OCT 08 - APR 09


[All items have been revised and updated to April 2010]

IN THIS SECTION (in order of appearance)

Retrospective validation of unlawful commencement [October 2008]
Administrative Court goes to the regions [November 2008]
Concealed development [November 2008]
Can car parking be storage? [November 2008]
The status of approved drawings [December 2008]
Very special circumstances again [January 2009]
Reasons - a less demanding approach ? [January 2009]
Extending the Green Belt - exceptional circumstances again [January 2009]
Bucking the system [January 2009]
Development in the wrong place [January 2009]
Putting the cart before the horse? [February 2009]
Lawful commencement again [February 2009]
What is a tree? [February 2009]
The limits of the Hammerton principle [February 2009]
Section 215 Notices – physical scope [February 2009]
A second bite [March 2009]
Under-enforcement – s.173(11) again [April 2009]
Barn conversions again [March 2009]
Fast track householder appeals [March 2009]
Fees for discharging conditions [April 2009]
Appeal changes in 2009 [April 2009]
Unspent 106 moneys [April 2009]

Retrospective validation of unlawful commencement

[October 2008]

If I am capable of being a complete bore on the subject of Hart Aggregates, the case which runs it a close second in my repertoire is the Court of Appeal decision in Whitley & Sons v SSW [(1992) 64 P & CR 296].

In addition to what Whitley & Sons had to say about ‘conditions precedent’, I have drawn attention more than once in this commentary to the ‘Get-out-of-jail-free’ card it provides where an initially unlawful commencement is retrospectively regularised by subsequent compliance with the condition. The only proviso is that this must take place within the time limit for implementation of the permission. Just to remind you, what Woolf LJ (as he then was) said was this:

“If the approval which covered the operations had been given after the operations but prior to the expiry of the time limit it would be technical in the extreme to treat what had gone before as not complying with the time limit. As long as the approval had been obtained and the operations complied with that approval, it would have been of no practical significance whatsoever which had come first, the approval or the operations, from a planning point of view.”

For reasons which I entirely fail to understand, there is still a marked reluctance on the part of some LPAs to accept this, even some 16 years after Whitley was decided. One such case - R (London & Stamford Investments Ltd) v Stoke on Trent City Council – which reached the High Court was heard by Sullivan J (as he then was) on the 22nd October 2008.

A planning permission had been granted in 2002 for development which included the erection of three units for use for storage and distribution. The permission contained a number of conditions requiring details of the works to be approved prior to construction or use of the development. The standard time condition required that development be commenced by 18 December 2007. The developer’s contractor began work on site in 2004 without certain details being approved and, after completion of the first unit, that unit began to be used (also without approval). The LPA argued that the 2002 permission had not been lawfully implemented and had expired, because the relevant pre-conditions of the 2002 permission had not been complied with before the commencement of development and/or before occupation of the first unit. However, the developer pointed out that even though the conditions had not been complied with before the commencement of development (and, in the case of the occupation of the first unit, before the occupation of that unit) they had been complied with before 18 December 2007, the deadline for implementation.

Applying the clear ruling on this point by Woolf LJ in Whitley & Sons, Sullivan J had no difficulty in dismissing the LPA’s argument. Notwithstanding the breaches of the pre-conditions in the 2002 permission they had been remedied before the deadline for implementation. As work on the development had been started in 2004, it could not be said that the 2002 permission had not been lawfully implemented within the deadline.

One hopes that LPAs will accept at long last that commencement of development in breach of a condition, even if it theoretically rendered the whole development unlawful at that time, is capable of retrospective validation if the conditions in question are subsequently complied with within the time limit for implementation of the permission. It is only in cases like Leisure GB and Henry Boot Homes where the breach of condition remains unremedied by the time the permission expires that the permission will then be lost.

Administrative Court goes out to the regions

[November 2008]

The High Court has long since had District Registries in larger towns and cities, so that it has been possible for many years to conduct High Court cases right up to and including trial without having to go up to London.

The one major exception to this had been those cases, such as Judicial Review and challenges to planning appeal decisions, which are dealt with by the Queen’s Bench Division’s Administrative Court (formerly the Crown Office List). Until last year, the whole case had had to be dealt with through the Royal Courts of Justice in London, with everyone having to traipse up to the capital for the hearing.

Now, since 21st April 2009 the Administrative Court has been operating from five centres in London, Cardiff, Birmingham, Manchester and Leeds, and another regional centre is about to open for business in Bristol. The choice of conducting the case wholly in London has nevertheless been preserved.

It is nearly a year now since the option of having judicial review cases heard outside London has been in force, but I am not sure to what extent litigants and their advocates have taken advantage of this opportunity. I expressed the fear when this change was first announced that cases heard out in the sticks would either be heard by one of the local circuit judges, sitting as a Deputy or Additional Judge of the Queen’s Bench Division, or if one did get a fully fledged High Court judge, they might turn out to be a ‘generalist’ common law judge with no specialist knowledge of planning law. However, it sees that some experienced and appropriately qualified judges have been sent out to hear these cases in centres such as Leeds and Cardiff, so my fears may not be realised.

The fact remains, though, that (with a few notable exceptions) the barristers one would normally want to brief in such cases are based in London, and so you may still want to have the case listed in London.

The whole business of judicial review (including challenges to planning appeal decisions under Part XII of the 1990 Act) is in any case an expensive lottery, the results of which are rarely satisfactory, even for the winning party. It may be that we should be seeking some quicker, cheaper and more effective procedure for testing the legality of planning permissions, planning appeal decisions and other administrative actions, to replace the cumbersome trek to the High Court, even if actually getting to Court might involve a shorter journey in future.

Concealed development

[November 2008]

Readers will no doubt be well aware of the case of Mr Fidler and the ‘castle’ he built in Surrey behind a very large pile of straw bales. The Inspector in that case was careful not to base his decision on the fact that the development had been concealed – clearly the fact that the development was not visible from outside the straw bales could not in itself prevent the 4-year rule from operating - but he managed to argue in his decision letter that the erection and removal of the straw bales was an integral part of the development so that, relying on the House of Lords decision in Sage, the development had not been substantially completed until the straw bales had been removed to reveal Mr Fidler’s new house in all its glory. Thus, at the time when the enforcement notice was served, the development had not become immune from enforcement.

There was another appeal shortly after this, in Derbyshire, which was decided on very similar lines. In that case, the house was erected behind the facade of a barn built of corrugated iron and wood. As in the Fidler case, the Inspector decided that the four-year period did not start to run until the barn structure hiding the development had been removed.

I had some misgivings over both of these decisions. Can the ‘shielding’ (such as straw bales in Mr Fidler’s case or the structure or facade of a barn structure in the Derbyshire case) really be said to be part of one and the same development? I am not at all sure that piling up straw bales can really be said to amount to development at all, still less can the removal of a pile of straw bales be said to be ‘demolition’. There must therefore be some considerable doubt as to whether the removal of the straw bales in Mr Fidler’s case did in fact bring the case within the ambit of the rule in Sage.

I have only seen a very brief report of the Derbyshire decision, not the decision letter itself, but I assume that the barn structure in that case was pre-existing; nevertheless its removal clearly did involve demolition, and so constituted development. The question still remains, however, as to whether it formed part and parcel of one and the same development as the erection of the house, so that that development could not be said to have been substantially completed until the barn structure had finally been removed.

At the time when I originally wrote this note, it was not clear whether either of the appellants in these two cases would take the matter to the High Court. Mr Fidler had certainly been no stranger to the courts in what had in fact become a long-running saga, and so it came as no surprise when he did indeed challenge the appeal decision in his case. Perhaps rather disappointingly, he lost, although the judgment was not particularly enlightening, merely confirming (with very little reasoning to support it) that the Inspector had been right to base himself on Sage. I believe the case is now on its way to the Court of Appeal, so watch this space!

In the meantime, another case of ‘concealed development’ had come before the courts in Welwyn Hatfield Council v SSCLG. I will comment on this case in a future posting [see 20 April 2010 in the main blog], but in that case the Court of Appeal did accept that concealment of the development did not prevent the 4-year rule from operating. However, that was not a case in which Sage arose, and so it does not necessarily indicate the way in which Fidler may ultimately be decided.

Can car parking be storage?

[November 2008]

I am aware that there have been arguments in the past as to whether the parking of cars could be said to amount to a storage use, so as to bring it into Use Class B8.

The issue came before the High Court in 2008 in Honeycomb Storage v SSCLG. This was a challenge to an Inspector’s decision in an enforcement notice appeal. The appeal site (a former poultry farm) had planning permission for a change of use to storage. The buildings were subsequently used as indoor parking for cars belonging to people flying from Stansted Airport. By its nature this was short-term (e.g. up to a fortnight), but the appellant nevertheless claimed that it amounted to a storage use.

The Inspector found that there had been a material change of use from storage to car parking, because the characteristics of the use enforced against were fundamentally different from a storage use. The judge agreed, and held that parking was incidental to the use of a car, whereas storage was the converse of the use of a car. The fact that cars were brought to the site by hotel employees, rather than by the car owners themselves did not affect the position.

Although this case was specifically concerned with airport parking, it would appear to be of more general application, and should lay to rest once and for all the suggestion that car parking as such can amount to a storage use. If a car is ‘laid up’ out of use for an extended period, then that might well amount to storage, but if a car is temporarily put somewhere for convenience while the owner is away from it, even for a few weeks, then that is parking – a sui generis use which clearly falls outside the scope of Use Class B8.

[Unfortunately, I still have no citation for Honeycomb Storage v SSCLG, which I believe was decided in October or November 2008.]

The status of approved drawings

[December 2008]

Until 2008, it was generally accepted that, in accordance with R v Ashford BC ex p Shepway DC [1999] P&CR 12, the general rule in construing a planning permission which is clear, unambiguous and valid on its face is that regard may only be had to the planning permission itself, including the conditions (if any) attached to it and the express reasons for those conditions. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by express reference, in which case the application is treated as having become part of the permission.

Furthermore, in order for the application to be treated as having been incorporated in the permission, more is required than a mere reference to the application on the face of the permission. The words which refer specifically to the application (such as ‘in accordance with the plans and application’ or ‘on the terms of the application’) must appear in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the actual description of the development permitted.

However, in Barnett v. SSCLG [2008] EWHC 1601 (Admin) in which judgment was given on 20th June 2008, Sullivan J (as he then was) pointed out that if it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of a building, there are bound to be plans and drawings which will describe the building works which have been permitted. He held that in such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an "ambiguity". On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. The reasonable inference, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.

This may well govern the external appearance of the building but, in the absence of any express condition attached to the planning permission, the permission cannot prevent subsequent internal alterations to the building, so long as they would not materially affect the external appearance of the building. Thus, even if it were to be argued that the planning permission read together with the approved drawings (as per Barnett) describes the extent of the authorised development, so as to govern not only the external appearance of the building but also its internal arrangements as first built, it does not and cannot limit subsequent internal alterations, nor any resulting intensification of the use of that development (provided it remains within the same Use Class) in the absence of an express condition preventing internal alterations or any such future intensification.

In my view, it would be a highly artificial interpretation of the legal position, which would serve no useful planning purpose, to argue that whilst subsequent (possibly drastic and major) internal alteration of the building would not constitute development and could be carried out with impunity, the internal layout and accommodation as first built must nevertheless comply exactly with the approved drawings. If an LPA wishes to ensure that the internal arrangements are executed and retained strictly as per the approved drawings, they should at the very least expressly incorporate the application and drawings in the description of the development in the planning permission and, for the sake of completeness, should also impose an express condition to that effect (subject, of course, to the policy considerations set out in Circular 11/95).

For those reasons, I do not regard the judgment in Barnett as authority for the proposition that the internal layout of a building must comply strictly with the arrangements shown in the approved drawings, in the absence of express provision to that effect in the planning permission.

I recall an occasion a few years ago when, acting on behalf a third party objector, I tried very hard to persuade an LPA that the development being carried out was not the development authorised by the planning permission. The permission was for conversion of a house into four self-contained flats. The approved drawings showed that these were to be 2-bedroom flats, but during the course of the conversion and prior to the first occupation of any of the flats, the developer subdivided the bedrooms, so that each flat in fact contained 4 bedrooms. They were intended to be student lets, and this would result in a significant intensification of the use of the building compared with the development which had been approved. However, I was quite unable to convince the LPA that they should take enforcement action, because (as they reasonably pointed out), the developer would have been at liberty to make those internal alterations at any time after completing the initial development, and so although the development as built did not comply internally with the approved drawings, it would not be expedient to take enforcement action against something which the developer was perfectly entitled to do subsequently. I have to admit that when one looked at it in those terms, the LPA’s approach could not really be faulted.

Thus it seems to me that, notwithstanding Barnett, in practical terms there cannot be any substantive objection to the re-ordering of the internal arrangements of a building in the course of development, even if that would result in a development whose internal layout does not comply with the approved drawings. Provided the development is in accordance with the verbal description of the development authorised by the planning permission and provided also that its external appearance substantially complies with the approved drawings, it must be taken in practice to be the development authorised by the planning permission, notwithstanding any re-ordering of the internal layout. In any event, bearing in mind that the developer could lawfully reorganise the interior subsequently, it would certainly not be expedient under s.172 to serve an enforcement notice in respect of any such discrepancy between the interior arrangements as built compared with the internal layout as shown on the approved drawings.

I would emphasise, however, that the view which I have expressed above remains untested for the time being.

Very special circumstances again

[January 2009]

The issue of ‘very special circumstances’ which would justify inappropriate development in the Green Belt has long troubled the courts. In SB Herba Foods Ltd v. SSCLG [2008] EWHC 3046 (Admin), in which judgment was given in the High Court on 10th December 2008, an appeal decision was quashed due to the approach to the interpretation of these words taken by an Inspector in dismissing an appeal in South Cambridgeshire.

The Inspector had considered the effect of paragraphs 3.1 and 3.2 of PPG2 by reference to the decision of Sullivan J. in R (Chelmsford BC) v FSS [2003] EWHC Admin 2978, but the Court of Appeal had recently considered the proper approach to paragraphs 3.1 and 3.2 in Wychavon DC v SSCLG [2008] EWCA Civ 692. The Deputy Judge drew attention to the words of Carnwath LJ in paragraphs 21 to 26 of his judgment, which he summarised as follows :

(1) that the words "very special" in paragraph 3.2 are not to be treated as the converse of "commonplace". Rarity may contribute to the special quality of a particular factor, but what is required is a qualitative judgment as to the weight to be afforded to a particular factor for planning purposes;

(2) that contrary to the approach of Sullivan J. in Chelmsford, the two elements of paragraph 3.2 – the existence of very special circumstances and the need clearly to outweigh the harm to the Green Belt – should not be rigidly divided. The factors which make a case very special may be the same as, or at least overlap with, those which justify holding the Green Belt considerations are clearly outweighed. The Court of Appeal preferred the formulation taken from an earlier decision of Sullivan J. in Doncaster MBC v SSETR [2002] JPL 1509 where the judge had stated:

"Given that inappropriate development is by definition harmful, the proper approach is whether the harm by reason of inappropriateness and the further harm, albeit limited, will cause to the openness and purpose of the Green Belt is clearly outweighed by the benefit to the appellant's family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy".

Carnwath LJ approved of this formulation because it treated the two questions as linked, but started from the premise that inappropriate development is by definition harmful to the purposes of the Green Belt.

The Inspector in the present case had formulated the issue addressed by paragraphs 3.1 and 3.2 of PPG2 as, "whether very special circumstances exist". It was true that this was the ultimate issue, because development could only be "approved … in very special circumstances", but the critical question on the path to the correct determination of the ultimate question was whether "other considerations" clearly outweighed the harm by reason of "inappropriateness and any other harm". The correct approach outlined by Sullivan J in Doncaster MBC v SSETR [2002] JPL 1509, approved by Carnwath LJ in Wychavon, should have been adopted (although the Deputy Judge noted that the Court of Appeal’s judgment in Wychavon post-dated the Inspector’s decision in this case).

The Inspector had stated that he understood Chelmsford to indicate that he must consider whether a particular circumstance or combination of circumstances is very special, and that he therefore had to view all of the circumstances of this case in the round, but that he would first consider the individual matters advanced by the appellant as constituting or contributing to very special circumstances.

However, the Deputy Judge held that the Chelmsford case had led him into error. He was entitled to look at the circumstances individually and cumulatively and ultimately to consider whether they amounted to "very special circumstances", but before coming to a conclusion he was obliged to give adequate consideration to them, either individually or cumulatively, and to determine whether or not they "clearly outweigh" the green belt harm. He had to exercise a judgment and assess the quality of the factors according to planning principles and considerations. In Wychavon, Carnwath LJ, having identified the error in treating "very special " as the converse of "commonplace", went on to state that the word "special" in the guidance connotes not a quantitative test, but a qualitative judgment as to the weight to be given to the particular factor for planning purposes.

The Inspector concluded :

"On examining each of the circumstances relied upon by the appellant, I have found that none of them is very special and none of them clearly outweighs the harm identified. I also consider that the combination of factors referred to would not be particularly unusual and could apply to many businesses that wished to extend their existing premises to meet a need for additional storage space."


"On the last main issue, I conclude that the circumstances of the case and the benefits of the proposal, either individually or collectively, are not very special and do not clearly outweigh the harm by reason of inappropriateness and the limited harm to the openness and visual amenity of the Cambridge Green Belt…".

However, the Deputy Judge concluded that the Inspector’s misdirection both as to the formulation of the critical issue as well as the subsequent weighing process (which was to a large part by reference to whether the factors were "commonplace" or "unusual") so seriously flawed his decision as to require it to be quashed. The Deputy Judge concluded that it was impossible to disentangle the Inspector's conclusions on the weight to be attached to the "other considerations" from his predominant focus on looking for the character of each as being a "very special circumstance". Furthermore, he found it impossible to disentangle the extent to which the Inspector’s conclusions on weight were influenced by the Inspector’s erroneous test of looking for the "unusual" or the uncommonplace factor. As Carnwath LJ had observed in Wychavon, the exercise involves a "qualitative judgment as to the weight to be given to the particular factor for planning purposes".

The decision therefore had to be quashed.

Reasons - a less demanding approach?

[January 2009]

The case of O.P.E.N. v. Tower Hamlets LBC [2008] EWHC 3053 (Admin), decided by Pitchford J on the 17th December 2008, drew attention to a couple of Court of Appeal decisions which had previously escaped my notice, and which may offer a more practical approach to the summary of reasons for the grant of planning permission (as required by Art 22 of the GDPO) than the previous cases might seem to have indicated.

After referring to R (Wall) v Brighton & Hove City Council [2005] 1 P&CR 566 and R (Tratt) v Horsham District Council [2007] EWHC 1485 (Admin) (both of which were previously reported in this commentary), Pitchford J drew attention to the Court of Appeal decisions in R (Roundham and Larling Parish Council) v Breckland Council [2008] EWCA Civ 714, and Smith v Cotswold District Council [2007] EWCA Civ 1341.

Pitchford J briefly summarised the point derived from Roundham by saying that where planning permission is granted, the necessity is for the summary of reasons to identify why the application was successful. That may amount to no more than an explanation that the proposal complied with identified planning policy and guidance. I would respectfully suggest that this is an oversimplification. My reading of the previously cited cases would indicate that this would not be enough to comply with the requirements of Art 22, but it does serve to remind us that the approach taken by the Court of Appeal in Roundham was perhaps slightly less demanding of the LPA than the previous cases might appear to have been.

The relevant part of the notice in Roundham had read:

“This decision to grant planning permission has been taken having regard to the policies and proposals set out in the Breckland District Local Plan adopted September 1999 summarised below, and to all relevant material considerations, including Supplementary Planning Guidance.

ENV22. Proposals for farm diversification will be permitted subject to criteria.”

The Parish Council said that this was not good enough. The reasons simply recited part of the Development Plan without explaining how the Plan had been applied in this case. Buxton LJ did not agree. It was quite clear that the decision-maker was saying that his conclusion was that the project was one for farm diversification, as described in the Plan, and fulfilled the requirements for the granting of permission for such development that were set out in Policy ENV22. Objections previously raised, mainly in terms of noise and traffic, had been addressed by the conditions imposed on the grant, thus meeting the "criteria" referred to in ENV22. The potential litigant, if he was to make progress, accordingly knew that he had to establish that the project was not one for farm diversification. That had never been suggested, nor could it be.

It was clear from the recitation of the policies why the proposal was considered to comply with them, and the conditions and the reasons for their implementation constituted an implicit explanation that the concerns of those who had objected (on noise and highway grounds) were considered to have been met.

A further objection under this head had been that although various potentially relevant policies in the Plan had been referred to in the officers' reports before the planning committee, none of them apart from ENV22 had been summarised in the notice. That complaint was misconceived. In accordance with the approach set out above, Regulation 22 requires the reader to know which policies the local authority relies on, thus which are relevant to the decision to grant permission. It does not require a theoretical account of what policies the local authority might have had to rely on, but in the event did not, when granting (or refusing) permission.

In the case of Smith, the reasons given in the decision notice were arguably inadequate, because the decision notice referred only to a series of policy documents but did not give any substantive reasons which referred to the facts of the application being decided. However, the Court of Appeal agreed with the judge at first instance in that case when he had observed that, notwithstanding the inadequacy of the stated reasons, one then has to consider whether, if the matter was sent back, there is any real prospect of there being any change. Counsel for the claimant had argued that if the committee are required to reconsider the specific reasons, it may be that they would give greater thought to the matter and it is not impossible that they might change their approach. However, there was in truth no real prospect in this case that this would occur.

In these circumstances, a mere reasons challenge was pointless. The only positive result could be that the matter was remitted to the council to give some better reasons, which they would well be able to do, because the judge at first instance had decided that their substantive reasons were sustainable. Given the material before the court, it would be fanciful in this case to suppose that the committee would reach a different conclusion.

Whilst planning authorities are obliged to give proper summary reasons, and dismissing the attempted challenge in the present case would provide no basis whatever for not doing so, the Court should not conclude that a mere reasons challenge should succeed in every case, nor should the Court ‘discipline’ the LPA in this case simply in order “to encourage the others”.

In saying this, May LJ did not intend in any way detract from what Sullivan J said in Wall. The present case was one where, on the "spectrum of possibility" mentioned by Sullivan J in Wall, it was clear that the present case fell well on the side where the Court should not give permission to proceed with judicial review, which would only engender pointless expense.

In point of fact, Collins J had observed in Tratt that it is clearly a relevant consideration in exercising discretion in a reasons challenge whether there has been prejudice and perhaps more importantly whether there is a possibility that there might, having regard to all the circumstances, be a different decision were the matter to be reconsidered. In Tratt there was an issue which upon reconsideration might lead to a different conclusion, and that was why the reasons challenge had succeeded in that case.

The Master of the Rolls agreed that the appeal in Smith should be dismissed for the reasons given by May LJ. In doing so, he stressed that he did not in any way intend to minimise the importance of planning authorities giving reasons for the grant of planning permission, as required by Article 22 of the GDPO. However, where there has been a failure to give reasons which comply with Article 22, on an application to quash the decision granted by planning permission, the court has a discretion whether or not to make such an order.

Extending the Green Belt – exceptional circumstances again

[January 2009]

The thorny issue of altering the Green Belt boundary came before the courts yet again in R (Hague) v. Warwick DC [2008] EWHC 3252 (Admin), decided by Collins J on 15th December 2008.

The advice in PPG2 is very clear. Once the general extent of a Green Belt has been approved it should be altered only in exceptional circumstances. Detailed Green Belt boundaries defined in adopted Local Plans or earlier approved development plans should be altered only exceptionally. (See para 2.6). Where existing Local Plans are being revised and updated, existing Green Belt boundaries should not be changed unless alterations to the Structure Plan have been approved, or other exceptional circumstances exist, which necessitate such revision (para 2.7).

In this case, the Green Belt boundary had originally been fixed in 1982 and there was no dispute as to the fact that the LPA now sought to extend the Green Belt. The question was whether they had demonstrated that this was justified by “exceptional circumstances”, as required by PPG2. It was an issue to which the Inspector conducting the Local Plan inquiry had specifically addressed himself. He concluded with these words :

“I am satisfied that exceptional circumstances do exist for amending the Green Belt boundary in this location and that the District Council does not rely upon general planning concepts. There is no logic to the present boundary. It is an anomaly that should be corrected, and the nettle should be grasped now. I am in no doubt that if the Green Belt was being established around Kenilworth for the first time, this parcel of land would be included. The need to apply a consistent approach to Green Belt designation is, I feel, an exceptional circumstance. I agree with the District Council that the site has a clear visual and functional relationship with open, undeveloped land to the north. In my opinion, this amendment is not of such significance as to constitute a strategic alteration that should only be made through a review of the Regional Spatial Strategy. The reason why this land was originally excluded from the Green Belt is obscure. However, it is not unreasonable to conclude that it was based upon a purely administrative convenience in following the old Urban District boundary. That position has changed with revision of the local authority boundary. In terms of the Copas case (Copas v Royal Borough of Windsor and Maidenhead [2002] 1 P&CR 199), I consider that the fundamental assumption which caused the land initially to be excluded from the Green Belt has been clearly and permanently falsified by this later event. Its continuing exclusion from the Green Belt can, I believe, be properly characterised as an incongruous anomaly. If the correction of a past mistake is not regarded as an exceptional circumstance, then there would be no opportunity through PPG2 to put matters right. The preparation of a new Warwick District Local Plan is not in itself an exceptional circumstance. But it does provide the vehicle for addressing an inconsistency that has, in my view, prevailed for far too long and has unreasonably raised expectations as to future development potential.

The quotation from Copas which the Inspector presumably had in mind was this passage in Simon Brown LJ’s judgment :

“It must, of course, be recognised that PPGs have no formal statutory force and are not to be construed and applied as if they had. The only statutory obligation on the Local Planning Authority (and in the present case, of course, on the Inspector) is to have regard to them. All this too was pointed out by Purchas LJ in Carpets of Worth. That said, the Guidance must be given some reasonable meaning and be properly understood by those charged with forming the relevant planning judgment.

“I would hold that the requisite necessity in a PPG 2 paragraph 2.7 case like the present - where the revision proposed is to increase the Green Belt - cannot be adjudged to arise unless some fundamental assumption which caused the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event. Only then could the continuing exclusion of the land from the Green Belt properly be characterised as 'an incongruous anomaly'." In the view of Collins J, in the present case there was no proper basis for the conclusion that the inspector reached. The way he expressed it was itself erroneous, because there had been no later event to falsify the original decision. Equally, there was no positive evidence that the exclusion of the land from the Green Belt in the first place was based purely upon administrative convenience. It was difficult to see what administrative convenience there would have been when the old local authority boundary had disappeared some 8 years earlier (in 1974). The physical boundary itself was identifiable by the hedgerow in question and was a perfectly understandable and appropriate boundary to have chosen.

In those circumstances, Collins J was satisfied that this claim should succeed. Thus the inclusion of the triangle of land in question in the Green Belt was quashed.

Bucking the system

[January 2009]

A letter in Planning magazine in January 2009 suggested that the hassle involved in obtaining planning permission had become so tiresome and time-consuming that some developers were simply bypassing the process altogether and getting straight on with the proposed development. I must confess that I have some sympathy with this approach, although I doubt whether it is quite so common as this correspondent was suggesting.

If the development is being financed by borrowing, going ahead with it without planning permission would threaten the lender’s security and be a breach of the mortgage terms. Selling the completed development could also be problematic, as a purchaser’s solicitor will want to be satisfied that the completed development has planning permission, and the purchaser’s lender also comes into the picture if the property is to be mortgaged to finance the purchase.

On the other hand, where someone is developing on their own account, i.e. for the purposes of their own business or personal occupation, and is not reliant on borrowing to finance it, then there may be a stronger temptation to ignore the planners. Planning enforcement remains the Cinderella of the planning service, and (perhaps rather surprisingly) there is no sign of LPAs diverting under-employed DC officers into enforcement to tide them over the downturn in applications. In fact quite the opposite – staff cuts seem to be affecting enforcement officers as much as other planning staff.

Faced with unauthorised development, an LPA is in an initial quandary as to whether it is expedient to take enforcement action at all. As ministerial guidance makes clear, enforcement action should not be taken solely because the development was unauthorised; if the development does no harm then there is no excuse for taking enforcement action, even if the developer refuses to ‘regularise’ the position by applying for retrospective permission.

By the time anyone gets around to doing anything about it, there is a good chance that it will be immune from enforcement under the 4-year rule, and there is in any case a good chance that enforcement action can be successfully resisted on appeal, especially when one takes into account the very high risk of LPAs making a mess of the enforcement notice. I have lost count of the number of enforcement appeals I have won due to the LPA having cocked up the legal aspects of the case.

There have been some cases where I have advised clients just to get on with minor development without bothering with a planning application. One case I have in mind was a very large site on which an existing business had been operating for many years. The client had applied for permission for some additional external lighting within the site and a couple of small buildings as a base for overnight security staff. The LPA made a terrible fuss over it and we had to appeal a refusal, ending with an award of costs against the LPA. I suggested to the client that the LPA would never have noticed if he had simply put in the extra lighting and the security accommodation without asking, and we agreed that that is what he would do in future if he wanted carry out any other development inside the site.

No doubt readers could cite numerous other examples of unnecessary hassle with planners, which not only brings the planning system into disrepute, but encourages people to buck the system and just get on with it. Personally, I don’t blame them.

My views have not changed since I originally wrote this piece, and the chances of ‘getting away with it’ seem likely to increase as the expected cuts in public sector spending bite ever deeper in the coming months.

Development in the wrong place

[January 2009]

In January 2009, I spotted an item on the regional TV news in which an LPA had served an enforcement notice on a dwelling then under construction, because it was being built slightly out of position on the site. The architect accepted that there had been a slight error in the setting out, but disputed the LPA’s assertion as to the extent of the discrepancy. I forget the precise figures, but I think the architect was prepared to accept that there was an error of about 200mm, whereas the LPA alleged that the error was roughly half a metre. This brought the dwelling closer to a public right of way than had been intended, and this seems to have been the principal bone of contention.

The developer was reported to be appealing against the enforcement notice (which required the demolition of the house) and so it looked as if an Inspector was going to have the interesting task of deciding, first, what the extent of the setting out error actually was and, secondly, whether it was material. If the discrepancy in the positioning of the dwelling was found to be de minimis, then there had been no breach of planning control, but even if the error was sufficiently material as to result in the dwelling which was being built not being the development which was authorised by the permission, then (subject to the appeal fee being paid) it would be open to the Inspector to grant planning permission for the dwelling as built, if having regard to all the relevant material considerations it was judged to be an acceptable development despite being ‘wrongly’ located.

TV news items are inevitably superficial in their coverage, and so there may be aspects of the case which did not emerge from the report but, from the limited indications presented on the telly, this case must at best have been a marginal one, and if I were a betting man I would not have put my money on the LPA’s chances of having the enforcement notice upheld. In fact, I thought the LPA might be at some risk as to costs in this case.

There is no hard and fast rule as to how far out a development has to be in any of its major dimensions (including height) before it can be said to have been built in breach of planning control. A lot depends on the effect the development has on its immediate surroundings (including, in this case, a nearby public right of way). However, before an LPA rushes into enforcement action, they should consider carefully whether retrospective planning permission might reasonably be given for the development in the form in which it has actually been carried out, and this inevitably involves a comparison with what was actually authorised. If the impact of the development as built is not significantly different from what it would have been if accurately built to the approved drawings, then it would not be expedient (under the terms of s.172) to issue an enforcement notice, even if the developer declines to regularise the position by applying for retrospective planning permission for the development as built.

[I have heard nothing further, so do not know the outcome of this particular case.]

Putting the cart before the horse?

[February 2009]

In February 2009, I wrote that I was becoming increasingly puzzled by the process on which the government had embarked which may (or may not) lead to a substantial northward extension of Heathrow Airport, including a third runway and Terminal 6.

This project, if it is not killed off by a government defeat in the forthcoming General Election, will fall to be determined under the new process for major infrastructure projects introduced by the 2008 Planning Act (assuming that the IPC itself survives in the aftermath of the election).

At that time, there was still quite a lot of flesh to be put on the bare legislative bones contained in the 2008 Act, and one major component of the necessary machinery is the series of National Policy Statements covering various categories of major infrastructure developments. However, a statement covering airports is likely to be among the last to be published, and is not expected until 2011. In the meantime, other national policy statements which have appeared in draft have been heavily criticised and may well be challenged in the Courts.

In the absence of an NPS on airports, it is difficult to understand how the Heathrow proposal can lawfully be taken forward. The new Infrastructure Planning Commission is now open for business, but it seems unlikely that the Heathrow scheme can realistically be ready to go forward within the expected timescale, especially in the absence of the relevant national policy statement.

One begins to wonder what point there was in Geoff Hoon’s announcing at such an early stage, at the beginning of 2009, the government’s support for the further expansion of Heathrow (for which the actual applicant will be the privatised BAA), when there seems to be little prospect of its being progressed in the immediate future. It might even be seen as an attempt to pre-empt the statutory and legal process and as such potentially open to judicial review.

I predicted that this could be the beginning of a very long war of attrition, and this could still be the case if the scheme is not killed off as result of the election. The first battle (more a preliminary skirmish really) has already been fought in the High Court in R (Hillingdon LBC) v. SST in which judgment was given by Carnwath LJ on 26 March 2010. This was a challenge by way of an application for judicial review of the ministerial statement mentioned above.

Although the judge accepted that this statement was susceptible to judicial review, it was difficult to identify any procedural impropriety (in the absence of any laid down statutory procedure), and it was doubtful if a quashing order was appropriate in relation to a statement of ministerial policy that had no substantive legal effect at the time. Although I suggested above that the minister’s statement might appear to pre-empt the planning process, the judge clearly felt that the forthcoming national policy statement on airports would necessarily involve a review of all the relevant policy issues, so that Hoon’s earlier statement does not in fact close off the reconsideration of these issues.

However, as I indicated earlier, this could all prove to be academic if the General Election produces a result which leads to the abandonment of plans for a third runway and sixth terminal at Heathrow. [As noted in a more recent post - it did.]

Lawful commencement again

[February 2009]

In February 2009 I commented on a judgment which appeared to demonstrate the application of what might be described as the Hammerton principle in the context of the rule established by the leading case of Whitley (as developed by Hart Aggregates). The case in question was Rastrum Ltd v. SSCLG [2009] EWHC 160 (Admin), in which judgment was given on the 4th February 2009.

To cut the facts down to the bare bones, an outline planning permission was granted in 1981, followed by consent to details in 1984. The consent to details was hedged about with numerous conditions. Whether or not those conditions could truly be said to be ‘conditions precedent’ does not seem to have been in issue. The case seems to have proceeded on the basis that they were, and that the commencement of development in breach of those conditions would have been unlawful.

In order to preserve the permission, an access into the site was formed in 1987 shortly before the permission was due to expire. This was clearly one of the material operations specified in Section 56, and the LPA proceeded for some time on the basis that this amounted to a lawful commencement of development, but their view later changed, apparently on the basis of the alleged failure to comply with the conditions precedent.

An application for an LDC was refused and an appeal against that refusal was dismissed by an Inspector. The developer then applied to the High Court under s.288 to quash the appeal decision. Several issues were canvassed before the Court but I will confine myself in this account to the single issue of lawfulness.

The Deputy Judge suggested that the judgment of Ouseley J. in R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) contains the most helpful summary of the true position. On facts not dissimilar to those in the current case, Ouseley J had to consider whether a material operation had been carried out, whether any conditions had not been complied with when the works were carried out and what significance flowed, on the facts, from a commencement in breach of planning control.

[Crucially, Ouseley J held that, if after the expiry of the period within which the planning permission had to be implemented, enforcement action is not lawfully possible, there is no reason why the development which cannot be enforced against should not be regarded as effective to commence development. Thus commencement which was initially unlawful can be rendered lawful simply by the failure of the LPA to take enforcement action, although Ouseley J did make the proviso that it would be insufficient to show that the authorities were indifferent to the breach, or unlikely to take enforcement action or indeed that they had decided not to - it is necessary to conclude that they could not do so.]

In Sir George Newman’s judgment, the position was clear. When the period allowed for taking enforcement action against the operations carried out in 1987 expired, the operations, which had been carried out in breach of condition became lawful. That being so, the development was lawfully commenced and the 1981 permission and 1984 consent to details are extant. It followed that the District Council should have granted a certificate of lawfulness in connection with the proposed development. The Inspector erred in not allowing the appeal on this ground.

[Note: This judgment was later reversed by the Court of Appeal – see [2009] EWCA Civ 1340, and the Inspector’s decision upholding the LPA’s refusal to issue an LDC was restored. But this was on the basis that in Rastrum there had been a failure to obtain approval of all of the reserved matters as required by the outline planning permission, so that the permission had lapsed after three years and was not capable of being lawfully implemented for that reason. Thus issues relating to ‘conditions precedent’ did not arise in that case.]

What is a tree?

[February 2009]

This is a question which had been inconclusively debated over many years. Early in 2009 the question at last came fairly and squarely before the High Court in Palm Developments Ltd v. SSCLG [2009] EWHC 220 (Admin), with Charles Mynors (the author of the leading textbook on the subject) appearing for the claimant. Cranston J delivered a thorough and detailed judgment in the case on the 13th February 2009 in which all the previous authorities were carefully reviewed.

The case involved a TPO protecting woodland; thus no individual trees were identified in the order. The question which the Court therefore had to answer was which plants were protected by the order and which (if any) were not.

An obiter remark by Lord Denning in Kent County Council v Batchelor (in 1976) that in a woodland only those plants with a trunk of at least 180mm to 200mm diameter could be regarded as ‘trees’ was firmly rejected. The absence of any size limit being stipulated by the Act or regulations in this context (in contrast to certain other statutory provisions for the protection of trees) was taken to indicate that the protection afforded by a woodland TPO is intended to apply to all tree plants, irrespective of size, including even seedlings and saplings (but it would not include a shrub, a bush or scrub). This is in line with Bullock v Secretary of State (1980) 40 P&CR 246. In reaching this conclusion, the judge expressly rejected a submission by Charles Mynors that there must in practice be a size below which the de minimis rule should operate.

Furthermore, Cranston J saw nothing illogical in woodland TPOs applying to future trees. A TPO for one tree, or for a group of trees, may be intended to apply to specific trees only, but a woodland order would seem designed to protect the undifferentiated mass of trees in the specified area. The order would not achieve its purpose if it applied only to the trees existing at the date it was made. Since those trees would die it would be necessary if the woodland were to be protected to make new orders, on an uncertain but periodic basis, to continue to protect the trees in the area. That cannot be a sensible construction of the legislation. As the Blue Book [Tree Preservation Orders: A Guide to Good Practice (2000)] suggests, because the purpose of a woodland TPO is to safeguard the woodland as a whole, which depends on regeneration or new planting, it must extend to trees which grow or are planted after the order is made. In saying this, the judge was following the remarks of Hutchinson LJ to that effect in Evans v Waverley DC [1995] 3 PLR 80.

This judgment does not affect the position as regards the protection of trees in conservation areas under s.211 of the 1990 Act. The 1999 regulations exempt from that protection works to trees with a diameter at breast height of less than 75 mm (or 100 mm where the work is solely to improve the growth of other trees).

The limits of the Hammerton principle

[February 2009]

The ruling by Ouseley J in Hammerton v. London Underground Ltd [2002] EWHC 2307 (Admin); [2003] JPL 984 (which was approved by the Court of Appeal in Prokopp v. London Underground Ltd. [2003] EWCA Civ 961; [2004] 1 P&CR 31; [2004] JPL 44) is a useful extension of the rule (or rules) in Whitley. Just to remind you, what Ouseley J said in Hammerton was :

“I consider that the principle discernible in Woolf L J’s reasoning [in Whitley] is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development. ..................Enforcement action may still be taken to remedy the breach by requiring compliance with the condition. But the development cannot be stopped from proceeding.”

“........If after the expiry of the five year period, it is possible to conclude that enforcement action is not lawfully possible, I see no reason why the development which cannot be enforced against should not be regarded as effective to commence development......................No sound distinction can be drawn for these purposes between development which cannot be enforced against because there has been no breach of planning control and development which cannot be enforced against because such action would itself be unlawful. If, in language which the post-Carnwath Report enforcement regime has made redundant, development in breach of planning control is immune from enforcement, it should be regarded as effective to commence development.”

“On that analysis, it would be insufficient to show that the authorities were indifferent to the breach, or unlikely to take enforcement action or indeed that they had decided not to. ..........It is necessary to conclude that they could not do so.”

This principle was applied by the High Court in Rastrum Ltd v. SSCLG [2009] EWHC 160 (Admin), as reported in this commentary in January 2009, and yet I begin to have doubts about the practical application of the principle to a situation in which it is alleged that the works carried out in breach of condition are immune from enforcement under Section 171B of the 1990 Act.
The first doubt which has arisen in my mind is this - Does the unlawful commencement of development have to have become immune from enforcement before the date by which the planning permission would otherwise expire? It seems to have been assumed (e.g. in Rastrum) that the date by which immunity is achieved is immaterial, but the language used by Ouseley J in Hammerton leaves this point slightly unclear. If immunity under the 4-year rule has to be achieved before the time limit for implementation of the planning permission is reached, then it would appear that the material operation in question would have to have been substantially completed more than four years before the expiry of the planning permission – which in practice is unlikely in the vast majority of cases.

A more significant doubt centres on the precise status of the works in question. Let us assume that they comprised the formation more than 4 years ago of the site access (as they did in Rastrum), thus undoubtedly coming within the definition of a material operation in Section 56, but nevertheless unlawful at the time of their execution by reason of their being in breach of a true ‘condition precedent’ in the planning permission. Assume also that nothing further has been done on site since then to continue with the development and that no steps have been taken to comply with the condition precedent. How, then, in the light of the House of Lords decision in Sage v. SSETR [Sage v. Maidstone BC] 2003 UKHL 22; [2003] JPL 1299, can the formation of the access be said to be a development which has been substantially completed for more than 4 years, so as to render it immune from enforcement?

If the formation of the access was referable to the planning permission for the development as a whole then, arguably, it can be seen only as part of that larger development and, on the basis of Sage, cannot be a substantially completed development in its own right. Thus it will not have become immune from enforcement under the 4-year rule. If, on the other hand, it is argued that it is to be seen as a stand-alone development, then by that token (whilst it may in itself be immune from enforcement under the 4-year rule) it is not referable to the planning permission and cannot constitute implementation of the permission (see Malvern Hills DC v. SSE [1982] JPL 439). As I see it, the developer can’t have it both ways.

For the time being, Hammerton must be taken as binding judicial authority on the point, and so the doubts expressed above are mere speculation, but I do not rule out the possibility that the Court of Appeal might upset this particular apple cart at some time in the future.

[Note: The judgment in Rastrum was later reversed by the Court of Appeal – see [2009] EWCA Civ 1340, but this was on the basis that in Rastrum there had been a failure to obtain approval of all of the reserved matters as required by the outline planning permission, so that the permission had lapsed after three years and was not capable of being lawfully implemented for that reason. Thus issues relating to ‘conditions precedent’ did not arise in that case.

The Court of Appeal nevertheless seems to have accepted that the formation of the access would otherwise have been capable of being a lawful commencement of the development and that the works involved would have become immune from enforcement four years after they had been substantially completed. However, I continue to have doubts on this score, for the reasons explained above

Section 215 Notices – physical scope

[February 2009 ]

LPAs have power to serve a notice under s.215 of the 1990 Act requiring proper maintenance of land (or buildings) adversely affecting the amenity of the neighbourhood. In Toni & Guy Ltd v. Hammersmith & Fulham LBC [2009] EWHC 203 (Admin) in which judgment was given in the High Court by Wyn Williams J on the 11th February 2009, the LPA had served a s.215 notice in respect of the whole of a building in which it was only the disrepair of the upper floors at which the notice was aimed.

The appellants, who owned the ground floor and had no interest in or control over the upper floors of the building, appealed against the notice to the Magistrates’ Court under s.217, where the appeal was dismissed by the District Judge. This appeal then went by case stated to the High Court. The question for the opinion of the Court was whether or not the District Judge had erred in law in holding that the LPA was required, when it served the s.215 notice on the occupiers of the first, second and third floors of the building requiring works to be done to those parts of the building, also to serve the notice on the appellants as occupiers of the ground floor, thereby requiring them to do those works as well, even though they had not at any time owned, occupied or otherwise had any rights of access to any part of the first, second and third floors of the building.

The Court allowed the appeal, holding that the notice should have been quashed by the District Judge. The LPA had no power under Section 215 to serve the notice on the appellants, since no land owned or occupied by the appellants was in such a condition as to affect adversely the amenity of the neighbourhood. This case therefore makes it clear that in formulating a Section 215 notice, an LPA must be accurate in identifying the land or property whose state or condition is adversely affecting the amenity of the neighbourhood, and to serve the notice only on the owners and occupiers of that land or property and not on any neighbouring owners or occupiers who have no interest in or control over the property in question.

However, the Court was not wholly sympathetic to the appellants, because the judge was firmly of the view that, in reality, these proceedings were unnecessary. By 20 November 2007 at the latest it was crystal clear that the LPA would never seek to rely on the notice served upon the appellants, so as to take enforcement action against them under s.216. At that point, in his judgment, a reasonable and proportionate response on the part of the appellants would have been to accept that the LPA had acted in good faith, albeit, as he had found, outside its statutory powers. At that stage legal costs were or ought to have been comparatively modest. His lordship had been left with the strong impression that the issue motivating the continuance of these proceedings was costs. For that reason, he left it to the parties to settle between themselves the terms of the appropriate order (including the question of costs), although he did quash the s.215 notice itself.

A second bite

[March 2009]

Professional readers will be well aware that Section 171B(4)(b) gives the LPA the opportunity to take further enforcement action where the action it originally purported to take proved ineffective (the so-called ‘second bite’ provision). So long as the original action was within the relevant 4-year or 10-year time limit, the LPA has a further four years in which to have another go, in the hope that this time they will get it right.

However, a reader raised a query in Planning magazine’s DC Forum on 13 February 2009, regarding the position where the original notice had been a nullity (as distinct from being merely defective). It was suggested that an LPA could have “purported to take” enforcement action for the purposes of s.171B(4)(b) in these circumstances, but I disagree.

Section 171B(4)(b) provides that the time limits set out in that section do not prevent taking further enforcement action in respect of any breach of planning control, if during the period of four years ending with that further enforcement action being taken, the LPA have taken or purported to take enforcement action in respect of that breach.

The sub-section cannot be relied upon to authorise further enforcement action where the earlier and later enforcement notices relate to two different physical developments or two different changes of use, but it can be relied upon where both relate to the same actual breach of control, albeit described in different ways – see Jarmain v. SSETR [2000] 2 PLR 126 [2000] JPL 1063 (CA).

My concern here, however, is with the words “further enforcement action” and “have taken or purported to take enforcement action”. The use of the word “further” appears to me to pre-suppose that some previous enforcement action had actually been taken. It seems to me that if any such previous action was a nullity, then there was no enforcement notice at all, and so there is nothing which could trigger this ‘second bite’ provision.

There does not appear to be any judicial authority regarding the meaning and interpretation of the phrase “or purported to take”. However, in one decision letter I have seen, the Secretary of State having reached the conclusion that the intended enforcement notice was a nullity went on to say: “As such there is no enforcement notice capable of correction and no appeal under Section 174 to be determined. Accordingly the Secretary of State can take no further action in the matter.” At the end of the letter the S of S added : “Given that the conclusion that the notice is a nullity means that, in the Secretary of State’s view, there is no notice, the Authority is requested to ensure that any record of its existence is removed from the enforcement register kept under Section 188.

The word “purported” forms part of the phrase “have taken or purported to take”. It governs the verb “to take”. It does not govern the compound noun “enforcement action”. It is used as a verb (“have purported”), not as an adjectival participle. Thus the section does not refer to “purported enforcement action”. It refers to “enforcement action” per se, which the LPA has purported to take. Accordingly, the action which the LPA has purported to take must amount to “enforcement action” as such. At the very least, that enforcement action must be a notice (EN or BCN), which whilst it may be defective (and might ultimately be quashed on appeal), still constitutes a notice. Where the LPA originally served an intended enforcement notice which was a complete nullity, there was nothing on which the S of S (or her Inspector) could have adjudicated, as noted in the decision letter mentioned above. This cannot have amounted to “enforcement action”, no matter what the LPA may have intended or “purported” to do.

In other words, there must be a threshold which was passed which enables what was done or purported to be done to be described as “enforcement action”. It is for this reason that an intended enforcement notice which was in fact a nullity was not a notice at all, and cannot therefore constitute “enforcement action” (which the LPA “has taken or purported to take”) for the purposes of Section 171B(4)(b). The second bite provision cannot therefore operate in those circumstances.

At the time when I originally wrote this note (in March 2009), I was dealing with an Enforcement Notice Appeal in which this very point was a live issue. In the event, this point did not fall to be determined by the Inspector, as the LPA withdrew the EN at the inquiry, which left only the parallel s.78 appeal to be determined by the Inspector.

Under-enforcement – s.173(11) again

[April 2009]

You may remember that in a piece posted in this blog in March 2006, I drew attention to the operation of s.173(11), which provides that where an enforcement notice could have required any buildings or works to be removed or any activity to cease, but does not do so, then upon all the requirements of the notice being complied with, planning permission is treated as having been granted in respect of those other works or activities.

I mentioned that I had dealt with a case a few years ago in which Section 173(11) came into operation due to inept drafting on the part of the LPA. The Inspector drew Section 173(11) to the LPA’s attention at the inquiry, and there was then some urgent negotiation in which we agreed to an amendment of the notice whereby various fixtures and fittings associated with the use were to be removed, and we would then withdraw our appeal against the notice upon the LPA agreeing to pay our costs. The Notice could not realistically be amended so as to require the use to cease, as that would be more onerous than the existing notice and would therefore cause injustice to our client. So they still ended up by failing to require that the unauthorised use should cease. The offending fittings were duly removed in compliance with the amended enforcement notice, and so permission for the change of use was thereby granted by the operation of Section 173(11). That being the case, I advised my client that there was then nothing to stop her putting back the fittings that had been associated with the unauthorised use, now that she had planning permission for that use!

At the time, my client did not consider it necessary to apply for an LDC, but I speculated on the reaction in the planning department if or when such an application were to go in. Well, there came a time when my client decided that she did need an LDC, not least because there had been intermittent threats from the LPA of prosecution for failure to comply with the EN (i.e. she was still using the building as a separate dwelling!). A robust response, pointing out that the EN did not require that the use should cease was enough to warn them off, but clearly the only way to resolve the matter once and for all was to obtain an LDC.

I am not privy to the internal discussions that ensued in the LPA but I do know that they went scurrying off to counsel for advice when our LDC application went in. I have no means of knowing precisely what counsel advised, but they eventually conceded very reluctantly that there was planning permission for a change of use, although they were minded initially to restrict it to a use ancillary to the ‘main’ dwelling. I pointed out to them that they had themselves alleged on the face of the notice that the dwelling was functionally an entirely separate residential unit to the ‘main’ dwelling. After a further delay (when they presumably went scurrying back to counsel again), they eventually issued an LDC confirming that the property is being lawfully used as a single private dwelling by reason of the planning permission granted under s.173(11).

I had also pointed out the effect of s.180, and so the only loose end remaining to be tied up was to get the EN removed from the planning register.

What is instructive about this case is that back in 2002 the Council could have got us bang to rights if they had had their wits about them. It was not too late to rescue the situation when the Inspector drew s.173(11) to their attention at the inquiry. At that point they should promptly have withdrawn the enforcement notice. Since that would have been the second notice that they had been obliged to withdraw it would have been embarrassing for them, and they would have been faced with an application for costs, but in the circumstances they had to pay our costs anyway, so they would have been no worse off.

They would then have been able to rely on the second bite provision at any time within the following 4 years (because the first notice, though defective, was certainly not a nullity). There was a dispute as to whether we were dealing with a change of use or operational development (as the conversion to a dwelling had been ‘built in’ as part of the original erection of the structure). At the time, I was intending to rely on the original judgment in Sage, which had been upheld in the Court of Appeal, to show that the dwelling had been substantially completed more than 4 years before the first EN was served. However, when the House of Lords overturned Sage we would have been scuppered, and would then have had no answer to a correctly drawn notice. If, in truth, we were looking at a change of use, as alleged in the EN, then there was no way we could have run a 4-year rule argument in any event, because we could not have satisfied the Gravesham test.

You may think this is an example of a nasty, wily lawyer exploiting loopholes in the law to defeat the legitimate attempts of an LPA to take enforcement action against a blatant breach of planning control, but the loophole was created solely by the fundamental mistake made by the LPA in drafting the enforcement notice, compounded by their failure to abandon that notice and then to make a third and final attempt to get it right. It may seem harsh, but the LPA had no-one but themselves to blame for the outcome in this case.

Barn conversions again

[March 2009]

Readers may recall that I wrote a piece on this subject in January 2008. An example of the problems I was reviewing in that short article was provided by the case of Amber Valley BC v. SSCLG [2009] EWHC 80 (Admin) in which judgment was given by Bean J on 23rd January 2009.

This involved a barn conversion in which the proposed development was described as a “barn conversion to dependent relative unit”. The application stated that it would involve “alteration or extension to existing buildings” and a change of use. The officer's report on the application concluded that the barn could be converted without extensive alteration or addition and recommended approval. Planning permission was granted on 16th October 2006 for the proposed barn conversion to a dependent relative unit “in the manner described in the application and shown on the accompanying plans and drawings”.

There was no condition which expressly prevented or restricted the extent of any alterations which could be made to the barn, including any rebuilding; but the LPA argued that such a condition would have been otiose in the light of the permission stating that the proposed conversion was to be “in the manner described in the application and shown on the accompanying plans and drawings”. However, the developer’s architect subsequently expressed the view that it was self evident that in order to insert the new door and complete the fenestration that had been approved, some localised rebuilding would be essential.

An enforcement notice and stop notice were served when the building had been partly dismantled. The Council took the view that the proposed rebuilding of the roof and part of the walls went beyond what was permitted, and that what had been done amounted to demolition and rebuilding, so that it was no longer possible to convert the building in accordance with the planning permission.

The developers appealed against the EN under Grounds (a) (b) (c) and (f). It was argued on their behalf that the works fell within the terms of the 2006 planning permission, even though more demolition and rebuilding had proved necessary than was contained in the approved scheme. The additional rebuilding was held by the Inspector to be a material change to the scheme and a material variation to the amount of rebuilding, which required an additional planning permission to that which had been previously granted. He therefore decided that there had been a breach of planning control and that the appeals under Grounds (b) and (c) failed. However he allowed the appeal under Ground (a) and granted permission for the development.

It was this decision which the Council sought to challenge in the High Court. The Court found no fault with the way the Inspector dealt with the planning merits and the policy considerations and dismissed the Council’s appeal. However, it was clear that what was bugging the Council was the way the development had been carried out. They complained (unsuccessfully) that the Inspector had failed to identify the magnitude of the departure from what had been approved in 2006. What had been produced, they said was substantially (as a question of fact and degree) a new house.

The Council also argued that the Inspector was wrong to describe the development for which permission was sought under Ground (a) as a part demolition and rebuilding of a barn (as opposed to the partial demolition of a barn and construction of a new dwelling house), but the judge pointed out that the breach of planning control in the enforcement notice was stated to be “the part demolition and rebuild of a barn”, and the Inspector adopted the same wording in granting permission for “the development already carried out, namely the part demolition and rebuild of a barn”. Given the terms of section 177(5) of the 1990 Act, stating that the Appellant is deemed to have applied for planning permission “in respect of the matter stated in the enforcement notice as constituting the breach of planning control”, this was the correct approach to adopt. Planning permission was not, and could not have been, granted for “demolition, and construction of a new dwelling house”.

In any event, although the Council argued that the developers had built or sought to build a new house, that is not what the Inspector found, following his examination of the evidence and a site inspection. He found that a substantial part of the original barn walls remained and that the rebuilt sections, including the door and window openings, were essentially as indicated in the approved drawings. The building had the same footprint as before and had not been extended. These were factual conclusions based on his planning judgment and his inspection of the site and could not be impugned in the High Court.

The judge did accept that the description of the development in the 2006 planning permission was ambiguous as to the extent of the works which would be required. However, R v Ashford BC ex p Shepway DC [1999] PLCR 12 had established that it was permissible to look at extrinsic material to resolve that ambiguity, and so the Inspector had been justified in referring to an architect's letter dated 7th March 2006 which made it clear that part of the north elevation, together with the whole of the roof, were to be reconstructed.

Finally the Council asserted that the inspector was wrong to find that the development permitted by the 2006 planning permission necessarily comprised an element of demolition. It was true that the application form answered 'No' to the question 'Are any buildings to be demolished?'; but the Inspector was entitled to take the view (as did the judge) that this answer on a common sense construction did not rule out the partial demolition and rebuilding of the barn. The application form made it clear that alterations to existing buildings were required; plainly these could include partial rebuilding. There was ample evidence to support the Inspector's conclusion that the 2006 planning permission authorised some element of demolition and rebuilding.

This challenge was in substance an attempt to re-run the merits of the planning appeal. But the fact that the Council disagreed with the Inspector's decision was not a ground for overturning it, and so the council's claim under Section 288 of the 1990 Act was dismissed.

Bearing in mind the Inspector’s findings of fact, it is slightly puzzling that the Inspector did not allow this appeal under Grounds (b) or (c). Maybe the Inspector felt it would be safer to go along with the LPA on this issue and simply to grant planning permission under Ground (a). This indeed proved to be the case. The LPA still seems to have been spoiling for a fight on Grounds (b) and (c) in the High Court, but as the judge made clear in his closing remarks, this proved to be a rather pointless exercise.

Fast track householder appeals

[March 2009]

Among the changes to the appeals system brought in as a result of the 2008 Act and associated reforms to the planning system was a new fast track appeals system for householder appeals. The new regime applies where the planning application the subject of the appeal was made on or after the 6th April 2009. It is estimated to apply to about 6,000 cases a year.

The new streamlined procedure applies to applications for development of an existing dwellinghouse, or development within the curtilage of an existing dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse. However, it does not apply to any works relating to a flat. Nor does it apply to proposals to change the number of dwellings (e.g. the conversion of a house to flats). Any change of use is also outside the scope of the new procedure.

The new procedure applies to appeals against the refusal of a planning application and against the refusal of an application to remove or vary conditions, but it does not apply to appeals against deemed refusal (non-determination), nor against a grant of planning permission subject to conditions.

The most important change from an appellant’s point of view is the reduced appeal period of 12 weeks (which should be made clear in the LPA’s decision notice). As we saw when the standard appeal period was reduced a couple of years ago, this could lead to a significant increase in the number of appeals in these cases. The procedure is governed by Part 1 of the new (2009) Written Representations Regulations, amendments to the GDPO and detailed guidance issued by PINS. The system is primarily based on electronic working, but I suspect that a significant number of appellants are still submitting their appeals on paper, especially if they are not professionally represented.

The appellant (or their agent) must use a special householder appeal form, setting out the full grounds of appeal (which is the appellant’s one and only chance of arguing their case), together with a copy of the application form and decision notice. The appellant does not need to submit plans or other supporting material supplied at the application stage, as these will be forwarded to PINS by the LPA.

The LPA is expected to rely on reports, any relevant minutes and the decision notice, all of which need to be clear and precise, especially where the decision was against the officers’ recommendation. The LPA must submit the completed appeal questionnaire and all relevant documents to PINS electronically within 5 working days of the start date. Bearing in mind the difficulty some LPAs already had in complying with existing appeal timetables, this may be a real struggle in some cases. It is not clear what penalty can be imposed for failure to comply with this time limit. I suggested that the appeal should perhaps be automatically allowed if the LPA misses the deadline! That would stir them up a bit, but I would be surprised if PINS were brave enough to do that in practice. It seems that the LPA is not expected to make any other representations, beyond advising PINS of any factual inaccuracies in the appellant's reasons for appealing. Again, I wonder what happens if the LPA does seek to put in some kind of appeal statement in addition. Is it rejected or ignored? I wonder what the Courts would have to say in that event?

If there are any new material considerations since the LPA considered the planning application – e.g. new policies - the parties are required to inform PINS of this, who will then decide whether the appeal should still follow the streamlined procedure or be transferred to another procedure (standard written reps, hearing or inquiry).

Third parties may feel particularly hard done by, because although they are informed of the appeal by the LPA, they are not allowed to make any further representations. The LPA must forward to PINS any third party representations made at the application stage, and those alone will be considered by the Inspector in determining the appeal.

The site visit is unaccompanied unless access is required, in which case the appellant or their agent will be present solely in order to allow access to the site. There is no LPA representation on site, and no discussion. The LPA is expected to indicate in the appeal questionnaire if there is a need to visit any third party properties, in which case the same arrangements will apply. The intention is that 80% of such appeals should be determined within 8 weeks.

One obvious objection to the new procedure is that the appellant is given the opportunity to state their case as fully as they wish when submitting their appeal form, whereas it seems that the LPA does not have the opportunity of putting forward their case beyond forwarding the required documents within a much tighter deadline. In practice, this means that the LPA must make sure that their committee report or delegated report sets out their reasoning very clearly. Their biggest problem is in explaining a members’ decision against officer advice within the extremely short time available to them. I suppose that if members refuse permission against their advice, the officers must assume that the decision is likely to be appealed and proceed immediately to prepare a detailed minute of the meeting to justify the decision before an appeal is received.

The inability of the parties to respond to each other’s case could also lead to difficulty, and might possibly lead to legal challenges if appeal decisions are reached on what turns out to be an erroneous or mistaken basis. The lack of a right of reply to what the other side has said might in any event be seen as a breach of the rules of natural justice, and a possible infringement of Article 6 of the Declaration of Human Rights.

The new procedure has now been in place for about a year (as at April 2010) but it is not yet clear how the new procedure is working out in practice. Its success or otherwise will be measured primarily in terms of ‘customer satisfaction’ (or dissatisfaction). Legal challenges to these appeal decisions are likely to be fairly rare, for the simple reason that the cost of a High Court application would be disproportionate in this type of case, which I suspect is what DCLG and PINS were banking on in pressing ahead with this particular variant of palm tree justice.

Fees for discharging conditions

[April 2009]

I drew attention in April 2009 to a letter on this subject from Stewart Glassar of Trevor Roberts Associates and Michael Purdue in Issue 4/2009 of JPL. It crystallised a doubt I had had in my mind for some time about the 2008 amendment to the Fees Regulations, which extends application fees to “written requests for confirmation that a condition or conditions.....have been complied with”.

I suspect that whoever drafted this amendment did not intend it to say what it actually says. There is no doubt in my mind that (as Stewart Glassar and Michael Purdue pointed out) the amendment to the fee regulations only extends the requirement to pay a fee to those cases where a developer wants written confirmation that a condition has been complied with. In most cases, that is an entirely voluntary procedure – there is usually no obligation on a developer who has complied with a condition to ask the LPA to confirm that fact. However, if the developer chooses to do so, then a fee is now payable.

What I suspect the draftsman actually intended was to charge an application fee where a condition requires the developer to obtain the approval or consent of the LPA to some detail (such as materials, landscaping or whatever). Under the amendment of the fees regulations as drafted, such an application would emphatically not attract a fee. The result is, of course, a nonsense, and I suspect DCLG may eventually get round to making a further amendment to the fees regulations to correct the anomaly. So far as I am aware they have yet to do so, but they may be awaiting the outcome of the consultation on the discharge of conditions generally, arising from the Killian-Pretty review.

What the regulations should presumably require is that an application fee should be payable on an application for any further consent, agreement or approval required under the terms of a condition attached to a planning permission (or words to that effect). Whoever wrote Circular 04/2008 seems to think that that is what the amendment to the fee regulations actually means, but they are wrong.

Whether, on the other hand, a mere request for confirmation of compliance with a condition should attract a fee is open to debate. I rather fear that since the amended fees regulations already make this a requirement, it is likely to stay.

Incidentally, some LPAs seem to make a real meal out of dealing with an acknowledgement that a developer has complied with any conditions not requiring the issue of any further approval or consent (e.g. that certain works have been carried out in the manner required by the condition), and insist on formally determining them and issuing a formal decision notice ‘discharging’ the condition. This is entirely unnecessary. An informal acknowledgement (after inspection if necessary) is all that is required. In order to avoid all the hassle and also, now, the payment of a fee, my advice to clients is not to seek confirmation of compliance with conditions where the condition contains no requirement to do so.

There are, of course, some conditions where something is required to be done “to the satisfaction of the local planning authority” (although it is worth bearing in mind the advice in Circular 11/95 in that regard). Arguably, if the developer wants to be assured that there has been due compliance with such a condition he will have to ask the LPA to confirm their satisfaction on the point, and that is clearly a case in which the fee regulations as they now stand do require the payment of a fee.

Appeal changes in 2009

[April 2009]

Those of us involved in planning appeals will be well aware of the various procedural changes which came into effect just over a year ago, on the 6th April 2009. Some of the changes had already been touched on in this commentary. I dealt in a previous posting, for instance, with the new fast-track procedure for householder appeals.

Probably the most important change, brought about as a result of Section 196 of the 2008 Act, and commented on here on more than one occasion previously, is the power that PINS now has to determine the choice of appeal procedure to be adopted. The rules provide that a determination as to the procedure to be adopted must be made within 7 working days of the appeal being received. That doesn’t give the parties to an appeal much time to make representations regarding the procedure to be adopted, and they would be well advised to set out in detail their reasons for seeking a particular procedure (especially if they want an inquiry rather than a hearing, or a hearing rather than written representations) when submitting the appeal. In the case of the LPA, they should fire off a letter to PINS immediately they receive the copy of the appeal from the appellants. The possibility of a subsequent change of mind is not ruled out, so subsequent representations might still be made seeking a change of procedure, but my own experience in trying to persuade PINS to adopt my clients’ preferred appeal procedure has not been encouraging.

A consequential amendment to the appeals procedure rules provides that the ‘start date’ for appeals is now the day on which notice is given by PINS as to the appeal procedure to be followed. The other change, previously mentioned in this blog, is the removal of the right in inquiry and hearing cases to comment on the other side’s Rule 6 statement within 9 weeks after the start date (i.e. up to 3 weeks after the date of the main statement). This doesn’t appear to present a problem in practice, as any point which might have been made in response to the R6 statement can still be made at the inquiry or hearing.

Another change in the timetable is to require the submission of a Statement of Common Ground at the same time as the Rule 6 statements are submitted (previously timed to go in with the proofs of evidence 4 weeks before the inquiry). Whether parties to appeals are achieving this in practice is unclear. It used to be difficult to get LPAs to agree statements of common ground at the best of times, but to do it within 6 weeks of the start date is somewhat optimistic.

As previously noted, costs awards can now be made in written representations cases where the appeal was lodged on or after the 6th April 2009. Quoted statistics show a very low level of costs applications, but I suspect these figures may now be out of date.

Unspent 106 moneys

[April 2009]

Back in the Spring of 2009, DCLG were trying to get their heads round the fact that there was some £4 billion of unspent funds in the hands of local authorities at that time, which they had received from developers under s.106 agreements. The actual amount is amazingly high, but the fact that a lot of money paid under the terms of 106 agreements remains unspent ought not to surprise anyone who has actually been involved in these deals.

These payments are the result of frequently unjustified demands made by LPAs and highway authorities. Developers usually pay them simply as the cost of obtaining planning permission. In many cases, the authority receiving the money has no identified project on which to spend the money, and even when payments are allocated to a specific scheme this may not in fact have gone ahead. Hence all the unspent contributions piling up in local authorities’ bank accounts.

The answer is that the developer should not pay money up front, but should simply agree to pay when a certificate of completion of the specified works is served on them by the authority, provided that the works are completed within a specified time limit (say five years, or 10 at the very most). The LPA and/or highway authority will obviously want to ensure that they do get paid, even if the developer has gone bust in the meantime, and this can be secured by a bond entered into at the time of the agreement.

There are, unfortunately, too many cases of authorities making demands for financial contributions when there is no justification for them at all. It is heartening that in an appeal case early in 2009 the Secretary of State dismissed a demand by an LPA for a financial contribution under the terms of the council’s tariff policy, because there was no evidence that the financial contribution sought was fairly and reasonably related to the impact of the proposal on the transport infrastructure of the area. The council had been asking for £5,000 per dwelling.

[A tightening up of the rules relating to Section 106 payments may see an end to this undesirable state of affairs, and CIL may also have an impact on the situation.]