental, social and economic benefits to a greater degree of community, as opposed to commuter, living? How to reinvent the office so that it is about unique human communication, rather than as a left behind place, its complex physical functions, systems and gadgets long outsourced to laptop and phone?

Two recent cases led to these thoughts. The main one was Sage v Secretary of State (Sir Duncan Ouseley, 28 October 2021) (I know, one planning law Sage case was confusing enough and here comes another). I very much recommend and won’t repeat our Town Library case summary written by my colleague Stephanie Bruce-Smith (work-related plug: you can still subscribe for free to these brilliant weekly summaries by the Town Legal team of all Planning Court and relevant appellate judgments here).

Sir Duncan Ouseley in his ruling considers whether the advice in the Government’s Planning Practice Guidance is correct as to when planning permission is needed “to homework or run a business from home”. The guidance says this:

“Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business use does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to noticeable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.”

Sound sensible to you? Then be wary, because the judge disagreed. He considered that the passage in brackets at the end of the first sentence is expressed too widely and also that the question of environmental impact (the matters referred to in the second sentence) is of limited relevance.

The facts as summarised by the judge were as follows:

“Mr Sage, lives in a two-storey semi-detached house with a garden, about 20 metres deep, in a residential street in a primarily residential area of Beckenham in the London Borough of Bromley. At the rear of his garden is a timber out-building, with windows, which is used in part as a garden shed, and in part as a gym. Mr Sage keeps gym equipment there including a treadmill, cross-trainer, weights, balls, bench, and punch bag. It has no toilet or showering facilities. The garden, and the shed, can be accessed via a passage to the side of the house, shared with the neighbouring property. Mr Sage uses the gym himself and he permits family and friends to use it. He has used the gym part of the shed since 2016 for his business as a personal trainer, for paying clients, who attend at the premises.”

Bromley had refused Mr Sage’s application for a certificate of lawful use, disagreeing that either the use was ancillary to the primary residential use of his property or that that the use fell within section 55 (2)(d) of the Town and Country Planning Act 1990: “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;…“

(In passing, it’s not just about working from home, be careful about your hobbies: “Wallington v Secretary of State for Wales (1991) 62 P&CR 150, CA, concerned an enforcement notice alleging that the keeping of 44 dogs as a hobby was not incidental to the use of a dwelling house “as such”, that is as a dwellinghouse. The notice was upheld and the dogs limited to 6. The fact that the owner genuinely regarded this as a hobby “cannot possibly suffice to prove by itself” that the purpose was incidental to the enjoyment of the dwelling house as a dwellinghouse. Significance had to be given to the words “as such”.”)

An inspector dismissed Mr Sage’s appeal and he challenged that decision.

“This latter Guidance suffers from two main problems. The first question is what use is being made of the land, including its ancillary uses, and, in the case of a dwelling house, whether any purposes to which it is put are reasonably incidental to its use as a dwelling house. The passage in brackets at the end of the first sentence of this guidance is correct but too readily capable of leading to the concept, of a material change of use or a purpose incidental to the use of dwellinghouse as such, being misunderstood. This is because a business use in a dwellinghouse may well be secondary to the primary residential use of the dwellinghouse; but may still create a material change of use, be for a non-incidental purpose. A secondary use will involve a material change of use of the dwellinghouse to a mixed or composite use, as was found to have occurred here, unless it is so secondary that it is merely ancillary to the residential use as a dwelling house such that there is still just that one use; or in the case of a dwelling house, the purpose at issue is reasonably incidental to the enjoyment of the dwelling house as such. This is a crucial point which the Guidance ignores or blurs badly.

Second, a material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use. Environmental impact can be relevant as evidence that a material change has occurred, because a use of the new character may be capable of yielding environmental impacts or have done so already. The Guidance as written is apt to mislead as to what the real question is, and as to the true but limited relevance of environmental impact.

Once the use of the outbuilding for the business of a personal training studio for paying visitors is accepted as an ancillary to or reasonably incidental to the use of a dwellinghouse as such, the difficulty of measuring the materiality of a change in the scale of the activities or their mode of operation points to the limitations of using environmental impact as the measures not of impact but of materiality of the change of use. It appears quite difficult to contend that using the garden for exercise, warming up and warming down, post-exercise conversation, refreshment, or using the outbuilding with the doors open in hotter weather or if the air-conditioning is inadequate, or enabling visitors to traipse to the lavatory and back, involves a material change of use, when use of the outbuilding for 6 days a week for personal training did not. This is the more so if others, who are not commercial clients, do so. It is difficult to see that an increase in numbers and disturbance would be of itself a material change of use. The neighbours might change; a new owner of the house could intensify the use. There could be, as here, a local difference of view about the effect of the business. This all is grist to the mill of the limitations of the role of environmental impact in resolving the materiality of a change in use and the incidental nature of the additional use. The Guidance is far too loose to reflect the true focus of the question at issue.”

There is then this final fascinating passage:

“I also appreciate that there are many forms of service offered within a dwelling house, from private tuition, including in music or singing, child minding, medical services. I accept that what is normal or reasonably incidental now may have shifted with changes in work habits as a result of Covid. This is not relevant to this particular case. And an important distinction would have to be drawn between working from home, where work-related visitors were few and far between, and working from home which took the form of routine and frequent work-related visitors, notably customers. However, the question of how much actual noise the music or maths teacher and pupil make, how much actual disturbance is generated by young children or dogs being minded, is not the touchstone of the materiality of the change of use, although it may point to a nature or degree of use which is materially different from that of a dwellinghouse or its incidental purposes. One is a residential use, and the other is a residential and commercial use. Of course, they both may vary in their intensity and impact, but one cannot be controlled through the need for planning permission and the other can and should be.”

How is this distinction really to be drawn, clearly, in practice?

The second case is a judgment of the Central London County Court. AHGR Ltd v Kane Laverack (HHJ Johns QC, 27 September 2021). The judgment is unreported but summarised in County Court at Central London considers Live/Work units (Landmark chambers, 27 October 2021). Nostalgia time for some of us – “live/work units” are now a rather outmoded concept but were once given favourable policy status by certain London authorities in specific areas.

In leafing through books in the library (ok, by googling) I came across this excellent 2005 report by Andrew Lainton prepared for the London Borough of Hammersmith and Fulham, Does Live/work? Problems and Issues concerning Live/Work Development in London:

“ The concept took off in London during the late 1990s. The concept was initially welcomed by many planning officers as they saw it meeting multiple employment and housing objectives. Initially proposals were by individual and artists, however developers soon became involved as it became seen as a means of securing planning permission in areas where existing zonings made development difficult.

There was a gradual disillusionment with the concept and many planners began to see the concept as a ‘fig leaf’ for primarily housing schemes. Policies in most boroughs have significantly tightened.

Some developers are quite open that Live/Work is simply a ruse for securing planning permission. There is widespread evidence of large scale residential reversion and little evidence of continued employment occupancy, other than in areas where there is a strong market for small offices where units are more likely to revert to employment use. The search for examples of good ‘work/ live’ practice has proven a largely barren one.”

AHGR was a landlord and tenant case which concerned the proper interpretation of a user clause in a lease required use “as a live/work unit in accordance with the terms and conditions of the planning permission”.

Excitingly for us lawyers, but leading to a rather curious outcome, it revolved around the interpretation of “/“: does “live/work” means “live and work” or “live and/or work”? A salutary lesson for users of the dreaded slash…

To quote from the summary:

“The live/work unit had been built out as a flat, without apparent regard to the requirements set out in building regulations for commercial premises at the time. The user clause required use “as a live/work unit in accordance with the terms and conditions of the planning permission”. The Defendants (a barrister and doctor) had resided in the live/work unit primarily as their home, albeit that they had undertaken various work-related activities in their open-plan living space and spare room, such as writing books, publishing papers, and undertaking triaging and consultation of patients by phone. There was no designated work space in the unit and despite inspections over the years, no objections had been raised by the landlord’s agents to such use.”

“After a 4 day trial, HHJ Johns QC dismissed the claim. He concluded the planning permission meant “live and/or work”. The construction of the planning permission was central to the construction of the leasehold covenant and particular regard was had to: (i) the planning policy background to the permission, (ii) the absence of conditions, (iii) the fact that the plans marked the whole area as live/work, (iv) the fact that other plans referred to in the permission used a “/” to indicate “and/or”, (v) the planning framework (including the fact that a breach of planning control can have criminal sanctions) (vi) the fact that a “live and/or work” construction still serves a purpose of allowing a business to be run from the premises; and (vii) how the planning permission had been implemented. A 1999 Supplementary Planning Guidance document, which was relied on by the Claimant, did not alter that interpretation.

The Judge also held that if the clause had mandated work, the planning permission did not require running a business from the unit and the activities undertaken by the Defendants were sufficient.”

Given that the whole purpose of “live/work units” was to require an element of employment use, rather than just use for residential purposes the judgment does not sit well with any purposive approach to interpretation of the documents but life, and the nature of work, has certainly moved on.

I wrote a long time ago about the many definitional problems within the Use Classes Order C-classes, in my 1 July 2016 blog post Time To Review The “C” Use Classes? Those problems are multiplying. What new boundary lines do we need, if any?

Simon Ricketts, 6 November 2021

Personal views, et cetera

Our clubhouse session this Tuesday at 6pm will be another good one: CIL horror stories. Story tellers will include Tom Dobson, Zenab Hearn, Claire Petricca-Riding, Professor Samer Bagaeen and Graham Cridland. Link here.

E = C3

Or, The Theory Of Residential-Rather-Than-Retail-Activity.

MHCLG’s consultation paper Supporting housing delivery and public service infrastructure (3 December 2020, consultation deadline 28 January 2021) sets out various proposed new permitted development rights, but, in what has been a disastrous week for traditional retail chains, guess which proposal has attracted the most attention?

The new class E was introduced into the Use Classes Order in July 2020 (see my 24 July 2020 blog post E Is For Economy) and took effect from 1 September 2020, forming a new, amalgamated commercial, business and service use class that includes the old A1 (with small exceptions), A2, A3, B1, some D1 and some D2).

It was always anticipated that new permitted development rights would be subsequently introduced that allowed changes from the new class E without the need for planning permission. At the moment, until 31 July 2021 the existing permitted development rights apply to whatever the relevant use would have been categorised as before class E was introduced.

But in updating the existing development rights so that they apply to the new class E from 1 August 2021, the Government now intends to allow significantly greater freedoms.

“It is proposed that the right would allow for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

So, there will for the first time be the right to convert restaurants, indoor sports centres, creches and so on to residential use.

But the radical part of the proposal is that there should be no size limit on the scale of the conversions allowed:

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

Whilst there is currently no size limit for conversion of offices, for retail and light industrial the limits are currently small (150 sq m and 500 sq m respectively). The new right would enable change of use of the very largest shops and light industrial buildings to residential, subject to similar prior approval requirements as presently apply. Whilst permitted development rights do not apply to development that would require environmental impact assessment, it will surely be very rare that the conversion of a building, however large, would require environmental impact assessment.

How better, it might be thought, both to find new uses for surplus floorspace and to add to housing stock? But of course such a right is going to have a huge effect on the real estate market and could itself help to accelerate the loss of retail where greater value can be extracted by residential conversion.

Unlike with most permitted development rights, this right would also apply in conservation areas. “However, in recognition of the conservation value that retail frontage can bring to conservation areas the right would allow for prior approval of the impact of the loss of the ground floor use to residential.”

These are proposed to be the necessary prior approvals:

“Similar to other permitted development rights for the change of use to residential:

• flooding, to ensure residential development does not take place in areas of high flood risk

• transport, particularly to ensure safe site access

• contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings, which will endanger the health of future residents

• To ensure appropriate living conditions for residents:

• the impacts of noise from existing commercial premises on the intended occupiers of the development

• the provision of adequate natural light in all habitable rooms

• fire safety, to ensure consideration and plans to mitigate risk to residents from fire

• To ensure new homes are in suitable locations:

• the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management”

The usual concerns about the permitted development process remain, but now writ large, for instance:

⁃ How can the Government continue to justify not imposing on these permitted development schemes the requirements that would be applied by way of the section 106 planning obligations process to schemes that come forward by way of traditional planning application? Why no affordable housing requirements, or contributions to schools and other social infrastructure, and how is this fair for those developers struggling to deliver traditional projects in the face of policy requirements that permitted development schemes neatly sidestep?

⁃ How will associated applications for planning permission for external works to these buildings be dealt with? Coping with the fenestration, M&E and external aesthetic requirements arising from conversion of an office building is one thing, but imagine the challenges faced by the developer of a department store, supermarket or light industrial unit. And what of its curtilage? What principles should an authority adopt in determining such an application, so that adequate controls are maintained without making the right meaningless by giving the authority a de facto veto?

⁃ Aside from increasing their use of article 4 directions, how can authorities prevent the conversion of buildings in plainly unsustainable locations?

⁃ How can an authority influence its area by way of its development plan policies, when the authority is left with so little control?

⁃ To what extent will the use of the new right be stymied by conditions on existing permissions, disapplying the benefit of the General Permitted Development Order, or indeed Use Classes Order?

As it happens we are co-hosting a webinar with Landmark Chambers to answer questions such as these – and plenty of others that delegates have been sending in. Landmark’s Zack Simons will join Meeta Kaur, Victoria McKeegan and myself at 5.30 pm on 15 December, free registration here: https://us02web.zoom.us/webinar/register/WN_4SVkbXSeRsm6QJ9aDRBBDA .

Simon Ricketts, 4 December 2020

Personal views, et cetera

GPDO & UCO Amendments: Guidance, Scrutiny

On 18 September 2020 MHCLG amended its guidance to take into account the amendments to the General Permitted Development Order and Use Classes Order that I have covered in recent posts.

So now we have:

⁃ Updated Planning Practice Guidance on when planning permission is needed

⁃ Updated Planning Practice Guidance on town centres and retail

⁃ Updated Planning Practice Guidance on planning application fees to reflect the new permitted development rights to build upwards

⁃ “Key fact sheets” on recent permitted development rights and changes to the Use Classes Order

The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.

In the meantime, there remains some Parliamentary focus on the nature of the changes.

The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:

“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”

My 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR referred to the motions which Labour has tabled in response to the GPDO changes. A Commons debate is now scheduled for 30 September 2020.

Simon Ricketts, 19 September 2020

Personal views, et cetera

Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR

Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.

This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.

The amendments to the General Permitted Development Order and Use Classes Order

We’re talking about the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755, The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756 and The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757 all laid before Parliament on 21 July, ahead of the Commons going into recess the following day, and came into effect on 31 August and 1 September. Parliament returned on 1 September.

The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.

There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).

Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:

“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadow Minister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.

During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.

The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”

Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).

The group has put its Statement of Facts and Grounds on line. These are the grounds:

“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).

(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).

(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:

Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019

Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).

Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.

Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”

Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.

The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.

On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.

No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.

The Planning For The Future white paper

The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:

1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?

2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?

I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.

Simon Ricketts, 5 September 2020

Personal views, et cetera

Of Use? (& That Old C2 Number Again)

Where is this Planning Policy Paper then? Now presumably to be published by MHCLG next week, isn’t it odd to be making any such announcement when Parliament is no longer sitting, unless, anti-climatically, it is going be a factual update as to progress rather than the “big bang” moment many anticipated?

This post was just going to be a shameless plug for two webinars on the new Class E of the Use Classes Order that we at Town are running next week jointly with Landmark Chambers, at 5pm on 4 and 6 August, on the legal implications and the planning implications respectively. Details are below. We have had a great take-up (over 1,500 acceptances in total for the two sessions) but there is still capacity. What would we do without Zoom??

New Class E: The Legal Implications

5 pm Tuesday 4 August 2020

Practical answers to the questions arising from the amended Use Classes Order.

• How precisely will it work

• What about existing conditions and other restrictions?

• How to assess new applications and scope/risk of restrictive conditions

• Scheme definition in the new world

• External works

• The GPDO transitional arrangements

• Are local plan policies now out of date?

• How does CIL apply?

Panelists:

• Zack Simons (barrister, Landmark Chambers)

• Duncan Field (partner, Town Legal LLP)

• Heather Sargent (barrister, Landmark Chambers)

• Simon Ricketts (partner, Town Legal LLP)

Chair: Meeta Kaur (partner, Town Legal LLP)

New Class E: The Planning Implications

5 pm Thursday 6 August 2020

The changes to the Use Classes Order have potentially fundamental consequences for land owners, developers, local authorities and communities:

• What can we expect to be the main opportunities?

• What are the concerns and how can they be mitigated?

• How will local authorities respond?

• What now for place making and sustainability?

• Retail, employment and leisure policies in the new world

Panelists:

• Alice Lester MBE (operational director, regeneration, London Borough of Brent)

• Michael Meadows (head of planning, British Land)

• Steve Quartermain CBE (consultant, Town Legal LLP)

• Sarah Cary (executive director, place, London Borough of Enfield)

• Zack Simons (barrister, Landmark Chambers)

Chair: Meeta Kaur (partner, Town Legal LLP)

I was going to leave it at that, but then an interesting case was handed down earlier today: Rectory Homes Limited v Secretary of State (Holgate J, 31 July 2020). It doesn’t concern the recent Use Classes Order questions but rather the longstanding question as to how extra care housing should be categorised in use terms.

Usually the issue is C2 versus C3 (eg see my 16 September 2017 blog post Class Distinctions: Housing For Older People) but here it was a different question: was a proposed ‘Housing with Care’ development (Use Class C2)” development to be categorised as “dwellings” for the purposes of South Oxfordshire District Council’s local plan, which requires schemes for 3 or more dwellings to provide affordable housing? An inspector had dismissed Rectory’s planning appeal. Both parties at the appeal had agreed that the proposal fell within class C2. The difference was over whether the accommodation could be categorised as “dwellings”. “The Claimant’s stance was that because it was agreed that the residential accommodation did not fall within Class C3, none of those units could constitute a dwelling. SODC’s case was that the “housing with care” units were dwellings in both “form and function”, and as such could fall within the C2 Use Class provided that they are not in C3 use.”

The inspector found that the accommodation fell within C2 but that it comprised “dwellings” for the purposes of the policy. His reasoning was rather odd: “the Inspector appears to have taken the view that if each of the dwellings proposed would be ancillary to the C2 use of the site, the exclusion of dwellings falling within the C3 Use Class, upon which the Claimant had relied, could not apply.”

The inspector went on to find as follows:

“Taken as a whole the proposal would be contrary to the development plan in that it would materially exceed the maximum number of dwellings set out in the site specific policy in the [Thame Neighbourhood Plan]. It would cause harm to the setting of The Elms and to the [Thame Conservation Area], which are both designated heritage assets, contrary to the relevant policies in the SOLP, the SOCS and TNP; special attention and great weight should be given to these harms. It would also fail to provide affordable housing, in particular on-site, to deliver a mixed community, in line with the policies of the SOCS, the TNP and the Framework. While there would be compliance with other policies, I consider that these are the most important policies for the determination of this appeal. These policies are all up-to-date.

As explored above, the proposal would result in less than substantial harm to, and thus the significance of, both the setting of The Elms and to the TCA. These should be balanced in line with paragraph 196 of the Framework with the public benefits of the proposed development. In this regard I consider that the public benefits identified above would balance those heritage harms. This is in line with Policy HA4 of the TNP which allows for a balance to be undertaken as to the overall planning conclusion, but this would not mean that there was compliance with that policy overall due to the number of dwellings being proposed.

By failing to provide affordable housing on the appeal site, the proposal would result in very substantial harm. The need for owner occupied elderly persons extra care accommodation in the area does not outweigh this harm.”

Rectory challenged the decision. I only refer below to those issues arising which touch on use classes.

Holgate J makes a preliminary point, which is topical, given much discussion at the moment as to the advantages or disadvantages of defining proposals by way of the new class E, once the Use Classes Order changes take effect from 1 September:

“I deal first with a preliminary point. The Inspector suggested in his Pre-Inquiry Note that because the purpose of the Use Classes Order is to remove certain changes of use from development control, a planning permission ought not to be expressed in terms of a Use Class, particularly as that consent would be issued before the development is constructed and begins to be used. The principal parties at the inquiry did not see this as posing any legal difficulty and ultimately it did not appear in the Inspector’s reasoning in his decision letter. I agree with them on this point. For example, the provisions on certification of lawful development require that the lawfulness of an existing use (which may be based upon a planning permission), or the lawfulness of a proposed use, should be described by reference to any Use Class applicable (ss.191(5)(d) and 192(3)(b)). I therefore cannot see why the grant of a planning permission may not also be defined in terms of a Use Class.”

So, there is no reason not to define what is granted planning permission by way of a use class rather by way of a specific proposed use. (Obviously what is applied for will need to be justified by reference to the relevant development plan and other considerations. Absent clear government guidance, that is going to be a big issue in relation to the new Class E – how much weight should pre Class E development plan policies still have?).

The judge goes on to conclude that extra care accommodation can comprise dwellings:

“It has become well-established that the terms “dwelling” or “dwelling house” in planning legislation refer to a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (Gravesham p. 146; Moore v Secretary of State for the Environment, Transport and the Regions (1998) 77 P & CR 114, 119; R (Innovia Cellophane Limited) v Infrastructure Planning Commission [2012] PTSR 1132 at [27]-[28]). This concept is consistent with the Core Strategy’s interchangeable use of the words “dwelling”, “house”, “home” and “unit”. It can include an extra care dwelling, in the sense of a private home with the facilities needed for “independent living” but where care is provided to someone in need of care.”

Just because the proposed development is not within C3 does not mean that it cannot comprise dwellings for the purposes of policy. The inspector’s categorisation of the units of accommodation as ancillary to the main C2 use were seen by the judge as “wholly immaterial” to his decision.

Perhaps a reminder that, once we have all finished chewing over the uncertainties of new class E, the C classes are perhaps also in need of some updating…

(Zack: I reckon we could get a couple more webinars out of that exercise in due course…!)

Simon Ricketts, 31 July 2020

Personal views, et cetera

E Is For Economy

“It’s the economy, stupid.”

More E words: the English planning and property community was immediately, depending who you spoke to, exercised/excited by the changes to the Use Classes Order and General Permitted Development Order this week. Surprisingly so perhaps, given how heavily the changes had previously been trailed (although, it must be said, in terms of the Use Classes Order changes, not consulted upon). Inevitably and by contrast, the wider public appears to be oblivious as to what lies ahead, despite the potentially far-reaching implications of the creation of the new “commercial, business and service“ class E within the Use Classes Order in particular.

There are many good summaries already of the changes. My Town colleagues Nikita Sellers, George Morton Jack and Meeta Kaur have prepared a detailed summary.

I am not going to consider the rights and wrongs of the changes in any detail. I have referred previously to my disappointment that the Government has not required for example its nationally described minimum space standards to be applied in relation to the creation of new dwellings by way of permitted development rights (despite having published, with curious timing, a report Research into the quality standard of homes delivered through change of use permitted development rights, on the same day as publishing legislation which does not take into account the recommendations of that work, with no explanation for the discrepancy). The Use Classes Order changes do provide some overdue flexibility given the structural changes underway in our town centres in the light of changed shopping patterns (not just Covid-related but of course now accentuated), but they are extremely wide ranging and I query whether the various permutations of potential consequences have been adequately considered. But that is all for another day.

Instead, I wanted to pull us back to some planning law fundamentals – in what circumstances may owners find that they cannot rely on the expanded use rights after all?

First, in order to move within a use class, the initial use first has to have been instituted, so if for instance you have an as yet unimplemented planning permission for a shop, or if the development has been built but not yet been occupied, the development will first need to have been used as a shop before there can be a change to another use within the new class E (e.g. offices).

Secondly, there must not be a condition on the planning permission authorising the current use that has the effect of preventing use changes that would otherwise have been enabled by way of the Use Classes Order and/or General Permitted Development Order. This is familiar but not straightforward territory. There is much case law as to whether particular phrases in conditions actually achieved what the local planning authority intended and indeed whether the benefit of the condition was lost through the grant of subsequent permissions which did not expressly impose it.

The general answer is that it depends on a careful analysis of the existing planning permission (and of course any provisions within any section 106 agreement).

The Supreme Court considered a situation like this in London Borough of Lambeth v Secretary of State (Supreme Court, 3 July 2019), which I summarised in my 4 July 2019 blog post What Really Is The Meaning Of Lambeth?

The original permission read:

“The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”

It was then amended to read:

“The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”

The council then approved by way of section 73 a further change so that it was to read:

“The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting that Order with or without modification), for no other goods.”

However, the council neglected to include that wording in a condition. It was simply part of the description of the development.

The Supreme Court held that the permission was to be interpreted as constraining the use of the retail unit so that it was for the sale of non-food goods only. But for our purposes, this is an example that the courts (1) routinely treat conditions as able validly to restrict the operation of the Use Classes Order and/or General Permitted Development Order and (2) are perhaps currently more benevolent towards the local planning authority’s position than has previously been the case where there has been procedural imprecision, as long as what was intended was clear.

My 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions referred to another recent example, Dunnett Investments Limited v Secretary of State (Court of Appeal, 29 March 2017) which concerned this condition:

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

The court held that “express planning consent” did not include prior approval pursuant to the “office to residential” permitted development right. The restriction applied.

So care is needed! Where there are restrictive conditions which would restrict the flexibility that the new class E would otherwise give, of course consideration can be given to applying to remove those conditions by way of section 73 application.

Thirdly, when applications for planning permission are now to be determined, careful consideration will need to be given to the proposed description of development and no doubt there will be issues arising as to whether decision makers are justified in imposing conditions which restrict the operation of the new Use Classes Order and General Permitted Development Order flexibilities. It will be the B1(a), (b) and (c) arguments all over again, but writ large.

I hope that we will have updated Planning Practice Guidance. In the meantime, the current Planning Practice Guidance has passages such as these:

“It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.”

1. necessary;

2. relevant to planning;

3. relevant to the development to be permitted;

4. enforceable;

5. precise; and

6. reasonable in all other respects.”

“Is it appropriate to use conditions to restrict the future use of permitted development rights or changes of use?

Conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn.Area-wide or blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness and necessity. The local planning authority also has powers under article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015 to enable them to withdraw permitted development rights across a defined area, where justified.

Will that guidance be sufficient to avoid disputes? I doubt it.

Am I entitled to apply for planning permission simply for Class E use? Given that Parliament now deems changes within class E not be material, why not? How will such applications be determined as against development plan policies which are likely to be at odds with such an approach, and how will CIL be calculated, given that many CIL charging schedules distinguish as between, for instance, retail and office use?

Fourthly, planning permission will still be required for operational works that materially affect the external appearance of the building. To what extent will local planning authorities seek to exert control by that route, as we have sometimes seen with office to residential conversions? How to guard against plainly substandard conversions of shops to offices and of, for instance, units on out of town business parks to shops?

Fifthly, there is going to be much focus on how precisely the General Permitted Development Order operates in relation to the new class. For an initial period, until 31 July 2021, the GPDO will operate as against how the relevant use was categorised before the changes to the Use Classes Order became effective. Are we to expect further changes to the GPDO in the coming period?

Sixthly, quite apart from these planning law constraints, private law constraints imposed by way of, for instance, restrictive covenants and user covenants in leases will still apply.

But, there’s no way round it, class E has huge implications for much of the world around us, from central business district to market town, to out of town retail or business park. It also brings with it, and this is its very point, huge opportunities to allow for adaptation and for entrepreneurship. How is all this going to work out in practice? Will people start using the new freedoms and then find that inevitably in due course the rules tighten again, by which time the horse has bolted, or, that for land owners, they may have unwittingly lost the right to the use which was most valuable in investment terms? E is also for experiment.

Simon Ricketts, 24 July 2020 (expanded version 25 July 2020)

PS and for Emily! Happy birthday daughter.

Personal views, et cetera

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

The Extra Care Question: RU-C2 or C3-UCO?

A long time ago in a galaxy far, far away, Parliament made the Use Classes Order.
I referred in my 16 September 2017 blog post Class Distinctions: Planning For Older People to the blurred distinction between C2 (basically use for the provision of residential accommodation and care to people in need of care) and C3 (basically use as a residential dwelling) when it comes to “extra care” facilities for the elderly. I set out some of the criteria applied by inspectors in appeal decisions.
There was a very useful appeal decision letter last month which surely throws additional doubt upon the soundness of the curious attempt in the draft London Plan in effect to amend the Use Classes Order by policy rather than legislation, in that it seeks to deem extra care facilities for the elderly in London as falling within use class C3 (and thereby becoming subject to affordable housing and other obligations and requirements) whereas the recognised planning law position is that they are more likely to fall within use class C2.
Draft policy H15 C states:
“Sheltered accommodation and extra care accommodation is considered as being in Use Class C3. Residential nursing care accommodation (including end of life/ hospice care and dementia care home accommodation) is considered as being in Use Class C2.”
Paragraph 4.15.3 of the supporting text simply states again that “sheltered accommodation and extra care accommodation should be considered as C3 housing“, defining extra care accommodation as follows:
“extra care accommodation (also referred to as assisted living, close care, or continuing care housing) is self-contained residential accommodation and associated facilities, designed and managed to meet the needs and aspirations of older people, and which provides 24-hour access to emergency support. A range of facilities are normally available such as a residents’ lounge, laundry room, a restaurant or meal provision facilities, classes, and a base for health care workers. Domiciliary care will be available to varying levels, either as part of the accommodation package or as additional services which can be purchased if required.”
First, how can it be appropriate in principle for a policy document to deem a use to be treated in a particular way in the Use Classes Order? The nature of the use and the determination of which use class, if any, it falls into, is a legal question. For instance whether planning permission would be required for a change of use would ultimately be determination by an application for a certificate of lawfulness of proposed use or development under section 191 of the Town and Country Planning Act 1990. By all means, if justified, the Mayor can determine that particular policies should apply to extra care accommodation (matters which could then be tested through the plan examination process) but his view as to which use class it might fall into has no weight in the legal determination of that question and in my view has no place in a document which is only allowed to address “matters which are of strategic importance to Greater London.”

Secondly, his view, not supported by any reasoning, as to the appropriate use class do not sit easily with the conclusions that planning inspectors have come to. The most recent decision letter (22 January 2018) was by inspector Michael Boniface, where he allowed an appeal in Sidmouth, East Devon, by Pegasus Life for an “assisted living community for older people comprising extra care units, staff accommodation and communal facilities, including a kitchen, restaurant/bar/café, a well-being suite comprising gym, treatment rooms and pool, a communal lounge and storage facilities; car parking for residents, visitors and staff of the assisted living community; comprehensive landscaping comprising communal and private spaces; and associated groundworks.”
The decision letter and inspector’s reasoning is well summarised in a blog post by Housing LIN – “Planning Inspector sets out the distinctive elements of Extra Care scheme resulting in C2 Use Class conclusion” (8 February 2018).

The inspector was presented with the Mayor of London’s position but it did not alter his conclusions on the facts of the case.
Thirdly, in its recent report Housing For Older People (8 February 2018) the Commons CLG Select Committee specifically considered the treatment of specialist older people’s housing in the planning system and particularly in the Use Classes Order:

“125. We also heard that the “inconsistent and cumbersome” application of the C2 and C3 planning classifications to extra care housing was problematic for developers. Some local authorities apply the C2 classification, applied to residential care homes and nursing homes, to extra care housing which reduces planning charges. Others classify this type of housing as C3, along with mainstream housing, which means full charges apply. Audley Retirement argued that extra care housing should fall within the C2 class:

“Extra care is set up to fulfil many of the functions that care homes can provide in terms of care delivery as and when the resident requires it, monitored by an onsite care team and there is access to communal facilities. There are controls over who can occupy them by age and a need for care that do not exist on C3 standard dwellings.”

Extra care housing developers had a range of suggestions for countering this issue: an “extension and additional clarity” on C2 so that it captures extra care housing; the creation of a sub-section of C2 which attracts lower planning charges; and the creation of a “dedicated use class” for extra care housing which would enable planning contributions to be streamlined.

126. When we asked about this, the then Housing Minister, Alok Sharma, told us that the guidance will look at the “precise terminology that is used to describe the different types of older people’s housing”.
The Select Committee concludes:
“We believe that the level of planning contributions on specialist housing, which are increased as a result of the non-saleable communal areas which are a feature of this type of housing, is impeding the delivery of homes. We recommend either the creation of a sub-category of the C2 planning classification (which currently applies to residential care and nursing homes) for specialist housing, which would reduce the contributions required from developers, or the creation of a new use class for specialist housing which would have the same effect.”
In the light of these considerations, how can draft London Plan policy H15 C possibly be justified?
Simon Ricketts, 17 February 2018
Personal views, et cetera

Flawed Drafting: Interpreting Planning Permissions

“What are words worth? Words

Words of nuance, words of skill”

Some of the most difficult cases in every area of law arise from flawed drafting and drafting which does not adequately anticipate future eventualities.
I will leave for another blog post the issues that arise in relation to the drafting and interpretation of section 106 agreements and undertakings, although the Secretary of State’s 12 September 2017 decision letter dismissing an appeal for planning permission for 705 dwellings at King George’s Gate, Surbiton was a salutary lesson, and essential reading, for every planning lawyer.
In the light of Lang J’s judgment this month in London Borough of Lambeth v Secretary of State, this blog post limits itself to the question as how literally should planning permissions be interpreted? Is the planning permission in fact wider in its scope than the local authority intended when granting it? Have restrictions that were initially imposed fallen away by virtue of not being reapplied to subsequent permissions for the permitted buildings or to a permission for amendments to that initial permission?

There have been many examples where the courts have determined that the legal effect of a permission was not what the authority may have intended, applying what might be regarded as a classically pure planning law approach:

– where a planning permission is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions imposed upon it and the reasons given for the imposition of those conditions
– an extreme reluctance to imply extra wording into conditions (Widgery LJ’s statement in Trustees of Walton Charities v. Walton & Weybridge DC (1970): “I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission… is not simply a matter of contract between the parties. There is no place…within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission.”)

– applying the judge-made principle of a “new chapter in the planning history” of a site, effectively wiping the slate clean of previous planning condition restrictions where a significant change of use or other development has occurred.

This has led over the years to many outcomes which, whilst logical on a dispassionate reading of the relevant document by a lawyer, were certainly not anticipated by the unfortunate planning officer. For instance:
– in Carpet Décor (Guilford) Limited v Secretary of State (Sir Douglas Frank QC, 17 July 1981) a condition “that no variations from the deposited plans and particulars will be permitted unless previously authorised” by the local planning authority was held not to be sufficiently unequivocal as to exclude the operation of the Use Classes Order.
– in Dunoon Developments Limited v Secretary of State (Court of Appeal, 18 February 1992) a condition on a planning permission for a car showroom that stated that the use of the premises would be limited to the display, sale and storage of cars was not sufficient to exclude the operation of the General Permitted Development Order.
– in I’m Your Man Limited v Secretary of State (Robin Purchas QC, 4 September 1998) it was held that for a planning permission to be construed as limited to a temporary period, it was not sufficient for the restriction to be set out in the description of development rather than in a condition.
– in Stevenage Borough Council v Secretary of State (HHJ Waksman QC, 3 June 2010) the owner of a retail park was held to be free of various restrictions on the types of goods which could be sold, by virtue of planning permissions having been granted for subdivision of units and other alterations, which did not reimpose restrictions from the original permission. As with a number of similar cases and CLOPUD appeal decision letters, the ruling partly relied on a liberal application of section 75(3) of the Town and Country Planning Act 1990, which provides that where the proposed use of a building (or part of) a building is not specified in a permission for its erection (or alterations), “the permission shall be construed as including permission to use the building for the purpose for which it is designed“.
– in Prudential Assurance v Sunderland City Council (Wyn Williams J, 15 July 2010) the High Court held that, through the windfall of a local planning authority’s mistake faced with successive planning applications, Peel Holdings had become free of section 106 restrictions on the types of goods that could be sold from its retail park in Washington, Sunderland.
The tide then started to turn with the Court of Appeal in Peel Land and Property Investments Plc v Hyndburn Borough Council (19 December 2013). Peel, no doubt hoping for an equivalent outcome as achieved in Sunderland, argued that the failure of the local authority, in drafting a permission for works of alteration to retail park units, to reimpose a condition restricting the goods that could be sold, meant that the restriction had been removed. However the court rejected the submissions. The works did not create a new chapter in the planning history of the units and on the facts (with no indication in the application documents that unrestricted retail use was intended) section 75(3) could not be relied upon in the way that was sought.

The Supreme Court in Trump International Golf Club Scotland Limited v The Scottish Ministers (16 December 2015) then indicated a more nuanced approach to interpretation:

“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference … or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.

Interpretation is not the same as the implication of terms. Interpretation of the words of a document is the precursor of implication. It forms the context in which the law may have to imply terms into a document, where the court concludes from its interpretation of the words used in the document that it must have been intended that the document would have a certain effect, although the words to give it that effect are absent” (Lord Hodge)

Against this background it is therefore interesting to see this month another case in which the owner of a retail investment, in this case a Homebase DIY store, has achieved an outcome which was not intended by the local planning authority, and which could have been avoided by competent drafting of the decision notice. In London Borough of Lambeth v Secretary of State (Lang J, 3 October 2017), a planning permission had been granted varying conditions attached to an earlier permission. The purported effect of the widened conditions was set out in the description of development on the face of the permission:

” For: Variation of condition 1 (Retail Use) of Planning Permission Ref: 10/01143/FUL (Variation of Condition 6 (Permitted retail goods) of planning permission Ref. 83/01916 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) Granted on 30.06.2010.

 Original Wording:  The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.

 Proposed Wording:  The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), for no other goods.”

However, for some reason, whoever drafted the permission did not bother to go on and include the proposed wording as a condition. Lang J applied I’m Your Man and held that the purported restriction was of no effect. Lambeth Council’s “intended purpose was not given legal effect by the wording of the 2014 permission, because of flawed drafting.”
As set out in Landmark Chambers’ helpful summary , Lang J has granted permission for the case now to go to the Court of Appeal:
“I do not accept the Claimant’s critique of my judgment, and the application of the current law to the facts of this case. However, I am left with some unease about the result. The principle established in I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, and its application, merits consideration in a higher court which is not bound by precedent in the same way as the High Court. The interpretation and application of the judgments of the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85 is still evolving, and merit consideration by the Court of Appeal in this case.”

It is worth noting two post-Trump cases where the Court of Appeal has rejected submissions that a narrow interpretation should be given to specific conditions.
First, R (XPL Limited) v Harlow Council (Court of Appeal, 13 April 2016), where a condition preventing “repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles …” outside specified hours at a coach depot was held to extend to a prohibition on the running of engines.

Secondly, Dunnett Investments Limited v Secretary of State (Court of Appeal, 29 March 2017) where the court had to determine whether the following condition is to be interpreted as excluding the operation of the General Permitted Development Order so as to allow change of use from offices to residential by way of the prior approval process:

Did prior approval from the local planning authority pursuant to the GPDO amount to “express planning consent” for the purposes of the condition?
The Court of Appeal reviewed the case law on interpretation of conditions:
“In relation to the interpretation of, specifically, a planning condition which is said to exclude the operation of the GPDO, other authorities are of some assistance. From them, the following themes can be discerned.

 i) It is rightly common ground that a planning condition on a planning consent can exclude the application of the GPDO (see Dunoon Developments v Secretary of State for the Environment and Poole Borough Council (1993) 65 P&CR 101 (“Dunoon Developments”)). 

ii) Exclusion may be express or implied. However, because a grant of planning permission for a stated use is a grant of permission for only that use, a grant for a particular use cannot in itself exclude the application of the GPDO. To do that, something more is required (see, e.g., Dunoon Developments at [107] per Sir Donald Nicholls VC).

 iii) In Carpet Décor (Guilford) Limited v Secretary of State for the Environment (1981) 261 EG 56, Sir Douglas Frank QC sitting as a Deputy High Court Judge said that, because in the absence of such a condition the GPDO has effect by operation of law, the condition should be in “unequivocal terms”. Although “unequivocal” was used by Mr Katkowski in his written argument, during the course of debate he accepted that that term was now less appropriate, given the modern trend away from myopic focus upon the words without proper reference to their full context. However, he submitted (and I accept) that, to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.”

The court did not accept the claimant’s arguments:
“The first part of the condition sets out the scope of the permission. I respectfully agree with Patterson J (at [60]), the second part (“…and for no other purpose whatsoever…”) is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights. Whilst, as I have described, each case depends upon its own facts, it is noteworthy that, in Dunoon Developments (at pages 105-6), in finding that the words “limited to” a particular purpose did not exclude GPDO rights, Farquharson LJ compared that phrase with “… and for no other purpose…” as considered in the earlier case of The City of London Corporation v Secretary of State for the Environment (1971) 23 P&CR 169, which he considered was far more emphatic and (he suggested) possibly sufficient to exclude the operation of the GPDO. In this case, we have a more emphatic phrase still, namely “… and for no other purpose whatsoever…”. Further, although we are concerned with rights under the GPDO and not the UCO, the interpretation of that phrase to exclude the operation of the GPDO is at least consistent with R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government[2013] EWHC 3597 (Admin); [2014] JPL 458, in which Patterson J held that a condition which restricted use to “only” particular uses within Use Class A1 excluded the right to use the land for other Class A1 uses, because it effectively evinced an intention to identify acceptable uses within the class whilst prohibiting other unacceptable uses within that class unless and until the merits of such use had been tested by the planning authority upon an application for planning permission (see also The Rugby Football Union v The Secretary of state for Local Government, Transport and the Regions [2001] EWHC Admin 927; [2002] JPL 740, in which Ouseley J, at [56], found that the words “for no other use” had similar effect, on the basis that such words “have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission”). The third part of the condition before this court makes it the more abundantly clear that automatic or direct GPDO rights are excluded, by requiring a planning application if such uses are to be pursued.”
Furthermore, “”express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”
What are the odds on Lang J’s judgment in Lambeth surviving the Court of Appeal?
In the meantime, and possibly whatever the outcome of that case, there is unpredictability. This is particularly unhelpful given the pressures on local planning authorities to issue permissions without unnecessary delay, and without the resources for a lawyer to check what may often on their face appear to be approvals of minor revisions and alterations. Mistakes happen. The extreme reluctance of authorities to issue revocation or modification orders to put mistakes right, a reluctance born of the liability to pay compensation that thereby arises, is another story – and in my view a large part of the problem.
Simon Ricketts, 14.10.17
Personal views, et cetera

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