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Titchfield Festival Theatre - the new chapter. Or not, as it happens.

Fri, 27 Mar 2026 15:21:36 GMT

Titchfield Festival Theatre v SSHCLG and Fareham BC [2026] EWHC Civ 36

The Titchfield Festival Theatre case has reached the Court of Appeal, [2026] EWCA Civ 36. Our commentary on the High Court decision can be found here

As a reminder, Titchfield Festival Theatre acquired land in Fareham (Areas A and B) in 2010. A theatre building was built over Areas A and B. The theatre was successful and, in 2021, acquired the next door warehouse site (Area C). A new, much larger, theatre was created over areas B and C, without permission. The council took enforcement action against the use of Areas B and C for this larger theatre.

At appeal, the appellant argued that the existence of a lawful theatre use on A and B was a material consideration; the appellant argued it could adjust the larger theatre so that it operated on Area B only, with Area C being storage, as before. The council argued that there was now a single planning unit of A, B and C and that there was no scope to revert under s57(4) to the A/B planning unit so all existing use rights related to A/B were lost.

The enforcement notice was upheld on appeal. The inspector found that the establishment of a new planning unit was capable of extinguishing existing use rights. She found that there was now a single planning unit (A/B/C), that this had a different character of use than the previous separate theatre (A/B) and storage (C) uses, that it had planning impacts and was therefore a material change of use. There was no lawful use of A/B/C because it did not previously exist as a planning unit and therefore no reversionary right under s57(4) TCPA 1990. The decision was challenged at the High Court.

At the High Court, the appeal was dismissed. The judge found that there is a new chapter in the planning history when there is implementation of a new permission. Or a new unlawful use. And that establishment of a new planning unit could well be a new unlawful use. There was some debate in the case law as to how “radical” a departure from the existing use that new unlawful use had to be. The judge decided that “new chapter in the planning history” and “creation of a new planning unit” were interchangeable in this respect. If the creation of the new planning unit was a material change of use, such that there was development and a new chapter in the planning history, then any existing lawful use rights were lost. The inspector had rightly found that there was a new planning unit here and that its creation was a material change of use; it followed that any existing use rights had been extinguished. There was no way back to those rights under s57(4) because the land enforced against was not the land on which there was an existing lawful use. The planning unit enforced against (A/B/C) had no existing lawful use as it was newly created. The previous planning units (A/B and C) no longer existed and there was no way back to those units.

The theatre was given permission to appeal. The argument was that the judge had interpreted s57(4) too narrowly. Only if the creation of the new planning unit was also a new chapter in the planning history did it extinguish existing use rights. That was a question of whether the change was sufficient to cause the previous lawfulness to be spent. That might happen with implementation of a new permission. Or a new use over the whole of the previous planning unit. It did not necessarily happen with a new use over a different planning unit; that would only be the case if the new use was inconsistent with the previous use.

The Court of Appeal followed established case law that s57(4) only applies to reversion to the last use and only when that use is lawful. But it held that s57(4) requires that the decision maker ignore the development which has taken place and imagine that the previous lawful use continued. That is the lawful use to which s57(4) applied. The fact that the enforcement development rendered that impossible because it incorporated that previous use, and its planning unit, in a larger unit had to be disregarded and could not, itself, be a reason for rejecting the reversionary right.

Rather it was necessary to consider whether there was truly a material change of use of areas A and B such that the lawfulness of the use of A and B had been spent. This, the court held, the inspector had not done because it was the addition of the storage use in area C and its change to a theatre use that was cited as the change in the character of the use, rather than any fundamental change of areas A and B. But that addition of C was the development which was enforced against and therefore had to be disregarded. The decision therefore had to be remitted for further decision.

The Court was at pains to make clear that this was not an application of the Mansi principle. Mansi was limited to the drafting of enforcement notices and had nothing to do with s57(4).

The case of Stone v SSCLG [2014] EWHC 1456 (Admin), referred to extensively in the High Court and before the inspector, was unhelpful and limited to its unusual facts, the court held. It did not support the proposition that s57(4) only applied where the planning units before and after development were the same spaces.

The court gave some comment on the meaning of “new planning unit” and “new chapter in the planning history”. These were not necessarily the same and, in particular, only a new chapter extinguished existing use rights. A new chapter would be found in the case of implementation of a permission across the site. Or a new unlawful use across the site. But a new building (and therefore use) on only a part of a site might not result in creation of a new planning unit and, even if it did, might not be a material change of use sufficient to create a new chapter in the planning history of the site. That would only be the case if the new use was sufficiently radical a change that the new use was inconsistent with the previous use.

The court summarised the process for decision makers. Where there is a change in use of an entire planning unit, it is only necessary to consider the character and materiality of the change in the normal way. But where there is a change in the planning unit as part of the development, it is necessary to consider whether there has also been a new chapter in the planning history. If not, existing use rights may still apply. That is essentially a question of incompatibility.

How not to control second homes

Fri, 26 Sep 2025 10:11:27 GMT

R v Williams and Cyngor Gwynedd [2025/ EWHC 2395 (Admin)

This recent case shows some of the problems with the decision to use PD and Article 4 directions as a means to control second homes and short term lets.

In 2022, the Use Classes Order (UCO) was amended in Wales to create use classes C5 (second homes) and C6 (short term lets). The GPDO was amended to provide that changes between C3 and C5, C6 or a mixed use would be permitted development. Councils were told they could use Article 4 directions to control such changes.

Gwynedd Council adopted a non-immediate Article 4 direction controlling changes of use between C3 and C5/C6 in 2023. It was confirmed in July 2024. The claimant challenged the decision to confirm it. The claimant said that the council cabinet members who took the decision had done so on the misunderstanding that all changes of use between C3 and C5/C6 would now require permission. The claimant pointed out that only those which were development in the first place would require such permission.

The judge, after reviewing the various papers that had been put to cabinet members, concluded that they had been misled on this point.

Section 31(2A) Senior Courts Act 1981 provides that a decision will not be overturned if the outcome would not have been substantially different had the true facts been known. The council suggested that it would not have reached a different conclusion had the cabinet members fully understood the position. Had they understood that only some changes of use would be prevented, they would still have pressed ahead on the basis that it was a step in the right direction. However, the legal test is that the court must be satisfied that it was “highly likely” that there would have been no difference in outcome. This is a high bar. If the court could not tell how the cabinet members would have approached the decision, then the test was not met and the decision was not saved by this provision.

The council having misled itself, the challenge was upheld.

The interest in this decision is twofold. First, it is a reminder how little the UCO is understood. The view that, if a change is between two use classes, it must be material is very prevalent and very wrong. It might be. And the fact that there are separate use classes is certainly a factor. But it might not. It is a matter of fact and degree. As with any changes of use, it is necessary to consider whether there is a change in the character of the use, then whether there are planning impacts from that change in character, so reaching a view as to whether the change would be development. Only then are the exemptions in s55, including s55(2)(f) and the UCO, considered. And if the change is not exempted under s55(2)(f), because there is a different use class, only then is the GPDO considered to see whether the development is permitted development.

The judge concluded that, while this may or may not have been understood by those who wrote the reports for the council cabinet members, it was not reflected in the wording of those reports. Consequently, the cabinet members (who were not all planning committee members) were misled.

The second point of interest is that it demonstrates how perverse was the decision to control holiday lets and short term lets by making them all PD. While councils can make Article 4 directions, such directions are not straightforward, they require an evidence base, they require a lot of time, they require political capital, they will be challenged and they require regular review. Borough-wide directions are particularly tricky. It must also be remembered that this is the approach proposed for England if C5/6 comes into force and that it is also the existing approach for other residential changes of use such as C3 to C4 and Class L of the GPDO.

As this decision shows, Article 4 directions do not provide a full answer. It will still be open to individual developers to argue that the move from C3 to C5/6 is not development at all. And the only forum where that will be argued is an enforcement appeal. The distinction in the character of residential use can be fairly fine and is not an ideal basis on which to rest enforcement action. What exactly is the difference in residential character between a second home occupied for 182 days and a primary residence occupied for the other 183 days? Why is control of second homes left to such fine distinctions and to enforcement officers?

Don’t forget about those PD rights!

Thu, 14 Aug 2025 08:54:04 GMT

Singhal UK Ltd v SSLUHC and Hounslow LBC [2025] EWHC 1967 (Admin)

In 2014, the claimant built an extension and outbuilding on the back of a semi-detached family house which it turned into 3 self-contained flats. For good measure, it linked the extension and outbuilding. The outbuilding, which was bigger than the house, was said to be a gym and office. Enforcement action was taken. The notice was upheld on appeal.

This decision was challenged in the High Court and, following success for the appellant at a permission hearing, remitted by consent back to the inspectorate for redetermination on the basis that the inspector had failed to consider the availability of PD rights for the extension and outbuilding. On redetermination, the second inspector upheld the notice in the same way as the first. This second determination was also challenged in the High Court. The challenge was not resisted by PINS and the matter went back to a third inspector for a third determination!

16 possible permutations (based on various possible uses of the main house and various extension and outbuilding combinations) were put to the third inspector; in the end, the appellant pursued only 2. The inspector rejected the appellant’s favoured approach of two flats plus extension in the main building and a non-residential ancillary outbuilding. However, the inspector granted permission for the second option ie main building as a single dwellinghouse with extension and with the outbuilding removed to create adequate amenity space for the house. To secure this, the inspector imposed a condition restricting Class E PD rights to build any future outbuilding. This was not enough for the appellant who appealed the decision yet again.

The basis of the challenge was that the inspector was said to have stated at the hearing that he did not think he had power to remove Class E rights by condition and the parties had agreed with him. In the decision, he was said to have changed his mind without notice to the parties. It must be said that there was some factual doubt about this; the inspector himself did not recall making such a statement and evidence was that, if made, it was made in a context that did not cover the second option. In any case, the challenge was put on the basis that the parties were denied the opportunity to address the possible condition, not that it was necessarily impossible to impose one.

The inspectorate argued that there had been such an opportunity, that it was addressed in the council’s statement of case, and that the only reason the extension was retained was the removal of the outbuilding so that, even had the condition been discussed, there was little the claimant could have said against it. The claimant argued that the condition removed his right to construct a smaller, and truly ancillary, outbuilding.

The court sided with the appellant. The inspector had raised the possibility of a smaller outbuilding as a concept but found that he had no details which would allow him to reach a decision on it. The court held that an opportunity to discuss the condition would have allowed discussion of such a possible outbuilding and allowed finessing of the condition. There was a procedural unfairness in the failure to do so and that required that the decision be reconsidered. The challenge succeeded.

Interestingly, and somewhat unusually, it seems that the matter was not remitted for reconsideration. Instead, the parties were invited to agree a position or make submissions to the court. The judge said “this is not an opportunity to re-argue the merits”.

Two other grounds of appeal were dismissed. In particular the court accepted that the inspector’s view that the outbuilding was not required for a purpose incidental to the enjoyment of the main house as a dwellinghouse was one he could reasonably have come to. The inspector had not simply looked at size relative to the main house but had considered other matters such as proposed use and the amount of space required for proposed contents of the outbuilding.

It is not unusual for decision letters to depart somewhat from the manner in which the case it put by the parties, particularly in written representation appeals. To some extent, that is part of the decision process. Sometimes, inspectors will canvas views ahead of the decision, sometimes not. For the most part, the court will defer to inspectors on matters which they have properly considered. The danger comes from the matters they did not consider at all. Holes can almost always be picked in a decision letter and those based on procedural failure often have a better chance of success. Particularly when the party has 11 years of post-enforcement notice rent as three self contained flats to fund the picking of the holes.

FOI is a collateral attack on enforcement

Thu, 24 Jul 2025 14:31:28 GMT

Nicastro v The Information Commissioner [2025] UKFTT 00706 (GRC)

Complaints were received about the installation of new shopfronts on a Grade II listed building in Haringey. Listed building enforcement notices were issued and appealed. The appeals are ongoing.

The appellant’s planning consultant, Mr Nicastro, issued Freedom of Information Act (FOI) requests to the council seeking information about the handling of the case, in particular copies of the complaints which had generated those notices. The council declined to provide the information as it would breach the confidence in which such complaints were made. Mr Nicastro appealed to the Information Commissioner (IC).

The IC agreed with the council that it would not be appropriate to disclose the details of the complainants and that it would not be possible to redact the complaints adequately to prevent their identification. The IC also found that Mr Nicastro had a legitimate interest in seeking the information, in terms of understanding the actions taken by the council as LPA. However, this legitimate interest had to be balanced against the rights and interests of the complainants. The IC agreed with the council that the legitimate interest was insufficient to trump the expectation that complaints would be treated confidentially. An important factor was that the appellant’s LBEN appeal case would not be prejudiced by the refusal to disclose details of the complaints. It refused to order disclosure. Mr Nicastro appealed the IC’s refusal to the First Tier Tribunal. He cited 14 grounds of appeal and sought costs.

The FTT found in favour of the IC. Many of the grounds were complaints about how the IC had handled the investigation and were therefore outside the scope of the appeal. Others related to the conclusions reached about the possibility of redacting information; again the FTT sided with the IC and the council. It seems that Mr Nicastro sought to rely on the importance of disclosure of environmental information (within which planning is deemed to fall); again the FTT sided with the IC for reasons which are sadly not publicly recorded in the decision. The fact that the LBEN appeal process was not affected by the complainant information was also held to be important.

The most telling remark in the decision is this.

“This information request is nothing more than a collateral attack on the enforcement notice process. It has been pursued with a rigour out of all proportion to the utility of any information which could be disclosed even if all the withheld material were released.”

By way of comment, it is not uncommon for appellants to make wide-ranging FOI requests at the same time as appealing enforcement notices. The requests are often time-consuming and can potentially be prejudicial to the council’s defence of the appeals; they can also breach confidentiality and, as such, can prejudice the planning system by making it less likely that information on breaches will be reported. In this case, it was the complaints which were sought; in others, it will be delegated reports or council evidence.

It is worth remembering that much of the information relating to exercise of council enforcement powers is confidential information under the Local Government Openness Regulations. The reasons for issuing notices are set out on the notices and it is rare that appellants will truly need to see further information to conduct their appeals. Planning legislation therefore provides good support for non-disclosure in enforcement cases. FOI requests have been seen as a somewhat greyer area. While every case will turn on its facts, this decision provides support for councils who wish to take a stronger line on refusing disclosure in appropriate cases.

The web of our life is of a mingled yarn, good and ill together (Shakespeare, Macbeth)

Fri, 25 Apr 2025 14:30:25 GMT

Titchfield Festival Theatre v SSHCLG and Fareham BC [2025] EWHC 883 (Admin)

Titchfield Festival Theatre v SSHCLG and Fareham BC [2025] EWHC 883 (Admin) is a High Court decision on loss of existing use rights and the limits of the reversionary right under s57(4) TCPA 1990.

Titchfield Festival Theatre acquired land in Fareham (Areas A and B) in 2010. A theatre building was built over Areas A and B. The theatre was successful and, in 2021, acquired the next door warehouse site (Area C). A new, much larger, theatre was created over areas B and C, without permission. The council took enforcement action against the use of Areas B and C for this larger theatre.

The judge’s decision sets out a careful review of previous decisions relating to loss of existing rights on establishment of a “new chapter in the planning history”. These show that there is a new chapter when there is implementation of a new permission. They also show that there can be a new chapter when there is a new unlawful use. And that establishment of a new planning unit could well be a new unlawful use. There was some debate in the case law as to how “radical” a departure from the existing use that new unlawful use had to be. The judge decided that “new chapter in the planning history” and “creation of a new planning unit” were interchangeable in this respect. If the creation of the new planning unit was a material change of use, such that there was development and a new chapter in the planning history, then any existing lawful use rights were lost. The inspector had rightly found that there was a new planning unit and that its creation was a material change of use; it followed that any existing use rights had been extinguished.

Section 57(4) TCPA 1990 allows resumption of a previous lawful use on land where an enforcement notice is complied with. This operates as an exception to the general principle that development requires permission. So, where existing use rights are extinguished by a material change of use, there may be a way back to those rights using s57(4).

The inspector found that the land enforced against was not the land on which there was an existing lawful use. The planning unit enforced against (A/B/C) had no existing lawful use as it was newly created. The previous planning units (A/B and C) no longer existed and there was no way back to those units.

The judge agreed. This was not against the Mansi principle because the existing use rights had been lost on the creation of the new planning unit.

The first principle in this case, that lawful use rights are spent on a new chapter in the planning history, is not new. It was canvassed in a number of cases, culminating in Stone v SSCLG [2014] EWHC 1456 (Admin) (in which the judge in Titchfield was an advocate). Nevertheless, Titchfield provides clarity on the extent to which it applies where there is a change of planning unit and on the extent to which it applies to enforcement against unlawful uses. The most interesting part of the decision is its limitation of s57(4) where planning units have changed. It is clear that a simple change of planning unit is not enough; the change also needs to be a material change of use. But when there is such a material change of use, Titchfield makes clear that there is nothing to revert to so any lawful rights for previous planning units are lost.

Cider House doesn't Rule

Thu, 13 Feb 2025 12:05:40 GMT

Paton v SSLUHC and Maldon DC [2025] EWHC 245 (Admin)

In 2018, against officer advice, councillors granted Mr and Mrs Paton planning permission to construct an apple barn to support their fledgling cider business, then consisting of a few young trees. A variation permission in 2020 allowed some extra windows and doors. To the surprise of no one, over the winter of 2021/2022 the Patons built a dwelling. Enforcement action was taken in June 2023. An application for permission for the change of use of this building to a dwelling was refused as the building itself was not authorised. A later application to retain the structure for a mixed use was also rejected.

The enforcement notice alleged “erection of a C3 residential dwellinghouse”. The notice was appealed on grounds (b), (f) and (g). After an inquiry, the inspector upheld it with minor changes.

The appellants produced pictures of a couple of bottles of cider being produced and some other witness evidence but the inspector found that this was insufficient to demonstrate that the building was the apple barn which was granted permission.

It was common ground at the inquiry that the building had never been lived in and that, by the time of the notice, its kitchen had been removed. The appellants suggested that it was therefore not a C3 dwellinghouse at the time of the notice.

The inspector found that a ground (b) appeal will fail if the alleged breach had taken place in the past, irrespective of whether it was still taking place. The ground (b) appeal operates in the past tense, looking at whether the breach had occurred by the time of the notice, not whether it was still occurring.

The inspector had regard to the layout of the building as constructed, particularly its bedrooms, its lounge, its fully fitted kitchen, its bathrooms and its central heating. What was built, he found, was a dwelling, just as the notice alleged. The ground (b) appeal was therefore dismissed.

This was challenged in the High Court. Under s289 TCPA 1990, permission is required to bring a s289 challenge. The permission was contested by PINS. The matter came before Mrs Justice Lang in January 2025 and a decision was issued on 7 February, refusing permission.

The appellants suggested that because the building was not a dwelling at the time of the notice, the fact that it may earlier have been a dwelling was irrelevant. It was no longer a dwelling, there was no longer a breach of planning control and it could not have been expedient to take action.

This was roundly rejected. The judge found that ground (b) operated in the past tense; the appellant must show that the breach did not take place at all, not that it was not taking place at the date of the notice. This conclusion was said to be supported by the statutory wording of the other grounds of appeal and by the context of the ground (b); it would be, said the judge, “bizarre if an enforcement notice could lawfully be served because a breach had taken place but successfully appealed if it was not ongoing when enforced against”. And it would be wrong if the LPA could not require remediation of damage caused during one use because that use had ceased or been replaced by another. Finally, it would frustrate enforcement action if a developer could cease a breach shortly before formal enforcement action is taken and resume it afterwards.

The decision is clearly right and the conclusion that ground (b) operates in the past tense is not controversial. But there are nevertheless a couple of takeaways from the decision.

It is odd that the council described an operational development breach by reference to a use class (“erection of a C3 dwellinghouse”). Use classes have nothing to do with operational development. Arguably it is this which allowed the developer to bring arguments based on lack of use as a dwelling. The council might also have been better advised to allege construction of a building rather than specifically a dwelling.

It is also not clear what the Patons hoped to gain from the High Court appeal, other than time. Even if the building was not a dwellinghouse, the inspector had found that it was not an apple barn either. It was not an implementation of the 2018 permission and that permission had lapsed.

Enforcement action is sometimes delayed when officers see a building which is clearly going to be used as a separate dwelling but is not yet in use. It is not uncommon to wait for actual use to start before enforcing, even if the breach then enforced against is the operational development. That didn’t happen here and this decision suggests that there is no need to do so.

Similarly, there’s always a concern when issuing a MCOU notice that, if action is delayed, the use may change between site visit and issue of the notice. The enforcement notice in this case was an operational development breach but material change of use breaches were referred to in the decision as being subject to the same principles.

Caravan site PD cannot trump enforcement notice

Mon, 25 Nov 2024 11:45:15 GMT

Amber Valley BC v Haytop Country Park Ltd [2024] UKUT 237 (LC)

A caravan site had permission for up to 60 caravans, nestled in woodland in the buffer zone of a world heritage site. New operators wanted twin-unit caravans, which are not so good at nestling. So they cleared most of the trees and recontoured the site, making it considerably more prominent. The council’s enforcement notice against a material change of use by intensification was dismissed and the inspector confirmed that the twin-unit caravans were within the permission. However, the inspector upheld an enforcement notice against the operational development. Consequently, the majority of the site had to be cleared and returned to its previous condition. A High Court appeal was dismissed. A tree replacement notice also required substantial planting across the site.

When the new owner applied for a transfer of the caravan site licence, the council limited the number of pitches by condition to 3. It said only this small number of twin unit caravans could be accommodated given the requirements of the enforcement notice and the TRN.

On appeal, the First Tier Tribunal (which handles site licence appeals) increased the number to 18. This was the number that could fit within the trees required by the TRN. But it ignored the requirements of the enforcement notice because the FTT said that compliance with that notice was not part of its remit. The council appealed.

The council argued that the effect of the increase was to legitimise development which was prohibited by the enforcement notice. It was also effectively a new challenge to the enforcement notice, something which is prohibited by s285 TCPA 1990.

The site owner argued that such planning matters were outside the scope of what the site licence decision maker could take into account in deciding the caravan site licence.

As a reminder, a caravan site licence can only be issued where a site has planning permission, either express or from the GPDO. Once a site licence is granted, work required under the licence is PD. As a rule, conditions cannot be imposed on a site licence for purely planning purposes; the legislative regimes are different with site licences focusing on public health, traffic and amenity – this is from the Babbage case [1] . There is also case law warning against duplication of regulatory controls. But it is also relevant that a permission granted after an enforcement notice (including one under the GPDO) overrides the notice (s180 TCPA 1990).

The court noted that the effect of the FTT’s decision was that the permission granted by the GPDO would override the enforcement notice. This did not appear to have been considered by the FTT and that was an error of law.

The court also accepted that there was force in the council’s view that the appeal was effectively a challenge to the enforcement notice, something which is prohibited by s285 TCPA 1990.

Fundamentally, the court said, the site needed planning permission before the site licence could be granted. The permission issues needed to be resolved (by compliance with the enforcement notice and a reassessment to see what could then be accommodated with, if necessary, a new permission) and a “planning baseline” established before the site licence could be issued.

The court noted that the site owner was the author of its own misfortune. It could have sought planning permission for the operational development and tree felling but it did not. It had now gained a substantial advantage by proceeding without permission and that should not, said the court, be allowed in principle.

This case is helpful, as far as it goes, when dealing with caravan sites on which there is an existing enforcement notice. Sadly, those are relatively few. It can be difficult for councils to establish that changes to caravan sites are truly material changes of use, as this council found. For that reason, where site owners exceed their permission, councils will typically ask for applications rather than taking immediate enforcement action. The process then drags and Babbage continues to apply in the meantime, enabling extensions of site licences. This case will do nothing for situations where something on the site is merely in breach of planning control and not yet enforced against. But where there is an enforcement notice, this case makes clear that the site licencing process cannot be used to invoke PD to defeat that notice.

[1] Babbage v North Norfolk District Council (1989) 59 P&CR 248

"Is an excuse a use"

Thu, 17 Oct 2024 14:24:58 GMT

Jones vs Isle of Anglesey County Council and Another [2024][ EWHC 2582] (Admin)

The council granted hybrid permission (outline and full) for a leisure village near Holyhead in the grounds of a former country home, long since demolished. The permission included the redevelopment of a number of existing estate buildings, including one known as the Bailiff’s Tower, most recently used as a cricket pavilion and clubhouse. Commencement within 5 years was conditioned.

Pursuant to a s106 agreement, the developer brought forward certain matters for further approval, which was granted. The claimant, a local resident and nature warden who had long opposed the development, objected on the basis that the planning permission was, she said, no longer capable of implementation because it had expired.

The particular claim was that the Bailiff’s Tower, which was to have become a visitors centre, had not changed use within 5 years of the permission being granted, as conditioned. This, it was alleged, rendered the entire permission incapable of implementation.

It transpired that, following permission in 2016, work on site was delayed for various reasons. Having discharged certain pre-commencement conditions, and just days before the 5 year time limit expired, the developer submitted a report to demonstrate commencement of the permission. A short pathway had been installed. The Bailiff’s Tower had been tidied up and redecorated and was ready to receive visitors. However, due to Covid 19 restrictions, no visitors were allowed.

These reports were accepted by the council and formed the basis for an officer recommendation to grant the new approvals sought pursuant to the s106 agreement. The claimant challenged the decision.

The case of Impey v SSE [1980] 47 P&CR 157 was considered, where the court had held that actual use was not a legally necessary pre-requisite to a material change of use. Changes of use can take place before actual use commences. For instance, with a house converted to flats, use could be said to have changed when work is completed and the flats are marketed, notwithstanding that they are empty. The approach was followed in Welwyn Hatfield v SSCLG [2011] UKSC 15.

The court decided, following Impey , that it was reasonable to conclude that the change of use of the Bailiff’s Tower had indeed taken place. It was a matter of fact and degree. Both the physical state of the tower and its actual, intended or attempted use were relevant. The lack of actual use was just a factor in the decision, it was not determinative. There was, here, a coherent reason why there was no actual use (Covid 19 restrictions), it was a matter addressed by officers in their report, it was not a choice/fault of the developer and it was entirely reasonable to reach the conclusion that use had changed.

The court also decided that the limited nature of the redecoration (of a single upstairs room, the ground floor looking remarkably cricket pavilion-like, with cricket club signage remaining on the outside) could safely be discounted given the limited nature of the works actually required to cause a change of use and the fact that no external work was authorised by the permission. The work done was sufficient to satisfy the very limited requirements of “commencement” of a permission under s56 TCPA 1990 and conversion of the whole building was not required.

Similarly, the fact that the visitors centre had not reopened after Covid 19 restrictions were lifted was found to be neither here nor there since the question was one of commencement of the permission, not continued use.

It is interesting to note that the court found, albeit obiter, that the permission was not severable (as advice received by the council had suggested). Had the court found that the Bailiff’s Tower had not changed use, the remainder of the holiday village permission could have fallen away. Fortunately for the developer, the court also found that the time limit for the holiday village was in fact greater than 5 years (as it depended on approval of reserved matters) so the severability point was not fatal.

The claimant also argued that the council was at fault for failing to take enforcement action. As the development had an implemented permission, this aspect was dismissed.

By way of commentary, there is nothing particularly new in this decision. The line of cases arising from Impey is well-established and its application to “commencement” cases is clear. But care must be taken to distinguish between such cases and “continuous use” cases based on immunity. In such cases, there is a requirement for actual use and neither Covid 19 nor “intention to use” will make up for a lack of use after it has commenced. The tests are different and neither Impey nor Welwyn Hatfield has any application to such cases. The point was well made in Swale but sadly still comes up at enforcement appeals.

Biodiversity Net Gain and Planning Enforcement- a conundrum

Fri, 11 Oct 2024 13:31:47 GMT

originally written for Scottish Planner

Introduction

Biodiversity Net Gain (“BNG”) seeks to create and improve the natural environment of the nation by requiring that all new development has a positive impact (‘net gain’) on biodiversity.

This is not mere policy. By statute, most planning permissions [1] are now deemed to have been granted subject to the statutory biodiversity gain condition.

The statutory biodiversity net gain condition requires development to achieve at least a 10% increase in biodiversity value relative to the pre-development diversity value of the onsite habitat. The 10% increase can be achieved in one of three ways

through onsite biodiversity gains eg improvements to the development site itself;
[if this cannot be achieved] through registered offsite biodiversity gains eg improvements to a different site (for instance creation of [a park], which may have nothing to do with the development site itself
By purchasing statutory biodiversity credits.

The statutory condition requires only that a Biodiversity Gain Plan (“BGP”) is produced and submitted for approval. But the condition also requires that development may not begin until the plan is approved; in that sense, it is, by statute, a pre-commencement condition. A gain is only to be counted if the LPA is satisfied that it will be maintained for 30 years following completion of the development.

Guidance encourages LPAs not to include the statutory condition in the list of conditions in the permission. However, information about the condition is to be included in informatives, and there is model wording for this. In addition, in order to approve the BGP, the LPA must be satisfied that the gains will be achieved and maintained and that whatever requirements are included in the BGP are actually carried out. For that reason, LPAs may decide to include enabling and monitoring conditions and/or s106 agreements; there are template conditions available.

Separately, LPAs are required by the Natural Environment and Rural Communities (NERC) Act to monitor and report on the extent to which BNGs are achieved in practice.

This article looks at the challenges created for planning and planning enforcement teams arising from these requirements.

What does the guidance say?

Paragraph 7 in the PPG on BNG says

“How will biodiversity net gain be effectively monitored and enforced?

Failure to comply with the biodiversity gain condition by commencing development without approval of the Biodiversity Gain Plan will be a breach of planning control. Local planning authorities have a range of planning enforcement powers and have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their area.

Effective enforcement is important to tackle breaches of planning control and maintain integrity of the decision making process. Local planning authorities are already encouraged to prepare local enforcement plans , and set out the priorities for enforcement action, and they may want to update these to reflect the introduction of biodiversity net gain. This could cover both the initial delivery and ongoing management and maintenance mechanisms to assist monitoring of gains in the longer term.

Appropriately worded planning conditions and planning obligations would also help achieve effective monitoring and enforcement of biodiversity net gain , particularly in relation to the maintenance and monitoring of significant onsite habitat enhancements and registered offsite biodiversity gains. [our emphasis in bold ]

Is proactive monitoring and enforcement required then?

There are arguably two approaches to the BNG condition. The first is for LPAs to take the view that the condition only requires that a biodiversity plan is prepared and approved. Implementation is not statutory, neither is monitoring. As part of approval, the LPA must be satisfied that the plan will be implemented and maintained; the LPA could take the view that this can be assumed unless there is something that makes it unlikely (eg access or land condition makes it impossible).

The second approach would be for the LPA to introduce various additional conditions to ensure that the plan is implemented and maintained.

The guidance clearly points to the second approach. But in following the guidance, the LPA creates something of a rod for its own back. If a condition is thought important enough to impose, there is arguably an expectation that it will be monitored and, if necessary, enforced.

Separately, LPAs are required by the Natural Environment and Rural Communities (NERC) Act to monitor and report on the extent to which BNGs are achieved in practice. It seems unlikely that this could be achieved without some form of overall monitoring, though it does not require monitoring in any individual case.

The reference in the guidance to including monitoring and enforcement in enforcement plans could suggest that it is to be a planning enforcement function. This is probably to read too much into the guidance. It seems more likely that those drafting the requirements saw BNG monitoring more in line with other monitoring currently undertaken by council planning teams, for example s106 monitoring, housing delivery. Reporting is at strategic level. Proactive monitoring is reserved for large developments (some will have a s106 monitoring officer), and otherwise more haphazard. Enforcement on a reactive basis when complaints are made.

Nevertheless, the guidance says what it says and LPAs will need to take a view on whether to introduce some form of proactive monitoring.

Is proactive monitoring by a planning enforcement team realistic?

With some exceptions, notably County Councils with waste and minerals monitoring functions, planning enforcement has not, traditionally, been a proactive service. This is for several reasons

The focus on expediency is built into planning enforcement legislation. As a rule, it is not expedient to take enforcement action against development which has not generated complaints.
Case law makes clear that the purpose of enforcement is remedial. In many cases, the enforcement task is simply to ensure that development is given proper scrutiny in a planning application.
Almost all development is in breach of planning control to some extent. There are often minor deviations from plans, failure to comply with minor parts of the GPDO etc. The scale of the task were the service to be proactive would be immense and resources simply do not allow for such monitoring.
Planning enforcement already suffers from a “jobsworth” image and proactive enforcement in the absence of complaints would only worsen that image. There is little political will/budget for proactive planning enforcement.

A requirement for proactive monitoring of the statutory BNG condition by a reactive enforcement service would therefore require significant change. A better option might be to develop procedures for monitoring and reporting within planning teams, in the same way as happens with, for example, construction management plans, leaving enforcement to situations where there is a clear failure. In any case, LPAs need to determine what monitoring they are going to do and who is going to do it. The guidance approach, that it is “for enforcement” is not adequate.

What changes would be required?

Key areas of interest for LPAs to monitor would be to ensure that

development is not commenced without a BGP
the BGP is implemented
the BGP is maintained for 30 years

Commencement of development

The statutory condition requires that it is satisfied before development is commenced. As a rule, neither planning nor planning enforcement teams routinely monitor commencements. The new LURA duty to notify commencement applies only to certain development and is not yet in force. If notification of commencement is conditioned, it may not be observed. Even if a development is commenced, it is not necessarily implemented. If it departs materially from plans, what is commenced is not the permission but rather a different development.

Planning enforcement teams do not routinely maintain even a list of all permissions. Why would they? Many permissions are granted with no expectation of being built out; they create fall backs, they are alternatives or they are created to increase land value.

Monitoring permissions without commencement notices is impracticable and pointless. Monitoring sites to see whether they have commenced without a BGP is similarly impracticable. The best that it is likely to be possible is to monitor commencement notices and ensure that they are matched to a BGP approval.

Implementation of the BGP

If the LPA imposes a condition that the BGP must be implemented in accordance with its terms, it would need to monitor that. BGPs will be created by ecologists and confirmation of compliance is likely to require ecologist input. This is not really a function which currently exists within local authority planning teams. Not only is a very significant budget needed were it to be introduced but it is not clear that there are sufficient trained staff to undertake it. There are alternative approaches which could be written into s106 agreements, such as requiring sign off from the applicant’s own ecologist or dumbing down the BGP to such an extent that it can be easily measured (eg number of bat boxes) but these would need to be written into the agreement or plan at the outset.

Maintenance

In order to count an improvement as a gain, the LPA must be satisfied that it will be maintained for 30 years after completion. Completion is described in the guidance. It is not the same as “substantial completion” as used for immunity purposes. Practically, it should be defined in the BGP itself.

Clearly, checking maintenance of BGP measures for 30 years is entirely impracticable. It is unnecessary anyway; a new permission within the 30 years would carry another BNG condition. A better approach would be to ensure that the BGP itself or the s106 agreement contains maintenance measures. This would require a careful approach to approval of BGPs, something which is, again more of a planning matter than an enforcement one.

Protecting against BNG breaches

BNG can be delivered on site, with improvements to the site itself, or off-site, with improvements to another site. The third method, BNG credits is outside the scope of this article. The mechanisms for protecting against BNG breaches are slightly different for on and off-site delivery of BNG in that planning conditions can only be used for on-site delivery, but s106 agreements can be used for both on- and off-site delivery. There is no scope to include a condition relating to a site which is not within the redline.

On-site BNG delivery

If the LPA decides to introduce additional monitoring and reporting provisions of on-site BNG, it can do so by condition or by s106 agreement. A typical condition or agreement might include provisions for

Notifying commencement of the development
Creation of a Habitat Management and Monitoring Plan (“HMMP”) to support the BGP plan
Certification of implementation of the initial requirements of the BGP plan.
Submission of regular monitoring reports during the 30 year period in line with the methodology and frequency specified in the approved HMMP.

Whatever condition or s106 agreement is used must be carefully considered to ensure that

Enough information is supplied to the LPA to support its own reporting and monitoring obligations (eg under NERC or a Local Plan).
Its responsibility to check implementation and maintenance of the BGP is kept manageable.

Where on-site net gain is secured by means of a s106 agreement, monitoring fees can to some extent compensate for the resource impact of monitoring. But where the on-site gain is secured by means of a planning condition, there is no mechanism by means of which the LPA can charge for its monitoring costs. Even where monitoring costs can be recovered by means of the s106 agreement, anticipating and calculating the LPA’s costs for 30 years of monitoring is “finger in the air” at best. Whatever provision is used, LPAs should consider including provisions for recouping the costs of formal action for non-compliance.

LPAs also need to consider how such agreements will survive sale of the land by the developer and/or disappearance of the developer. The provisions need to be drafted such that they fall onto subsequent landowners. Particular care may be necessary where a management association is proposed given legislation around rights to acquire freeholds.

There are different enforcement challenges for enforcing conditions v s106 agreements and we look at these below.

Off-site BNG delivery

As mentioned, there is no scope to condition the off-site delivery of BNG. Land used for off-site BNG delivery should therefore be secured for the length of the BGP, either by means of a s106 agreement or a conservation covenant. A conservation covenant is a private voluntary legal agreement between a Responsible Body and a landowner which establishes than land will be used for a conservation purpose.

If off-site delivery is secured by means of a s106 agreement, it is for the LPA to enforce, whereas if the off-site delivery is secured by means of a conservation covenant, it is for the Responsible Body to enforce.

Either approach could include monitoring and enforcement costs.

The Responsible Body approach is arguably easier for the LPA as monitoring and enforcement are outsourced. It remains to be seen whether sufficient schemes exist and whether they deliver the net gains sought by the legislation.

Enforcing against BNG breaches

When the standard approach to enforcement (is there development, is it in breach, is it immune?) is applied to BNG, it is clear that there are a number of major uncertainties. We look at these now.

What is the breach?

The statutory BNG condition operates as a pre-commencement condition. Development may not commence until a plan is produced and approved. As a rule, failure to comply with a pre-commencement permission means that the entire development is without permission. However, this only applies where the condition “goes to the heart” of the permission.

It is not clear whether the BNG condition will go to the heart of the permission. On the one hand, if the BNG is important enough to be given statutory backing, arguably it must be considered fundamental. On the other, if the actual measures in the BGP are minor, can its preparation really be fundamental?

Where no plan has been produced at all, or where it has been produced but not approved, the first problem for enforcement is therefore identifying the breach. Without case law to guide us, it seems likely that enforcement notices in the alternative (development without permission and in breach of condition) will be required.

Issues may arise with timing. For example, a BGP may be produced in time but not approved within 3 years of the permission. In this case, arguably the Whitley [2] exception will apply and the permission will be ‘implemented’. Again, notices in the alternative may be an appropriate approach.

Where a plan has been produced and approved but not implemented, the position is clearer. Assuming proper implementation of the remainder of the permission, the breach would be a breach of condition, and either a BCEN or BCN would be appropriate.

Where the LPA has imposed additional implementation, information and monitoring conditions, then, again assuming proper implementation of the rest of the permission, the breach is likely to be a breach of condition unless there is something in the condition that operates as a true pre-commencement condition.

Immunity

The nature of the breach (see above) will determine the immunity period. Alternative notices may therefore carry alternative immunity periods. Where the breach is failure to produce a plan, immunity runs from substantial completion of the development if the statutory condition is a true pre-commencement condition such that the whole development is without permission. But it runs from the start of development if the permission is implemented but there is a breach of condition.

Similarly, where the breach is a breach of an implementation, information or monitoring condition included in a permission, the breach runs from the first failure to comply.

There could be some confusion arising from whether a maintenance condition is breached, given that the 30 year period runs from “completion”, giving rise to whether there has been completion.

Expediency

Enforcement of the statutory condition will be subject to the same expediency test as any other enforcement notice. There is, of course, no formal expediency test for a BCN but there would be no scope for a BCN if, as noted above, the statutory condition is a true pre-commencement condition.

The guidance says that LPAs have a “responsibility for taking whatever enforcement action may be necessary, in the public interest”. This does not absolve them of considering expediency but the guidance becomes a factor in the expediency consideration. There is, of course, general “public interest” in the upholding of the system so, to that extent, this guidance is nothing new.

The big problem with expediency is that the BNG condition does not (yet [3] ) apply to deemed permissions under s177 TCPA 1990 ie on ground (a) appeals.

Taking enforcement action opens the door (in most cases) to a ground (a) appeal under which there is no statutory requirement to produce a BGP. It is difficult to see why it would be expedient to take enforcement action on the failure to produce a BGP when the effect of that action is to disapply the requirement.

That said, the NPPF guidance requiring BNG still applies and appellants will be required to demonstrate the net gain. Even if the statutory condition does not apply, presumably inspectors will consider whether BNG is met in deciding whether to uphold the ground (a) appeal and impose conditions to secure it if necessary.

Enforcement notice or BCN?

The breach (see above) will determine the available enforcement options. Where there is a choice, the usual considerations will apply in terms of the advantages and disadvantages of each. But there are additional considerations specific to BNG.

Enforcement notice against the whole development

As mentioned above, if the statutory BNG condition operates as a true pre-commencement condition, it will render the entire development in breach of planning control. The remedy for a breach of planning control consisting of operational development is usually removal of the entire development. If more than three years have passed since the permission, the permission may no longer be extant to form an alternative means of remedy under s173(4) or an obvious alternative.

This is not a problem that is exclusive to BNG. It is fair to say that neither the courts nor inspectors are fond of finding that conditions are true pre-commencement conditions. But the status of the BNG condition as a statutory creation puts it in a special class of condition. Should a house be removed because of failure to provide a BGP involving a few bat boxes? There is likely to be considerable pushback against attempts to enforce against whole developments for BNG failures. As mentioned above, notices in the alternative would be a sensible approach.

Breach of Condition Notice (“BCN”)

This is intended to be a quick remedy whereby a notice is issued to require the developer or controller of the land to comply with a condition. There is no right of appeal against such a notice, but it can be judicially reviewed. Non-compliance with a Breach of Condition Notice is a criminal offence subject to an unlimited fine on summary conviction (in England).

In principle a BCN is a good remedy for breaches of implementation, information and monitoring conditions. There is no requirement to consider expediency and the BCN offers a quick resolution.

There are, however, some potential problems.

The first is that the BCN route is only as good as the permission. If the permission has fallen away (whether because it was not implemented or because the BCN condition is truly pre-commencement) there is no condition to breach.
Similarly, it is only as good as the condition. If the condition does not require implementation of the BGP by a certain date or it does not require continuous maintenance, or if it only requires an HMPP which turns out to be toothless, then there may be no breach.
While conditions run with the land, BCNs do not. Where land ownership changes after the BCN, the LPA would need to serve new notice.
Because there is no right of appeal, there is no option to correct or amend a condition on appeal.

Enforcement Notice for Breach of a condition

An Enforcement Notice may be issued for failure to comply with any condition or limitation subject to which planning permission has been granted. This would include the statutory BNG condition which is deemed into the permission. It would also include implementation, information and monitoring conditions which the LPA decides to include in the permission.

The Enforcement Notice is subject to a right of appeal to the Secretary of State. Non-compliance with an Enforcement Notice is a criminal offence subject to an unlimited fine.

The benefits of an Enforcement Notice are its right of appeal which allows a variation of a condition if a deemed planning application is made; and that the Enforcement Notice runs with the land so it binds future owners.

The problems include that it is dependent on the permission and the condition, as with the BCN. And that there is a right to appeal which means that the process takes longer to achieve results.

Enforcement of S106 agreements

S106 agreements are usually prepared alongside the grant of planning permission. At the risk of labouring the point, if the statutory condition is a true pre-commencement condition, the permission is not implemented. The s106 agreement is not then enforceable.

Otherwise, where the breach is a breach of condition, enforcing the s106 agreement is an option. S106 agreements be enforced in the following ways.

Seek an Injunction from the courts

Securing an injunction is the nuclear option. It is expensive and time consuming. Although it would be appropriate for the types of breaches where BNG has not been delivered at all, it probably would not appropriate be for minor slippages.

Where the reasons for non-compliance are financial, i.e. the landowner cannot afford to maintain BNG on the land, it is difficult to see how BNG will be achievable, even by means of injunction.

Direct action

It may be possible to take direct action by entering the land and carrying out the operations required by the s106 agreement and recover the costs of doing so. Such action might achieve the BNG aims, but the costs may not be recoverable from the landowner as the land might not have sufficient value.

Civil contractual litigation

Litigation is a cumbersome, expensive process which might not achieve the results of securing BNG.

Who does the enforcement?

S106 agreements are usually negotiated by the LPA legal team who take instructions from the development management team. Once the agreement is completed, it is usually filed away in both teams’ records and, with the exception of planning permissions on major schemes, are usually forgotten about. It is extremely rare for planning enforcement teams to ever get involved in breaches of s106 agreements. Although some LPAs have s106 monitoring officers to actively monitor compliance with s106 agreements, not all LPAs have that luxury.

This may lead to a two-tier system where planning enforcement teams are involved in enforcement of BNG secured by condition but not secured by s106 agreements.

Conclusion

LPAs need to consider how best to approach ensuring the implementation and monitoring of BNG. The approach of including implementation, information and monitoring conditions is one approach but it is arguably “gold plating” which creates its own problems for LPAs.

Where such conditions or s106 agreements are used, they need careful drafting to ensure enforceability and cost recovery.

Proactive monitoring is fairly unrealistic. It is entirely unrealistic to expect it of reactive planning enforcement functions. The conditions/s106 agreements need to draft for this. Planning enforcement functions must be alive to the risk of unrealistic expectations.

The enforcement of the statutory BNG condition is made very difficult by a lack of clarity as to whether it is a true pre-commencement condition and the very complex case law surrounding commencement and implementation of permissions. Complex enforcement notices in the alternative may be required.

The enforcement of implementation, information and monitoring conditions depends on the quality of their wording. Toothless conditions simply referencing BGP and HMPP plans are often not enforceable.

As with much in planning, the aim of BNG is laudable but there is a need for pragmatism in its execution.

Sources and websites for further reading:

Planning Practice Guidance on BNG

Guidance on Reporting your Biodiversity duty actions

PAS BNG Legal agreement and planning condition templates

[1] There are a number of exemptions for householder development, biodiversity “gain sites”, small scale self-build and custom housebuilding, deemed permissions under s90 and de minimis exemptions. These are set out in reg 4 of The Biodiversity Gain Requirements (Exemptions) Regulations 2024.

[2] Whitley v Secretary of State for Wales (1992) 64 P&CR 296

[3] Purposes for which BNG has come into effect is currently only for planning applications in part 3 of the TCPA 1990 but presumably this will change in future

When is an outbuilding an extension?

Thu, 19 Sep 2024 13:23:45 GMT

Warwick DC v SSLUGC and others [2022] EWHC 2145 (Admin)

In the recent case of Warwick DC v SSLUGC and others [2022] EWHC 2145 (Admin), the High Court had to consider whether a detached garden room could be an extension for the purposes of the exceptions to inappropriate development in the Green Belt (currently at NPPF 154(c)).

The owners of a property in a village in Warwickshire sought permission to demolish a 10sqm existing derelict structure and replace it with a 16sqm garden room/home office. Both the existing structure and the proposed new outbuilding were detached from the main house, sitting some 20m from the house. The property was in the Green Belt.

Permission was refused. Development in the Green Belt is inappropriate unless it falls within one of the exceptions set out at NPPF. Permission was refused because, while the new outbuilding was a replacement building, it was materially larger than the previous structure and therefore not within 154(d). Its status as an extension within 154(c) was not considered. It was therefore inappropriate and there were no very special circumstances to outweigh the harm.

An appeal was made. At appeal, the owners argued, amongst other things, that it was an extension within 154(c).

The Inspector allowed the appeal and granted permission. She agreed that the development was materially bigger, excluding 154(d). But she decided that it was an extension within 154(c) because it was a “normal domestic adjunct” to the main house, within a group of buildings relatively close to the main house and used for purposes related to the main house. The LPA appealed to the High Court.

Two points were before the High Court. First, was the interpretation of the words “the extension of a building” within 154(c) a matter of law for the court to decide or a matter of fact and degree for the decision maker? Second, was a detached outbuilding an extension within the 154(c) exception?

On the first question, the court held that the interpretation of planning policy was a question of law and was for the court.

On the second, there was case law, particularly Sevenoaks DC v SSE and another [1997] EWHC 1012 (Admin), in support of extensions including detached outbuildings. That case law, the LPA said, was no longer applicable to current guidance. PPG2, in force when Sevenoaks was decided, used the words “extension of existing dwellings”, rather than “extension of a building” as used in NPPF 154(c). The court agreed that it was not safe to assume a simple read across or to assume that “dwelling” was the same as “building”.

However, the court found there was merit in PINS’ argument that, if 154(c) were interpreted restrictively, then the NPPF would have restricted the scope for extensions in the Green Belt. The purpose of the relevant paragraphs had been to widen the possibility of extensions (ie beyond dwellings to eg commercial buildings), not to restrict it. That was a reason to favour a less restrictive interpretation.

The court accepted that a “normal domestic adjunct”, such as a garage or other outbuilding, could be physically separate from the main building. It noted that an extension would itself be a new “building” given the definition of “building” in the TCPA. It noted that some detached outbuildings had less impact than an attached extension; a focus on whether the extension was attached or not therefore had potential for some arbitrary results which did not further the purposes of the Green Belt.

The court concluded that, in isolation, the language in NPPF 154(c) seemed to require an extension to be attached. However, in the round, there were other factors which pointed to a less restrictive definition which accorded with the content and purpose of the Green Belt treatment in the NPPF. The inspector had therefore interpreted the paragraph properly and the appeal would be dismissed.

By way of comment, to some extent this decision just represents “business as usual”. It confirms that “extension of a building” in NPPF 154(c) can include outbuildings which are normal domestic adjuncts to the building; in that respect, the differences between the NPPF and PPG2 have not affected policy.

That said, it is not the obvious meaning of “extension”, as the court acknowledged. It is not the meaning used in the GPDO where extensions are within Class A and detached outbuildings are within the less restrictive Class E and there are cases about sham detachment. It is not even the meaning used consistently in other parts of the NPPF.

The case is restricted to interpretation of a particular part of the NPPF. It would be a mistake to read it across into other legislation.

“Ariyo, Round 2”

Tue, 27 Aug 2024 10:09:37 GMT

LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960

The Court of Appeal recently upheld a High Court decision quashing a grant of planning permission in which the interpretation of a previous permission played a key part, despite finding that the High Court had misinterpreted that previous permission.

In 2022, the council granted permission for a rear garden pergola extension to a restaurant. Key to the decision was the council’s view that the use of the rear garden as part of the restaurant was lawful. Mr Ariyo, a neighbour, brought a judicial review of the decision.

The site comprised a ground floor restaurant with unrelated residential accommodation upstairs and a rear garden. Prior to 2005, the ground floor had operated as a hardware shop. There was evidence that plants had been grown in the rear garden for sale in the shop. In 2005, permission was granted on appeal for the change of use of the ground floor hardware shop to a restaurant. In 2006, permission was granted for a rear extension to the restaurant and construction of a store in the garden. In 2008, permission was granted for the change of use to a mixed restaurant and takeaway, with deliveries being picked up from the new rear extension. The blue line plan for the 2005 application showed only the building; the red line ownership plan showed the whole site. The plans for the 2006 application showed the proposed buildings on a site plan. The plans for the 2008 application showed the whole site and adjacent features.

The pergola appeared in 2021. Following discussion with enforcement officers, a retention application was invited and refused, and an appeal dismissed on design grounds. But a revised application for a modified pergola was then made for which permission was granted. The revised application was for the structure only, not any change of use. But the officer report assumed that the use of the rear garden as part of the restaurant was lawful given the longstanding restaurant use; it therefore discounted noise impacts.

At the High Court, the council argued that the 2005 permission was for the whole site, including the garden, because that was the red-lined site. The court disagreed. The 2005 permission was, it said, for the ground floor of the building only; nothing else. This was clear from the blue lined plan, from the fact that the 1 ^st floor was excluded and from the fact that conditions sought to protect the residential amenity only of the first floor occupiers. The 2008 takeaway permission did not change that. The 2006 extension permission changed the use of the land beneath the extension but no other part of the garden.

The council next argued that the 2005 permission extended to the whole of the planning unit of the restaurant, including the garden. The court side-stepped the issue. The matter simply had not been properly considered by the council in granting permission and could not be taken as read now.

The potential lawfulness by immunity of the use of the garden as part of the restaurant was also considered. But the court rejected this on the basis that there had been no restaurant use until construction of the pergola.

It followed that the council’s decision to grant permission was flawed, judicial review was granted and the decision was quashed. The council appealed.

In our article on the High Court decision , we commented that the High Court’s decision was an odd one. If the rear garden was not part of the restaurant, what was it? Its own planning unit? Really? A small suburban back yard with no other use and no separate access?

At the Court of Appeal, Counsel for Mr Ariyo had no answer to this. Lord Justice Lewison said that this outweighed the stricter interpretation of the 2005 permission imposed by the High Court. Lord Justice Males agreed.

While he agreed with the overall decision, Lord Justice Moylan took a wholly different view on interpretation. For him, the permission was clear enough on its face, it went through an inspector appeal in 2005, the plans restricted the permission to the building and the lack of any conditions protecting neighbouring properties from noise from restaurant use in the garden suggested that those granting permission were only permitting restaurant use within the building itself. The High Court, he said, got the interpretation right. The planning unit concept was “not particularly helpful” in determining the meaning of the 2005 permission, particularly when up against otherwise clear words of the permission.

Further, the Court of Appeal said that the High Court had no business determining that the use of the garden was not lawful by immunity. That was a matter for an inspector at appeal.

That was not the end of the matter though. Mr Ariyo also contended that, even if the use of the rear garden as part of the restaurant was lawful (whether by the 2005 permission or expiry of time), the council, in granting permission, had nevertheless wrongly concluded that noise mitigation was “not in question”. This was because the construction of the pergola was not merely a change of use; it was a building operation which would create additional noise and the design of which (a 60cm ground level reduction, then construction or a large structure hard against the boundary wall with retractable glass panels and no known acoustic mitigation) ought at least to have generated some conditions. This aspect was upheld by all three judges in the Court of Appeal. The appeal was therefore dismissed.

By way of comment, while it is difficult to argue that the majority reached the right conclusion that the garden was lawfully in use as part of the restaurant, the decision does suggest that

interpretation of permissions is way more a matter of judgment than the “face of the permission” cases such as Trump International might suggest. Four eminent judges considered this permission; so far the decision is 2:2!
The dividing line between what part of the interpretation is for the inspector and what is for the court is more flexible than might be expected. If the court wants jurisdiction, it will take it.
The primacy of the planning unit as the starting point for assessing use is “not particularly helpful” where matters of interpretation are concerned.

2 Become 1

Tue, 23 Jul 2024 12:45:54 GMT

LB Lambeth v SSLUHC [2024] EWHC 1391

This was an appeal from an inspector’s decision to grant both an LDC and planning permission for the amalgamation of two flats into one in a residential block of flats by the side of the Thames in Lambeth. The decision confirms that there is no prohibition in the London Plan on amalgamations and that whether any such amalgamation is a material change of use is a matter for the decision maker and may vary in each case.

The owner had owned and lived in one 3 bed flat for many years. She purchased an adjoining 2 bed flat and sought planning permission to amalgamate them into a single 4 bed flat. She also sought an LDC that the development was lawful. The council concluded that the amalgamation was a material change of use so refused the LDC. It concluded that the development was contrary to policy protecting housing stock so refused permission. Both of these decisions were overturned by the inspector on appeal.

As a reminder, a change of use of a building from one unit into two is expressly made development by s55(3)(a) TCPA 1990, whether or not it would otherwise be material. But an amalgamation from two units into one is only development if it is a material change of use.

On the LDC appeal, the inspector concluded that there was no material change of use. The conclusion was upheld by the court.

The council argued that the London Plan, and therefore its local plan, restricted amalgamations; any such amalgamation must therefore be material. The London Plan does not, said both the inspector and the court, prohibit amalgamations but counts them as housing losses. It also encourages councils to resist amalgamations only where there is evidence that it is leading to sustained loss of homes and not meeting the identified requirements of larger families; this is not to be read as a general prohibition on amalgamations. If councils want a prohibition, they need to write one into their local plans.

London Plan policy H8 provides that a loss of housing should be replaced by new housing at existing or higher densities with at least the same floorspace. But density is undefined in H8. London Plan D3, which offers a way to measure density, does not apply to H8, nor does it apply to small scale proposals, the court decided. The effect on density is therefore simply a matter of planning judgment. The court upheld the inspector’s conclusion that, while there was a net loss of housing, there was no loss of floorspace and only a limited loss of bedspace so no loss of density.

The council said that the inspector’s conclusion that the net loss of housing was insignificant was irrational; every loss mattered if the council was to deliver its housing targets. The court concluded that the inspector had, in fact, looked carefully at the point, and had examined housing delivery and the loss of a unit on that delivery. That the council disagreed with the inspector’s conclusion did not make it irrational.

One final ground of appeal (though in fact the first to be considered) was that, having found that there was no material change of use on the LDC appeal, it was irrational of the inspector to grant permission on the s78 appeal. After all, only development requires permission. If there is no material change of use, there is no development. If there is no development, there is no power to grant permission.

The court said that, while this may be true, the applications and the appeals were brought independently of one another, on an “in the alternative” basis and on a “without prejudice” basis. The inspector was entitled to reach different conclusions on each.

Failure to serve

Thu, 06 Jun 2024 15:11:13 GMT

LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)

This month’s case is a High Court appeal by way of case stated from a decision of Magistrates to acquit a defendant on a charge of failing to comply with an enforcement notice. The case illustrates the breadth of the points which can be raised before the Magistrates if the defendant is not served with the notice.

We don’t know the full background to the case; it is not recorded in the judgment and the court only had a summary. However, the Magistrates found, as facts, that the defendant had an interest in the property at the time of the notice but she was not served and did not otherwise know of the notice. While the notice was on the s188 register, the defendant could not reasonably have been expected to know of its existence and, having been unaware of its existence, she was prejudiced by being unable to bring an appeal in time (or at all).

The normal rule under s285 TCPA 1990 is that the validity of an enforcement notice can only be challenged on appeal before an inspector. If not challenged, it can’t be challenged in court. However, this is subject to an exception (the “statutory disapplication”) in s285(2) where the defendant was not served, did not know of the notice and suffered prejudice as a result.

Failure to serve a notice properly is a ground of appeal (ground (e)). If upheld, the notice is quashed and cannot form the basis of a prosecution. The Magistrates found that was the case here. and acquitted the defendant. The council challenged the decision to acquit.

The council argued that, since the notice was on the statutory register and since there was a duty of vigilance on landowners to be aware of registered matters affecting their land, it could not be said that the defendant was unaware of the existence of the notice. This was rejected by the court. The legislation is clear that registration is not fatal to the statutory disapplication (in contrast to the s179 defence). It is not reasonable to expect a landowner to constantly check the s188 register. It is, however, reasonable to expect an incoming purchaser to check that register.

The council also argued that, as the defendant had applied for an HMO licence sometime after the notice was issued, she should then have checked the s188 register. The court said that this was not one of the questions asked by the Magistrates but that, on the limited facts before the court, it did not seem unreasonable for the Magistrates to have discounted this in coming to their conclusion that the defendant was unaware of the existence of the notice.

The appellant argued that, the statutory disapplication having been made out, that was a complete defence. However, the court held that it was merely the gateway to a challenge to the validity of the notice on one of the grounds of appeal (a) to (g).

The council argued that a challenge based on ground (e) was not a challenge to the “validity” of a notice; only grounds (c) and (d) appeal grounds “went to the heart of the notice” in a manner sufficient to be a challenge to validity for s285 purposes. This was rejected by the court. If the statutory disapplication applies, then the defendant can make any points that would have been made at inspector appeal i.e. anything in grounds (a) to (g).

The defendant makes these ground (a) to (g) points at before the Magistrates, rather than an inspector. So the trial becomes a mini-inquiry, which is unusual. Nevertheless, that is the way the legislation works.

What happens if the Magistrates find in favour of the defendant, as they did here? The decision, the court confirmed, is simply that the defendant is acquitted. The notice itself still stands.

The defendant is acquitted because the notice would have been found invalid had it been appealed before an inspector but, as it wasn’t appealed, it remains in force. It is an interesting question whether the notice is a true chocolate teapot on which no-one could be prosecuted or whether there are circumstances in which a different defendant (one who had knowledge of the notice) could still be prosecuted despite the substantial prejudice to the current defendant.

The problem with this decision is a point which was not, it seems, fully considered. The court seems to have accepted that, had the defendant made a ground (e) appeal, she would automatically have been successful and the notice would have been quashed. It was not necessary for her to demonstrate that failure to serve resulted in invalidity of the notice because, while under ground (e) an inspector can disregard failure to serve, that is only where there is no substantial prejudice. Here, the court said, substantial prejudice was “built in”. This part of the court’s decision does not quite ring true; many inspectors, faced with an appellant who claimed not to have been served, would say that since the appeal has in fact been made, there is no prejudice. There is no obvious reason why the Magistrates could not consider whether there is actual prejudice when conducting their mini inquiry under ground (e). Sadly, it seems that the point was not taken before the Magistrates so was not available in the High Court.

The facts of the case are perhaps unusual; few prosecutions would be brought against someone who appears truly to have been unaware of a notice. It is more likely that such a person would be informed of the notice, asked to comply and, if they failed to do so, prosecuted only for the period after being informed. Nevertheless, the court was clear that, where a defendant is truly unaware of the notice, the council can expect the trial to cover anything that could be raised at appeal.

One final point to remember is that this decision does not apply to those who become landowners after the notice; they are expected to check the s188 register so will have knowledge of the notice.

Murfitt is judge-made law, not a statutory principle.

Thu, 16 May 2024 16:03:49 GMT

Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467

This decision is the appeal by PINS from the High Court decision of Mrs Justice Lieven to remit an inspector’s decision for redetermination based on the inspector’s alleged failure to consider the boundaries of the Murfitt principle. Our article on the High Court decision, in the August 2023 NAPE newsletter, can be found here .

In brief, the case involves a timberyard in a Green Belt location in which the appellant constructed a dwelling. An enforcement notice was issued alleging the material change of use of the land to residential use and the carrying out of operational development comprising construction of a dwelling. The notice required the residential use to cease and required the dwelling to be demolished.

The notice was appealed. It was common ground that the house had been built more than 4 years before the enforcement notice but that residential use of the land had not subsisted for 10 years. The operational development breach was immune but the use breach was not. Removal of the house was justified under the doctrine in Murfitt .

The doctrine in Murfitt allows for the removal of items which facilitate the material change of use of the land, even when those items are immune or are not, themselves, development. However, limitations on that doctrine have been imposed in various cases, not least Kestrel Hydro. In that case, the Court of Appeal decided that Murfitt applies only to works which are “integral to or part and parcel of the unauthorised use…It does not embrace operational development of a nature and scale exceeding that which is truly integral to the material change of use, nor does it override…s171B.”

The inspector found that building the house and the material change of use of land to separate residential use were not entirely separate developments. The former was integral to the latter. The principal form of development was the material change of use of land, the construction of the building could be regarded as associated works. The remedy of the breach required return of the land to the pre-breach condition and the notice was therefore not excessive in requiring removal of the building.

In the High Court, Mrs Justice Lieven concluded that, while the Murfitt doctrine could require removal of immune operational development, it could not override the statutory regime under s171B TCPA 1990. She made a distinction between works which were “secondary, ancillary or associated with the change of use” (which a notice can require to be removed) vs works which were “causative of the change of use” (which, she said, it cannot). To use an enforcement notice to achieve removal of principal operational development was, she said, contrary to the statutory scheme.

PINS appealed to the Court of Appeal. The inspector’s decision had contained a carefully worded section in which he considered whether the development was truly integral to the change of use and came to the conclusion that it was. There was, said PINS, no basis for restriction of Murfitt to works which were causative so the inspector had not misdirected himself. The inspector had reached a balanced and reasonable planning judgment with which the court should not interfere.

Mr Caldwell argued, following Mrs Justice Lieven’s reasoning, that the case law, right back to Murfitt , did not allow for removal of operational development which was fundamental or causative of the change of use.

The Court of Appeal sided with Mr Caldwell. It was at pains to make clear that Murfitt remains good law. But it made five points.

Murfitt operates within the boundaries of s171B which (at the time) set different limits for enforcement against operational development and material changes of use.
The principle is based on the power of an enforcement notice to require restoration of land to its pre-breach condition and is limited to matters which go to that power.
Case law indicates an intention to narrow the Murfitt principle and confine it within the statutory scheme. Various words have been used in various cases (eg the operational development has to be “ancillary”, “part and parcel”, “integral”, or “associated” with the change of use and not work “in its own right” or “fundamental or causative of” the change of use).
Where the operational development has itself brought about the change of use, the Murfitt principle is not engaged.
That the retained building (operationally immune but not able to be used as a dwelling) might be useless is not a reason to allow a wider interpretation of Murfitt . Planning permission could be considered for an alternative use. Or the s102 power could be used, with payment of compensation.

The court found, therefore, that the inspector had misdirected himself on the law. As such, the court could interfere with his decision. The appeal was dismissed.

Comment

While the court was at pains to make clear that Murfitt remains good law, this decision leaves it rather unclear. Good for lawyers perhaps but not good law for enforcement officers to apply.

The court offered no test to establish whether development is or is not fundamental or causative of the change of use (or integral or whatever word is used; apparently they all mean the same thing). It is a matter of fact and degree for the inspector. But not if the inspector misdirects themselves as to what the test should be; which, without a definitive test from the court, seems entirely likely.

From the examples in the cases cited, with approval, by the Court of Appeal, we can discern the following.

Dwellings are fundamental operational development in their own right, it seems. Even if, as here, they were only constructed to house an employee working in the timberyard…
Yet building of a cabin on a leisure plot is not. Even one with a kitchen and bathroom…
Hardstanding, removal of machinery, building of cabins for adult member clubs, is not. Even if, as in Murfitt , the heavy goods vehicles (parking of which was enforced against) could not have been parked without the hardstanding. Isn’t that fundamental?

If the effect of the court’s linguistic struggle is difficult to understand, its reasoning for engaging in it at all is even more so. The court thought it was relevant that Parliament made a distinction between the immunity periods for operational development and material changes of use. That would be the same Parliament that has recently removed that distinction with the LURA changes.

And to allow immunity periods to affect what the notice can require seems like the tail wagging the dog. The mantra is that the requirements of the notice should match the breach. In this case, the council decided to enforce against the change of use of land; that was its decision and it carried a 10 year immunity period. To superimpose the 4 year period of the operational development seems to second guess the council’s decision as to which breach to attack. In effect, the court has decided that the operational development is the “main” breach and its reasoning seems based on the immunity outcome, rather than the facts at the site. Not only is that the wrong way round, it is bizarre for the court to decide the point, rather than the inspector who actually visited the site.

Unfortunately, the problem does not simply go away following to the LURA changes. It is true that, post LURA (and ignoring the transitional provisions), a council in this situation could simply enforce against the operational development. But where the change of use is the main problem, it is likely that a council will want to enforce against the change of use. Previously, councils would have dealt with accompanying operational development as Murfitt items in the notice requirements. Now, it seems, if we get that wrong and it turns out the operational development was in fact fundamental, there will be a ground (f) challenge arguing that the steps of the notice exceed the breach. To avoid this, councils will now need to consider enforcing against operational development separately. That gives rise to additional problems though as the operational development may be assessed against different policies to the material change of use (eg a “bed in shed” may, operationally, be acceptable but its separate use is not).

Murfitt is judge-made law, not a statutory principle. The Court of Appeal is bound by judge-made law. The Supreme Court has more leeway, as we saw with Hillside. The Caldwell decision allows a distinction which no longer exists (s171B) to create “nitpicking” practical problems for enforcement officers and inspectors. Whether there is appetite for a further appeal remains to be seen.

Gypsy and Traveller sites in the Green Belt

Fri, 26 Apr 2024 12:30:24 GMT

Ward v SSLUHC and Basildon District Council [2024] EWHC 676 (Admin)

This case was a s288 challenge against the decision of an inspector to refuse permission on appeal for a material change of use of land in the Green Belt for the stationing of caravans for residential occupation.

It resulted in an interesting discussion of the application of various principles such as the interaction of protection of the Green Belt, traveller needs, personal circumstances and the primacy of the best interests of the child, all of which are points which apply in almost all G&T cases, whether planning or enforcement.

The background is that the claimant’s partner sought permission for the stationing of the caravans on undeveloped land in the Green Belt, land which was previously used for grazing horses.

The council’s Local Plan was very out of date, there were no policies for meeting the accommodation needs of travellers, the council did not have a 5 year supply of pitches and there was a clear and immediate need for sites.

The claimant lived on the site with her partner and children, who attended a local school. The claimant had various disabilities and medical needs.

Nevertheless, permission was refused as these factors were not considered to outweigh the harm to the Green Belt such as to amount to very special circumstances.

The refusal was appealed and a hearing was held before a planning inspector. The main issues were the effect on openness of the Green Belt and whether there were very special circumstances (VSCs). The inspector held that there was clear harm to the Green Belt and to openness and that all of the other factors were insufficient to clearly outweigh this harm, such that there were no VSCs.

The decision was challenged by the claimant. A s288 appeal requires the court’s permission before it can go ahead and, in this case, that was a substantial process in its own right taking almost 2 years. It seems that the grounds of challenge changed somewhat during the permission hearing, its renewal, and the appeal of refusal of permission. In the end, the grounds of challenge considered by Mrs Justice Lang were whether the decision was irrational (ground 1), whether it failed to give adequate weight to the best interests of the children (ground 2), whether the planning balance was disproportionate or unreasoned (ground 3) and whether that balancing exercise was flawed (ground 4).

The judge reminded us of the position of G&T communities in the UK, the serious shortage of sites, and the centrality of the nomadic lifestyle. She also reminded us of the PPTS from December 2023 which considers that traveller sites in the Green Belt are inappropriate development and, subject to the best interests of the child and personal circumstances, are unlikely to be sufficient to clearly outweigh the Green Belt harm such as to be VSCs. While the availability (of lack of it) of sites must be considered, the PPTS says it was unlikely to outweigh the harm to the Green Belt. That a site is in a Green Belt is, says the PPTS, an exception to the general principle that the lack of a 5 year supply of pitches was a significant material consideration.

The judge also reminded us of the court’s reluctance to interfere in matters of planning judgment provided that there is no irrationality, that the decision is reasoned adequately and does not give rise to substantial doubt about whether the inspector went wrong in law.

Case law makes clear that Green Belt impacts are matters of planning judgment and that the planning balance is not a mathematical exercise but rather a single exercise where the decision maker considers whether there are any VSCs which outweigh the acknowledged harm to the Green Belt.

And case law makes clear that the best interests of children, while a primary consideration in the planning balance, is not the only primary consideration. Nor were they paramount; they could be outweighed by other considerations.

The inspector used the word “substantial” in relation to the weight afforded to the Green Belt harm and “significant” in relation to weight afforded the best interests of the child. A witness statement was provided to the court to explain that “substantial” simply reflected the NPPF language and that the inspector had not seen any difference between the two words in terms of the relative weights of each. The judge noted that filing of a witness statement was an unusual approach; appeals should generally be considered on the basis of the inspector’s decision, not post-decision rationalisation. The judge agreed however that “substantial”, as used by the inspector, did not denote a greater weight than “significant”.

In the end, the judge’s decision on the grounds of appeal was succinct. The inspector had directed herself correctly, had balanced the planning factors and had not reached an irrational conclusion. In particular, while there were a number of factors which favoured the development (not least the lack of sites etc), it was not surprising that these were not considered to outweigh the Green Belt harm given the NPPF/PPTS wording. Ground 1 failed. The decision was sufficiently reasoned and explained why interference in article 8 rights was necessary; it was therefore proportionate. Ground 3 failed. The harm to the Green Belt was not given greater weight than the interests of the child; both had the same weight; but that was not sufficient to “clearly outweigh” the harm to the Green Belt; ground 2 failed. And the balancing exercise was a reasonable exercise of the inspector’s judgment and would not be interfered with; ground 4 failed.

The judgment is interesting in its support for the inspector’s decision making and the clear wording of the NPPF and the PPTS. There were a large number of very significant factors which went against the council, not least lack of site supply, the lack of an uptodate local plan, the specific needs of the claimant to be on this particular site, the needs of her children and their human rights. Nevertheless, the conclusion that these were insufficient, singly or together, to outweigh the harm to the Green Belt was considered unimpeachable.

Stripey House Owner Strikes Out

Fri, 22 Mar 2024 12:24:10 GMT

R oao Lisle-Mainwaring v RB Kensington and Chelsea and another

Readers may recall from some years ago the infamous painting of a house in an RBKC conservation area in bright red and white stripes. A s215 notice was issued which, after several court hearings, was eventually quashed on the grounds that questionable aesthetic decisions was not something which went to the “condition of the land” so as to trigger the power to issue the s215 notice.

The same developer, Ms Lisle-Mainwaring, has recently been back in the courts, this time to challenge the council’s decision to grant planning permission for a neighbour’s development. In doing so, the court had to consider an interesting point relating to pre-commencement conditions.

The neighbour sought and received permission for demolition of an existing building and its replacement with a new residential dwelling, including the construction of a basement. Approval of a construction traffic management plan (CTMP) was conditioned as a pre-commencement condition. Commencement was delayed. The day before expiry of the permission, the neighbour submitted an application to discharge the CTMP condition. And dug a hole.

The planning officer treated the permission as commenced in time because the information for the CTMP condition discharge was submitted on time and commencement works took place. Discharge of the condition was later approved at committee, after the nominal expiry date for the permission.

The claimant was given leave to bring a judicial review claim against this decision on the grounds that the council committee had failed to take into account its ability to decline the application to discharge the condition.

The Whitley principle says that operations in breach of a true pre-commencement condition do not commence the development. However, it is an exception to that principle that an approval of a pre-commencement condition discharge application made before expiry of a permission means that no enforcement action can be taken against the commencement work, even if that approval comes after the permission would otherwise have expired. The claimant said that the council nevertheless had a power to decline to determine the condition application; this was based on an obiter remark made by the court in the Whitley case.

The court held that it did not. The council had a continuing obligation to determine the application. That applies as much to condition discharge applications as to full permission applications. There was no power to decline to determine a discharge application made within time.

In any case, whether or not there was a discretion didn’t matter. The court found that the officer had correctly identified for the committee that the only matter for their decision was the acceptability of the CTMP. They were not required to consider whether the permission had expired without being commenced. Even if there had been a discretion to decline to determine the application, the committee had not been misled. It was not obvious that any such discretion would have been a material consideration, no objector had raised it and the committee was under no obligation to try to cast around for other possible approaches which had not been put to it.

The claim was dismissed.

Implementation - deviation from plans

Tue, 13 Feb 2024 10:35:22 GMT

Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)

This recent case examined, amongst other things, whether a permission can be considered implemented if there is deviation from the approved plans.

The matter had a long and convoluted planning history back to 1984 with the developer making several applications for permission for one or more dwellings which were all refused due to their effect on the character and appearance of the countryside and an Area of Attractive Landscape.

In 2010, an inspector granted permission on appeal for a single storey building for general storage and secure storage of vintage tractors. Implementation within 3 years and compliance with plans were conditioned, as was a pre-commencement requirement to submit details of materials and landscaping. Use was restricted to storage by condition.

The developer did not discharge the pre-commencement conditions but dug and concreted foundations by 2012. There the development stopped until 2018 when the developer built out the barn with a few minor changes which the council decided not to enforce against. After substantial completion, the barn was used as storage whilst some building control issues were resolved.

It will be a surprise to absolutely no one that, the day after receipt of the building control completion certificate for the barn, the developer sought permission for its change of use to a dwelling. Perhaps more surprisingly, the council granted permission. A neighbour sought judicial review and the council agreed by consent to quash the permission and reconsider the decision.

The council sought a report from a planning consultant. The consultant advised that there were differences between the 2010 approval and the as-built barn but that the barn could still be used as originally intended such that it was not materially different to the original permission in terms of appearance or function. The barn permission had therefore been implemented, any differences were not material, enforcement action was not justified and the building could be considered an existing building. Which, the developer said, had become redundant (for reasons not recorded in the decision but apparently accepted). This supported its change of use in accordance with relevant local policy.

On re-determination, the council therefore granted permission for the dwelling. The neighbour again sought judicial review of this decision. The neighbour also sought judicial review of the decision not to take enforcement action but this was out of time.

The court’s decision sets out, at some length, relevant case law on a number of points. Perhaps the most interesting is in relation to implementation of a permission.

Implementation of an operational development permission takes place when a development is commenced. It is commenced when a material operation comprised in the development begins to be carried out (s56 TCPA 1990). Very little is required for a “material operation”. But the material operation has to be “comprised in the development”. If, in the end, the developer builds something else, then the question is whether (a) implementation has taken place so that the permission is live but in breach of condition or (b) the permission has not been implemented at all because the initial steps were not comprised in the development for which permission was obtained but rather a different development.

It is common for developers to argue that if, for instance, the foundations are built per plans, there has been a material operation comprised in the permission and any later departure from plans does not affect implementation.

The question was settled in Commercial Land Limited v Secretary of State for Transport, Local Government and the Regions and another [2002] EWHC 1264 (Admin). If there are material differences between what was permitted what was built, there is no commencement and no implementation. The approach was followed in several cases, including most recently Atwill v New Forest NPA [2023] EWHC 625 (Admin). But what if the differences are not material?

In the recent Hillside case, the Supreme Court decided that immaterial changes are within the scope of the permission itself. This is so even when there is no minor amendment permission under s96A. In doing so, the Supreme Court followed the decision in Lever Finance ltd v Westminster (City) LBC [1971[ 1 QB 222 where

“The permission covers any variation which is not material. But then the question arises: Who is to decide whether a variation is material or not? In practice it has been the planning officer. This is a sensible practice and I think we should affirm it."

This last point is very important. The question of materiality is a matter of fact and degree for the council/inspector. The court will therefore only interfere when there has been an unreasonable decision, not simply because the court disagrees with the conclusion.

If the differences are within the scope of the permission, it follows that the permission has therefore commenced, it has been implemented and, if implemented in time, it can then lie unfinished for years.

In the Southwood case, the neighbour argued that the planning consultant, and therefore the council, had approached the question incorrectly. The neighbour argued that issues of expediency of enforcement action were conflated with materiality of the differences between permitted and as-built buildings. The court observed that the point could have been better expressed but decided ultimately that, on the question of materiality, the correct approach had been taken. The council had considered whether the differences were material and reached the planning judgement that they were not. This was not something in which the court should readily interfere and appeared correct in any case.

There is a 2017 case which is cited in the PINS Inspector’s Manual, Faisal Hussain v SSCLG [2017] EWHC 687 (Admin), 2017. The judgement, quoted in the manual, includes the throwaway line that “…it is possible to commence a development for the purpose of section 56 and thereby meet a deadline forming a condition of the permission, and then later to deviate from the permitted works in a manner that later becomes an enforcement issue without retrospectively altering the fact that the commencement of the development had occurred for section 56 purposes.” Commercial Land and the subsequent cases were not cited in Hussain and the point was obiter in any case. It is difficult to believe that Hussain can be considered good law on that point in the light of Southwood .

Enforcement Warning Notices

Tue, 30 Jan 2024 08:22:26 GMT

s172ZA TCPA 1990

The enforcement warning notice legislation is already in force in Wales and will be brought into force in England when the enforcement provisions of the Levelling Up and Regeneration Act 2023 come into force, expected April 2024.

The intention is that the EWN can be issued where a planning breach is not sufficiently egregious to require an immediate enforcement notice but requires regularisation by way of a conditioned planning permission. An example might be a change of use to a restaurant in a location where a restaurant would be acceptable if opening hours etc are conditioned.

In such cases, LPA enforcement officers typically write to developers informally inviting an application with enforcement notice or breach of condition notice only being issued in the absence of an application (or its subsequent refusal). Such communications do not stop the clock for immunity purposes and it is not uncommon for discussions and negotiations to go on for sufficient time that the development becomes immune. The EWN goes some way to addressing that problem. But not all the way.

Timing

As the EWN is “enforcement action” for the purposes of s171B, it can only be issued within the periods set out in s171B which, by the time this legislation comes into force, will be 10 years from the date of the breach for all breaches in England. (Wales retains the 4/10 year limits for now).

Effect on immunity

While marketed as stopping the accrual of immunity, Enforcement Warning Notices do not in fact stop the immunity clock.

If a developer fails to comply with the EWN such that further enforcement action is required, the time limits in s171B will still apply to that subsequent enforcement action. It will still be necessary to issue the enforcement notice or breach of condition notice before the later of

· 10 years from the date of the breach or

· 4 years from the date of the enforcement warning notice (as a second bite).

The only extension of time, then, is that the EWN constitutes a “first bite” enforcement action which triggers the second bite provisions in s171B(4) TCPA 1990 and therefore extends the time to take subsequent enforcement action by 4 years.

Pre-requisites

There must be a breach of planning control. The notice will be of no effect if, later, it is found that there is no breach. The breach must be clearly specified in the notice with the same degree of clarity as an enforcement notice; Miller-Mead would apply.

There must be a reasonable prospect that permission would be granted if it is sought. The permission can be a conditional one. This requirement could prove tricky in some cases. In issuing a notice, the LPA is confirming that permission is fairly likely. That may come back to bite in terms of the expediency of future enforcement action. It may also become a material consideration in a future ground (a) appeal or permission application, either for the enforcement development or for some other future development which uses the enforcement development as a fallback.

There are also some situations in which the LPA simply cannot come to the conclusion that permission is likely to be granted, for example where an Environmental Impact Assessment is required.

Who can/must be served?

The EWN must be served on the owner and occupier of the land. It must also be served on anyone else who has an interest in the land. In this respect it is like an enforcement notice. There is no power to issue to anyone else (eg person merely working on the land).

It runs with the land in the sense that its effect on immunity applies against future landowners or occupiers. However, as there is no requirement for compliance, there is nothing to bind a future landowner or occupier to make a planning application.

What can be required and when?

Nothing. There is no power to compel submission of a planning application. It is merely a warning that, in the absence of an application, further enforcement action will be considered.

As there is no compliance requirement, the EWN is immediately effective.

The EWN must specify the time within which the application for permission must be made. While not specified in the legislation, this presumably needs to be a reasonable period.

Authorisation, service and registration

Service is effected by the methods set out in s329 TCPA. The EWN must be entered into the s188 register.

As this is “enforcement action”, it needs to be suitably authorised. Delegations need to be checked, a report prepared, human rights and the equality duty etc considered.

Offence?

It is not an offence to fail to comply with an EWN. There is no scope to force a developer to make an application.

In the event the developer fails to comply with the notice by making a planning application, the only way to force regularisation is if the LPA takes additional enforcement action by way of enforcement notice or breach of condition notice.

Right of appeal

There is no right of appeal to the Planning Inspectorate.

In theory, there could be an ability for the developer to judicially review the decision to issue the EWN but, as it does not impose any obligation to comply, it is perhaps unlikely that any developer would wish to challenge the EWN at the time it is issued. Any challenge issued later, when the developer realises that second bite is triggered, may be out of time.

Model form

It is likely that a model form EWN will be published. In the meantime, the Welsh government publishes a model form for Wales here which could be adapted.

Will they be useful?

EWNs have been available in Wales since 2016 but there is no data available on the extent of their use.

They were marketed as an alternative to enforcement notices for situations where a conditioned permission would solve the breach. But that alternative already exists in the form of an informal invitation to the errant developer to apply for permission. The informal approach is also significantly more flexible than the EWN approach. And it doesn’t need a report and delegated authority.

It seems likely, then, that EWNs may be limited to situations where the breach is close to immunity and another 4 years would be advantageous. With the increase of the standard immunity periods to 10 years, these situations may be fewer and further between. Time will tell.

Interpreting planning permissions

Thu, 26 Oct 2023 09:08:20 GMT

Ariyo v Richmond Upon Thames LBC [2023] EWHC 2278

The council granted permission for a rear garden pergola extension to a restaurant. Key to the decision was the council’s view that the use of the rear garden as part of the restaurant was lawful. Ariyo, a neighbour, sought judicial review of the decision.

The site comprised a ground floor restaurant with unrelated residential accommodation upstairs.

Prior to 2005, the ground floor had operated as a hardware shop. There was evidence that plants had been grown in the rear garden for sale in the shop.

In 2005, permission was granted on appeal for the change of use of the ground floor hardware shop to a restaurant. In 2006, permission was granted for a rear extension to the restaurant and construction of a store in the garden. In 2008, permission was granted for the change of use to a mixed restaurant and takeaway, with deliveries being picked up from the new rear extension. The blue line plan for the 2005 application showed only the building; the red line ownership plan showed the whole site. The plans for the 2006 application showed the proposed buildings on a site plan. The plans for the 2008 application showed the whole site and adjacent features.

The garden store was never built. The polytunnels from the plant growing remained in place after 2005 with nothing underneath, just rubble and scrub. The pergola appeared in 2021. Following discussion with enforcement officers, a retention application was invited and refused and a revised application for a modified pergola was then made for which permission was granted. The revised application was for the structure only, not any change of use. But the officer report assumed that the use as part of the restaurant was lawful given the longstanding restaurant use; it therefore discounted noise impacts. The court had to consider whether this was correct.

The council argued that the 2005 permission was for the whole site including the garden because that was the red-lined site. The court disagreed. The 2005 permission was, it said, for the ground floor of the building only; nothing else. This was clear from the blue lined plan, from the fact that the 1 ^st floor was excluded and from the fact that conditions sought to protect the residential amenity of the first floor occupiers. The 2008 takeaway permission did not change that. The 2006 extension permission changed the use of the land beneath the extension but no other part of the garden (for some reason the proposed store is not mentioned).

It followed that the council’s decision to grant permission was flawed, judicial review was granted and the decision was quashed.

At it simplest, this case is a reminder to read planning decisions carefully to determine their scope. Many people will stop at the development description and address and assume that the permission covers the whole site. This decision exhorts officers to delve deeper into the document and look at the detail of the permission and the land over which it was granted. (And to that we would add a reminder always to consider whether any permission granted was in fact implemented.)

But the case is also an example of the limitations of the planning unit as a concept and the complex interaction with the grant of planning permission for only part of a planning unit. The council’s view that the garden was in the same planning unit as the restaurant does not seem unreasonable. While the court was right to point out that the council had not properly evidenced that it had considered the point, it is difficult to think that the council would have come to any different conclusion had it done so. The alternative is that the garden was its own planning unit, which seems odd in the context of the back yard of a small suburban restaurant in the same ownership as that restaurant and where no one else was using it and there was no other way in. Did the 2005 permission create a separation between the planning units of the restaurant and the garden? Nothing in the judgment suggests that was the intention. Perhaps the planning officers (and inspector) in 2005 should have sought more clarity before granting such a restricted permission. That such issues can form the crux of a decision 18 years later illustrates the practical difficulties in making the deeper dive into the detail of permissions which this decision exhorts the council to make.

Just what is the “streetscene” and the “character and appearance of an area”?

Thu, 28 Sep 2023 08:34:01 GMT

Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904

A developer proposed conversion of an existing dwelling with side extension into two dwellings. No external changes were proposed other than a fence in the rear garden. The council refused permission because the sub-division was vertical (ie the side extension) and would lead to two small plots which would have a different width to those of the remainder of the street which were fairly uniform. The council said this would be harmful to the character and appearance of the streetscene.

The refusal was challenged and upheld on appeal. The inspector found that the plot widths were locally uniform creating a strong front building line and pleasant rhythm in the street scene, contributing positively to the character and appearance of the area. The inspector accepted that there were no external changes beyond a rear fence. But he found that the sub-division would be apparent because of the location of the property and also found that, as the extension sat well back from the building line, it would be incongruous as a separate dwelling. And he found that the rear fence was not PD, being installed as part of a subdivision. The refusal was upheld.

The developer appealed. At the High Court, the judge found that the inspector had erred by taking into account immaterial considerations and reaching an irrational conclusion; how could the inspector find that character and appearance of the area was affected if no external changes were identified?

Not surprisingly, this aspect was appealed by PINS.

The Court of Appeal found that the inspector’s decision was logical, coherent, reasoned and “legally impeccable”. He was required to consider the effect of the development on the “character and appearance” of the area, not just the appearance. This isn’t a defined term in the local plan policies. There is no need to consider character and appearance separately but it is clear that, together, the words go beyond mere appearance. It certainly includes matters of building lines, plot widths, plot sizes and the composition of buildings on the street.

The court considered how the inspector had approached this task. While the inspector gave fair consideration to the unaltered visual impact, nevertheless his consideration went further. He found that the plot widths would appear narrower than other plots, that this would “appear contrived” and would “highlight the incongruity in the street scene”. He found that the fact that the separated dwelling would set well back from the building line would be contrary to the prevailing pattern of development. And that, in combination, these caused harm to the character and appearance of the street scene. This was a lawful exercise of his planning judgement.

Further, there was in fact clearly a visual impact caused by the fence and the building line. This was fully understood by the inspector, and these were factors which the inspector was entitled to consider.

“Streetscene” is, said the court, undefined in law and concentrating on its meaning is unhelpful. It is not used in relevant policy and its only relevance was in understanding the impact of the development on character and appearance. The court did, however, note that the inspector’s approach was in line with the use of “streetscene” in the National Design Guide as including “the appearance of all elements of a street, including the buildings along its edge and the composition of buildings on each side of the street.”

Comment . It is common in enforcement notices to bandy about words such as “character and appearance” and “streetscene” when giving reasons for the notice. The High Court decision was a warning that we must remember to think about what these words mean and carefully demonstrate that there is an impact, particularly when visual impact is small. The Court of Appeal decision is a welcome confirmation that “character” is as important as “appearance” and that there are a number of other factors within “character” which can be drawn to justify enforcement upon when visual impact is lacking.

Murfitt limited - again

Mon, 07 Aug 2023 20:29:22 GMT

Removal of facilitating development

Caldwell and Timberstore v SSLHG and Buckinghamshire [2023] EWHC 2053 (Admin)

This recent case involves a timberyard in a Green Belt location in which the appellant constructed a dwelling. An enforcement notice was issued alleging the material change of use of the land to residential use and the carrying out of operational development comprising construction of a dwelling. The notice required the residential use to cease and required the dwelling to be demolished.

In Welwyn Hatfield v SSCLG (Beesley), the Court of Appeal expressed doubt that Murfitt could be used to remove a building which was itself immune but the comments were obiter. The point was not taken before the Supreme Court.

The inspector in this case found that building the house and the material change of use of land to residential use were not entirely separate developments. The former was integral to the latter. The principal form of development was the material change of use of land, the construction of the building could be regarded as associated works. The remedy of the breach required return of the land to the pre-breach condition and the notice was therefore not excessive in requiring removal of the building.

The appellants argued, based on Beesley, that Murfitt was limited to associated works and that building the house of a scale beyond associated works. PINS argued that it was not so limited, that it was a matter of fact and degree for the inspector and not one in which the court should intervene.

Mrs Justice Lieven undertook a review of the line of Murfitt cases which culminate in Kestrel Hydro. She concluded that, while the Murfitt doctrine could require removal of immune operational development, it could not override the statutory regime under s171B. She made a distinction between works which were “secondary, ancillary or associated with the change of use” (which a notice can require to be removed) vs works which were “causative of the change of use” (which it cannot). To use an enforcement notice to achieve removal of principal operational development was, she said, contrary to the statutory scheme.

The decision was remitted for redetermination.

Comment. For some years, some inspectors allowed removal of buildings on MCOU notices and others did not; decisions were inconsistent. More recently, following Kestrel Hydro, PINS’ guidance in the Inspectors’ Manual has cautioned against it and anecdotal evidence is that most such notices are now amended to remove such requirements. The robust decision of the inspector in this case, and PINS’ decision to defend it at appeal, was therefore surprising but welcome. The High Court reversal, couched in equally robust terms, is not.

To exclude all operational development which causes the material change of use from the realm of Murfitt is difficult to understand. What could be more integral to a change of use than the building of the thing which caused it to happen?

The question of which breach is the primary breach is somewhat “chicken and egg”. In many cases, it will be the creation of a new planning unit with a separate use which is the fundamental breach, rather than the construction of the building itself. In “beds in sheds” cases, for instance, an outbuilding built as a separate dwelling is unacceptable where the same building as an ancillary dwelling is fine. It is arguably the use which is the primary breach. Yet the construction of the outbuilding clearly causes the breach. So to outlaw notices which seek removal of the building simply because the building “caused” the breach seems excessive.

Similarly, the judge seems to have been concerned that the council was somehow attempting to override the statutory regime. But the council had a choice of which breach to enforce against. It chose to attack the change of use of land. There is nothing underhand in that.

Here the inspector reached a decision that the change in use was the primary breach and addressed the notice accordingly. The High Court has interfered with that conclusion. Ordinarily, this would seem like a case that needs an appeal.

The Levelling Up and Regeneration Bill will, it is hoped, equalise immunity periods at 10 years. That will encourage councils simply to attack the operational development and will reduce the impact of this decision. Nevertheless, there will still be situations where it is appropriate to attack the material change of use; the wide language in which this decision is couched has potential to make it harder for such notices to be fully effective.

All I wanted was closure

Wed, 19 Jul 2023 10:03:55 GMT

Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)

This recent case looked at what might constitute waiver of the requirements of an enforcement notice. The decision is a reminder that language is important in post-notice negotiations with errant developers.

The case has an enforcement history stretching back to 2007. A residential building historically containing two flats was inspected in 2007 and found to be in use as five flats. An enforcement notice was issued in 2008 requiring cessation of the use as five flats, removal of fittings etc, and “to restore the property as two flats”.

This last step is unusual; most material change of use enforcement notices does not seek to specify the use to which the property is to be returned after compliance because there is a right of reversion to last lawful use anyway under s57(4) TCPA 1990 and anything else requires a permission application. Perhaps it was not directed at use at all, merely the physical layout. Nevertheless, it was a requirement of this notice and was not appealed.

The developer evicted the tenants and converted the property to a single dwelling. A council officer was invited to view it. While the property was a single dwelling (and not two flats as required), the officer closed the case as the single dwelling was an acceptable outcome which met the aims of the notice in terms of reducing the over-intensive use. She recorded that it was “agreed that the removal of units and entry door intercom is acceptable for compliance”, sent closure letters saying that the notice had been “complied with to the council’s satisfaction”, and the case was closed.

Council tax payments for flats resumed in 2009. In 2011, the council’s planning enforcement team became aware that the property was in use as 6 flats. A prosecution was attempted but the conviction was quashed on appeal. The prosecution was for reinstatement under s181(5) but the court decided that there had been no operational development capable of prosecution under that section (internal changes not being development). There had of course been a material change of use which is an offence under s179 but that was not the offence prosecuted. No further action was taken, and the use continued until a certificate was sought. The certificate was refused (there being an enforcement notice) and the failure to comply with the notice was prosecuted. The developer was convicted in the Crown Court and appealed.

One of the points argued before the Crown Court was whether the notice had been varied/waived by the decision to accept the single dwelling use as compliance, so removing the need to convert to two flats. The developer pointed to the closure letters confirming compliance and the site visit note. The council said that it had merely accepted the situation as being an acceptable solution to the breach; it had not waived any requirements of the notice.

The Crown Court found that the requirements of the notice had not been varied or waived. There was no formal notice of variation and the language used by the officer was felt to be inconsistent with formal variation. This aspect was appealed to the High Court by way of case stated.

The High Court found in favour of the council. Whether there had been a waiver was a mixed question of fact and law and therefore susceptible to appeal. But all evidence was relevant in looking at whether there had been a waiver, including officers’ later recollections. These provided an explanation for the officer’s statement that the notice had been complied with.

That was a “compelling explanation” that the council had merely accepted the single dwellinghouse as meeting the aims of the notice without varying it or discharging it. There was no formal notice of variation, simply letters from an officer confirming that the council would take no further action.

The notice had not, therefore, been complied with and the conviction was sound.

The case is a reminder of the need for clarity in communications with developers. The council confirmed that the notice had been complied with when it clearly had not been fully complied with. A better explanation might have been that it was no longer expedient to take further action.

It is a slightly unusual case in that the council prosecuted the failure to “restore the property to two flats” rather than the resumption of the use as multiple flats. As mentioned above, a positive direction as to future use (if that is what this is) is not a step that is found on most notices and arguably goes beyond what a notice can require. Perhaps it was not seen as a future use step and evidence of non-compliance was clear from the LDC application. The reasons for this approach are not recorded in the decision. It is possibly because the notice required cessation of use as 5 flats and resumption was as 6 flats. Best practice is to avoid specifying the number of flats in the notice.

3 more years of Diddly Squat

Wed, 28 Jun 2023 08:07:08 GMT

Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here.

In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets.

Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t.

As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming.

The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal.

The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use.

The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit.

As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.)

Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.”

This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop.

The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary.

As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld.

The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was.

He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use.

The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight.

In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused.

The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight.

Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm.

The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months.

The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.

Equalities duties must be treated differently

Wed, 17 May 2023 09:39:38 GMT

R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)

Introduction

Article 8 of the ECHR (right to family life) and the public sector equality duty (PSED) are commonly used to attack council decision making in planning enforcement. To be fair, some council enforcement reports still don’t explicitly consider them which, for 2023, is untenable. Others contain pages of boilerplate wording, which is equally inadequate. Some reports demonstrate a good understanding of the duties but a potentially inadequate level of investigation of the fact which go to exercising the duties. The High Court was recently called upon to assess whether Luton BC’s approach was adequate.

The site was a former office block. Prior approval was sought for conversion to 130 residential flats under Class O of Schedule 3 of the GPDO; prior approval was confirmed not to be required. In the event, the block was demolished and rebuilt as 109 flats. While the council’s housing team initially expressed an interest in renting some of the flats to house the temporarily homeless, on inspection the flats were “too awful” even for that.

In 2021, the council took the view that the demolition and rebuild took the development outside the boundaries of Class O. A delegated report was signed, authorising an operational development enforcement notice requiring demolition. The delegated report included consideration of the planning merits, enforcement options, article 1 and article 8 rights and the PSED under s149 of the Equalities Act 2010.

The notice is under appeal and the appeal has yet to be determined. In the meantime, Devonhurst brought judicial review proceedings against the council alleging that its decision making was not adequate. As the quality of decision making is not a statutory ground of appeal, a challenge is determined at court by judicial review rather than by appeal to a planning inspector.

PSED

S149 of the Equalities Act 2010 requires public authority decision makers to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with a protected characteristic and other parts of the community. This is commonly called the “public sector equality duty”.

The PSED is a duty of process and not outcome. Provided that the duty is properly understood and considered, it is (said the court) for the decision maker to decide what weight to give the various factors that go into it. The decision maker can, for instance, decide to prefer the public interest in upholding the planning system.

There is a duty of inquiry inherent in the PSED. Decision makers cannot simply ignore information which they do not possess; they must take reasonable steps to acquire that information. Devonhurst suggested that the court should decide whether Luton’s officer had satisfied that duty. The court decided that it was for the council to decide the parameters of the information gathering exercise and, provided it was not Wednesbury unreasonable, it could not be challenged in court.

Luton BC knew that the appeal site would house around 200 people, some of them children, in 109 flats. It had a list of the names of tenants at a particular date but there was a high turnover. It had no information on protected characteristics or the needs of those occupying the appeal site. No welfare forms appear to have been sent out and no door knocking took place. Devonhurst said that the council had not approached its information duty adequately.

The judge accepted that, though it would ordinarily have been better to obtain information on individual protected characteristics and needs, the failure to do so here was not fatal. She held that

the council was entitled to take into account that accommodation was temporary and that there was likely to be a high turnover of occupiers such that information would become outdated;
the council was entitled simply to assume that some occupiers were probably children, or vulnerable, or protected without knowing the details;
the council had taken adequate account of educational needs simply by accepting in general terms that children would “most likely” have to move schools and that this would have an impact on their educational needs and social bonds;
the council had also recognised that all occupiers would have to vacate, that some would be homeless and that this would cause disruption and distress;
it was reasonably open to the council to find that the accommodation was so poor that it was positively in the interests of those living there that they were moved to alternative accommodation and that this outweighed the other factors.

As the council had properly addressed all of these factors and had demonstrated a proper appreciation of its duty, its decision to take enforcement action could not be challenged on PSED grounds.

Every case is different. But it is common for councils to have to take decisions based on incomplete information. The judicial support for the way in which Luton addressed these factors is welcome.

An interesting point here was that the council officer who took the decision was allowed to submit a witness statement explaining the decision. Often such post-rationalisation is frowned on with the decision maker expected to set out the factors on the face of the report.

Article 8

The second ground of challenge was based on Article 8 of the ECHR which protects the right to family life. Devonhurst suggested that the council had failed to make proper inquiry into the impacts of enforcement action on the occupiers. This ground was dismissed for two reasons.

Both under the ECHR and the UK’s Human Rights Act 1998, only a “victim” of behaviour alleged to be contrary to Article 8 can challenge it. Here, Devonhurst was a commercial landlord and a limited company. It did not speak for the occupiers, their article 8 rights could not be extended to Devonhurst, and it did not have its own right to family life. Hence, the court decided, it was not a victim and could not bring an Article 8 claim.

Unlike the PSED duty, which focuses on the procedural quality of the decision making, the Article 8 claim focuses entirely on the outcome ie whether rights are actually violated. As Devonhurst focused only on the council’s lack of enquiry into impacts, there was no evidence before the court that any occupier’s Article 8 rights had in fact been impacted. Even had Devonhurst been a victim, the Article 8 appeal would have been rejected for lack of evidence.

Councils must, of course, continue to have regard to Article 8 when taking enforcement decisions. This judgment simply makes it less likely that developers will be able to make use of it when challenging those decisions.

Interests of the child

The third ground of challenge was the council’s alleged failure to treat the best interests of the child as a primary consideration. The delegated report said only that “special regard” was had to the interests of children, not that these were a primary consideration. The judge noted that since the requirement under the Children Act 2004 was to have “regard to the need to safeguard and promote the welfare of children”, there was no need to investigate the individual needs of the children; it was adequate that the positive and negative impacts of the enforcement decision on children were considered in general terms and the council was entitled to decide that the positive impact of stopping use of such poor accommodation outweighed the disruption to children.

Some doubt was cast on whether the interests of children should be treated as a “primary consideration” rather than just a “relevant consideration”. The recent Supreme Court case of R (SC) v SSSWP [2022] AC 223 could favour the latter interpretation. Ultimately, the point was not decided here.

Conclusion

The case has other interesting aspects; there was a challenge to expediency and a suggestion that delegated reports deserve more scrutiny than committee reports, both rejected by the court.

The support for the council’s decision making process is encouraging but the fact remains that a robust investigation and a well written report is the best defence against PSED and Article 8 challenges.

Standing to Appeal

Tue, 25 Apr 2023 11:56:19 GMT

Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)

In 2017, Brent Council issued an enforcement notice alleging a change of use to 2 flats, and erection of a canopy and door. Ms Muorah appealed. The inspector found that the canopy and door were PD when erected (ground (c) allowed in part) and that the steps of the notice were excessive (ground (f) allowed in part) but refused permission for the change of use under ground (a). As part of the decision, the inspector upheld a step of the notice requiring cessation of occupation by more than 1 household. On appeal to the High Court, PINS conceded that this should have been deleted as it removed a PD right (C4 to C3 and vice versa) and, by consent, the case was remitted for re-determination.

Before redetermination, Ms Muorah applied for an LDC for use as two flats. The council refused this as the enforcement notice had been issued. This was appealed and, in August 2020, the appeal was successful.

Yet, in December 2020, the enforcement notice redetermination again upheld the enforcement notice in relation to the change of use.

Ms Muorah went back to the High Court to challenge the new enforcement notice appeal decision. She challenged on two grounds. PINS accepted that this new decision was bad on one ground but not the other; PINS was willing to consent to judgment. Ms Muorah wanted to challenge on both grounds and opted to continue the appeal.

By July 2021, before the appeal was heard, Ms Muorah was declared bankrupt. Her trustee in bankruptcy disclaimed her interest in the appeal property. While that decision was challenged, the challenge had not been determined at the date of the High Court case.

The right of appeal of an enforcement notice rests in “any person having an interest in the land” or a “relevant occupier”. And only the appellant, the LPA or another person having an interest in the land can bring a s289 High Court challenge. When the bankruptcy trustee was appointed, any interest in the land and any causes of action relating to the land passed to the trustee. SSHCLG therefore sought to strike out the s289 appeal on the basis that Ms Muorah no longer had a cause of action to pursue the appeal and that it would be an abuse of process to continue.

The court agreed.

The decision dismisses the appeal. The effect is that the enforcement notice is now valid and in force, having been upheld by the inspector even though PINS has conceded that its inspector’s decision was wrong and that the notice should have been altered. The judge thought any unfairness might be solved by the council using its powers to waive or withdraw the notice in the light of the concession. This presumably opens it up to judicial review if it refuses to do so.

On the face of it, this is one of these strange little cases which are highly fact specific and of little general interest.

But the judgment links the right to appeal (both at s174 Planning Inspectorate and s289 High Court stages) with the risk of criminal sanction for failure to comply with the notice. In doing so, the suggestion seems to be that, even where an appeal was validly brought by a person with an interest in the land, the right to continue the appeal is lost when a person no longer has an interest in the land and that this is OK because the person can then no longer be subject to criminal sanctions.

With s174 appeals often taking 2 years at the moment, it is not uncommon for changes in ownership to take place during the process. PINS’ practice is that a new owner can continue the appeal by consent but that, in the absence of consent, the appeal will be decided in relation to the original appellant owner. It is difficult to reconcile that practice with this Muorah case given that the original appellant will, as a result of the sale, no longer have an interest in the land. If it is an abuse of process to continue the appeal, as this case suggests, it should be dismissed.

Traditionally, standing to appeal is only checked/challenged by LPAs at the start of the appeal process. This case suggests that it is something that should be kept under review throughout the appeal process and challenged if it seems that the original appellant no longer has an interest.

Implementation of planning permission

Fri, 24 Mar 2023 08:21:29 GMT

Atwill v New Forest NPA [2023] EWHC 625 (Admin)

In 2018, a developer obtained permission for a new house in the National Park, to be built following demolition of an existing one. Demolition took place but the house which was built was very different from the permission. A neighbour complained. The NPA issued an enforcement notice requiring demolition. It was appealed and the appeal is pending. In the meantime, the NPA allowed the developer to seek retrospective permission under s73 TCPA 1990 for what was built; the application was made more than 3 years after the grant of permission but the council accepted the demolition as implementing the permission. The council granted permission, subject to a lapse condition.

The neighbour challenged the council’s decision to grant permission. There were 7 grounds but only a couple are of interest in enforcement terms.

The neighbour argued that the 2018 permission was not implemented. As such it had lapsed. It could not now physically be implemented in any case. As it had lapsed, no s73 permission could be granted as s73 does not permit the extension of time to implement. The neighbour also argued that the council was wrong to call it a minor material amendment and that it was clearly outside the scope of s73. The council’s failure to reattach all relevant conditions from the 2018 permission to the s73 permission was also attacked.

As a reminder, s73 allows applications for permission for development without compliance with conditions to a previous permission. While often referred to as minor material amendments, those words are not part of s73. In most cases, the condition which is to be varied is the plans condition but, again, there is no such limit in s73.

It is self-evident that if there is no permission (eg because it had lapsed), there is no condition and no scope for s73 to operate.

Implementation of a permission is usually required within 3 years, otherwise it lapses. Implementation of an operational development permission takes place when development begins. S56 provides that development begins when a “material operation comprised in the development” is carried out. Material operation has a very wide definition and includes demolition or “any work of construction in the course of erection of a building”. But where what is built is too different from the permission, the material operation was not one “comprised in the development” authorised by the permission. In such cases, the developer doesn’t implement the permission, they implement something else.

In this case, the judge decided that while demolition took place in time, what was eventually built was so different to what was permitted that the demolition could not be said to be related to the permission. The development was not implemented, the permission therefore lapsed and there was no scope for a s73 application.

This shouldn’t be surprising since the clear basis of the enforcement notice is that what was built was not an implementation of the permission; indeed that was the NPA’s case to the pending enforcement appeal. It was odd, then, that that the NPA was arguing in favour of implementation in these proceedings. Perhaps this was the reason the judge was willing to rule on what might otherwise be considered a matter of planning judgment.

The judge also found that the 2018 permission was unimplementable due to the way in which the new house had been built. While this was, she said, normally a matter of planning judgement, the evidence was so overwhelming that the NPA’s failure to take it into account vitiated the decision to grant permission.

A final ground which is of interest is the scope of s73. The recent case of Armstrong v SSLUHC [2023] EWHC 176 was cited. That case reminded us that s73 is about conditions, not whether the variation is minor. The PPG guidance was wrong on that score. The neighbour’s challenge that the council was wrong to call this a minor material amendment failed as it was irrelevant. However, where the s73 application seeks to change the “operative part” of the earlier permission (ie the actual grant of permission), it cannot be granted. Here, at least one element of the s73 application was outside the scope of the original permission.

From an enforcement perspective, the case is a useful reminder of the need to check implementation carefully where a developer claims to have permission. It is also a reminder of the limitations of s73. It is not unusual for a revised application to be invited as an alternative to formal enforcement action. Quite who decided to make that application a s73 one in this case is not recorded in the decision. It is not game over for the developer though as the enforcement appeal includes a ground (a) appeal for what was built.

McCaffrey v Dartmoor NPA

Thu, 23 Feb 2023 16:03:38 GMT

McCaffrey v Dartmoor NPA [2023] 2 WLUK 341

In a judgment handed down last week, Mr Justice Swift confirmed that, when it comes to Planning Enforcement Orders, sins of omission are just as bad as sins of commission.

A builder obtained planning permission to construct an open-sided barn in 2007, with use restricted to agricultural purposes. In 2012, after a complaint that the barn was being used residentially, the builder persuaded the NPA’s enforcement officer that it was just a barn. After another complaint in 2021, the builder admitted that it was a dwelling. But he said that he had been living there for 4 years and that the use was immune from enforcement action.

After an investigation, the NPA decided to enforce. It sought a Planning Enforcement Order (“PEO”) from the Magistrates’ Court, which was granted based, it seems, largely on the developer’s failure to register for council tax and his collusion with his mother to make misleading entries on the electoral roll (saying that he had lived with her, rather than at the barn). The developer appealed by way of case stated to the High Court.

Readers will know that sections 171BA and 171BC TCPA 1990 allows the LPA to seek an order allowing the taking of enforcement action outside the normal time limits in s171B. The Magistrates’ Court may make the order where it is satisfied, on the balance of probabilities, that the apparent breach “has (to any extent) been deliberately concealed by any person or persons and the court considers it just to make the order having regard to all the circumstances”.

The first ground of appeal was whether acts of omission were relevant to the question of whether there had been deliberate concealment. Mr Justice Swift concluded that there was no distinction made in the legislation between omissions and positive acts of concealment. An omission, and particularly a series of omissions, could be sufficient to amount to deliberate concealment and the question was one for the deciding magistrates’.

The fourth ground of appeal is also interesting. The court held that the mother’s actions could also be taken into account because the legislation looked at actions by “person or persons”. That was particularly the case where there was collusion between the developer and the other person. But it could also have applied had the mother acted alone though it might then have been less straightforward to conclude that it was “just” to make the PEO against the developer.

It is also interesting (though not a ground of appeal) that the omissions were in areas not directly related to planning (electoral roll, council tax, refuse collection – the builder put his refuse with his mother’s bins).

It is worth comparing this approach to the alternative deliberate concealment regime which arises from the Supreme Court decision in SSCLG and Beesley v Welwyn Hatfield BC [2011] UKSC 15. In that case, the court held that positive deception by the developer in matters integral to the planning process (ie obtaining permission) which was intended to undermine the operation of the planning process and did so undermine it (ie it avoided enforcement action) and resulted in benefit to the developer was sufficient to cause the relevant immunity period to be suspended or to start only when the deception was first discovered. Each of the 5 topics in bold has to be demonstrated in order to run a ground (d) case based on deliberate concealment and the bar is high.

The PEO approach was always intended to be easier than the Beesley approach. The McCaffrey judgment seems to put clear water between the two approaches in terms of the ease with which the PEO can be obtained. There is no need for positive deception, omission will do. The deception can be by persons other than the developer, the mother in this case . The deception need not be in matters integral to the planning process, council tax etc will do. It is not clear what evidence, if any, was before the district judge on benefit to the developer. There is still a need to convince the Magistrates’ Court that it is “just” to impose the order, rather than simply convincing an inspector on appeal, but the bar for PEOs seems much lower than under the Beesley approach.

A final point on the case relates to the second ground of appeal. It appears that the NPA might not have given adequate consideration to the developer’s human rights in deciding to seek the PEO. The NPA got away with it. That, said Mr Justice Swift, was a question for judicial review, not the Magistrates’ Court. The moral must be though that, like any enforcement action, an application for a PEO is best made on the basis of a written report which considers the breach, the need for action, human rights and the public sector equality duty explicitly. That way, spurious human rights challenges can be minimised or avoided altogether.

NAPE article

Tue, 17 Jan 2023 08:46:49 GMT

Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)

A house was converted to four bedsits (each with own kitchen and bathroom facilities) and two bedrooms (without own kitchens and bathrooms). A communal kitchen, bathroom, lounge and garden were each accessible to all occupiers. It appears that there was little evidence of exactly who used the communal facilities.

The LPA enforced against five flats. Under appeal ground (b), the appellant said it was an HMO comprising four flats and 2 bedrooms. A proposal (described as retrospective) to change to a C4 HMO had recently been refused (against officer advice).

Before the inspector, the LPA argued that the HMO rooms were themselves a separate flat, though it accepted that other descriptions were available. It also argued that the property was not an HMO because the self-contained flats meant that it did not meet the “standard test” for an HMO in the housing legislation. Hence the decision to describe it as 5 flats.

The inspector found that a converted property may still be an HMO overall while containing self-contained flats (the “converted building test” in the HMO legislation) if some rooms are HMO rooms. The LPA’s reliance on the standard test was wrong.

He also found out that the HMO rooms with communal facilities could not be described as a self-contained flat as they were distributed around the building and the occupants of the four self-contained units could access the communal kitchen, bathroom and lounge.

The inspector was therefore faced with changing the breach allegation. The question was, what to and would it cause injustice?

The inspector decided that it was a C4 HMO, refused to change the breach allegation due to the prospect of injustice and quashed the notice. The LPA appealed.

At the High Court, the judge noted that there was no definition of a dwellinghouse in planning statute. The accepted definition was that in Gravesham v SSE – that a “distinctive characteristic of a dwellinghouse” was its “ability to afford to those who use it that facilities required for day-to-day private domestic existence”. The question of whether something was a used as a dwellinghouse was a matter of fact and degree; a judgement for the planning inspector, not the court.

The LPA argued that the inspector ought to have considered whether the house had been subdivided into multiple dwellinghouses and/or that he ought to have explained his decision that the house continued as a single dwellinghouse. PINS argued that the inspector had reached the decision that, while the flats were capable of self-contained use, the access to the communal facilities meant that they were no so used. That was a judgement well within the inspector’s powers and shouldn’t be interfered with.

The judge suggested that the notice was concerned with the subdivision of the property. He suggested that the issue between the parties was whether there had been subdivision. He said that the inspector had resolved that in favour of the appellant and that this was a decision the inspector was entitled to make, given the existence of communal facilities, and not one to be reversed by the court.

As he put it

“It is possible, at least in principle, for a house to remain in use as a single dwellinghouse falling within the scope of Use Class C4, notwithstanding that it includes a mixture of both self-contained and shared residential accommodation. It is for the decision maker to judge on the facts of the given case whether such a building remains in use as a single dwellinghouse.”

The LPA also argued that the inspector needed to give reasons for departing from assumption that something that was a self-contained flat was its own subdivided use. The judge decided that the inspector had accepted that the fact that the communal facilities were open to the flat-occupiers was enough. Again, that was a decision for the inspector.

Comment. This is an unusual case. The decision to call the conglomeration of non self-contained rooms and communal areas a fifth flat is bizarre and effectively lost the ground (b) appeal. The council appears to have been concerned that, if it conceded that the property was an HMO, it could not have enforced (C3 to C4 is PD). But a description of a mixed use of flats and HMO would have solved that problem (there is no PD to move to a mixed use). Indeed, there was already an Article 4 direction in the area so the point was misguided in any case. The mistaken breach description put the council on the back foot as the inspector had no option but to change it.

The unusual aspect is the inspector’s decision to allow the four self-contained flats to be described conceptually as part of an HMO despite being self-contained. It is fair to say that the inspector’s decision was light on this aspect. He appears to have accepted that the fact that the communal lounge and kitchen were available to the occupiers of these flats was enough without, it seems, much evidence of actual use. And this aspect was judicially backed. In other cases, other inspectors have sought evidence of actual use of the communal facilities and have tended to assume that occupiers with self-contained facilities are more likely to stay in their rooms and use them unless the contrary is demonstrated. PINS were, perhaps, lucky that the judge did not find the inspector’s lack of explanation sufficient to require a redetermination.

The decision should not be seen as endorsing a general principle that flats in an HMO are to be considered as part of the HMO. It is common, where flats are alleged, for developers to claim they are HMO rooms, not least because the internal space standards are different. This decision may help some such developers. But enforcement officers need only keep taking pictures of empty communal kitchens to refute this and most inspectors will be receptive of such evidence.

The other lesson is that the decision appears to endorse the concept that a house with a mixture of flats and HMO rooms can remain a single planning unit; in other words, the mere existence of a flat does not necessarily split the planning unit. That would suggest it remains open to the LPA to describe the use as a mixed use. That would have been the natural description in this case, a fact the council appears to have tacitly acknowledged before the inspector.

Hillside v Snowdonia

Tue, 22 Nov 2022 10:58:07 GMT

Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30

In 1967, the LPA granted planning permission for the development of 401 houses on a site in Wales in accordance with a Master Plan. Progress on building out the estate was glacial.

By 1985, only 19 houses had been built. None of them were in accordance with the Master Plan but all had individual permissions.

In 1987 a court gave a declaration that the 1967 permission had been implemented on time, that its sole condition had been satisfied and that the Master Plan was still valid and capable of implementation.

Since 1987, another 22 houses have been built. Again, some had individual permissions (some described as variations to the 1967 permission, others not). Others were built without any permission. None followed the Master Plan. Some were built where the Master Plan required a key road, preventing that road from being built.

In 2017, the NPA told the developer, Hillside, that, as it was now impossible to implement the Master Plan, all works must stop. Hillside sought a High Court declaration. It was refused. The judge held that it was now physically impossible to complete the development in accordance with the 1967 permission. The Court of Appeal agreed, and Hillside brought the case to the Supreme Court.

It was accepted that anything done before 1987 was effectively a variation of the 1967 permission (due to the 1987 declaration). The question for the Supreme Court was whether the post-1987 permissions were good and whether any further development could take place.

After running through the law on interpretation of permissions and the ability of councils to vary permissions, the court asked itself what to do about inconsistent permissions.

In Pilkington v SSE (a 1973 case), a developer built one house with permission then discovered an earlier permission for another house in a different part of the land; he wanted to build the second one too. The court held that a developer could make any number of conflicting applications. But if one permission was implemented, the developer needed to show that a second permission was not inconsistent with the first if he wanted to build out the second permission. Implementation of the house rendered the earlier permission incapable of implementation because the position of the house was described on the earlier plans as agricultural land and it was now a house.

The NPA said that Pilkington should be followed. Development after 1987 rendered the 1967 permission impossible to implement further.

Hillside said that Pilkington was based on abandonment; Mr Pilkington had abandoned the earlier permission by building the later one. Hillside said it had not abandoned its rights under the 1967 permission.

The Supreme Court gave this short shrift. There is simply no principle in planning law that a permission can be abandoned. The Pilkington case was based on the impossibility of implementing the earlier permission, not its abandonment. If it was physically impossible to carry out the work in accordance with the earlier permission, the permission could not cover the proposed work. Here, the new houses meant that the road could not be built, and the Master Plan permission could not be completed.

Hillside turned to its second argument. It said that the 1967 permission authorised any subset of the 400 houses it permitted, not just the 400 as a whole. That subset could be built out even if other subsets could not.

The Supreme Court had more interest in this one. Permission for a multi-unit scheme is for an integrated whole; it is not severable into parts. Yet, permission for already-built units in a multi-unit scheme was not lost if the developer did not complete the whole scheme. How should these apparently competing points be reconciled?

The court concluded that these were, in fact, two different propositions. Where something physically prevented the whole scheme from completion in accordance with its terms, further development was not possible under the terms of the original permission; the 1967 permission was not divisible into parts. This applied across the whole site. The physical impossibility of completing works on one part of the site rendered unauthorised any further development across the whole site. This did not render the existing development unlawful; it only prevented further development.

Hillside’s third argument was that the post-1987 permissions were variations on the 1967 permission. The 1967 permission, as varied, remained capable of further implementation.

The Supreme Court said no. LPAs have very limited powers to make changes to an existing planning permission. If a developer wants to make a material change to a large scheme granted a single permission, that needs a new permission. Even if the proposed change affects only one area of the site, still the new permission is required for the whole.

Properly construed, the post 1987 permissions granted permission only for their individual development; they did not change the 1967 permission for the overall site. If, as a result, that 1967 permission could no longer be built out, so be it.

Comment

Clearly this decision is of real consequence for developers of large multi-unit schemes who now need to be very careful to ensure that any changes they make to the scheme are covered by a permission and to ensure that the permission makes clear that the overall scheme is being altered.

From an enforcement point of view, the interest is perhaps in the treatment given to Sage v SSETR [2003] UKHL 22. Sage has been seen as authority for the proposition that, while implementation of a permission may start with the first brick, if what is eventually built out is materially different from the permission, then the whole development is unlawful. Applied to the Hillside case, that would seem to render unlawful everything built so far.

This aspect was effectively rejected by the Supreme Court. It was, said the court, “obiter” (not crucial to the analysis) in Sage because there was no permission at all in Sage. It had little application to multi-unit cases. Failure or inability to complete a permitted project did not render existing development unlawful but further work is not authorised once the development becomes physically impossible to complete in accordance with the permission; if Sage said otherwise, Sage was wrong.

Sage, said the court, remains good law for the proposition that substantial completion does not take place until construction of the whole building contemplated by the developer. But that is an immunity point; it does not go to lawfulness of what was built.

The problem with this approach for enforcement can be seen with, for instance, a permission for a single storey extension which is built as two storeys. The Hillside approach would seem to suggest that the ground floor was an implementation of the permission and lawful until the second storey was commenced and made it impossible to put the roof on the ground floor permission scheme. Is the implication that the breach of planning control is building a second storey (rather than the whole extension) and that a notice could only require removal of the second storey? That would be an odd result.

Hopefully the effect will be limited. In many cases, development is a single operation so the concept of “existing” and “further” development does not arise. If the development which takes place is not the development which was permitted, it doesn’t need Sage to know that the development is in breach of planning control. Where development is more piecemeal (eg multiple “householder” extensions followed by conversion to HMO), this decision will cause real enforcement headaches.

“Immunity” and adverts

Wed, 26 Oct 2022 13:54:14 GMT

LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)

LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin) is a High Court appeal from a decision of a Deputy District Judge in the Magistrates Court against an advert removal notice issued by Hackney.

The display of an advert requires permission but the legislation [1] (“Class 13”) grants deemed permission where the advert is on a “ site that has been used continually for the preceding ten years for the display of advertisements…”; in this case, the ten years was the ten years before the removal notice.

On the face of it, this is similar to the position under s171B(2) and (3) TCPA 1990 where immunity from enforcement action is acquired after continuous use for 4 or 10 years.

Hackney said that there were two periods during which the site was not used for the display of adverts. The first was a period of 9 months at the beginning of the relevant period when the site was vacant. The second was a period of 4 months when the advert hoarding was replaced with a digital panel and significant repairs were also required to the supporting wall. However, there was also some evidence that advertising had taken place on the site for a long period since the 1980s.

A 1997 Divisional Court adverts case (Westminster v Moran) suggested that “used continually” did not mean unbroken continuous use; there could be gaps where no advert was displayed but where use continued.

A 2012 Court of Appeal case (Winfield v SSCLG) held otherwise. In that case, the council had served notices requiring removal of the adverts, the landowner had complied but then replaced the adverts a few days later. Each gap was found to be a period where use ceased before resuming; the land was not being “used continually”.

Readers will recall the decision on s171B in Islington vs SSHCLG and Maxwell Estates (our article here ) which made clear that, where a use has not yet become lawful, any period during which the council could not have enforced is a period which interrupts the use; this is irrespective of intention to continue the use or what happened before and after the gap period. Conversely, where a use has become lawful, abandonment or a material change of use is required to end it. That decision was given by Mrs Justice Lang DBE.

Neither Islington nor Winfield were put to the Magistrates Court in the current case. The DDJ found that there had been a very long period of use, that the interruptions were not sufficient to interrupt the use and that the site had therefore been “used continually” so that there was deemed permission. It is this finding which was appealed.

Given her decision in Islington, it is perhaps not surprising that Mrs Justice Lang, when deciding the current case, followed her earlier decision. She found that the Winfield case was both binding (as a Court of Appeal case) and preferred over Moran. She put the decision in two ways.

First, under the advert legislation, a cessation of use means that the site cannot have been “used continuously”. Material factors in whether there was a cessation of use were the length of the period of use, the length of the interruption, the reason for the interruption and the circumstances in which it has arisen.

But Mrs Justice Lang also found that another relevant factor was whether the council could have enforced during the gap in actual use. This is because the point of the deemed consent under Class 13 is to cover situations where the LPA could have enforced but didn’t do so. If the LPA could not have enforced, the period cannot count towards the deemed consent. This is, effectively the same argument which decided Islington.

In this way, the test for deemed consent under the advert legislation appears now to be wholly in line with the test for immunity from enforcement action under s171B(2) and (3).

Applying this test, Mrs Justice Lang found that the DDJ in the Magistrates Court had reached the wrong conclusion and the appeal was allowed.

There are a couple of other points which are helpful in this judgment. Under Class 13, it is use of the site for the display of adverts which is important. No display means no such use. Intention to display at some point in the future is irrelevant. Again, this is similar to the s171B test for use as set out in Islington.

And Mrs Justice Lang also issued a reminder that the burden of proof is on the advertiser to prove continuous use; it was for the advertiser to prove that the council could have enforced during the apparent gap in use.

[1] Class 13 Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007

A dwellinghouse by any other name

Thu, 18 Aug 2022 14:54:39 GMT

LB Brent v SSLUHC and Yehuda Rothchild [2022] EWHC 2051 (Admin)

Being a dwellinghouse and being used as a dwellinghouse are two different things. Some parts of the legislation applies to properties which are dwellinghouses (eg GPDO), other parts to properties which are used as a dwellinghouse (eg immunity for use as a single dwellinghouse); it is always necessary to look at the context. The Gravesham criteria are relevant to being a dwellinghouse but are not sufficient where use is the test. We report this month on a case which, amongst other things, highlighted this.

In 2015, the owner of a terraced house in Brent sought prior approval to build a 6m extension claiming permitted development rights to do so. The extension was described as a dining/family room for a dwellinghouse. No objections were raised and the council confirmed that prior approval was therefore not required. The appellant’s company bought the property and, in 2016, built the extension. The appellant also converted the property to an HMO with ensuite bathrooms and a communal kitchen.

In 2019, after an investigation, the council issued an enforcement notice against the change of use to a mixed use of HMO and flats and construction of the extension. The appellant appealed. The council contended that the premises was a single planning unit, that two of the rooms were sufficiently self-contained to be flats and that the remainder was an HMO. There was, said the council, no PD right for the change of use and no PD right for the extension.

For various reasons, the inspector did not see any of the appellant’s submissions. Nevertheless, he allowed the appeal. He found that there were no flats, only a C4 HMO. (The judgment records that the “flat” rooms had lockable doors, an ensuite shower and toilet, a sink, a fridge and a microwave. The inspector held that all of the residents nevertheless used the communal kitchen). He found that the extension was PD when constructed, holding that, in confirming that prior approval was not required, the council must have accepted that the property was a dwellinghouse at the time. He also said that an HMO is a dwellinghouse for GPDO purposes.

The inspector’s finding that the rooms were not flats was not challenged. The decision on the extension was challenged by the council on three grounds. Only one is of general interest. The council said that it was necessary for the inspector to have considered whether the property was a dwellinghouse not just at the time of the prior approval decision in 2015 but also later when construction began in 2016. While the inspector had concluded that it was in C3 or C4 use in 2016, that was not enough, said the council. The inspector was wrong to decide that an HMO was automatically a dwellinghouse. Some HMOs may be dwellinghouses but it was a matter of fact and degree and depended on whether the occupation was “akin to occupation by a single household”. The inspector therefore should have gone further and considered this second test. His failure to do so rendered the decision unsupportable.

PINS accepted that the inspector had erred on this point. The appellant, however, did not concede it and opted to continue to challenge the council’s appeal.

The appellant suggested that the GPDO rights applied to a building which was a single dwellinghouse, irrespective of whether it was used as such. Having concluded that use was C3 or C4 at the time, the inspector must have determined that it was a dwellinghouse because that is a fundamental part of the definition of C3 and C4 in the UCO; there was no need to consider the nature of the use further.

The court sided with the appellant. The GPDO grants permission to extend “a dwellinghouse”. There is no definition of a dwellinghouse (though Gravesham applies). There is no requirement in the GPDO that the dwellinghouse is used as a dwellinghouse; it is enough that it is a dwellinghouse. Use classes C3 and C4 both concern use of “dwellinghouses”. So there is nothing in the UCO that helps with the question of what is a dwellinghouse for the purposes of the GPDO and it is wrong to import distinctions from the UCO into the GPDO requirements.

The judge went further. A dwellinghouse may remain a dwellinghouse even though it is put to a number of different uses. Use Class C3 is not exhaustive of what may be considered a dwellinghouse; the very existence of C4 demonstrates that. There may be a change of use when a dwellinghouse used as a dwellinghouse becomes a dwellinghouse used as something else. But that does not change the fact that the dwellinghouse remains a dwellinghouse.

This decision will have far reaching results. There is no statutory definition of what a dwellinghouse is, only what it isn’t. The GPDO excludes buildings with flats from being dwellinghouses but that’s all. This case seems to confirm that, excluding flats, anything meeting the Gravesham test is a dwellinghouse for GPDO purposes. A C4 HMO is now certainly a dwellinghouse. A Sui Generis HMO may also now be a dwellinghouse as it would ordinarily meet the Gravesham test. But does an office building with a bed, cooker and shower also now have Class A PD rights? It meets the Gravesham test after all. To be fair to the judge, his conclusion is unimpeachable; it is the GPDO itself that now seems deficient.

There is one silver lining. A typical flat conversion process would be for the developer to obtain a number of Class A PD extension decisions while the house is nominally a single dwelling, later building them all out and converting to flats at the same time. Traditionally, as use is said not to cease until the flats are occupied, enforcement against the extensions is difficult because the developer will claim continued single dwellinghouse use until that time. This case is a reminder that use is irrelevant; if the building becomes flatted before or at the same time as the extensions, it is not a dwellinghouse and there is no PD.

Conversely, where the conversion is to HMO rather than flats, enforcement becomes rather more difficult as a result of this case. When the distinction between a flat and an HMO can be as little as a single microwave oven, it is a bizarre situation.

R (oao) Liquid Leisure Limited and Royal Borough of Windsor and Maidenhead

Wed, 20 Jul 2022 08:57:07 GMT

Liquid Leisure Ltd, R (On the Application Of) v Royal Borough of Windsor and Maidenhead [2022] EWHC 1493 (Admin)

Liquid Leisure has operated a water sports facility on a greenbelt gravel pit lake at Datchet since 2002. Its permission, in 1988, allowed use for water-skiing and windsurfing. A condition required express permission for any buildings. Permission was given for a club house and cable skiing system but several other structures were also built. An LDC for these structures was refused in November 2020 and an enforcement notice followed in December 2020 against the change of use of the land to a mixed use as an aqua theme park, caravan site, party venue and children’s play centre plus several buildings said to be “associated operational development integral to the mixed use”. The notice required the use to cease and 23 other requirements. The notice was appealed in January 2021. The inquiry is apparently scheduled for November 2022.

In October 2021, the council issued a breach of condition notice (BCN) alleging breach of the “no build” condition, repeating many of the EN requirements. There is no appeal process for a BCN but its requirements may be challenged at the Magistrates Court (if prosecution is attempted) and judicial review may also be brought. Liquid Leisure opted for review.

The court confirmed that BCN and EN were not mutually exclusive remedies. This was a secondary BCN designed, amongst other things, to define a fall back and to narrow the issues between the parties. The council claimed the buildings were integral to the change of use breach and not operational development in their own right; a 10 year immunity period was therefore claimed. The appellant said 4 years as operational development. The BCN (with its 10 year immunity) sought to protect the council’s position in the event the inspector sided with the appellant. This was, said the judge, something the council was entitled to do.

There were other grounds of appeal which are not of general interest. But the last ground for the JR was that the council had failed to discharge its public sector equality duty (PSED) before deciding to issue the BCN. This is a ground of appeal which features in many challenges these days, often as the last ground of appeal, and often used as a procedural point to be pulled out if the substantive appeal fails.

The PSED duty in the Equalities Act 2010 is to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relationships between those with and without a protected characteristic (eg disability, race, age etc).

The appellant said that disabled people used its facility. It appears that the council could not point to anything in its enforcement reports which showed it had expressly and specifically considered the duty.

It is worth pausing to note that this council was not alone. Many enforcement reports have no reference to the PSED or, at most, standard form “boilerplate” paragraphs which give it a token mention. Even where enforcement reports mention it, the appellant can claim that the council failed to conduct enough research to see which protected characteristics were relevant (eg by doing welfare checks). It is easy to get the procedure wrong and one of the pillars of judicial review is that, if the procedure is wrong, the subsequent decision becomes suspect.

Section 31(2A) of the Senior Courts Act 1981 (an amendment dating from 2015) seeks to mitigate this. It protects improper decisions if, had the procedure been followed properly, it is highly likely that the same decision would have been made. The judge said that this applied here. It was highly likely that consideration of PSED would not have changed the outcome that a BCN would have been issued. The enforcement action did not seek to close the site (to the detriment of the disabled people), only to regulate its growth by reference to planning policy.

The decision is helpful. In truth, it is rare that consideration of the PSED would lead to a decision not to enforce; the need to uphold the system tends to trump it. But too often councils are advised that the procedural failure of not considering the PSED automatically requires an enforcement notice to be withdrawn. Too often, councils receive costs awards against them for doing so. This case shows that failure of procedure need not necessarily be fatal to the enforcement decision. Obviously, it would be better that all council enforcement teams adopt clear procedures for investigating and complying with their PSED duty, and recording that compliance, but the case shows that there is scope to save the enforcement if something goes wrong.

The inquiry decision will also be interesting when it comes out. Inspectors seem to have taken against allowing demolition of whole buildings as facilitating development on the basis that such buildings are usually operational development in their own right and ought to have been enforced against within 4 years. It will be interesting to see where this one comes out. And the existence of the BCN (which would seem imply there was no change of use) seems rather to muddy the MCOU enforcement notice somewhat; presumably there is more to the case than is reported in the judgment.

Another bite at the cherry

Wed, 22 Jun 2022 13:27:30 GMT

Manchester City Council vs SSLUHC and Kousar [2022] EWHC 1062 Admin

This month we report on a case involving the application of s174(2A) and (2B) TCPA 1990. These provisions prevent a ground (a) appeal being brought against an enforcement notice which is issued while a related retrospective planning application remains undetermined. These sections are the enforcement flip side of s70C, the LPA’s power to decline to determine an application where there is an existing enforcement notice. The two parts of the legislation are intended to complement each other and are aimed at preventing the same development being considered in multiple forums.

Planning permission was sought in relation to an existing single dwelling for an extension at first floor level, a rear dormer and loft conversion and the change of use of part of the ground floor to a shop. The council added to the application description that the extension and dormer were to create a 3-bed duplex flat, said to be a change of use. The extension and dormer had already been constructed and the application was retrospective to that extent; the changes of use had not yet taken place. Before the application was determined, the council issued an enforcement notice against the extension and dormer. The notice required removal of the development and reinstatement of the former roof and walls. The planning application was dismissed the following day.

The appellant appealed the enforcement notice but not the planning refusal. The notice was appealed on grounds (a) and (f). As part of the enforcement appeal, the appellant presented a smaller extension scheme designed to comply with PD limits; this was described as a fall back which could be carried out without permission. The appellant sought to present the differences between the “as built” scheme and this fall back as minimal.

The council objected to the enforcement appeal on the basis that s174(2A) prevents a ground (a) appeal where the notice is issued while a retrospective “related application for planning permission” remains undetermined. S174(2B) defines a “related application” as being one which would involve “granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”

PINS rejected the council’s objection on the basis that the planning application was wider than the enforcement notice as it included the change of use of the house to a 3 bed duplex flat. It was not therefore a “related application” and the enforcement appeal could proceed. The council challenged that decision in the High Court under s289.

There have been several cases in the last few years looking at the effect of the s70C power to decline to determine applications, including Banghard and Chesterton Commercial. See our 2018 NAPE newsletter articles reproduced here and here . These cases established the position that the s70C power is wide; the application need not cover exactly the same development as the enforcement notice. If there is any overlap at all between the enforcement notice and the planning application, it is enough to engage the s70C power to decline, though the council must then consider the exercise of the power carefully. They also establish the principle that an appellant must be offered at least one opportunity to have planning merits tested on appeal (described in the cases as “at least one bite at the cherry”). But where an appeal against the enforcement could have been made but wasn’t (or an individual point could have been raised at enforcement appeal but wasn’t), the cherry has been bitten and it is appropriate for the council to decline the application.

Against this background, PINS can be forgiven its view that an interpretation of the s174 power which allowed the enforcement appeal to proceed and gave the appellant her “bite at the cherry” was appropriate.

But the judge held otherwise, finding that it was enough for s174(2B) that the planning application sought permission for all the matters in the enforcement notice; that it went further did not stop it being a related application. In this case, the retrospective planning application covered both the extension and dormer and, as it sought permission for everything in the enforcement notice, so the ground (a) appeal was barred.

PINS placed much weight on the argument that the PD fall back could not have been raised within the planning application because there is no PD for extensions where there is a mixed use. It could be raised in the enforcement appeal as the notice (and therefore the appeal) related to the operational development only. As the arguments that would be advanced would be different in each appeal, the appellant would be denied her bite at the cherry if the enforcement appeal did not proceed. The judge held that this could not override the natural meaning of s174(2B). He was, in any case, not convinced that the fall back could not be raised within the planning application.

PINS also suggested that application of the legislation is a matter of planning judgement. The judge ruled that there was no judgement element; PINS only needed to consider whether the application covered everything in the enforcement notice.

The appeal was therefore allowed.

The appellant in this case would, it seems, have been better advised to appeal the planning refusal rather than the enforcement notice. That she didn’t means she missed her bite at the cherry.

As with Chesterton, the judge in this case emphasised the need for strict interpretation of the statute. We will presumably now see a stricter approach to s174(2A) from PINS and that is welcome. But the corollary is that any s70C decision is made more difficult. The power may be engaged but the exercise of the discretion will need to take into account this strict interpretation of the limits on ground (a) appeals.

Chesterton v Wokingham

Mon, 20 Jun 2022 11:13:53 GMT

This article was first published in the NAPE newsletter of August 2018.

Case report - Chesterton vs Wokingham BC [1] – s70C TCPA 1990

The High Court recently had another chance to consider the scope of s70C TCPA 1990 and took that opportunity to further restrict the judgment in R(Deep Banghard) vs Bedford Borough Council [2] to its facts. Our article on Deep Banghard was published in the NAPE November 2017 newsletter.

S70C enables LPAs to decline to determine a planning application where to grant permission would involve granting permission for the whole or any part of the matters specified in an enforcement notice. The section was intended to stop appellants using strategic planning applications to delay effective enforcement.

In Chesterton vs Wokingham BC, the appellant was the owner of a very nice spread on the banks of the Thames at Henley which was occupied by its main director. The land is designated green belt, it is in a conservation area and in a prominent location. As well as the main house, there is a 2 storey garage and 2 storey boathouse which were connected by a single storey storage building with a terrace on its roof. The built forms of the garage and boathouse were in line with planning permissions but their linking by the storage building meant that their permissions could not be said to have been implemented.

The appellant applied for retrospective permission for the structure as built in May 2016 and the council served an enforcement notice in June 2016 against the whole structure. The permission application was refused and the enforcement notice was upheld on appeal on the basis that the size, scale and massing meant that it was inappropriate development in the greenbelt context. While complete demolition had been sought, the inspector altered the notice under ground (f) to require the storage building to be demolished and the rest of the structure brought into line with the extant permissions. Time to comply was extended.

Rather than complying, the appellant lodged a further application shortly before the expiry of the compliance period seeking permission for a balcony linking the boathouse and garage. The council declined to determine the application on the basis that it related to matters specified in the enforcement notice. The balcony incorporated elements of the existing store roof. The appellant sought judicial review of the council’s decision.

The judgement contains an interesting review of the purpose of s70C and its related provision, 174(2A), which prevents the ground (a) appeal of an enforcement notice which is issued after a planning application has been made for the matters specified in the enforcement notice. The logic of the two provisions is not to prevent the merits of an unauthorised development being considered at all but rather to ensure that they are considered only once, the proverbial “one bite at the cherry”.

In the Deep Banghard case, the council was prevented from declining an application for retention and storage use of a dwelling building under s70C on the basis that the inspector had already ruled that the permission sought under ground (a) in the enforcement appeal (ie retention as storage) was not something he could decide within the limits of s174(2)(a) as it was not a matter set out in the enforcement notice. Judge Nathalie Levien QC decided that all developers were allowed one chance to have the planning merits of a proposal considered, one “bite at the cherry”.

Banghard has already been significantly restricted by Gilbart J in R (Smith) vs Basildon Borough Council [3] .

In Chesterton, Martin Rodgers QC sitting as a deputy judge noted the breadth of the wording of s70C which allowed LPAs a discretion to decline to determine where the application related to the whole or any part of the matters specified in the enforcement notice and noted that these reflected the breadth of the basis for the ground (a) appeal. It was not necessary, he said, that there is complete overlap between the EN breach and the planning application before s70C is engaged. The appellant relied on Banghard where it was suggested that anything more than minor differences would mean that the EN and the PP application related to different matters. The judge rejected this; so long as “any part” (beyond deminimis) of the application related to the same matters as the EN, it could be declined under s70C. Of course, whether it should be declined was a planning judgement and no doubt the differences were relevant to that judgment

Further, the “one bite at the cherry” doctrine in Banghard was qualified in the sense that if the applicant had already had the chance to have the merits of his planning application considered at the enforcement appeal but had failed to take that chance, it was reasonable to decline to determine the planning application. In this case, the appellant could have raised its current scheme as an alternative under ground (f) in the enforcement appeal. Its failure to do so counted against it. This seems a little harsh as the work required to get from the “as built” storage building to the balcony proposal was not insubstantial and it is difficult to see that it would have been a winning approach under ground (f). It seems likely that we will see further litigation on the extent to which theoretical possibilities under ground (f) should be sufficient to engage s70C.

The “whole or any part of” test for appeals under ground (a) is a minefield on which inspectors are not consistent and on which there are some significant court judgments For instance, the inspector in Banghard rightly held that an alternative storage use for a building was not “part of” the dwelling which the enforcement notice alleged had been created. Other inspectors have reached wholly different conclusions focusing on the built form and ignoring the use. If the s70C power is to stand or fall on the “whole or any part of” test, more consistency is required and it seems likely that we may see another spate of litigation on this aspect.

LPAs must also bear in mind that the s70C power is a discretionary one and the question of whether an application covers the whole or part of the matters set out in an enforcement notice is a matter which requires the exercise of planning judgment, rather than an administrative stroke of the pen.

[1] Chesterton Commercial (Bucks) Limited vs Wokingham DC [2018] EWHC 1795 (Admin)

[2] R (Deep Banghard) vs Bedford Borough Council [2017] EWHC 2391 (Admin)

[3] R (Smith) vs Basildon Borough Council [2017] EWHC 2696 (Admin)

s70C- Decline to determine

Mon, 20 Jun 2022 11:09:18 GMT

This post was first published in November 2017.

Section 70C

The High Court recently gave some guidance on the the application of s70C of the TCPA 1990, the power to decline to determine retrospective planning applications. R (Deep Banghard v Bedford Borough Council [2017] EWHC 2391 (Admin) was an application for judicial review of a decision by Bedford BC to decline to determine an application.

As a reminder, s.70C of the 1990 Act was inserted by s123(2) of the Localism Act 2011. It was introduced as a measure to avoid delays in achieving effective planning enforcement due to multiple retrospective applications. Developers subject to enforcement notices would make retrospective applications for permission with the aim of delaying the need for compliance with the enforcement notice and/or delaying the council’s ability to take further action for non-compliance.

The appellant obtained planning permission in 2010 for erection of an outbuilding for storing vehicles. A subsequent investigation found that the building was used as a dwelling. Bedford BC issued an enforcement notice, subsequently upheld on appeal, which alleged the construction of a dwellinghouse. The appellant’s case under his ground (b) appeal was that there was an intervening storage use of the building (in accordance with the 2010 permission) prior to conversion to a dwelling. This ground failed as the Inspector concluded, on the balance of probabilities, that the earlier permission was never implemented. The building constructed was materially different in size, appearance, and functionality to that permitted. The Inspector considered that the design of the building would indicate that it was not intended for storage purposes, but was built as a dwelling without the claimed intervening storage use. The 2010 planning permission, not implemented, had lapsed by the time of the enforcement appeal.

The Inspector then considered Mr Banghard’s ground (f) appeal, which objected to the requirement to demolish the building. The Inspector was effectively invited to grant permission for 2010 development under ground (a) and amend the requirements of the notice under ground (f). Under s177, Inspectors only have power to grant permission under ground (a) for something which forms part of the breach stated in the enforcement notice. As the ground (b) findings were that the 2010 planning permission was not implemented, the Inspector could not conclude that the 2010 permission formed part of the matters alleged in the enforcement notice. The Inspector, therefore, did not have the option to grant permission and the ground (f) appeal failed.

By the time of the inquiry, the appellant had made two planning applications for retention of the building for holiday home and storage uses and the council had decided not to determine these applications under s70C. These could not be considered at the inquiry. After the inquiry, he submitted a further application for retention of the building for storage, which the council again declined to determine. It is this latter decision that was judicially reviewed.

From the appellant’s point of view, it can easily be seen why he might feel aggrieved that his proposals could not be considered at the inquiry but nor, it seemed, could he have them considered under the planning application system. From the council’s point of view (as detailed in the delegated report), the applications were simply a delaying tactic to avoid compliance with the notice.

In her ruling, Deputy High Court Judge Nathalie Lieven QC highlighted the relevant sections of the council officer’s s70C report, which referred to the application proposal involving the retention of the building which was enforced against, albeit modified, and as such (said the officer), formed part of the matters specified in the notice. Secondly, the officer analysed the merits of the storage use, suggesting that planning permission would not be granted should the application be allowed to be determined.

Mr Banghard said that s.70C was not engaged on the facts of the case. He said that the planning application proposed an entirely different scheme, i.e. a storage use, and not a dwelling as alleged in the enforcement notice. The Inspector’s findings in the ground (f) appeal, confirming that he could not assess the merits of a storage building (because it was not implemented or alleged), were heavily relied on. He also made an irrationality argument.

The council said that whether the schemes were the same was a planning decision, which was for the council rather than the court. While there was an element of unfairness arising from the inability to get the planning merits considered, that arose from the appellant’s own decision not to implement the 2010 permission and was in any case outweighed by the need for effective planning enforcement. There could be no unfairness while the notice had not been complied with.

The Judge agreed with the Council that the s70C question was, to a certain degree, a planning judgement for the authority, but added that it is important to bear in mind that the decision must not be clearly unfair to an applicant.

She disagreed with the Council that there is a need to balance a degree of potential unfairness against the need for effective enforcement action. She confirmed that the Parliamentary intention was to ensure fairness in all cases. An applicant can have the planning merits assessed either via an appeal against an enforcement notice or a planning application, but not both, and not neither.

The case is interesting for the arguments which were rejected. It was irrelevant, for instance, that Mr Banghard had chosen not to implement an earlier planning permission which had since lapsed. It was irrelevant that he had arguably used the 2010 permission to cover up subsequent unlawful development. It is also interesting that the judge considered that councils should not shy away from action for non-compliance where successive spurious applications are made. Such applications should not prevent eg prosecutions.

Ultimately, Judge Lieven concluded in this case that the application for a storage use was not in respect of the whole or any part of the development alleged in the enforcement notice, which involved the construction of dwelling. She found therefore, that the Council’s decision to decline to determine application was not correct on the facts of the case. The Council did not lawfully engage s.70C.

Cherries played an important role in the decision, mentioned no less than 5 times. As the judge put it,

“As Cranston J put it in Wingrove the applicant cannot have multiple bites of the cherry. However in the present case the effect of the Council's interpretation of s.70C is that rather than the Claimant having multiple bites of the cherry, he has had none.”

Incidentally, about the other “Sage”…

Mon, 09 May 2022 10:31:12 GMT

Sage v SSHLCG [2021] EWHC 2885

Sage v SSETR [2003] UKHL 22 is an important case about the meaning of substantial completion when looking at immunity of operational development. But this article is about another Sage.

At the end of last year, the High Court handed down a judgment in the case of Sage v SSHLCG [2021] EWHC 2885 which has implications for the way in which claims of incidental use are considered.

Mr Sage is a personal trainer who trains his clients from a fairly large outbuilding at the bottom of his garden, accessed by an alleyway shared with his neighbour. Evidence suggested that clients visited his property up to 33 times a week between 6am and 9.30pm.

He applied for an LDC for this use. His application incorrectly described it as D2 (assembly and leisure) though it was considered in terms of whether it was incidental use of a curtilage building and therefore not development due to s55(2)(d) TCPA 1990. The application was rejected on the basis that the use was not incidental. An appeal was refused, the inspector holding that “having regard to the number, frequency and duration of the training sessions” which were “likely to have caused a noticeable increase in general noise and disturbance in and around the property”, “the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used”. The inspector concluded that the property was now in “a mixed use as a dwelling and personal training studio”.

A second LDC application sought to address the noise and disturbance. The application this time described the use as C3 and said that the hours of use had been restricted to cut down the noise and disturbance so that there was no material change of use (MCOU). Neighbours had mixed views but many had said that they were not disturbed. But the certificate was again refused and appealed.

The second inspector considered whether there was a MCOU. While planning merits were not relevant (as it was an LDC application), she considered that comings and goings would create disturbance for neighbours. The scale of the training business was such that it was not incidental to the enjoyment of the dwellinghouse and the use was mixed, which was a MCOU.

Amongst other grounds of appeal, the appellant was aggrieved that the inspector seemed to have taken planning merit points into account in determining whether use was incidental, despite the fact that planning merits have no part in an LDC application. Reference was made to the Planning Practice Guidance on LDCs which suggests that

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

Mr Sage lost his appeal. The judge found there was no mistake or irrationality in the inspector’s decision. He also commented that Mr Sage had been shown a great deal of “indulgence” in the way that his applications, which were “wholly inadequate” and deficient, had nevertheless been given full consideration by the council and by both inspectors. He commented that he would have rejected the appeal simply on the basis that it would have been right for the council and the inspector to refuse the LDC simply because the application was inadequate.

The importance of the case is in the judge’s comments on the PPG paragraph quoted above. The paragraph, he said, gave the impression that, without noise, disturbance, traffic and smells (“environmental impacts”), there would not be a change of use. This was incorrect as the relevant test was whether there was a change in the character of the use. Environmental impacts might evidence such a change in character but they were not the cause of the change. There could be a change in the character of the use without any such environmental impacts. After all, there may well be little real difference, in terms of environmental impacts, between ancillary and separate use of the training studio. But the character was nevertheless changed because one was a residential use and the other created a mixed residential and commercial use. A secondary use will result, said the court, in a change of character unless it is merely ancillary/incidental.

The impact of this case is difficult to know. The comments were aimed at the guidance rather than the parties’ case and, to that extent, obiter meaning that they do not automatically have precedent value. The classic statement of changes of use is that anything which affects the character of the use is a change of use but only where there are planning effects will there be a material change of use and therefore development. The guidance wrongly conflated the two and the judge’s comments could be said to seek simply to emphasise the first limb in the test (change in use). But the decision seems to diminish the role of the second limb (materiality), at least in terms of incidental uses of dwellinghouses and their curtilage buildings. It almost suggests that a change in the character of a use is material in itself. The case will make it more difficult for homeowners to allege that their home business is incidental simply because it is in their home. But it may also make it easier for LPAs to enforce for intensification if the focus is on the character of the use rather than the materiality of its effects.

Doing nothing IS an option so long as you do it properly

Thu, 21 Apr 2022 08:09:07 GMT

R (oao) Neophytou vs Enfield Council and Chubbah [2022] EWHC 521 (Admin)

R (oao) Neophytou vs Enfield Council and Chubbah [2022] EWHC 521 (Admin) was an application for judicial review of Enfield Council’s decision to take no enforcement action against an acknowledged breach of planning control.

The case involved a dispute between two neighbours whose back gardens were steeply sloping. Remodelling of the Chubbahs’ garden, including alterations to an existing terrace and rebuilding of a garage, enraged the Neophytous who alleged substantial land raising and consequent overlooking problems. They hired consultants and engaged in extensive “dialogue” with council enforcement officers.

Two retrospective applications were refused. Following long running discussions and threats of enforcement action, the Chubbahs made further alterations to the terrace to the council’s satisfaction. The council therefore took a decision that it would not be expedient to take enforcement action. A report was prepared, a spreadsheet of points outlined the decisions taken and the Neophytous were informed and sent a copy of the spreadsheet.

They sought judicial review of the decision. It should be noted that the action is a straightforward JR on public law grounds and not the planning-specific statutory review under s288/289. A decision can be challenged if the decision maker got the law wrong, failed to consider the right matters, reached an irrational conclusion or if there was some procedural impropriety.

The decision to enforce is discretionary, said the judge. It requires expediency. Expediency is solely a matter for the council. The council is “entitled to seek remedial work before enforcement” and is “entitled to consider whether enforcement would be upheld on any appeal” as part of considering expediency.

One of the key points related to the evidence before the council at the time it took its decision. The facts about what changes had been made were, as is often the case, opaque. The Neophytous claimed the terrace was raised by 1.7m, the council thought it closer to 2cm (“one paving slab”). The discrepancy arose partly due to the sloping ground and the shape of the old and new terrace but also partly because, as the judge found, the Neophytous and their professional advisers were unreliable witnesses.

Here the judge was clear. Where there is a dispute as to the facts, it is for the council to determine those facts. The court will not interfere unless four factors are present.

“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the [decision-maker's] reasoning”

The key is the second point. To be reviewable, it must be agreed (or at least incontrovertible) what the true facts were. Where, as here, the facts remained a matter of dispute, that could not be the case. This, then, is a high bar for a JR claimant.

Similarly, whether there was a breach of planning control is not the primary consideration. For JR, what mattered was whether the council’s decision in relation to that breach was correctly taken.

In that respect, the council was entitled to take into account the lack of harm to amenity, the risk of appeal, of costs and reputational damage.

There are some jumps in the reasoning in this case, perhaps reflecting the details of the case. For example, it seems to have been accepted that a lack of harm to amenity would necessarily result in an enforcement notice being quashed. Or that the 30cm PD limit for raised platforms was to be measured from the height of the previous (immune) terrace rather than natural ground level.

But the judge supported the council’s decisions as to fact and its decision that it would not be expedient to take action.

The decision is a reminder that, while enforcement action is discretionary, a proper investigation and decision making process is necessary otherwise the decision not to take action can be challenged. Had the council’s decision records been less clear and had the Neophytous been more reliable witnesses, a different decision could have been reached. At a time when many councils are cutting back on discretionary services, this is a welcome reminder. We understand that the government is considering giving clearer statutory backing to the need for enforcement investigations by councils in the near future. Taking enforcement action is discretionary, considering enforcement action is not.

Planning Units- again

Fri, 18 Mar 2022 12:28:07 GMT

Manchester City Council v SSCLG and Chaudry and Pathak [2021] EWCA Civ 1920

We report this month on a case which serves as a reminder of the importance of starting with the planning unit. Even inspectors get it wrong.

The LPA served an enforcement notice on a property which had originally been built as a dwellinghouse and was now being used as 4 commercial units (listed in the notice as “travel agent A1, two courier offices B1 and a therapy/medical room D1”). A ground (a) appeal was made. The council opposed permission but contended, as a fall back, that it should be subject to two conditions which sought to limit the uses to the existing uses to prevent further changes within the Use Classes Order or under PD.

The inspector allowed the ground (a) appeal and granted permission. However, he thought that the conditions were unnecessary because the permission specified the uses and any change would be a change of use requiring permission. The conditions were not imposed. The LPA appealed.

In the High Court, Mr Justice Knowles held that the inspector was wrong to refuse to condition the permission. The Secretary of State appealed.

At the Court of Appeal, Lewison LJ began with a case law review and a reminder that

· the starting point, and usually the end point, in interpreting a permission is the natural meaning of the words in the permission letter (Lambeth);

· there is no scope to look at extrinsic evidence of meaning unless there is ambiguity in the words used and courts should be wary of interpretations which create ambiguity (Lambeth

and Melanesian Mission Trust Board);

· uses which go beyond the permission are a change of use, and if material, a material change of use and therefore development (s55(1));

· a change within a use class is not development (s55(2))

· the use classes order does not cover mixed uses (Belmont Riding Centre and Fidler)

· the permission is limited to what is on the face of the permission (Cotswold Country Grange Park)

· if a council wants to restrict the permission further, it must condition it (I’m Your Man Ltd)

The Secretary of State sought to defend the decision on the basis that the inspector granted permission for a mixed use. Hence any change to the elements in the mixed use was a change of use and, if material, development requiring permission. There was no need, therefore, to restrict the uses by condition. The LPA argued that the inspector granted permission for 4 separate planning units. It was common ground that, if there were 4 planning units, it would have been appropriate to restrict by condition further changes in use which would otherwise be allowable under the UCO or PD.

In his decision, the inspector was silent on whether there was one unit or four. He did not use the words “mixed use” anywhere in the decision. The permission was for the matters set out in the enforcement notice breach allegation which described 4 units. The notice, and the inspector, described each of the units by reference to a use class but no use class covers a mixed use. The Court of Appeal therefore interpreted the permission as granting permission for four planning units.

At first instance, the High Court judge had also found that there were four units. The Secretary of State suggested that this was a matter of planning judgment and the court should not have substituted its own view for that of the inspector. Appeals lie only on points of law, not matters of planning judgment.

The Court of Appeal said that the inspector had misinterpreted the law and that had lead him to the wrong conclusion on the planning judgment. So the appeal was on that misinterpretation rather than the planning judgment.

Comment. The inspector can perhaps be forgiven for his confusion. The notice was a single notice for four planning units, rarely a good idea.

And the interaction between the principles in I’m Your Man (if you want to limit the permission you must condition it) and Wall v Winchester or Cotswold Country Grange Park (but you don’t need to condition something which would be a material change of use because it is not covered by the permission anyway) can be difficult to apply in practice, particularly where the situation is the “what if” one of condition writing rather than the “what happened” one of enforcement.

But the case is a reminder that the starting point must always be determining the planning unit because so much flows from that determination.

Not all caravans are the same

Fri, 25 Feb 2022 09:20:10 GMT

St Anne’s Court Dorset Limited v SSHCLG and Dorset Council [2021] EWHC 2954 (QB)

This case was a High Court appeal against an inspector’s decision refusing an LDC for stationing of mobile homes on a caravan site for permanent occupation.

Permission was granted in 1980 for use of the appeal site as a “site for touring caravans”. Conditions required that not more than 15 “touring camping units” could be stationed on the site, that a 2 week time limit applied to any stay, that the site could only be used seasonally between 1 March and 31 October and that no “camping units” could be used as permanent residential units.

Needless to say the conditions were not complied with. In 2016, the council was forced to grant an LDC certifying as lawful by immunity the use between 1 April and 30 September of 50 “caravans”, the use from 1 October to 31 March of 22 “caravans” and the siting and use of a staff mobile home.

A prospective LDC for use as a caravan site was refused in 2018 and the refusal was upheld on appeal. The inspector found that the conditioned prohibition of the permanent residential use of “camping units” should be read as a prohibition only on touring caravans. It followed that unfettered stationing of mobile homes would not be a breach of condition. But it could, said the inspector, be a material change of use. So the certificate was refused.

A further, more detailed, LDC application for use of the site for stationing of mobile homes for human habitation was then sought and refused. The refusal was appealed. At appeal, the inspector found that the permission was restricted to touring caravans, that the condition was restricted to touring caravans and that the proposed use for mobile homes would be a material change of use. On this last point, the inspector found that the 2016 LDC certificate limitations (50/22) would apply to the mobile homes so there would be a limit on numbers. And he found that there was little in the way of any material difference between use of mobile homes and use of tourers in the summer months in terms of visual amenity or traffic. But that the permanent use of mobile homes in the winter months have a significantly greater impact than the very limited touring caravan use that would normally be expected in those months and that this was capable of being a material change. The appeal was therefore dismissed and the inspector’s decision was challenged in the High Court.

The appellant sought to argue that the true nature of the 1980 permission was that it granted permission for a caravan site, not just a touring caravan site. And since previous inspectors had decided that the condition didn’t prevent the permanent use of mobile homes so, therefore, the mobile homes were already covered under the 1980 permission. A caravan was a caravan, it said, and there was no essential difference between a tourer and a mobile home, certainly not one which could limit a planning permission.

The Secretary of State argued that the permission was limited on its face to touring caravans and that this was also conditioned. This was a functional limitation to the permission. Use outside that limitation was not in accordance with the permission. There was a material difference between tourers and mobiles.

At issue, said the judge, was the tension between the “I’m Your Man” principle – that if an LPA wants to restrict the manner of use of a site, it should condition the permission. And the Wall v Winchester decision which held that a limitation on the face of the permission as to the extent of use permitted limited that permission even without a condition.

Applying Wall, the judge held that the starting point was to interpret the permission itself. There was a relevant functional distinction between a touring caravan and other types of caravan. The permission was limited by that distinction. Use outside that permission was not in accordance with the planning permission. Whether it was also a material change of use was a separate question.

The judge also upheld the inspector’s conclusion that there was in fact a material change of use in this case; the finding that the additional use during the winter months was sufficiently intensive to be a material change was one that was open to the inspector so the court would not interfere.

This is an interesting case but it does not provide carte blanche for the conclusion that changing from tourers to mobile homes will always be a material change of use. There are plenty of appeal decisions which have held there is no material change. The seasonality of the original permission was key here, perhaps more than the tourer/mobile distinction. However, in the right circumstances, this case, together with the earlier JBS Park Homes v SSCLG can provide useful ammunition.

Barking & Dagenham revisited

Mon, 31 Jan 2022 16:44:50 GMT

Barking and Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13

What do you get when you put two lawyers in a room? Three opinions.

In the latest in the long running collection of actions relating to borough-wide, traveller, protestor, unauthorised encampments and s187B TCPA injunctions, the Court of Appeal has recently overturned the judgment of Mr Justice Nicklin in the High Court in May last year relating to injunctions against “persons unknown”.

“Persons unknown” are those who are not specifically named on an injunction; it is a catch-all defendant name intended to capture, for instance, those on site who are missed in the initial information gathering or those who arrive on site after the injunction is in place.

We commented on Nicklin J’s judgment and on various other injunction cases last year. In brief, the High Court had ruled that, while interim injunctions could be obtained against persons unknown, final injunctions could not. The High Court ruled that the final injunction was an end to the litigation and that, if someone was not known and identified and served by the time of the final injunction hearing, they could not be bound by an injunction. “Newcomers”, those who came along after the final injunction, did not have an opportunity to put up a defence to the injunction so it would be iniquitous if they could be bound by it, said the High Court.

The Court of Appeal has overturned that and effectively restored the previous position. LPAs can once again get final injunctions against persons unknown. Not just against the class of people known but not identified by name (eg traveller families identified only by photos or description) but also the newcomers (eg those who arrived on a site after the final injunction is issued).

Of course, in s187B situations, to enforce the injunction by committal proceedings it is still necessary to find and identify the newcomer and serve them with the injunction and the committal claim. But at least LPAs now have a chance to injunct them in the first place.

The previous High Court decision (and others in this line of litigation) also laid down some other rules about injunctions. These were generally supported by the Court of Appeal. So it remains the case that councils should continue to move from interim to final injunction without delay, and not leave cases stuck at interim stage forever; remember an interim injunction does not involve a full hearing of the merits of the case. There is still a need to somehow evidence the injunction claim carefully and fully but in a way an illiterate defendant can understand. The Court of Appeal blessed the concept of a 1 year time limit on all injunctions (or certainly a fixed end point triggering a review). There is still a need to identify and name defendants where possible or, failing that, to do so by category and geography (eg “all people bringing caravans onto the red-lined site”) rather than just attempting to injunct the whole world. And it remains the case that a final injunction against persons unknown should be seen as an exceptional remedy.

The Court of Appeal used “unauthorised encampment” cases as its example subject matter in this decision and it does seem that these were uppermost in its mind. So the lack of trials (final injunctions) in unauthorised encampment cases was cited. As were the various methods of enforcement short of committal. And the lack of Article 8 rights on land not owned by the “unauthorised encamper”. These are not really features of s187B planning enforcement cases. However, in a paragraph or two on s187B injunctions, the court confirmed that there was no reason the decision should not also apply to them. That seems a little glib.

So where is the third opinion? Well as it happens the High Court was attempting to apply a previous Court of Appeal judgment in Canada Goose v Persons Unknown [2020] EWCA Civ 202. This Court of Appeal, in coming to its current opinion, therefore had somehow to reconcile not just the High Court’s opinion but also the Court of Appeal’s own previous opinion with which it was no longer entirely happy. Cue some legal squirming on the doctrine of precedent!

And maybe the Supreme Court will be asked for its opinion…

Krissimon-time, PEO and wine

Tue, 14 Dec 2021 12:48:54 GMT

NAPE December '21 newsletter contribution

We report this month on the case of Malcolm Payne vs SSHCLG and Maldon DC [2021] EWHC 3334 (Admin). The case highlights the shortcomings of the Planning Enforcement Order (PEO) regime. Readers will remember that an LPA can apply to the Magistrates’ Court for a PEO to extend the time for enforcement in cases of concealment.

Mr Payne owned Krissimon Farm in Maldon, Essex. In April 2009, the farmhouse burnt down and Mr Payne moved into a caravan on part of the land (which became the appeal site). He converted a building to a day room and the former garage to a bungalow. He rebuilt the main house and, in 2011, put the main house and his bungalow up for separate sale. The main house sold, the bungalow did not and he remained living there. The main house sold with most of the land; the bungalow retained only the land which became the appeal site.

In 2019, Maldon Council obtained a Planning Enforcement Order in relation to the MCOU to residential use of the appeal site. In 2020, the council issued an enforcement notice against the MCOU of the land to a mixed use comprising storage, workshop, caravan site, and the residential use of part of the land.

The appellant appealed on ground (d). He said the material change of use took place in 2009 when he moved into the caravan; that was more than 10 years before the notice was issued.

His appeal was rejected by the inspector. The inspector noted the PEO. As residential use was part of the PEO, enforcement action was (said the inspector) not time limited against that part of the mixed use and therefore the mixed use as a whole could not benefit from immunity.

The inspector also said that the MCOU of the land took place in 2011 when the main house was sold; consequently, even had the PEO not been obtained, the council would have been within its rights to enforce against the change of use of land as less than 10 years had elapsed.

The appellant challenged these two aspects of the inspector’s decision at the High Court. On the first point, he said that the PEO was against a residential use and the enforcement notice was against a mixed use. The inspector was wrong, therefore, to conclude that the PEO covered the use enforced against.

Mrs Justice Lang agreed. She gave two reasons. First, the PEO does not suspend the periods set out in s171B; it simply allows a further period of enforcement in respect of the breach specified in the PEO. If a breach is not specified, it is not extended; and here, the mixed use was not specified. Second, the PEO provisions operate only where a breach is concealed. If part of the use was concealed but part was not, the PEO could not operate to extend time for enforcement against the non-concealed part.

The decision seems right. A mixed use is its own use, not a sum of the parts. Inspectors regularly remind us that elements of the mixed use cannot be decoupled once the LPA has chosen to enforce against the mix. If the PEO did not cover the particular mix, it did not cover the use which was enforced against.

But the judge’s focus on the extent to which separate elements had been concealed suggests that the possibility of decoupling was in her mind. This concern is bolstered by the following passage from the judgement:

“Even when there is a mixed use, [the LPA] may find it expedient to issue an enforcement notice in respect of individual aspects of the unauthorised use. Here, an enforcement notice could have been issued limited to the breach identified in the PEO. It was not necessary to enforce against the entirety of the mixed use in order to enforce against the breach in the PEO therefore [the appellant’s argument] succeeds.”

This seems odd to a casual reader and may be related to the particular circumstances of this case. Ordinarily, where there is a mixed use, a notice should describe all known aspects of that use otherwise it risks being quashed under ground (b). If the LPA wishes to underenforce, the route is to limit the steps of the notice, not the description of the breach; s173(11) should be considered of course.

Mrs Justice Lang went on to consider the reasonableness of the inspector’s decision to find that the change of use of the land took place on sale in 2011, rather than when the appellant moved into the caravan in 2009. She applied the Burdle tests and concluded that the inspector’s decision to find that the land was a single planning unit until 2011 could not be faulted. She applied Wakelin [1] to uphold the inspector’s decision that the sale split the planning unit and that this was a matter of planning judgment. And she pointed to the high threshold for challenging an inspector’s decision on matters of planning judgment; a threshold which “the appellant has not come close to reaching”.

Three points arise from this.

First, it is always nice to see Wakelin get an airing; it is a very useful judgment in cases of subdivision.

Second, the council was always entitled to enforce against the change of use of land by reason of subdivision, a breach which carries a 10 year limit. It is a breach option which exists in many more cases than is often apparent; outbuildings built as dwellings are one example. Welwyn Hatfield v Beesley made clear it applies even where the operational development is immune.

Third, the case makes clear yet another limitation of the PEO regime. It can be difficult enough demonstrating sufficient concealment and explaining the PEO regime to lay magistrates, for whom it is not a common application. This case shows that any PEO obtained is also limited to the facts put before the magistrates and the breach alleged at that point. Given the easy availability of the alternative MCOU of land enforcement option, it is another reason to query using PEOs at all.

Interestingly, the council does not seem to have been held to its view of the use of the planning unit (residential only) it reached when it sought the PEO; the inspector reached the conclusion that it was a mixed use. One explanation might be that the notice was one of 3 alternative notices with different planning units and breaches, the other two being dismissed by the inspector. This might also explain the judge’s comments queried above.

[1] Wakelin v Secretary of State for the Environment [1983] 46 P&CR 214

Man-Shed Miscalculated

Fri, 19 Nov 2021 17:15:20 GMT

Wildin v Forest of Dean DC [2021] EWCA Civ 1610

In our September and October articles, we looked at the process of getting injunctions and the guidance offered by the courts in recent decisions involving Hackney LBC, National Highways and Havering BC (and others).

This month, we look at the latest decision in the Wildin case, which involves the appeal of an order for committal after an injunction and which was decided earlier this month.

Fast overtaking Mr Fidler as planning enforcement’s cause celebre, readers will recall that Mr Wildin is an accountant who, in 2013, began to construct a large sports building in the rear garden of his two adjoining houses, first having excavated the site so that he could claim it was single storey and therefore (he thought) PD. The building would ultimately contain a sports hall, gym, squash court, cinema, two ten-pin bowling lanes, a casino, bar and soft play.

The council served an enforcement notice in 2014, before construction was complete, and the notice was largely upheld by an inspector in 2015. Mr Wildin completed and furnished the building anyway and took no action to comply with the enforcement notice. His appeal against the inspector’s decision was rejected by the High Court in 2015. Expiry of the compliance period came and went and, in 2018, the council obtained an injunction requiring compliance with the notice and also requiring completion of certain “stepping stones” to compliance, such as signing a contract with a contractor, decommissioning services and soft stripping the interior. The judge who granted the injunction even made a site visit. Not one to keep it low key, Mr Wildin ensured that people were playing squash, bowling and using the cinema at the time of the site visit!

The injunction was appealed but the appeal was rejected. Appeal judge Irwin LJ said that Mr Wildin was “the owner of his own misfortune”.

Mr Wildin still did not comply and, in 2021, the council obtained an order of committal for contempt of court for failure to comply with the injunction. The committal was for some, but not all, of the injunction failures (largely the “stepping stone” items); the committal judge accepted that there was insufficient evidence that Mr Wildin had sufficient money to comply with the injunction in full, particularly as regards full demolition. Mr Wildin was sentenced to 6 weeks in prison. But the sentence was suspended for 12 months on condition that he completed the stepping stone steps within a new timetable.

Mr Wildin did not comply. Instead, he appealed the sentence. With a hearing date for the appeal set, Mr Wildin started on the soft-strip, removing a few pictures, a mirror and some doors. And so we come to the current iteration of this case.

Mr Wildin appealed his sentence on several grounds. He suggested that, as this was a mandatory injunction (requiring positive action rather than prohibiting action), the council had to allege and prove that Mr Wildin could afford to carry out the works. He also suggested that the requirements of the injunction were not severable and that, unless he failed to do all of them, he could not be guilty of contempt; so having started on the soft-strip, he could not be entirely contemptuous of the court’s order. Finally, he said that the judge was wrong to find that he was able to afford to do some of the work because the only information on that was in an affidavit which Mr Wildin had submitted but not used at the injunction hearing. There were other grounds of appeal.

The first of these points is the point of general importance here. As mentioned, the committal judge had accepted that there was no evidence that Mr Wildin was able to afford to complete some items on the injunction order (ie full demolition). The contempt application was dismissed on those items and, at appeal, the council did not argue that this was wrong. But the Court of Appeal refused to endorse that approach. It pointed out that the council could never prove Mr Wildin’s wealth to a “beyond reasonable doubt” standard since the facts were in Mr Wildin’s exclusive knowledge. It was, said the Court of Appeal, for Mr Wildin to prove that he could not afford to comply. Ability to afford the work was a defence to contempt, not an element of the contempt.

The inference was that the committal judge could perhaps have granted the committal in respect of all the items of the failures to comply with the injunction. Since the point was not appealed, the Court of Appeal could not overturn the decision. Mr Wildin was, said the court “extremely fortunate… the outcome on the issue of his wealth was very favourable to [Mr Wildin], perhaps wrongly so”. But it meant that Mr Wildin’s argument, that he could not afford to comply with the stepping stone items either, was given short shrift.

The argument about the council needing to prove non-compliance with all injunction items was given equally short shrift. The court held that the injunction terms were severable. If Mr Wildin complied with some, but not all, of the terms, he could still be in contempt in relation to the remainder.

The decision, then, is helpful in providing very clear precedent against some of the obstacles which defendants seek to put in the way of committal. The road is also now, presumably, open to the council to seek Mr Wildin’s committal on the remainder of the injunction. It would be nice to think that the prospect of some prison time would be enough to encourage his compliance but, given the history of the case, that may be wishful thinking.

Havering Injunctions

Tue, 19 Oct 2021 19:55:39 GMT

LB Havering and others v Persons Unknown and others [2021] EWHC 2648 (QB)

Another month, another injunction decision! Following our article last month regarding the recent dismissal of Hackney’s claim for a borough-wide injunction against Covid protestors, we report on a further planning injunction case, this time involving Havering, Nuneaton and Bedworth, Warwickshire CC, Rochdale MBC, Test Valley BC and Thurrock councils, heard at the start of October. The case is notable for two reasons. First, the need to progress injunctions to final claim stage and second the judge’s comments on evidence.

The councils had previously obtained interim injunctions in 2018 and 2019 on a borough-wide basis against various named defendants and “persons unknown”. No council had yet progressed its main injunction claim to a hearing. There were various reasons for this, not least Covid, a desire to wait for the decision in LB Bromley (EWHC [2019] 1675) and further cases this year, and the failure of the court to make case management directions to hurry the proceedings along. Various campaign group interveners sought to have the interim injunctions set aside for failure to progress the main injunction claims.

The claim for an injunction under s187B TCPA is made under Part 8 of the Civil Procedure Rules. It requires a claim, service, a defence, evidence, skeleton arguments and a full, often contested, hearing. This can take some time. There is provision in the rules for councils to seek an interim injunction, protecting the status quo until the main claim can be heard in court. As we discussed last month, at interim stage the council need only demonstrate the need to protect the status quo, the merits of the claim are not rehearsed. A practice had grown up (and had been tacitly accepted by the court) of councils stopping at the interim stage because the interim injunction often gives them most of what they need. The merits of the main claim are therefore never considered fully.

When councils started asking for borough-wide injunctions against “persons unknown” (ie all members of the public) on this basis, the courts called a halt. Hackney (see last month), while not a planning case, is an example of the practical difficulties of evidencing and winning the main injunction claim. In these circumstances, to allow the merits of claims to remain untested is contrary to justice.

In this Havering case, Mr Justice Nicklin considered the councils’ various excuses for not progressing the cases to final injunction. For the most part, he rejected them as inadequate. Internal emails which should never have seen the light of day were examined in detail. The councils’ unilateral decision to await the Bromley decision was particularly criticised. That, in the end, the judge stopped short of discharging the interim injunctions was for two main reasons. First, that the court itself was complicit in the failures because it had granted such open ended interim orders and had not made case management directions requiring the main claims to be brought to court quickly. And second, that the situation should not arise in future as Bromley has now made councils fully aware of the court’s position on these injunctions. In the circumstances, the judge felt that the best approach for this case would be continue the order and require the councils to bring the main injunction claims to court expeditiously.

This is an exception. Councils should now be aware that

• any interim injunction will require notice and a hearing;

• that it will be time limited, defendant limited (unlikely to cover “persons unknown”) and area limited;

• that the evidence will need to be good enough to give the main injunction claim a chance of success;

• that the main injunction claim will need be progressed quickly; and

• that any delay or extension of time (even if sensible and/or agreed by the defendants) needs the court’s blessing.

There are consequences to this. Last week, we sought extension of a time limited interim injunction to allow a planning decision to be made, appealed and s289’d. The G&T families on the site had asked for it, since the alternative would have been to progress the main injunction which would have cost them money. The council consented. The extension was granted.

On the face of it, this request is difficult to reconcile with the need to progress the main injunction claim. It will probably not now be heard for 2 years or more.

It was also clear that the judge did not want to have to determine planning merits where there was an inspector to do it. But that is going to be the result of the court’s current push to see the merits of injunction claims heard quickly. One of the matters to be considered in an injunction hearing is the likelihood of planning permission being granted. Almost all G&T injunction cases have underlying planning applications which are under appeal or simply lying undetermined. Again, it is difficult to reconcile the court’s need for expeditious progress of injunctions with its unwillingness to reach a view on such a fundamental part of those injunctions.

A final point to mention in the Havering case is the judge’s comments on evidence. He commented that Havering’s claim and evidence amounted to some 3728 pages including 48 witness statements. While not stated, these were presumably from police officers, planning enforcement officers, housing and environment teams as well as witnesses dealing with site provision, GT needs assessments, welfare etc. The other councils had documentation of a similar magnitude. It is easy to see how this occurs. Each time there is an unauthorised encampment, officers attend and witness statements are generated. When it comes time to apply for the injunction, the witness statements are gathered together to evidence the problem. But, as a rule, the statements identify what happened, not who did it.

The judge said that it was not reasonable and not fair to expect defendants to wade through such a lot of material, most of which could not be shown to be specifically related to them. Evidence of illiteracy (and digital illiteracy) was tabled. The councils were therefore instructed to identify, for each of the named defendants, the particular evidence relied on against each defendant.

Councils are between a rock and hard place when it comes to evidence. They need to demonstrate existing breach and apprehended further breach. They need to demonstrate that the breaches are unlikely to get permission. They need to demonstrate proportionality of the action which tends to involve factors like the previous actions of the defendants, adequacy of alternative site provision, welfare needs etc. They need to demonstrate that the decision to seek an injunction was taken properly. While 3728 pages is perhaps excessive, that is not a 10 page job either. Particularly as the court will throw out the claim for lack of evidence (as Hackney found last month). Indeed, the Havering decision contains a prime example. Seeking to counter claims of illiteracy, counsel for the councils said that the named G&T defendants were “sophisticated people with businesses, who were using sites for commercial enterprises, and who owned “brand new Range Rovers” and “incredibly expensive caravans”. The judge responded “I cannot assess this submission, as I have not been shown the evidence…”

Hackney LB v Grant and others, National Highways v Persons Unknown

Tue, 28 Sep 2021 12:44:42 GMT

Injunctions

This month we report on two injunction cases which neatly illustrate the differences between interim and final injunctions. Neither is a planning case specifically but the practical difficulties with injunctions which are apparent in these cases are the same as those arising with injunctions sought under s187B Town and Country Planning Act 1990.

TCPA 1990 injunctions

As a reminder, an injunction can be issued under s187B to restrain an actual or apprehended breach of planning control. A court hearing will be required and the judge will need to reach a conclusion on the merits of an injunction; these can include being satisfied that there is a breach, that it is unlikely to get planning permission, that the proposed defendants are responsible and that it is appropriate for the court to restrain the defendants, potentially affecting their rights. We tend to call such an injunction a “final injunction” because it has no end date.

It can take quite some time for the proceedings to be issued and served and for the claim to get to a court hearing. In the meantime, the council can seek an interim injunction, usually preserving the status quo and preventing further unlawful development. The interim injunction can be sought on an emergency basis without notice to potential defendants. The merits of the claim are not considered at interim injunction stage. Instead, the court’s main task is to consider the “balance of convenience” between preventing further development and infringing on people’s rights. The interim injunction can be granted where the balance of convenience favours preventing further development until the merits of the claim can be fully considered at the final injunction hearing. An interim injunction can be against “persons unknown” when the likely defendants cannot be identified.

The High Court gave a very comprehensive review of TCPA injunctions when it considered borough-wide G&T injunctions earlier this year (Barking & Dagenham LBC and others vs Persons unknown and others [2021] EWHC 1201). The court came out fairly strongly against both injunctions covering a wide area and injunctions against persons unknown. The ramifications were not limited to G&T injunctions.

It is one thing to obtain an injunction; it is quite another to enforce it. To enforce an injunction, an authority must apply to court for committal of a defendant to prison. The authority will need to demonstrate that the individual was personally served with a copy of the injunction; knowingly breached it and that the “custody threshold” is met (ie that the breach is sufficiently serious). It is, sadly, rare for a court to commit a defendant to prison in planning cases.

Hackney case (https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2021/2548.html&query=(QB-2021-003088))

In the first case, Hackney sought an injunction against a number of Covid-19 protesters who had set up a camp on Hackney Downs in August 2021 protesting about the government’s approach dealing with the virus. They were evicted from Hackney Downs by use of a possession order but indicated an intention to move to another green space in Hackney. Hackney obtained an interim injunction preventing this. The interim injunction applied borough-wide across all of Hackney, applied to persons unknown as well as various named defendants, and the court ordered that service could be made by posting on site.

Hackney then sought to make the injunction final. This was rejected. When the merits of the case were considered, the judge was not convinced that Hackney had sufficient evidence that the defendants had an intention to camp elsewhere in Hackney. He found that, while public order breaches had taken place, there was little evidence that individual defendants had committed those breaches. He also pointed out that there was little evidence that the claim form had come to the attention of most of the defendants. The list of “persons unknown” had to be limited by reference to photos of specific protestors rather than applying to all members of the public. Hackney asked for alternative electronic service on the defendants for whom they had no address; the judge rejected this saying it would have amounted to “an order permitting service by unspecified electronic means on unspecified defendants, made without any evidence to support it.” And had he been minded to grant the order, the judge indicated that he would not have been willing to grant one on a borough-wide basis.

In all, then, while it was fairly straightforward to obtain an interim injunction on the “balance of convenience” test, the final injunction had much stricter requirements surrounding compliance with court rules, evidence and the exercise of the court’s discretion. The judge noted that Hackney had not fully taken account of the guidance in the Barking and Dagenham case.

Insulate Britain (https://highwaysengland.co.uk/media/wcufrac5/sealed-copy-nhl-v-persons-unknown-approved-order.pdf)

The second case is the orders obtained by Highways England against the Insulate Britain protestors who have recently caused havoc on the M25 and other roads across southern England. No transcript seems to be available but the order has been published, from which we can see the following.

It is an interim order obtained without notice. It is therefore time limited and the authority has been directed to serve it and come back to court for an extension. The defendants are only “persons unknown”; there are no named defendants. While the authority has been directed to send it to Insulate Britain, the order expressly notes that this will not constitute service. The scope of the injunction is limited to particular roads, rather than applying nationwide. The right to protest is explicitly protected.

This, then, is a classic interim injunction. It may meet the balance of convenience test but it is rather less clear that it will survive at final injunction stage without a lot more work by the authority in identifying and serving individual defendants, proving service, proving breach by individuals and demonstrating the merits of an injunction which will inevitably involve restriction of the right to protest. The judge who granted Highways England the interim injunction is the same one who refused Hackney its final one. Contrary to what you might read in the Daily Mail, no-one is going to prison on this injunction.

Conclusion

The effect of the court’s restrictive approach to injunctions following Barking and Dagenham is masked by the looser “balance of convenience” test at interim injunction stage. Hackney is an example of what happens at final injunction stage when the merits of the claim are fully tested. Those seeking planning injunctions would do well to make sure they’ve read the Barking and Dagenham judgment in full, all 130 pages of it!

Barnet v Kamyab- Court of Appeal

Mon, 30 Aug 2021 20:09:43 GMT

Update on Barnet vs Hamid Kamyab - [2021] EWCA Crim 1170

In NAPE’s April 2021 newsletter, we reported on the case of Mr Kamyab ([2021] EWCA Crim 543), who converted a 5 bedroom house to a 9 bedroom HMO without permission and failed to comply with a 2013 enforcement notice requiring cessation of the use. Mr Kamyab was convicted and a POCA confiscation order was made in the grand sum of £58, this being the rental income for the single day for which the summons had been issued rather than the rent for the several years that the property had been rented out.

The Court of Appeal overturned the confiscation order amount, concluding that the offence was not a single day offence, almost irrespective of the drafting of the summons, and that the confiscation order should therefore apply to the whole period during which Mr Kamyab was in non-compliance.

Unusually, for various reasons set out in our article, the learned members of the Court of Appeal faced the unenviable task, normally borne by Crown Court judges, of hearing detailed financial and oral evidence as to the benefit Mr Kamyab had received and his available assets. It was clearly an unpalatable task and one they made clear they would not want to repeat. But it was one to which they rose on 27 July. And if Mr Kamyab thought he was in for an easy ride, he was sorely mistaken.

The numbers at any particular confiscation hearing are of limited interest to anyone not involved in the case so we won’t go into them. But there were two points of general interest. Firstly, Mr Kamyab argued that he paid all the rent to his bank so that it was not benefit to him. The Court of Appeal judges recorded that they did not believe him and reminded us of the burden of proof. It was Barnet’s task to demonstrate benefit on the “balance of probabilities”. They had done so and Mr Kamyab had failed to show otherwise. Barnet’s calculations won.

Secondly, Mr Kamyab argued that the offence ended when the 9 bedroom HMO had in fact become a 6 bedroom HMO in 2015. The court preferred Barnet’s argument that (a) it wasn’t a 6 bedroom HMO because it had some self-contained flats and (b) even if it was a 6 bedroom HMO, that was development for which there was no permission because the property had not been returned to C3 use first and the claimed PD right did not exist due to Article 3(5) of the GPDO anyway.

The second task approached by the court was determining the amount of Mr Kamyab’s available assets. Readers will recall that the POCA confiscation is limited to the higher of the benefit obtained or the assets available to pay the order. The burden of proof was on Mr Kamyab to demonstrate that he had no assets. He failed because the court found he was not telling the truth. Key to their doubts was the lack of evidence of any payments to the bank and the evidence of some £250,000 paid to his father instead.

The outcome was a confiscation order raised from £58 to £499,363. Ouch!

Bansal v SSCLG & Hounslow

Tue, 27 Jul 2021 20:16:19 GMT

Another month, another immunity case. Another question ducked by the court?

A house was converted a house to two flats without planning permission. More than 4 years later, the LPA enforced against “use as two self-contained flats”, requiring cessation of that use and removal of some kitchens and bathrooms and dividing doors. Mr Bansal, the owner, appealed. He provided sufficient evidence of continuous use for 4 years in relation to the upper flat but insufficient evidence in relation to the ground floor flat. The inspector found that there was therefore insufficient evidence under ground (d) and the appeal was dismissed. Mr Bansal appealed.

Before the High Court, the appellant argued that the house had been converted to two flats. Use as a single house had ceased. S55(3) TCPA 1990 says that is a material change of use. Thereafter, the ground floor hadn’t changed to anything else so it must have been a flat. The inspector, said the appellant, had focused on occupation and not planning use. Planning use had not changed irrespective of whether the ground floor was occupied.

The inspector had found that the conversion to flats had taken place more than 4 years before the notice. But he found that continuous use thereafter had not been demonstrated. It was necessary to establish continuous use for both flats so the appeal failed.

This, said the court, was the correct approach. Applying Thurrock and Swale and Maxwell Estates , “it is for the appellant to show that the material change of use to 2 flats took place at least 4 years before the issue of the enforcement notice, that use was continuous for 4 years thereafter and that the use was not subsequently lost”. While physical conversion (even without evidence of use) was a factor, it was only a factor in relation to the date of initial conversion, hence the decisions in Impey and Welwyn Hatfield . It was not relevant in relation to continuous use (as made clear in Swale). Continuous use needs to be proved by actual use; where there is no actual use (ignoring deminimis breaks), the council can’t enforce and immunity can’t accrue.

This is a scenario which is common in enforcement appeals. The court here came to the right conclusion on the case presented to it. In this case, the notice attacked use of a single planning unit as two flats. That carries a 4 year immunity period; failure to demonstrate continuous use of any one flat means failure on the whole.

But the more interesting question, the problem which comes up time and again in enforcement appeals, is the interaction of ground (d) with the planning unit. What is the immunity period applicable to two separate uses? How is it affected by the breach description chosen by the council? And what is the effect of Van Dyck?

Van Dyck (“building” in s336 includes parts of a building so immunity applies to each part separately) was noted in this case. And there were, here, two separate flats in separate occupation. But the notice attacked the use of the whole building as a single planning unit and the allegation was not, it seems, challenged. Had it been, it would have been open to the inspector to amend the notice to uphold it on the ground floor flat while quashing it on the upper flat on grounds of immunity. It would even have been possible to quash the whole notice for getting the planning units wrong. Van Dyck was not even about planning units, just “part of a building”.

It is a problem which comes up regularly with flats. It is even more acute where there are mixed residential uses. For example, in a building with an HMO and some flats, this judgment seems to confirm that an appellant would need to provide 10 years continuous evidence if the notice attacks the building as a whole. That seems a slightly odd result.

But it is a problem which, it seems, was not argued in this case. So we will need to wait a little longer for an answer.

LDC Revocation

Thu, 01 Jul 2021 13:39:38 GMT

R (oao Ocado Retail Limited) vs LB Islington and others [2021] EWHC 1509

An industrial unit in Tuffnell Park was given permission with (what is now) B2 use conditioned. Units were constructed. The freeholder said that, for more than 17 years, the units were used together as B8 storage, and that the fact that they were currently unoccupied didn’t change the breach as use had not been abandoned. The freeholder obtained an LDC from Islington Council confirming that the breach of condition had become immune and that B8 use was lawful. Ocado leased the property and started operating a 24hr distribution centre. At the prompting of local residents, Islington revoked the LDC. Ocado and the freeholder sought judicial review of this decision.

The “headline” legal point relates to the extent to which the breach of condition must be continuing at the date of the LDC application. But there are a number of other points which are, if anything, more interesting than the headline point in terms of the way that LDC applications and revocations should be assessed by enforcement teams and planners.

Under s193(7) TCPA 1990, an LDC certificate can be revoked if, in the application, a statement was made or document used which was false in a material particular or if any material information was withheld. Under s194, it is a crime to knowingly make a statement which is false or misleading in a material particular or to withhold information with intent to deceive.

Islington’s three main reasons for revocation were (a) that there had in fact been large gaps in the use of one or more units (a 5 year gap in the middle of the period and 4 or more years at the end) making the freeholder’s evidence of 17 years’ use false; (b) that the breach of condition needed to be continuing at the date of the application and it wasn’t; and (c) that the planning units had changed through the breach period as the units were not linked and had been marketed separately (again making the evidence of a single unchanged planning unit false). There were other reasons.

The headline point in this case related to whether the breach must be continuing at the date of the LDC application. Islington said yes. Based on Thurrock and Swale, they could only enforce against a continuing breach of condition so, if the breach of condition had ceased, any future operation in breach of the condition would be a new breach allowing further enforcement; hence the LDC could not have been properly granted. Ocado said no. Once breached for 10 years, the land use in breach of the condition became lawful and their right to use it could only be lost by abandonment etc. It had not been abandoned and B8 use remained lawful.

On this point, the judge sided with Ocado and held that the question was whether the use in breach was lawful at the date of the application. The use in breach of condition became lawful after 10 years continued breach (s171B(3) and s191(3)). Once lawful, it could only cease to be lawful if extinguished, for example by abandonment or change of use. Islington’s focus on enforceability was misguided; it was not the lack of a current breach preventing Islington from enforcing, it was the acquired lawfulness of the use.

As an aside, it is worth noting that this is the same as the position which applies to enforcement notices against development breaches, last considered in, ironically enough, Islington vs Maxwell Estates. The confirmation that the same analysis applies to breaches of conditions as applies to operational development breaches and material changes of use breaches is welcome if, perhaps, not particularly surprising.

The judge also considered a number of other points in relation to the power to revoke.

First, it was held that there was no requirement for the false or misleading facts or documents to have been deliberately or dishonestly false in order to require revocation. It was enough that the information was simply wrong. In this case, the freeholder’s evidence for the LDC application was “minimalist”, skated over some gaps and made assertions about use which were not backed by knowledge. But there was no evidence that the planning consultant who prepared the application did so with any intention to deceive the LPA.

The judge also held that there was a requirement for candour in presenting a certificate case; if the applicant only presents one side of their case and doesn’t present information which goes against their case, that could constitute withholding information for the purpose of the revocation power.

The judge offered the observation that the less information an applicant puts forward in support of the application, the more a certificate is open to revocation. A “minimalist” application is therefore risky for the applicant (and those who own the land thereafter).

The materiality test (false or misleading in a material particular) is based on whether the correct information could have affected the decision, not whether it would have. It is enough for revocation that, as here, the LPA would have wanted to make further investigations into the correct facts before issuing a certificate had it known the true position.

There is no power to revoke simply due to error of law. Islington got the law wrong on the headline legal point. Had that been the only reason for their decision to revoke, the judicial review claim would have succeeded.

Sadly for Ocado, that wasn’t the only reason. In particular, the evidence was that the units had been occupied and marketed separately meaning that the planning unit had changed materially over the years. Each time the planning unit changed, the “established by immunity” right to use in breach of the condition was extinguished. Had there been any abandonment (the evidence was not clear), that was also capable of extinguishing the immune use right.

The judge accepted that local residents could judicially review a decision to grant an LDC should it be felt that the information presented in support was simply inadequate to reach a conclusion.

That said, the judge accepted that revocation is a discretion. Despite false or misleading information, the LPA could decide not to revoke for all sorts of reasons. These could, he held, include the effect on subsequent landowners, a lack of planning harm, and even the extent of duplicity.

The judge also pointed out that an LDC based on immunity by continued use in breach of one condition does not mean that other conditions fall away. If an applicant wants to demonstrate continued breach of other conditions, then it is incumbent on them to present evidence of those breaches. It followed that the lawfulness of the B8 in this case remained subject to those conditions.

Ultimately, the judge decided that Islington had got the law wrong but that the decision to revoke remained justifiable and the judicial review was dismissed. It is also worth remembering that there is no limit to the number of LDC applications or planning applications Ocado and its freeholder could make, nor to their ability to dig out further evidence to support these applications.

Certificate revocations are comparatively rare as the distinction between the s193 requirements for revocation (simple false statement/withheld information) and s194 prosecution (knowledge of the falsehood and/or intent to deceive in witholding the information) is often forgotten. It tends to be assumed that it takes a fair amount of bad faith by the applicant to make revocation justified; perhaps this judgment will encourage more.

Incorrect Plans

Sun, 30 May 2021 21:05:25 GMT

A refreshing view

The recent case of Choiceplace Properties Ltd vs SSCLG and Barnet LBC provides a refreshing view on incorrect plans.

The developer applied for planning permission to knock down 2 semi-detached houses at Holden Road in Barnet and replace them with a 3-storey block of 6 flats. Permission was granted. Compliance with plans was conditioned.

It became clear, not long after permission was granted, that the plans were inaccurate. While they showed the development property in its correct dimensions, the properties either side were not shown correctly. The plans showed the development property as having a lower ridge height than the neighbouring properties. But, if it were built to the approved dimensions, the development property would be higher than both, in one case substantially.

Much discussion then ensued and both the developer and the council obtained opinions from counsel. The developer said that the permission was for the development property and that it was accurately shown on the plans even if the neighbouring buildings were not; since the permission was for the development property, the depiction of the neighbouring buildings was unfortunate but irrelevant. The council said that the development had to be considered in context and may not have been approved had the true position been known.

The developer submitted an LDC application for the proposed development. This was refused and the refusal was appealed.

The inspector approached the task from the point of view of considering whether the council could enforce against a breach of condition should the development go ahead. The condition required compliance with all of the plans. That included the plan showing the relationship to neighbouring buildings which was an important part of the decision to grant permission. If it could not be built per that plan, then the permission could not be implemented and the certificate must be refused.

The developer brought a s288 challenge in the High Court. Mr Justice Dove reminded himself that the correct approach to interpretation of a condition was to ask what a reasonable reader would understand the words to mean in the context of other conditions and the consent as a whole. It was sometimes possible to look to other application documents for guidance but that would depend on the circumstances and whether there was any ambiguity in the condition itself.

In his view, the plans showing the relationship to the neighbouring properties were not simply illustrative; they were a material part of the planning decision. The plans should have been capable of implementation and they were not. As a result, the whole permission was not capable of being implemented and the council was correct to refuse the certificate.

There are plenty of cases which confirm that councils are bound by permissions granted on the basis of plans which do not accurately show the development for which consent is sought, even if the planning officer has not fully appreciated what is depicted on the plans. In Polhill Garden Centre v SSETR , for instance, permission for the 700sqm warehouse shown on the plans was upheld even though the application form did not mention it at all. Those decisions stand.

It is refreshing, therefore, to find the court applying that strict approach to plans against the developer rather than the council.

It is also interesting that the requirement for compliance with plans was only conditioned. The plans were not listed on the face of the permission where they would have been limitations rather than conditions. That may have made the non-implementation argument stronger without having to resort to High Court litigation.

As a footnote, it appears that the developer has gone ahead and built out the development anyway; an open enforcement case is listed on Barnet’s website. We may hear more from this site in future!

Another PCN prosecution

Tue, 27 Apr 2021 13:32:23 GMT

Russnak-Johnston vs Reading Magistrates and Royal Borough of Windsor and Maidenhead

[2021] EWHC 112 (Admin)

PCN prosecutions are like buses it seems. You wait ages then two come along at once!

Hot on the heels of our note in January’s NAPE newsletter of a PCN prosecution in Ealing comes another PCN prosecution case, this time in Maidenhead. The High Court was asked to consider the nature of offences relating to failure to complete PCNs fully and providing false or misleading information.

The claimant operated a livery stables on Green Belt land near Maidenhead and may have lived in a caravan on site. The site had planning permission for a limited number of non-commercial stables. Information received by the council suggested the operation was more extensive than authorised. The council issued two PCNs in 2016 asking for information and documents. Notably, the council asked for copies of any commercial livery agreements and asked questions about residential use. Limited responses were received to both PCNs. The council served an enforcement notice in January 2017. The day before the public inquiry in February 2018, the claimant served a bundle of late evidence (including commercial livery agreements) which caused the council to have to withdraw the notice.

In June 2018, the Council prosecuted the claimant for failing to provide the information requested in the PCNs and for making false statements within the PCN responses.

S171C(2) allows a council to serve a PCN requesting “such information…as may be specified in the notice”. Failure to comply with any requirement of a PCN is an offence under s171D(1) TCPA 1990. Provision of false or misleading particulars in response to a PCN is an offence under s171D(5). Both offences are “summary only” offences, meaning that they can only be prosecuted in the Magistrates Court and the summons must be brought within 6 months of the date of the offence.

The prosecutions were brought more than 6 months after the date of the PCN responses but less than 6 months after the date on which the council became aware that the responses were false or incomplete (ie the day before the public inquiry). The claimant said that the council brought the prosecutions too late. The Magistrates disagreed. They held that the 6 months only started when the council became aware of the falsehoods.

The claimant also said that the livery agreements were documents and that the power to request information under the PCN did not include documents as such, only “information”; as such it could not be an offence to fail to provide documents. The Magistrates disagreed.

The case was referred to the High Court on these issues.

The High Court held that the “information” which could be requested under a PCN included any documents. After a wide-ranging review of planning and analogous UK legislation, including the Carnwath Report and the s171 regime , the court concluded that, since the point of a PCN is to obtain information as to the use of the land at an early stage of an investigation, taking a restrictive view as to the meaning of “information” was not justified.

Turning to the issue of time limits, the High Court concluded that the offence under s171D(1) (ie failure to comply with a requirement of the PCN) was a continuing offence, running from the date on which a response was required until such time as a full response was provided. As the claimant had not complied with the PCN requirement to provide documents until the day before the inquiry, the Council had issued the summons in time.

By contrast, the requirement not to give false or misleading particulars in any response was a “once and for all” requirement. As with other summary offences, it runs strictly from the date of the offence (in this case, the date of the PCN response) and not from the date the council finds out about the falsehood. As such, the council was out of time on those offences.

It is easy to forget the need for speed when it comes to PCN prosecutions. The 6 month time limit is strict. There are other areas of law where primary legislation has extended the 6 month limit until the date the enforcing authority had knowledge of the offence. Not so in planning enforcement.

However, this case is good authority that, if the offence can be framed as a failure to provide information, the fact that it is a continuing offence does give some leeway to prosecute even when apparently out of time.

There remains an interesting question as to whether the provision of false information (strict 6 month limit) could also be framed as a failure to provide the correct information (continuing offence).

The case is also helpful in emphasising the broad nature of the information that can be demanded under the PCN. That said, the information requested must still relate to the suspected contravention and should not amount to a fishing expedition.

The death of Panayi

Tue, 27 Apr 2021 13:28:42 GMT

In July 2019, we reported on the rather unhelpful case of R v Panayi [2019] EWCA Crim 413. That case concerned a POCA confiscation application made by a council which successfully prosecuted a planning offender for non-compliance with an enforcement notice. Not unusually, the council had drafted the summons to refer to non-compliance on the single day on which their site visit was undertaken, that being the date on which they had evidence of the offence. The Panayi court said that the benefit confiscated could therefore only be the rental income for that single day.

Since then, a number of cases have nibbled away at Panayi, notably R v Roth and Ceredigion CC v Robinson . The mortal blow seems now to have arrived in the shape of Barnet v Kamyab.

Mr Kamyab converted a 5 bedroom house to 9 flats. An enforcement notice was issued and upheld on appeal. A compliance visit in 2014 established that there had been no compliance. Mr Kamyab was duly prosecuted and convicted in February 2015. His appeal was dismissed and the case went to the Crown Court for confiscation. The summons alleged failure to comply “on or before 4 February 2014” (Payani was “on or about”). Mr Kamyab relied on Panayi and offered £58 confiscation. The Crown Court judge agreed albeit perhaps reluctantly. The matter was referred to the Court of Appeal.

The Court of Appeal followed R v Roth. As worded, the summons in Kamyab was not a single day offence, it decided. Moreover, it was the very nature of the s179 TCPA 1990 offence that it was a single offence committed over a period. It would therefore take a lot to conclude it was a single day offence, almost no matter how it was worded.

The Court was asked to say that Panayi was now bad law. They stopped short of doing so but noted

“We certainly agree that, where it can be distinguished, as in Roth and the present case, it should not be applied. A decision on whether it is rightly decided but confined to its own facts, or decided per incuriam by reason of the apparent absence of citation of Hodgetts, Ali and s. 8 of POCA, must await a case where it cannot be distinguished. We hope that no such case will arise…”

The court did note, however, that planning enforcement offences should normally be drafted as failure to comply between two specified dates, the first being the date compliance was due and the later one being the date of the summons. This would avoid any issues with confiscation. Planning enforcement lawyers should take note!

Pity the poor Lords Justices of the Court of Appeal though. Normally, a successful appeal would result in a full decision from the Court of Appeal or, if necessary, the remission of the matter back to the lower courts. The way in which this case had been heard in the Crown Court as a preliminary issue meant that neither of these options was available. It could not be remitted and the Court of Appeal had no information on the benefit received by Mr Kamyab and his available assets to reach a conclusion itself. Normally, the appeal court hears appeals on points of law. These tend to be nicely packaged, with agreed facts, a finite list of issues and well advocated and interesting legal points to think about. Not so here. The Court of Appeal judges were faced with the thought of having to hold a 3-day confiscation hearing themselves, complete with witnesses, dubious information and the kind of minutiae normally weeded out in the lower courts. The thought was deeply unpalatable to them! But it was the only way forward and they agreed “on this one occasion only” making clear that the problem better not recur! As they put it:

“We have said in the clearest terms that disposing of confiscation proceedings on a preliminary issue of law is, as the powers of this court currently stand, a dangerous course and one which we do not expect to see again.”

Lying on a PCN- a cautionary tale of burden of proof

Sun, 31 Jan 2021 22:12:55 GMT

Prosecutions for lying on PCNs are very rare. This month we report on a cautionary tale which demonstrates what a difference a lie makes if you are an appellant with a burden of proof.

The landowner converted an outbuilding to separate residential use. It would seem that the use may well have started some 6 years before the date the council first became aware of it. A site visit found a tenant in occupation. A planning contravention notice was served. The owner responded saying that the outbuilding had only been rented for a few weeks and that, before rental, it had been used by the owner and his family on an ancillary basis. As this PCN response confirmed the breach and indicated that it was not immune, an enforcement notice was served.

The owner appealed to PINS on ground (d) and the appeal papers were duly received. The appeal papers included evidence of 6 years of use including tenancy agreements, utility bills, addressed correspondence and neighbour statements.

Giving a false statement on a PCN is a criminal offence under s171D TCPA 1990. As the appeal statement was inconsistent with the PCN response, the owner was invited to an interview under caution. In an effort to save his appeal and his rental income, he admitted that the PCN response was inaccurate. The council therefore decided to prosecute the owner for lying on the PCN. A summons was issued.

As the owner had admitted that the PCN response was inaccurate, he had little defence to the prosecution and he pleaded guilty. He was fined around £1300 including costs. The conviction will also need to be disclosed for many years to come on things like insurance application forms, visa applications, CRB checks etc and, as a conviction for dishonesty, it will be very adverse.

In the meantime, the appeal against the enforcement notice was heard. The credibility of the appellant’s evidence was destroyed by the fact that he had lied on the PCN. The inspector found that he had not demonstrated continuous use for at least 4 years and dismissed the ground (d) appeal.

The ironic thing is that the enforcement notice may well not have been issued at all had the appellant told the truth on the PCN response. The council may have accepted that the breach was immune. The notice was only issued because the PCN response confirmed the breach and suggested that there was no immunity.

And even if the notice had been issued, the council had little evidence of its own to challenge the appellant’s story so the appellant may well have won the appeal. It was the false PCN response that cast doubt on that story and meant that additional corroboration was required, corroboration which he could not provide. Even the fact that he admitted the PCN response was false didn’t save his appeal evidence; all it did was get him a fine.

The burden of proof on a ground (d) appeal is on the appellant. A demonstrated lie is very damaging as it taints everything the appellant says in the appeal.

PCN prosecutions are often not worth the effort; fines are low. But if the threat of prosecution on the PCN exposes a lie, it can be a worthwhile exercise.

When you lose an Article 4 direction

Fri, 01 Jan 2021 22:28:55 GMT

Zafar vs Stoke on Trent Council [2020] EWHC 3249 (Admin)- published in NAPE's December 2020 newsletter

This month we report on a prosecution case which demonstrated the full effect of s285 TCPA 1990. Readers will recall that s285 provides that the validity of an enforcement notice cannot be challenged except by appeal to an inspector; it cannot be challenged in court. It is possible to challenge in court on grounds of nullity but, if a the challenge falls within the grounds of appeal (ie a challenge to validity of the notice), the only challenge is by way of an appeal to the inspector.

So it was that Mr Zafar had his conviction for failure to comply with an enforcement notice upheld, despite the fact that the Council could not prove that what he had done had breached planning control.

The case related to an enforcement notice against uPVC windows and external paint colour at a house in Stoke on Trent. The house was in a Conservation Area and an Article 4 direction had been adopted to remove certain PD rights, including the right to make these changes. Mr Zafar did not appeal the notice.

When prosecuting Mr Zafar for failure to comply, the Council was unable to supply a copy of the Article 4 direction. It had been lost in a move to electronic record keeping. Nevertheless, there was other evidence of its existence and terms (not least several other successful prosecutions for breach). Mr Zafar was found guilty and appealed to the High Court.

His case at the High Court was formulated on the basis that, if the Council could not provide even a copy of the Article 4 direction (let alone the original), it was difficult to understand how the Magistrates could have determined that he was guilty beyond reasonable doubt.

The Council said that Mr Zafar’s argument was effectively saying that there was no evidence of a valid Article 4 direction and therefore no proof that the works carried out by Mr Zafar breached planning control. But this, said the Council, was a point which could have been raised under ground (c) at appeal before an inspector. As it had not been, Mr Zafar was not entitled to raise it in court in his defence so his conviction could not be faulted.

In other words, although the Council may have lost a ground (c) appeal before the inspector for lack of evidence of the Article 4 direction, as the point was not taken at the time, the Court must now assume that the enforcement notice was valid. As it was common ground that Mr Zafar had not complied with the enforcement notice, it followed that he was guilty.

This is of course entirely correct. The prosecution was not for breach of planning control, the prosecution was for failure to comply with an enforcement notice. The forum to determine breach of planning control is the appeal process, the forum to determine failure to comply is the court.

The case demonstrates the reach of s285. It also demonstrates the sophistry that can result from the distinction between invalidity and nullity of enforcement notices.

But the moral of the story is simpler. Don’t lose Article 4 directions.

Prior Approval consents- be aware

Wed, 25 Nov 2020 21:14:18 GMT

Beware the limitations and conditions of ‘Prior Approval’ consents

There is a common misconception that, for enforcement purposes, planning decisions in relation to the application of Prior Approval are interpreted in the same way as other planning permissions granted by an LPA, i.e. that all terms and conditions are contained within the four corners of the decision notice. Not so for Prior Approval consents.

Prior Approval is not a permission in itself. The permission is contained in the GPDO. The GPDO makes it a condition of the permission that Prior Approval is obtained (or confirmed not necessary as appropriate). The act of securing a Prior Approval consent is effectively a discharge of a pre-commencement condition. To be lawful, the development must still comply with the relevant terms and conditions of the GPDO. Granting of Prior Approval does not necessarily mean that the development complies with the GPDO. If it doesn’t comply, it doesn’t comply and granting prior approval does not alter that. Granting Prior Approval simply means that the condition is satisfied.

One important limitation in the GPDO is Article 3(5) which provides that, irrespective of whether it meets the requirements in the various parts of Schedule 2 or 3 etc, development is not PD where:

“in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful”

This limitation is tested at the time of carrying out the development, not at the time of securing the Prior Approval consent.

The application of Article 3(5) took centre stage in the recent High Court case of RSBS Developments Limited v SoS HCLG & Brent [2020] EWHC 3077 (Admin)

The history

In June 2015 RSBS applied to the Council for a determination as to whether its Prior Approval would be required for the change of use of the premises from office use to 16 flats. In August 2015 the Council issued a decision notice confirming that Prior Approval was required and Prior Approval consent was granted. Works commenced in September 2015.

In November 2015 RSBS applied for and was granted planning permission for a first floor extension. An informative made clear the permission could not be implemented in conjunction with the works in the prior approval application.

However, between December 2015 and February 2016 an altogether new extension was built, increasing the building by 4% in overall size.

The Planning Inspector determined that on the facts the change of use from office to residential use took place between mid-February 2016 and 18 June 2016. The conversion differed from the layout plans submitted with the prior approval application in a number of respects.

After enforcement investigations RSBS reduced the size of the new extension to approximately its original size and in July 2017 applied for retrospective planning permission to retain the extension. The Council refused permission.

In November 2017 RSBS applied for a certificate of lawfulness for existing residential use of some of the flats. This application was refused in February 2018.

The Council then issued an enforcement notice against the use of the property as 16 flats in March 2019.

The Appeals

On appeal, the Inspector dismissed an appeal against the enforcement notice appeal, an appeal against the refusal of the certificate of lawfulness and an appeal against the refusal of permission for retention of the extension.

The Inspector found that as the unauthorised extension had been in “shell” form before the material change of use from office to residential took place, the change of use could not benefit from permitted development rights afforded by the GPDO due to the operation of Article 3(5). She also found that the change of use was unlawful because the development undertaken was substantially different to that permitted, such that the 2015 prior approval had not been implemented.

The works to reduce the extension in size could also not implement the Prior Approval consent or retrospectively render the change of use permitted development. As at the time of completion of the development, it was not permitted development and no future alteration could change that.

At appeal, the Inspector distinguished this case from R (Orange PCS) v Islington LBC [2006] EWCA Civ 157; [2006] JPL 1309 in which subsequent Conservation Area designation was determined not to remove a developer’s rights to build out a Prior Approval permission secured prior to the designation.

As it happens, in August 2017 the Council introduced an Article 4 GDPO direction removing permitted development rights for the conversion of office buildings to residential use.

High Court consideration

In the High Court Mrs Justice Lang dealt with the various grounds of challenge:

Ground 1 : RSBS submitted that Article 3(5) of the GPDO was a prospective provision only. [explain relevance] Lang J however agreed with the Inspector that Article 3(5) prevented the development from being permitted development even though prior approval had been granted.

Ground 2 : RSBS submitted that Article 3(5)(a) of the GPDO did not apply in this case because it was concerned with buildings, whereas the development in this case was a change of use. The Inspector had determined that the development was ‘in connection with a building’ and therefore Article 3(5)(a) applies. Lang J agreed the Inspector’s reasoning was correct.

Ground 3 : RSBS claimed that since the offending extension had been reduced in size, the prior approval consent should be retrospectively implemented. The Inspector found that the building works (even the reduced version) were all unauthorised and as such article 3(5)(a) would still be engaged. The Inspector also said that even if she granted permission for the s78 scheme (the operational development), it would still not have the effect of implementing the permission that crystallised with the 2015 approval. Again, Lang J agreed that the inspector’s reasoning was sound.

Costs were ordered against RSBS and subsequently RSBS was denied permission to appeal.

The upshot is that the enforcement notice stands and RSBS will need to cease the use of the premises as 16 flats and remove all fittings and fixtures associated with the use of the premises as dwellings.

Comment

The decision is a welcome confirmation of principles relating to Article 3(5). The judgment confirmed that the time for testing compliance of new development with the GPDO was the time of the development. As such, it confirmed that, if the existing building was unlawful and Article 3(5) applied, the new development would not be permitted development. It confirmed that no subsequent regularisation of the existing building would alter the fact that the new development was not permitted development. It confirmed that the fact that prior approval was granted was not determinative of whether new development complied with the GPDO in all respects. And it confirmed that Article 3(5) applies to use changes as much as operational development.

But it also goes to show that, when considering enforcement, it is necessary to delve deeply into past planning decisions. The grant of prior approval is not a complete guide to whether past development was lawful. It also suggests that planners should be careful to include informatives if a development is thought not to comply with the GPDO despite the prior approval aspects being satisfied.

Bhandal vs SSGLC and Bromsgrove DC

Tue, 27 Oct 2020 20:18:02 GMT

Hot off the press this month is this very recent judgment from the fountain pen of Mr Justice Pepperall on the limits of powers to grant permission under ground (a).

The appeal decision itself can be found at 3219678/79/80 and is worth a read to better understand the merits. Owners of an Italian restaurant in a period country building were granted permission to build a period-ish sun room with a flat roof. They built a glass and aluminium one with a sloping roof instead, complete with canopy projection (and pillars too, very Roman…)

They applied for permission to retain and were refused. The refusal was upheld on appeal. The council enforced against the operational development and required demolition. The enforcement notice was appealed on grounds (a), (f) and (g). The inspector made short work of the ground (a) appeal. This was not particularly surprising given the previous appeal decision, the location of the restaurant in the Green Belt and in a Conservation Area, and the location of the sun room at the front of the building.

Where he erred, it seems, was in making equally short work of 3 of the 4 alternative schemes put forward under ground (f) but considered under ground (a) which involved (1) a flat glazed roof, (2) partial reversion to the permission (now expired) and (3) complete removal of the sun room with bifold doors to fill in the resulting hole in the wall of the main building. As these all involved new works, they were not, said the inspector, part of the matters enforced against and therefore outside the scope of his power to grant permission under s177.

Readers will remember that the power to grant permission under ground (a) and the deemed application is for the “whole or any part” of the matters specified in the notice as constituting the breach in planning control. LPAs will routinely suggest that alternative schemes put forward at appeal are not part of the matters enforced against and can only be considered within a separate planning application. The approach in cases such as Tapecrown , Moore and Ahmed is to give a wide interpretation to this power. In Ahmed, for instance, the court decided that a three storey building with a butterfly roof could have been “part of” the four storey flat roofed building which was enforced against. Ioannou (three flat alternative scheme not “part of” the five flat scheme enforced against) was a reminder of the statutory limitation, and also of the peril that can come from well-meaning underenforcement.

But Ioannou was also a reminder that whether an alternative scheme was “part of” the scheme enforced against was a matter of planning judgement. In Bhandal, the inspector simply dismissed the alternatives as outside the scope of ground (a) because they involved new works, without making clear that this was his planning judgement. LPA ground (f) appeal statements will typically argue that the extent of new development work required to achieve the proposal is such that such development requires planning permission in its own right, which planning permission is outside the scope of the appeal. The Bhandal case is a reminder that it is a matter of extent, in other words a planning judgement; it is not the case that any new work creates an alternative scheme.

To be fair to the inspector, it seems likely that his reasoning was simply shorthand for a planning judgement that the amount of work involved in the alternative schemes (new roofs in 2 cases, new windows in the other) was too great. And that he used shorthand because the alternative schemes were clearly unacceptable. Unfortunately, the decision was not put it in quite those words. Had it been, it seems likely the appeal decision could not have been successfully challenged.

The judge was also influenced it seems by the interaction of ground (a) with the ability to decline a planning application under s70C. This is odd as there is no mention of 70C having been used in this case. The judge was concerned that if a narrow interpretation is taken of the power to grant permission under ground (a), a similarly narrow application of s70C would be needed in order to ensure that all applicants get at least one chance of having the merits of their application considered. That seems a strange concern as a narrow appeal decision on ground (a) would itself provide ammunition against a 70C rejection of a subsequent planning application.

The matter has been referred back to PINS. Given the history, it seems difficult to see that a different decision will be reached but perhaps it will be differently worded this time.

Where does this leave those drafting notices? The starting point must remain that notices should usually seek remedy the breach of planning control fully because the of the risk of underenforcement and creation of unconditioned permissions under s173(11); if inspectors grant something different on appeal, so be it. But those drafting appeal statements must remember to make submissions on the extent of any new work involved in alternative schemes proposed by appellants.

Baillii link

Planning Enforcement bites back

Tue, 22 Sep 2020 09:53:30 GMT

Sharks!

Inspired by the Headington Shark, a new art installation in Hoxton has captured the imagination of journalists, the wrath of the local authority and the opposition/ambivalence/adulation of local residents and passers-by. The installation won the Architecture Foundation’s 2020 Antepavilion contest. Once fully installed, the artist’s proposed family of five ‘leaping and lunging’ sharks would emit amplified music and lectures and laser beams.

In anticipation of the installation, the London Borough of Hackney secured an interim injunction on 20 August 2020 prohibiting the use of the Hoxton Docks site for the installation of art, etc. Around the same time, 4 of the 5 sharks were installed.

Last week The Honourable Mr Justice Murray sitting in the High Court had to decide whether to continue the interim order and grant mandatory relief to remove the 4 sharks, against a number of defendants including Shiva Limited, the competition sponsor, represented by a Mr Gray.

The Guardian of 18 August 2020 describes the sponsor of the competition as:

“Gray has a long record of baiting the authorities. He once parked a tank on a site in Southwark over a feud with the council. Its gun is still pointing at the planners' offices. More recently, he has locked horns with Hackney council”

The article quotes Mr Gray as saying:

" 'We don't do planning, or regulations, or any of that bollocks.'”

For balance, , it should be said that Mr Gray told the court he was misquoted.

This was not the first time the Council has had to intervene on this site, after previously issuing two enforcement notices aimed at structures. The first notice has still not been complied with and the 2nd (which alleges operational development rather than material change of use of the land) is under appeal.

The Council claimed that the injunction application was necessary and expedient, and that the reasons for seeking injunctive relief included the flagrancy of the breach, the planning harm occasioned by it and the planning history which showed that other planning enforcement action had not been successful. The Antepavilion competition brief was, the court heard, designed to test and challenge the planning process.

Mr Gray made much of the fact that the site had been used for the production and display of art and related activities for 25 years and that the installation is therefore consistent with the lawful use of the site.

One important area considered by the court was whether there was any change of use of the land at all. The Thames Heliports Plc v London Borough of Tower Hamlets (1996) 74 P&CR 164 (CA) case was given an airing. The Council relied on the case for the proposition that the installation is capable of constituting a change in use of the land for the purposes of s55 of the Town and country Planning Act 1990. Mr Gray submitted that the case does not support the proposition that the positioning of the sharks on pontoons on the canal would constitute a material change of use, but merely that it might. He felt in any event that the case could be distinguished because he did not feel the environmental impact of 5 life-sized model sharks in a sheltered section on the Regent’s Canal can be sensibly compared with a floating heliport on the tidal section of the Thames.

As this was an interim injunction, the full merits of the case were not considered. Instead, following the American Cyanamid principles, the following questions were dealt with by the court:

1. Is there a serious issue to be tried? Yes, the Council believes that the use of the land has materially changed and that the art installations are not consistent with the site’s lawful use. Mr Justice Murray said that the fact that the Council’s previous notice did not address a material change of use may suggest some inconsistency in the Council’s approach but did not prevent the Council from now relying on the argument that the installation was a material change of use. He said it was not for him to resolve that issue on this occasion.

2. Where does the balance of convenience lie? After a difficult balancing exercise of the many considerations, Mr Justice Murray felt that the balance of convenience fell on the side of granting the injunctive relief, both as to continuation of the prohibitions in the interim injunction order and granting the mandatory relief sought by the Council. He considered (i) whether the Council acted expeditiously and justifiably in seeking and obtaining the Interim Order on an urgent without notice basis, (ii) whether damages would be an adequate remedy for either party, (iii) whether the continuation of the prohibitory relief granted by the Interim Order and the giving of the mandatory relief sought by the Council would be just and proportionate measures in the circumstances of this case and (iv) other factors relevant to the balance of convenience.

The Architecture Foundation, one of the defendants, made a statement to the effect that they do not endorse any action that involves a breach of planning control. The Council did not seek any further relief against the foundation.

The exact scope of the injunction order will decided on 14 October 2020, taking account of written submissions to be made in the interim.

The case can be read here

POCA- Kombou v Enfield

Tue, 25 Aug 2020 09:32:15 GMT

POCA – Is the pendulum swinging back?

Local authorities’ knowledge of potential POCA confiscation receipts in their decisions to prosecute planning offenders have been successfully used as the basis of abuse of process arguments in several recent cases, notably R v Knightland Foundation and R (Wokingham BC) vs Scott on which we have reported in the past. Despite the existence of the Home Office Asset Recovery Incentivisation Scheme (“ARIS”) and the encouragement it gives Local Authorities to investigate and prosecute, it seemed that any enforcement officer which so much as muttered the word POCA prior to prosecution had doomed the case by doing so. Large scale fishing exercises, with defendants seeking disclosure and trawling every email, memo and decision in relation to the council’s prosecution policy, have become the norm.

A recent Court of Appeal case seems to provide some respite and may indicate that the pendulum is swinging back towards a more balanced view of POCA confiscations in planning cases.

In The Queen (on the application of Marios Peter Kombou) vs LB Enfield and Wood Green Crown Court [2020] EWHC 1529, the Court of Appeal was asked to allow judicial review of a decision by a lower court not to allow Mr Kombou to vacate his guilty plea. Mr Kombou argued that Enfield had been late in disclosing documents relating to his fishing exercise and that, had he had those documents prior to his hearing, he would not have pleaded guilty.

Mr Kombou’s counsel was allowed to make wide-ranging submissions as to the propriety of the decision to prosecute, arguing that Enfield’s financial investigator was hopelessly conflicted because POCA receipts funded his salary, that Enfield’s officers had investigated the potential receipt prior to commencing the prosecution and that their decision to prosecute was motivated by an estimated £300k POCA receipt.

In finding that the lower court had reached a reasonable decision and that judicial review would be denied, the Court of Appeal make a number of helpful observations, paraphrased below:

It can be in the public interest to prosecute even when there has been compliance with an enforcement notice. Achieving compliance is not the only goal of planning legislation.
The Knightland and Wokingham decisions are right to make clear that the decision to prosecute must not be influenced by the prospect of a financial benefit accruing to the local authority as a result of a confiscation order. ARIS is capable of giving rise to a serious conflict of interest or at least the appearance of such a conflict.
But it is not the case that a decision to prosecute will be open to challenge if it might eventually lead to a confiscation from which the Local Authority will benefit. There is a difference between prosecuting in the knowledge that POCA receipts may occur and prosecuting in order to get those receipts.
In deciding whether prosecution is in the public interest, it is legitimate to consider whether the defendant has benefited from his crime.
When considering whether a decision to prosecute is improperly motivated, the yardstick is the view of a fair-minded and independent observer who understands the Home Office ARIS system. In particular that

“ARIS is a system introduced by the government, not a private arrangement devised by the prosecuting authority for its own advantage; that legal consequences, in terms of the powers of the court, follow upon conviction; that those legal consequences may bring financial consequences for the offender; and that any financial benefit to the prosecuting authority accrues only after, and as a result of, the court’s exercise of its powers.”

This last paragraph in particular is very helpful. It has often seemed that the courts have conveniently ignored that Parliament, in creating ARIS, intended Local Authorities to be financially able to, and incentivised to, prosecute and confiscate. This case makes clear that the existence of ARIS is not a bar to a successful prosecution and that the fact that it might result in POCA receipts for the Local Authority does not make the prosecution an abuse. This case is likely to cut down the scope of future fishing exercises considerably.

The decision is not a get out of jail free card for planning prosecutions. Its facts are unusual; it was a JR of a decision to refuse to allow vacation of a guilty plea. In essence, Mr Kombou was arguing that Enfield had behaved with such serious impropriety [in relation to failure to disclose] and his advisers had been so badly misled, that a prosecution would be an affront to justice and an abuse of the process of the court. This is a very high bar.

And the case makes clear that Local Authorities must continue to take their decisions to prosecute conscientiously and not for the purpose of POCA receipts. This remains a difficult line. The fact that Local Authorities have limited resources and must choose their battles was mentioned in the facts of the case but no guidance was given by the court.

But we do think that this is an indication of a stricter judicial treatment of abuse of process applications in planning cases. The pendulum may be swinging back at last.

Enforcement action against embassies and consulates

Wed, 29 Jul 2020 11:13:30 GMT

Forget Huawei and Hong Kong. Is planning enforcement the next geo-political battleground for China?

We report this month on an application in the High Court in Northern Ireland for an injunction against development carried out by the Chinese consulate in Belfast . The case demonstrates the difficulty of effective planning enforcement against embassies and consulates.

In May 2019, the Chinese consulate applied for planning permission to add a 3m high external wall, two security kiosks and a 16 car carport and wash bay to their listed building situated in a conservation area. The application was withdrawn in February 2020 but works nevertheless began in April 2020. The council issued a Tree Preservation Order, a Temporary Stop Notice and a Listed Building Enforcement Notice. Works continued and the council sought an injunction. The consulate claimed diplomatic immunity but offered to continue discussions with the council if it accepted this immunity. The council refused. The consulate claimed immunity, reinstated its planning application and continued work.

The consulate did not defend or participate in the injunction application on grounds that, as it had diplomatic immunity, it did not recognise the court’s jurisdiction. It did, however, make representations to the council which were made available to the court.

The court’s judgment makes an interesting tour through the provisions of the State Immunity Act 1978. The court held that, while s1 of this Act makes clear that the Chinese State is not subject to the jurisdiction of the UK courts, s6 makes clear that this does not apply in relation to UK property owned or used by the Chinese State. However, s13 states that no injunction can be brought against the Chinese State, whether or not it relates to UK property.

The council sought to argue that the property was owned by the Consul General herself, not the Chinese State, as hers was the name on the Land Registry certificate. The court disagreed. The court further held that the Act effectively prevented an injunction against the Consul General herself because, in relation to this work, which was done on behalf of the Chinese state, she had diplomatic immunity.

The case neatly illustrates the difficulty with enforcement against embassies and consulates. It seems clear that planning enforcement remedies such as an enforcement notice, a listed building enforcement notice, a TSN and a TPO can be applied to consular land. But the enforcement of those remedies is almost impossible. Consider the usual enforcement options, prosecution, injunction and direct action:

• If the state, and its diplomatic staff, are not subject to the jurisdiction of the court, they cannot be prosecuted.

• An injunction is ruled out by s13.

• And direct action is presumably an act of war!

One of the alternative reasons for refusal of an injunction in this case was that it would be, in the judge’s words, “beating the air” as the Consul General could not be brought before the court to answer for non-compliance.

Which leaves what was described in court as “the nuclear option”. Enforcement can, it appears, only be handled by way of diplomatic pressure through the Foreign and Commonwealth Office, which handles consular matters on behalf of the UK Government. The FCO expects other states to respect the laws of the UK, including planning laws, irrespective of immunity. Guidance has been produced for embassies and, in this case, the FCO appears to have written to the Chinese consulate, demanding compliance. Ultimately, if the consulate fails to come to an negotiated solution with Belfast City Council, the government has the power to revoke permission to use the premises as a consulate and occupation will have to cease.

Can’t wait for that headline. “UK Government uses the nuclear option against the Chinese State in Northern Ireland!”

Planning Enforcement & Covid-19

Thu, 02 Jul 2020 13:16:41 GMT

Planning Enforcement & Covid-19 survey

Aside from the terrible losses and impact to health, Covid-19 is undoubtedly having far reaching impacts that the world of planning enforcement has not been able to escape. Planning enforcement officers who have been fortunate enough to continue their work have needed to adapt their approach, both in devising new ways of working and in considering the impact of covid-19 on others.

The gradual move towards home working and paper-free working over the last few years has been accelerated during the lockdown. Most people will appreciate the flexibility of working from home more regularly, and Teams, Zoom and Skype can to some extent compensate for the human interaction deficit. Exclusive remote working does however have its drawbacks and team cohesion and on-the-job training are the biggest losers.

Complainants may be experiencing the effects of planning enforcement breaches more acutely when they spend more time at home, whilst the impact of action against someone who breaches planning control may be perceived more harshly when other areas of their lives and livelihoods are under threat. Balancing these polarised views only adds to the already complex nature of the planning enforcement officer’s job.

Last month NAPE and Ivy Legal sent out surveys to Planning Enforcement officers across the UK to ask about the effects of covid-19 on planning enforcement service delivery. A total of 45 responses were received from the English regions, Scotland and Northern Ireland. Thank you to those who responded.

We asked whether Planning Enforcement officers had been redeployed or furloughed during covid-19. 80% of respondents said they had not been redeployed. Of the 20% who had been redeployed, some assisted with other responsibilities on a part time basis and helped out with food distribution and careline calls.

Although the vast majority of officers continued to work (from home), it appears site visits stopped for 78% of respondents for at least the first few weeks of lockdown. A surprising 22% of respondents said site visits did not stop at all during lockdown.

After the initial complete hiatus (for 78% of respondents), site visits have been reintroduced at some LPAs for critical cases like listed buildings and TPO breaches. Drive-by visits are increasingly being done.

Of the officers who stopped conducting site visits during lockdown, 73% have now resumed visits, some in part, and others fully back up and running to pre-lockdown levels. It is clear from the responses that most Councils had carried out risk assessments, devised protocols and are cognisant of government guidance. Around 22% of respondents are in the process of securing approvals to resume site visits and the remaining 5% have not resumed visits.

The types of PPE officers are using is predominantly hand sanitiser, but some officers are using face masks, gloves and a small minority also use shoe covers. Worryingly, one comment in response to the question as to what kind of PPE is provided, is: ‘Absolutely no idea, no guidance from above’. Fortunately this is the only respondent who displayed this level of exasperation!

Some respondents commented that no PPE whatsoever is made available, and 7 respondents said they provide their own PPE.

Respondents were asked whether the issuing of enforcement notices were paused during lockdown. The majority of respondents (64%) said they didn’t stop issuing enforcement notices during lockdown, but the comments indicate some of these were for breaches where immunity was imminent and in other cases respondents indicated it has not been necessary to issue any notices. A total of 31% of respondents stopped issuing enforcement notices, some because of covid-related difficulties like lack of planning lawyers or managers to sign off notices and inability to serve personally. One respondent said it was considered that it would be difficult for planning contraveners to comply with notices during lockdown.

Respondents are divided in terms of changes to the way planning enforcement action is taken in response to covid-19 challenges. Around half of respondents say that their approach has changed with extensions given to appeal and comply with deadlines and notices. Some frustration with bureaucracy is evident with comments like ‘risk assessments galore’.

The other half of respondents say their approach to planning enforcement is unchanged but one respondent indicates that photographic evidence (presumably both of confirming the existence of breaches and compliance) is sought wherever possible.

Planning Enforcement officers are allowing additional time before enforcement notices become effective and are allowing more time to comply with notices, with 57% of respondents confirming their general approach has changed, some allowing up to double normal time periods. Of the 43% of respondents who say their approach is unchanged as a rule, they indicate that in practice additional time is allowed because further action will not be pursued until after lockdown has been fully lifted.

It appears that in early lockdown planning enforcement complaints had eased off slightly, only to return in full force in May. However, 45% of respondents say that complaints have increased on the whole during lockdown with more people at home, either spotting their neighbours’ planning breaches or undertaking their own DIY projects such as fencing, decking, outbuildings, extensions. Around 13% of respondents say complaints have decreased.

Half of respondents feel their LPA has adapted to the covid-19 pandemic very well. Officers appear to be happily working from home. 36% of respondents say their LPA’s are coping ‘quite well’, and only 14% of respondents rate the response as unsure or quite poorly.

One respondent is frustrated that officers are on full pay but unable to carry out their roles fully. Others are conscious that the pandemic will be with us for a while and that enforcement officers need to be mindful of court delays and delays within PINS in deciding what enforcement action should be taken.

The survey was conducted last month and things will no doubt have changed already; attitudes to covid-19 risk are fluid and seem to change quickly. The extent of the differences in approach is perhaps surprising but guidance specifically for planning enforcers was rarer than toilet roll so perhaps it is to be expected that councils and officers will make policy on the hoof. It is interesting that inspectors seem to be back to making site visits in some of our enforcement cases. Maybe we need to get as much investigation done as possible before the second wave!

Issuing Enforcement Notices in Covid times

Fri, 01 May 2020 21:18:27 GMT

Last month we wrote about the start of the effect of the coronavirus on planning enforcement. This month we build on the theme and specifically cover the issuing of enforcement notices.

Despite, or perhaps indeed because of these strange times, it remains necessary to take planning enforcement action; planning harm may be felt more acutely than ever before. But issuing enforcement notices in these times bring its own challenges.

Site visits are difficult. During lockdown very few enforcement officers are continuing to enter properties. Some do drive-by visits, others exclusively conduct desktop investigations. Some planning enforcement officers are redeployed to other council services, or furloughed. The extent to which enforcement action can be taken without gaining access to a property is a decision to be made on a case by case basis. But in many cases it would still be possible for LPAs to conclude investigations and recommend enforcement action.

The authorisation of enforcement notices need not be by ink signature on a paper report. In practice nowadays many LPAs prepare electronic reports and notices are authorised electronically. The usual rules apply. For example, ensure you save all electronic authorisations into a filing system, be clear on processes for version control, and ensure the person authorising the issue of a notice is permitted by the Council’s constitution or scheme of delegation. Where your LPA has not already adapted to an electronic way of working, now may be the time to start. Obviously with the support of your management and IT team!

Ensure your s188 register is updated with new enforcement notices and that the register remains open for inspection, as required by legislation.

Service of notices by means of personal service in-borough remains best practice. In most cases personal service can be effected without breaking lockdown or social distancing restrictions. Where notices are served by recorded delivery, officers need to ensure there is a procedure in place for possible returned recorded delivery items. With fewer staff going into the Council office a procedure should be put in place so returned post is brought to the attention of officers as soon as possible. Note that sending enforcement notices by email is not ‘service’ but it is good practice to alert a landowner/interested party of the existence of a notice by sending them a copy if their email address is known.

Appreciating that landowners and others with an interest in the property are likely to be personally and financially affected by covid-19, my personal view is that it is appropriate to allow additional time for enforcement notices become effective, i.e. the date before which an appeal needs to be submitted.

LPAs might also consider the impact of covid-19 on time for compliance with notices. This can be done by allowing additional time for compliance within the body of the notice, or could allow additional time at some point in future under the provisions of s173A(1) TCPA 1990. Make sure that all extensions of time are authorised by someone with authority so to do.

These are only a few pointers from our experience in the last month. No doubt the new normal will raise further challenges but also amplify the need for effective planning enforcement.

Stay safe.

UPVC windows- development?

Wed, 27 Nov 2019 09:56:25 GMT

London Borough of Haringey v Secretary of State for Housing, Communities and Local Government and Paul Muir [2019] EWHC 3000 (Admin)

Haringey Council brought a S.289 appeal against the decision of a planning inspector to allow an appeal against an enforcement notice issued by the Council.

The notice, issued in May 2018, alleged “ without planning permission, the installation of UPVC windows on the ground floor front elevation” of the Property. The Property was located within the Bowes Park Conservation Area. It is the ground floor flat in the left hand house in the photo above.

The owner,, Mr Muir, lodged ground (c) and (f) appeals. In relation to the (c) appeal, it was not at issue that there was no planning permission or PD right. The issue for the Inspector was whether the installation was development.

The statutory framework

Section 55 of the TCPA defines “development” for the purposes of the Act. S.55(2) sets out operations or activities which are not to be taken as development for the purposes of the Act. These include:

“(a) the carrying out for the maintenance, improvement or other alteration of any building of works which…—

(ii) do not materially affect the external appearance of the building.”

‘Building’ is defined at section 336 TCPA 1990:

“Building” includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery, comprised in a building”

The inspector looked at two key issues; what was the building and what was the meaning of the phrase “materially affect the external appearance of the building”.

The inspector noted that there were a high number of UPVC windows along Myddleton and estimated that 90% of the front windows in the conservation area were UPVC. 49 Myddleton Road was a flat within a converted house, the house was part of a terrace block of three similar properties; all windows at 51 and 53 were PVC and the second floor windows at 49 were PVC.

The Inspector referred to two cases in the Decision Letter; Church Commissioners v Secretary of State for the Environment [1995] 71 P&CR 73 and Burroughs Day v Bristol City Council [1996] 1 PLR 78. Sadly, the judge concluded, he had confused himself on each.

He concluded that, while the PVC windows had a material effect on number 49, they did not have a material effect on the terrace block comprising numbers 49-53 due to the “pre-existing dominance” of PVC windows in that terrace. He decided that this wider terrace building was the “building” in this case and therefore found that there was no development and upheld the appeal.

Haringey Council appealed on two grounds: the first was that the Inspector made an error in concluding that the “building” (for s55 purposes) was the block as a whole. And second that the Inspector erred in assessing the impact of the new windows on the wider area, which was immaterial.

The Inspectorate agreed that the Inspector had misunderstood the Church Commissioners case. But they said that the error was not a material error; the Inspector had merely drawn parallels with that case. He was entitled to find that the “building” was greater than the individual flat at number 49..

Mrs Justice Lieven found that the Inspector had misled himself on the application of the Church Commissioners case. That case (involving a unit in a shopping centre) was not primarily concerned with the question of what was a building for the purposes of S.55, but rather what was the planning unit in an argument over material change of use.

Similarly, the Inspector had been misled by the decision in the Burroughs Day case. That judgment says that the effect of changes to a building must be considered by reference to the building overall, not to a part of it taken in isolation. Mrs Justice Leiven said that, to the extent this was saying that the effect on a single part of a building could not be considered, it was plain wrong.

Ultimately, Mrs Justice Lieven preferred the ordinary meaning of the word “building”. It was unusual, she thought, that the Inspector found that the building constituted an entire terrace rather than an individual property even though it was common practice for each house in a terrace to be considered to be a building and further where there were several listed buildings within a terrace, each separate house would usually be separately listed. Mrs Justice Lieven observed that although this did not mean that the Inspector was wrong to find the whole terrace was a building, he should have given clear and adequate reasoning. That he didn’t suggested he had misunderstood the effect of the Church Commissioners case and his error was material to his decision.

On the second ground, it was clear to Mrs Justice Lieven that the Inspector had taken the wider area into account, and that it had a material impact on the Inspector’s conclusions. She quoted part of the decision letter where the Inspector noted that, had more consistent action had been taken against the other UPVC window installations in the conservation area, the UPVC window on the ground floor at 49 would have had more of a material effect than it did at present. Mrs Justice Lieven made clear that, in working out whether something is development for S.55(2 (a)(ii), the Inspector should not have had regard to anything other than the building itself.

It is hard not to feel sympathy for an Inspector who was asked to uphold an enforcement notice that was shutting the door to a stable from which the horses had long since bolted. Perhaps if Mr Muir, the owner, had made a ground (a) appeal, the Inspector would not have had to stretch “development” beyond its natural meaning. As it was, he did stretch it and it snapped. This case is a reminder that wording in legislation is usually given its ordinary meaning if it is possible to do so.

Islington v Maxwell Estates

Thu, 31 Oct 2019 10:01:27 GMT

Lawfulness of a dwellinghouse

Islington Council has been in the planning courts rather a lot of late, but this month there is a High Court decision in their favour. And rightly so. The case does not particularly raise new legal points, but confirms the importance of the Swale and Thurrock cases in determining immunity on changes of use and clarifies the place of Gravesham (which assists with the definition of a dwellinghouse).

The facts are:

1. In early 2013 Maxwell Estates converted the basement of their building into a residential flat and started renting it out from 11 April 2013. The first tenant lived there until 10 October 2013, when he moved out.

2. From November 2013 Maxwell Estates gutted the basement during renovation works which continued until shortly before May 2014.

3. New tenants moved into the basement from May 2014 and it appears the flat was then more or less continually used thereafter.

4. There was therefore a gap in occupation between 10 October 2013 and May 2014.

5. In November 2017 Maxwell Estates applied for a certificate of lawfulness on the basis that the basement had been in residential use for more than 4 years.

6. The certificate was refused and enforcement action was taken on 12 January 2018.

7. Maxwell Estates appealed under grounds (d), (f) and (g) of section 174(2) TCPA 1990 and the appeal was heard at an Inquiry. The Inspector allowed the ground (d) appeal and determined that the basement had been in continuous use as a dwelling from at least 11 April 2013, including during the period of renovations from October 2013 to May 2014 and therefore a material change of use occurred more than 4 years before the enforcement notice was issued.

8. The Council appealed under s289 TCPA and challenged the Inspector’s conclusion that there had been continuous use during the renovations between October 2013 and May 2014. The grounds of appeal were fourfold, but for the purposes of this article, the focus is on a single one: The Inspector misunderstood and/or misapplied the law regarding immunity from enforcement action taken against a material change of use.

The judgment then sets out the statutory framework for lawfulness and very usefully sets out the relevant caselaw.

The Council argued that the Inspector ought to have applied the guidance in the cases of Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226, [2002] JPL 1278 (upholding the judgment of the High Court, reported at [2001] JPL 1388) and Swale v Borough Council v Secretary of State for the Environment [2005] EWCA Civ 1568, [2006] JPL 886.

In deciding whether or not there had been continuous use, the Inspector wrongly applied a presumption of continuance, and took into account impermissible factors such as Maxwell Estate's intentions.

The Secretary of State and Maxwell Estates argued that whereas residential use had to be continuous for the landowner to obtain the benefit of the immunity, continuous occupation was not required. In support, they relied on Gravesham BC v Secretary of State for Environment (1984) 47 P & CR 142 and others.

The Secretary of State and Maxwell Estates also submitted that where, as in this case, there was an interruption in occupation, it was a matter of fact and degree whether the use continued or had ceased. The Inspector lawfully exercised his planning judgment when deciding that the residential use was continuous.

At times the Council argued that it was not ‘practicable’ to enforce against the unlawful use for the period during which the renovations took place. However, Mrs Justice Lang confirmed that this was not part of the statutory test.

Mrs Justice Lang determined that the Inspector ought to have applied the guidance in Thurrock and Swale. During the period when the residential unit was stripped down to a shell unit, and the unauthorised residential use and breach of planning control had ceased, the Council could not have taken enforcement action, even if the owner intended to resume residential use at a later date. She said: “In my view, there was a single test, namely, a continuous breach by use as a dwelling, such that the planning authority could have enforced against the breach”

Submissions on Gravesham clearly confused the inspector. In her closing submissions at the inquiry, counsel for Maxwell Estates said:

"Gravesham therefore establishes that continuous residential occupation is not a requirement for a building to be "a dwelling house" and that, therefore, "use as a single dwelling house" does not require continuous residential occupation either…".

However, Gravesham is not an enforcement case and so the court in that case was not applying the test under s171B(2) TCPA 1990. It was not relevant for the Judge in Gravesham to determine the difference between immunity and abandonment. The correct test for establishing lawfulness of a dwellinghouse, is in fact that set out in Thurrock and Swale, i.e. continuous uninterrupted use, such that the planning authority could have enforced against the breach.

Mrs Justice Lang found that the inspector’s reliance upon counsel’s submission in the closing submissions at the inquiry led to an error of law in his decision.

Welwyn Hatfield and Impey were similarly distinguished because they concerned operational development to create a dwellinghouse, not a change of use of a building to use as a dwellinghouse.

Mrs Justice Lang concluded that the Inspector misdirected himself in law and misapplied the relevant case law and accordingly allowed the appeal.

London Borough of Islington v SoS & Maxwell Estates limited [2019] EWHC 2691 (Admin)

https://www.bailii.org/ew/cases/EWHC/Admin/2019/2691.html

Expediency

websitebuilder-hub@names.co.uk — Mon, 16 Sep 2019 15:02:07 GMT

So what does ‘expedient’ actually mean?

As enforcement officers we have all used the term ‘expediency’ when assessing whether or not to take formal action against a breach of planning control. The term expediency is used within Section 172(1) of the Act which sets out that a local planning authority may issue an enforcement notice where it appears to them:

that there has been a breach of planning control; and
that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

So what does ‘expedient’ actually mean? Are you able to explain the term without looking it up? No, me neither! Once you have looked up what it means, continue reading…..

The matter of expediency has recently come into focus through Birmingham MP Steve McCabe who has brought forward to the House of Commons the Protection of Family Homes (Enforcement & Permitted Development) Bill. The first reading of the Bill, which has cross party support, can be seen here ( http://parliamentlive.tv/event/index/744602c3-74fd-40d2-a353-19510c434146?in=12:41:55 ).

The main aims of this Bill will:

Require the DCLG to produce clearer guidance for Planning Authorities on when enforcement action should be taken, and local authorities will need to produce an enforcement plan.
Introduce a right of appeal when a planning authority decides it is not ‘expedient’ to take enforcement action
The Bill will also set out the requirement for extensions built under permitted development to be independently checked against building regulations to ensure they are safe to live in
Introduce new powers for planning authorities to fine developers who breach planning law as a deterrent when enforcement action is not considered ‘expedient’.

Whilst any debate around the topic of planning enforcement is always welcome, I am not convinced that the content of the Bill will in any way aid enforcement officers in their day to day work, in fact it may even prove to be a hindrance, especially with the proposed right to appeal a decision not to take action. I am also slightly puzzled as to how a local authority would fine a developer when it is not considered expedient to take enforcement action given that it a well-established principle that enforcement action should be remedial rather than punitive.

With that in mind the government does seem to now be taking a harder line on planning enforcement with the introduction of the planning enforcement fund for planning injunctions and the recently announced £5m pot to tackle the continuing problem of beds in sheds.

The second reading of the Bill is scheduled for 26th January 2016. It will be interesting to see how these proposals progress and whether this is the beginning of a shift in policy towards enforcement action being punitive rather than just remedial in certain cases.

Article written by:

Neill Whittaker

Challenging decisions not to take enforcement action

Sun, 01 Sep 2019 09:06:15 GMT

R (on the Application of Easter) v Mid Suffolk District Council [2019] EWHC 1574 (Admin)

This case involves a door and a ramp. Seen above.

The door is at the side of an antiques shop in a small town in Suffolk. The claimant lives in the house on the other side of the entrance way. Can you see the door? It’s that one way down the back of the building. Yes really.

The claimant had complained to the local authority that the owner of the antiques shop had installed double doors and a ramp in 2015, without planning permission. She demanded that the local authority serve an enforcement notice requiring the removal of the doors and the ramp. The pillars and the lions on the front were apparently acceptable to her though.

After investigating, the local authority decided that the replacement of the door was either not a breach or that the breach was insufficient to warrant formal action. The authority also felt that it was not expedient to take action against the ramp.

Not willing to let it lie, the claimant sought judicial review of the local authority’s decision not to take enforcement action. The court’s permission is required before a JR action can be commenced and the action itself can take some time to come to court and be decided. Meanwhile the immunity clock was ticking.

Consequently, the claimant also brought a separate interim claim for a mandatory interim injunction requiring the local authority to serve an enforcement notice, in order to stop the clock. The judgment we are reporting on here is on this claim for the interim injunction.

The main claim for judicial review had not progressed at the time this interim judgment was issued so the merits of the JR claim had not been tested. As with all interim applications, the question for the court was therefore (a) is there a serious issue to be tried and (b), does balance of convenience favour the grant or refusal of an injunction before the merits of the main claim are heard. But the court also noted that where, as here, the claimant was asking the court to force the council to issue a notice (as opposed to simply remitting the matter to the council to retake a flawed decision), there was a third requirement that the notice was necessary as a matter of law.

The claimant argued that all she was asking was that the notice should be issued so that the immunity clock would be stopped pending the hearing of the merits of the main case. Otherwise, by the time she won the main case, it would be too late for the council to issue a notice and she would have been denied her victory. If she lost the main case, the council could withdraw the notice.

Mr Justice Lewis ruled this was not the right way of looking at the enforcement power. He said that the claimant had first to demonstrate that it was appropriate in itself to issue the notice ie that there was a breach and that it was expedient to enforce against the breach. Immunity was only for consideration once those steps had been satisfied.

The judge went further. For a mandatory injunction, which effectively took the breach and expediency decisions out of the council’s hands, he suggested that the claimant needed to show not only that the council was wrong not to issue the notice but that issuing the notice was the only reasonable decision which could be reached under any circumstances. The claimant had not satisfied this burden and the judge doubted that it could be satisfied.

The local authority’s discretion in matters of enforcement notices is wide and it had already indicated that it did not consider it was expedient to enforce. The impact on the antique shop owner was also important; were the notice to be issued just to stop the clock, the shop owner would nevertheless have to comply with it, risking prosecution if he did not. The judge also felt that the claimant could have brought the JR claim earlier, allowing the merits of the case to be considered in good time, rather than seeking interim relief at a late stage.

The application for the interim mandatory injunction was therefore denied.

This was an unusual case. Seeking a notice simply to stop the immunity clock, before the merits of enforcement action had been demonstrated, is a clear case of the tail wagging the dog. And asking the court to take a council’s discretionary enforcement power out of the council’s hands was always going to be an uphill struggle.

The main case is yet to be heard. At that point, the reasonableness of the council’s decision on expediency will be debated. Looking at the photo at the top of the page, we think we know the answer.