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Jumat, 25 Maret 2016
Senin, 21 Maret 2016
Wooden Boat Plans And Kits
After a long and distinguished legal career, David Brock retired from practice at the and of May. As readers of this blog will be aware, before joining Keystone Law’s planning law team, David headed up the planning law team of Mills and Reeve in East Anglia. He was Chair of the Law Society’s Planning and Environment Law Committee, and made some significant contributions to the committee’s work on behalf of the legal profession in the planning field. David was largely responsible for the standard draft section 106 agreement jointly published by the Law Society and De-CLoG, and he was instrumental in getting important changes made to the Bill that became the Localism Act 2011, in particular to modify the effect of the catch-all powers that were originally proposed in respect of ‘concealed’ development.
David certainly won’t be twiddling his thumbs in retirement; he has some very interesting projects in hand, and he will continue to write his blog. I shall be happy to maintain the link to that blog here, and so you will continue to be able to access David’s blog from my Home page by clicking on the link in the left-hand margin.
© MARTIN H GOODALL
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Jumat, 18 Maret 2016
Pontoon Boat Plans Aluminum
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| Ice on the my rod guides and Trout in my hand, Priceless! |
Those words are as much to encourage myself as they are to encourage others. You see I dont need another excuse to not go winter troutin but when I put it all aside and finally get to release a strong beautiful fish like the one in the picture all of the excuses to not do it are erased.
How to do it
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| coffee break |
On this day I had three rods with me. Thats another advantage of floating, you can carry multiple rods. My tried and true Winston BIIIX 4110-4 Microspey with a Bauer CFX #4 Trout spey reel. I loaded it with the Airflo Switch Streamer line of 330gr and 10 foot of T-7 Sink Tip. I must confess I modified the Airflo line. Everything is perfect about this line except the abnormally large running line part of it. I couldnt take no more so I chopped it at the back side of the head and applied a RIO Braided loop so I could connect it to RIO SlickShooter mono shooting line. Im not suggesting everyone should do this. Try it first and you might be fine with it. I made it through last year fishing it but winter freezing temps finally made me give up on it. Too thick to work in icy guides and shooting lines such as mono are much better for this cold weather fishing.
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| Peregrine Falcon |
My next outfit is the new Sage ONE 3110-4 Trout Spey coupled with a Lamson Litespeed #3 reel and the RIO Intouch Switch Chucker #3. The Sage rod feels great! Ill be doing a full review on it in the near future once Ive had a chance to fish it some more with some different lines and heads. Right away this grip on the Sage feels so great...It just fits me and the rod balances perfect. What I didnt like on this day was the Switch Chucker. I just dont get this line. It just doesnt turn over for me easy. Maybe its me or maybe I expect too much from it. I started out with 8 foot of T-7 sink tip but backed off to a 10 foot fast sinking polyleader. It still seamed difficult to turn over. Maybe it needs a 5 foot polyleader or just a regular leader. I will fish the Sage rod again soon with the RIO Skagit Trout Max heads and also try my favorite scandi the RIO Scandi Short VersiTip. I wished I had the VersiTip with me this day. It would have been ideal for some of the slower riffles that were holding fish. The sink tips I was fishing were too much for them.
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| Mr Brown hammered a streamer in icy cold water |
Towards the end of my float is a long great swing run. Another advantage of floating is I was able to set up on the opposite side of the river of were it could be foot accessed. A nymph angler was across the way so I stayed clear of him. I was backed up tight to the bank and needed to Snap T cast to set up my swing. A minute later the nymph guy yelled down and said "Nice Snap T!" I yelled back and said you are the first person on this river to know what that is. I went on and caught a couple and he also caught a couple. When I left I rowed my boat across river and up the back eddy to the guy. Got out and chatted. Yep he lived in the NW and had been spey fishing for 20 years on the peninsula and BC. He continued to fish as we chatted and I couldnt help noticing the double spey he was doing with his single hand nymph rod setup. The only reason I bring this up is that it doesnt matter what technique youre doing out there anyone can benefit from some two hand techniques. After watching him perform endless double speys I had no reason to doubt any word he spoke of his steelhead experiences. He wasnt thinking about what he was doing, he was just doing it.
So back to the question "Why do I do it?"
I think the answer to that is somewhere in this article
More articles like this one in Trout Spey Chronicles
Greg Darling
Gorge Fly Shop Internet Sales Manager | Product Specialist
"Fly Fish the World with Us"
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Jumat, 11 Maret 2016
Boat Plans Australia
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| Jeff caught a nice little hen. |
Fishing Report
This last week was good for most of the area anglers that ventured out. Our favorite summer steelhead rivers were kicking out fish and in great shape for most of the week. While this weekend’s rains are not doing much to help the clarity, levels are going up and there could be some good fishing this week. The weather looks unsteady and possibly torrential, but there should be some good periods of fishing this week.
Chinook Salmon are mostly dead now. There are a few stragglers holding on, but the rivers are full of dead salmon everywhere. It is very much like
Summer Steelhead have been on the bite this past week. While nothing was red hot, there was steady and consistent fishing for many anglers last week. Jeff and Sam are visiting from Montana and they managed to pull a few out of the Klickitatduring their visit. The Klick went out of shape on Saturday night, but could easily come back early in the week before the predicted big rains come in around Wednesday or Thursday.
The Deschutes gave up a fish or two a day to most of the anglers that went out. The lower river is definitely colored up as of Sunday from the White River pouring mud, but the river above the confluence with the White is in great shape and should likely stay in great shape as the week unfolds.
The Hood River
Trout fishing is closed on several local lakes and streams now. Please consult the regulations before fishing.
Areas closed for trout include: East Fork Hood, Hood River (for trout), Eagle Creek, and the Deschutes upstream of the northern boundary of the Warm Springs Reservation. The White Salmon above the county road bridge below the powerhouse (old dam). Laurence Lake is also closed, as well as the Metolius River above Allingham Bridge
Areas open for trout include: Deschutes downstream of the Warm Springs Reservation (Maupin area and downstream are open),
Travis took out his Winston Micro Spey 10’ 6” 4wt out to the Deschutes and had a good couple of hours pulling streamers for Rainbow Trout on Thursday. He caught a couple of nice fish with minimal effort. This is going to be a great fishery during the winter, especially during the drier periods when steelhead are hard to come by. Instead of a down and across swing as you would do for steelhead, cast more across or slightly upstream and let your line develop a downstream belly. Then you are ready to start stripping the fly. Anything between a little twitch and a fast pull will work, but they will generally be more receptive to one type of retrieval. It is just up to you to find out what type of retrieve they are looking for.
Smallmouth Bass are getting no attention right now, but with water temps dropping in the big river, the bite should be pretty good. You just have to find some current out there, and there isn’t much to find right now. It should be easy to find the fish once you locate some moving water.
As always, we are happy to talk fishing any time. Give us a call if you have any specific questions on local rivers, gear, and tactics, or if you just want some encouragement to get out of the office.
Andrew Perrault
Gorge Fly Shop | Product Specialist
541.386.6977
"Fly Fish the World with Us"
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Jumat, 04 Maret 2016
Boat Designs And Plans
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Jeff and my dog Hendrix on a coastal stream |
Fishing Report
Local rivers are on their way back up, and we will have another good opportunity for anglers to hit winter steelheadas the flows drop. All of the local rivers should see an influx of fish when the levels peak. Our favorites within an hour drive are the Sandy, Clackamas, Washougal, and the Hood. Within two hours, we can hit the Kalama, Cowlitz , East Fork Lewis and the Santiam. Portlanders have a nice location as all of the coastal rivers are within a reasonable drive.
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| Jeff forgot his wading boots. Gorilla tape is key |
Rainbow Trout fishing has been great on the Deschutes . If you are looking for a nice change of pace and are overwhelmed with the number of steelhead anglers on seemingly every river, take a day to go trout fishing on the Deschutes . It is open all the way up to Pelton Dam now and there has been very little pressure.
Trout are eating Skwala nymphs, March Browns in both nymph and adult stage, along with Blue Wing Olives. The Skwala nymph should be a go-to for most of the day because of the large size and easy target; they provide a ton of calories quickly. Fish a Skwala nymph doubled with a smaller mayfly nymph to be doubly effective. The March Browns and Blue Wings are not entirely consistent as far as hatches go, so they may or may not provide any dry fly fishing on any particular day. March Browns tend to hatch when it’s warm and sunny, while the Blue Wings tend to hatch on cloudy days. Blue Wings also often hatch in back eddies and in soft water near the side of the river, where March Browns are more of a typical mayfly and hatch in and near riffles.
Swinging and twitching streamers can also produce some nice fish this time of year. Sculpins and leeches are good food for trout, and presented slowly their imitations can be very productive.
As always, we are happy to talk fishing any time. Give us a call if you have any specific questions on local rivers, gear, and tactics, or if you just want some encouragement to get out of the office.
Andrew Perrault
Gorge Fly Shop | Product Specialist
541.386.6977
"Fly Fishing Report"
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Wooden Boat Plans And Kits
I turn now to the change of use of a building to use as a single dwelling, to which the 4-year rule applies under section 171B(2). What this sub-section actually provides is that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. Thus, apart from the different time limit for enforcement action, this provision is precisely the same in its wording and effect as section 171B(3) relating to other changes of use.
The practical interpretation of this sub-section was considered by the Court of Appeal in Swale BC v. FSS [2005] EWCA Civ 1568. In a re-determined planning appeal (the third after two previous decisions had been quashed in the High Court) an Inspector had decided that the claimed residential use was then immune from enforcement because the time for such action had expired. Referring to the Court of Appeal decision in Thurrock Keene LJ observed that there was no dispute that, as a matter of law, the owner had to show not only that the change of use to residential use had occurred four years or more before 6th March 2001, but also that residential use had continued throughout that four year period.
In Thurrock Schiemann LJ had made the point that an enforcement notice requires the breach of planning control to be remedied, but if the new activity ceases the breach will be regarded as having been remedied. Moreover, he emphasised that the concept of abandonment which had been central to the Inspectors reasoning in the Thurrock case had evolved in respect of established use rights (that is to say rights which have already been established) and not in respect of a use, the continuity and lawfulness of which was in issue.
Also in Thurrock, Chadwick LJ had agreed that the Inspector had needed to ask whether the use in question had been continuous during the period and he too rejected the Inspectors approach of asking whether the use, having been commenced, had subsequently been abandoned.
In the Swale appeal, the Inspector had found that residential use of the building had begun during occupation by a predecessor, between about March 1995 and February 1996, at which point that person had ceased to own the property. The Inspector also found that it was in full-time residential occupation from the year 2000 onwards. Neither of those findings of fact was challenged. It was his approach to the intervening period which was the basis of the Councils case that the decision was flawed.
What the Inspector had to focus on was the period from 6th March 1997 to 6th March 2001. The owner’s own evidence at the inquiry was that he had bought the site in 1996, did not move in straight away but visited regularly to do improvement works. In the first part of 1997, he lived partly on the site (as distinct, it seems, from the barn the subject of the appeal) and partly in a house in Maidstone. From late summer 1997 the site (although not necessarily the subject building itself) became his only home. Someone helping with work on the barn also moved to the site in 1998, living partly in the barn and partly in a freestanding mobile home. Between September 1998 and May 1999, the owner was legally required to live at Maidstone but after May 1999 he lived at the site, sometimes in the barn, sometimes in the freestanding mobile home.
The way that the Inspector had approached the matter had been that there had been an erratic pattern of use of the barn over a two or three-year period after 1996. However, once initial repairs were carried out, the barn appeared to have been fitted and available for residential use from then onwards. The Council acknowledged a residential use from 2000 onwards. The Inspector found that there was no substantial evidence that since the previous occupation of the barn (between March 1995 and February 1996) the barn was used for any purpose other than residential, except from time to time for minor storage connected with the use of the site as a whole.
There had been a lack of reference to the residential use in some planning applications and correspondence that the owner had with the council. However, during part of the relevant period, the owner had a difficult and complicated personal life and the Inspector accepted that these factors affected both his use of the site and the control that he was able to apply to the work being carried out there. The Inspector had no doubt that the barn was in full time residential occupation in 1995/6 and again from 2000. In the period 1997 to 1999 the evidence indicated substantial work on the barn to complete its conversion for residential purposes, as well as on the remainder of the site. The owner and several other people were involved in this work and frequently slept in the barn for substantial periods. The Inspector was aware of no evidence of any intention to abandon the residential use of the barn. Indeed, the main intention appears to have been to improve it to allow for full-time occupation as the owners home.
In his decision letter, the Inspector went on to say that he had borne in mind the meaning of residential use described above, but he opined that the failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased. He therefore concluded on the balance of probability that residential use of the barn as a single dwelling house began more than four years prior to the date of submission of the LBC application and had continued since then without significant break.
In challenging this decision, the Council relied on the Court of Appeal’s decision in Thurrock, and contended that the Inspector erred in law in using the concept of abandonment of a use and took into account immaterial considerations by applying that concept and by relying on the fact that no other use had been introduced. Counsel for the LPA laid stress on what was said in Thurrock about abandonment being a concept relevant only to already established use rights, but not to whether there had been continuity of use so as to achieve immunity under the 4/10-year rule. The council contended that the same was true of the Inspector’s finding as to whether or not an alternative use had been introduced. The only proper question, they submitted, was whether the building was in continuous use for residential purposes throughout the 4-year period beginning with the breach, so that the Council could have served an enforcement notice at any time during those four years.
The council argued in particular that it is wrong to distinguish the use in the Thurrock case, which was the use of land as an airfield, from the use of a building as a dwelling. In both cases, it was argued, there has to be activity for the use to exist. If there are long periods of absence from the building, there is no activity and hence no use is continuing. It was submitted that this was the case here. The mere presence of personal effects and the connection of services such as water and electricity would not suffice, it was argued, especially in a building which was not physically a dwelling house. Nor, it was contended, was it enough, as the Inspector appeared to have thought, for the building to have been occupied "for substantial periods". The council criticised the Inspectors statement that "failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased". They pointed to the evidence that the owner was not himself in occupation for the eight months between September 1998 and May 1999 and that the barn was not lived in between Christmas 1997 and May 1999. It was not occupied in 1998. Notwithstanding this, the Inspector had found that residential use had been continuous throughout the 4-year period, which was perverse, and it showed that the Inspector was over-influenced by the concept of abandonment.
The Secretary of State sought to defend his Inspector’s decision. The Inspector had found as a matter of fact and degree that the residential use began more than four years before the relevant date "and has continued since then without significant break" (a finding of fact that would not ordinarily be open to legal challenge). The Inspector, it was argued, was not applying any presumption of continuity and was not using the concept of abandonment, except in order to reject something which would have been fatal to establishing a four-year use.
Furthermore, the Secretary of State argued, some uses of land involve more fluctuations in activity than others. An airport use will see little or no fluctuation in the activity taking place, whereas a dwelling house use is likely to involve periods where a building is not actually being occupied; for example, at weekends or holidays. It was contended that the presence of furniture and personal effects is relevant to the question of use (relying on cases dealing with the seasonal use of land, such as Webber v MHLG [1967] 3 AER 981).
It was accepted on behalf of the Secretary of State that the critical period of time was 6th March 1997 to 6th March 2001, but it was emphasised that the evidence was not concerned solely with occupation by the owner himself; occupation by others was also relevant, and it had been said that on the evidence there were confused living arrangements with various people coming and going.
The owner also sought to defend the Inspector’s decision. On his behalf it was submitted that the Inspectors findings were consistent both with the evidence and with the approach endorsed in Thurrock. Counsel for the owner submitted that it is a question of fact whether a building is being used as a dwelling house, and drew attention also to a passage in Schiemann LJs judgment in Thurrock in which he accepted that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on - because it is the weekend or the factorys summer holiday, for instance. The land would still be properly described as being used for the objectionable activity, and Schiemann LJ had rejected a contrary submission that enforcement action can still be taken after an activity which resulted from the material change in the use of land has permanently ceased. He accepted that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity, but these were matters of fact and degree for the judgment of the decision maker in each case.
Effectively, it was argued, the Inspector in the Swale case found that the residential use had not permanently ceased during the critical period. The judge at first instance had been right to distinguish between a cessation of use on the one hand and an absence of the occupier for a time, such as for the purpose of a holiday. Counsel for the owner argued that the absence of an intention to abandon residential use was relevant because, had such an intention existed, it would have negated the continuity of that use.
Having recited the arguments on both sides at some length (but without commenting on them beyond the remarks reported above) Keene LJ made the following points. He accepted that whether a building is, or was, being used for a particular purpose at a particular time or times is largely a question of fact. But it is not, in the planning law context, wholly such. It is necessary, as Thurrock demonstrates, for the decision-maker to adopt the proper approach as a matter of law to his decision on that question. It is not always an easy question to answer. But the legally correct question for the Inspector here to have asked was whether this building had been used as a single dwelling throughout the whole of the four years preceding 6th March 2001, so that the planning authority could at any time during that period have taken enforcement action. That is a quite different question from whether a use has been abandoned, at least in the sense in which that word is normally used in planning law in the context of abandoning established use rights. Patently, when Schiemann LJ referred in Thurrock to the permanent cessation of the use, he was not intending to advocate a test similar to that of abandonment, which he had already expressly rejected in his judgment.
Keene LJ also endorsed the words of Chadwick LJ in Thurrock in which he had rejected the notion that time for the purposes of the 4/10-year rule could continue to run where a use was simply ‘dormant’ (as had been suggested in Panton), due to the difficulty in which this would put local planning authorities in having to decide whether they should take enforcement action against a ‘sleeping’ use (or face the risk of that use becoming immune from enforcement by reason of time continuing to run under the 4/10-year rule).
In dealing with the decision letter itself, Keene LJ noted that, on the face of it, the Inspector in the Swale appeal did find that residential use had begun more than four years earlier and had continued since then "without significant break", but the process of reasoning which preceded that finding was faulty. The Inspector had also found that there were periods of time during 1997 to the end of 1999 when this building was not occupied for residential purposes. He referred not only to the "erratic pattern of use", but also to the owner and others frequently living and sleeping in the barn "for substantial periods". However, that did not mean that there were not also substantial periods when it was not so occupied, and nowhere prior to his conclusion did he suggest (and nor did the evidence) that the non-occupation periods were de minimis. Nor did the Inspector ever clearly deal with what the use was, or what was happening in the building, in March 1997 when the four year period began. That was a crucial date.
What appeared to have led the Inspector to the conclusion that residential use had begun more than four years earlier and had continued since then without significant break were a number of other factors. One of those was the absence of evidence of an intention to abandon the residential use of the barn. Had that been the only troubling reference it might not have cast sufficient doubt on his process of reasoning. But there were other references which also gave rise to concern. The Inspector referred to there being no substantial evidence that during the critical period "the barn was used for any purpose other than residential", apart from some minor storage. That, however, is not the test. A building may not be in use at certain times for any purpose at all. The fact that it is not put to some alternative use does not demonstrate that it was in residential use, which is the real issue. Likewise, the Inspector emphasised that once initial repairs had been carried out "the barn appears to have been fitted and available for residential use from then onwards". That was irrelevant. The decision-maker is required to consider not the buildings availability or suitability for residential use, but whether it was actually put to such use.
Those factors, relied on by the Inspector, had to be added to his reference to the absence of evidence of intention to abandon residential use. That caused his lordship concern, because a building may well not be in continuous use for residential purposes and yet the owner fully intends to resume occupation for such purposes at a future date. The existence of such an intention would not by itself entitle the planning authority to serve an enforcement notice when the building is not being residentially used. The concept of abandoning the use is, he held, best confined to the topic of established use rights where it is a well recognised concept (see Hartley v MHLG [1970] 1 QB 413).
In agreeing with this judgment, Sedley LJ confirmed the well-settled point that if a building is in an already established use as a dwelling-house, something approaching abandonment of that use will be necessary “if a break in continuity is to be shown”. [What I suspect he meant was – if that established use is to be lost.] Short of this, the law has always recognised that an occupier does not have to be continuously or even regularly present in order to establish unbroken use of the premises as a dwelling-house - see the decision of the Court of Appeal in Brown v Brush [1948] 2 QB 247; Megarry on the Rent Acts, 11th edition, Volume 1, pages 245 to 249.
Sedley LJ contrasted this with a structure that is not yet in established use as a dwelling-house at the start of the material period. In that case, such use has to be affirmatively established, not merely at the start but over the whole 4-year period. Here, logically, intermittent [‘discontinuous’] residential use is not continuous residential use. This confirms the clear view expressed by the Court of Appeal in Thurrock.
The question remained, however, whether on the evidence the Inspector could, by proper reasoning, have reached the same conclusion. Sedley LJ agreed with Keene LJ that the question was not open and shut, and would have to be determined by another inspector at yet another inquiry. Whatever the outcome, but especially if it turned out to be a fifth inquiry, his lordship drily observed that this building looked like finding a place not only in the Law Reports but in the Guinness Book of Records.
I have dealt with this decision at some length, as it discusses in more detail than any of the other judgments on this subject the issue of continuous use. The judgment confirms the basic principle that in order to show that the use of a dwelling is immune from enforcement in accordance with section 171B(2), the owner or occupier must establish not only that the material change of use to use as a single dwellinghouse took place more than four years before the date of the enforcement notice or application for a lawful development certificate, but they must also show that the use of the property as a dwelling was continuous throughout that four-year period.
However, this case like many others was nonetheless very much fact dependent, and so it would be wrong to extrapolate from this judgment points of detail that did not in the event form part of the ratio decidendi. Keene LJ’s summary of the submissions made on behalf of the council were no more than that; and he similarly summarised the submissions made on behalf of the Secretary of State and the owner. He did not pronounce any conclusion with regard, for example, to counsel’s assertion that mere absence from the building, even for some months (for example on an extended holiday), necessarily denotes a cessation of the residential use of the property. Similarly, no finding was made on counsel’s suggestion that in such circumstances there is no activity and hence no use is continuing. More important perhaps, the court expressed no opinion on counsel’s submission that the mere presence of personal effects and the connection of services such as water and electricity would not suffice to substantiate continuing residential use of the property.
I will come back to these points in a later part of this article. In the next instalment, I will mention the judgments in Ellis v. SSCLG [2009] EWHC 634 (Admin) and also R (Fairstate Limited) v FSS [2004] EWHC 1807 (Admin).
© MARTIN H GOODALL
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Kamis, 03 Maret 2016
Boat Plans And Kits
After my article on this topic was posted on 4 January, another well-known planning blogger (who, with becoming modesty, does not wish to be named here) kindly drew my attention to R (Prudential Insurance Co Ltd) v. Sunderland City Council [2010] EWHC 1771 (Admin). I will come back to this judgment below, but I want first to analyse carefully the nature of the development involved under Part 3 of the Second Schedule to the GPDO and the precise scope of the planning permission granted by Article 3 in conjunction with the various Classes set out in Part 3.
Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. In Part 3 of that Schedule, this development is specified by the various Classes set out there as “Development consisting of a change of use of a building (or, in some cases, of a building and any land within its curtilage) from a use falling within [a specified Use Class or Classes] to a use falling within [another specified Use Class]”. In certain cases, planning permission is also granted for limited building operations. I will come back to that further permission below.
When considering the planning permission for change of use granted by the various Classes in Part 3, it is important to appreciate that a change of use is a single event; it is not a gradual process or a continuing state of affairs (see Cynon Valley BC v SSW (1987) 53 P. & C. R. 68). Furthermore, it should be firmly borne in mind that, except in those few Classes where some building operations are also permitted, the permission granted is solely for the specified change of use. It follows that a development comprising a material change of use only commences when the change of use itself occurs, and (for the reasons explained in my last article, and further explored below) any incidents, including the commencement of internal alterations, that are preparatory to that change of use are of no legal significance in planning terms.
In the case of a change of use to use as a single private dwellinghouse, it is a prerequisite to such a change of use that the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence (Gravesham B.C. v SSE (1984) P. & C. R. 142). Until that point is reached, no change of use has taken place. The judgment in Impey v SSE (1984) 47 P. & C. R. 157 established that a change of use can take place before the premises are used in the ordinary and accepted sense of the word (for example, where operations have been undertaken to convert premises for residential use and they are then put on the market as being available for letting). (This was subsequently confirmed by the Supreme Court in Welwyn Hatfield BC v. SSCLG [2011] UKSC 15.)
The effect and extent of the planning permission granted by the GPDO can readily be understood by reference to Class O in Part 3 (the residential conversion of offices which have been in use within Use Class B1(a)). The GPDO is completely silent on the subject of the works required to bring about this change of use. Clearly the permission does not extend to any building works to the exterior of the building, or which would materially affect its external appearance, but quite extensive works may be required to the interior (including in may cases the erection of new internal walls, and other structural elements, as well as the installation of bathrooms, toilets, kitchens, and a variety of other features and facilities) in order to enable the authorised change of use to take place. The reason that no provision is made for these in the GPDO is that they do not require planning permission in any event, by virtue of section 55(2)(a). None of the conditions attached to Class O refers to these internal works in any way.
I want to look next at the planning permission granted by Classes M(a)and M(b). Class M(a) grants permission for the residential conversion of a building currently used as a shop (A1) or for the provision of financial or professional services (A2) (or used for certain related uses). Bearing in mind the nature of such premises, it may be unnecessary in some cases to resort to the additional permission granted by Class M(b) for building operations that are reasonably necessary to convert the building to residential use. Existing doors, fenestration and other external features may not need to be replaced or supplemented, so that no external building works need necessarily be carried out in such cases.
Where works affecting the exterior are necessary in order to convert the building to residential use, the only restrictions in Class M that relate to such works are M.1(e), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and M.1(f), which prohibits development consisting of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).
As discussed above, if a change of use of the building is the only development involved, there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). It cannot sensibly be argued that by also changing some doors and windows, which therefore requires additional prior approval under Class M(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. It seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class M(b).
The conditions in paragraph M.2 include a requirement that where the development proposed is development under Class M(a) together with development under Class M(b), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to a list of matters which include the design or external appearance of the building. But where the development proposed is development under Class M(a) only, prior approval is not then required as to the design or external appearance of the building. This is further confirmation that where building works are necessary under Class M(b), the only additional matter requiring prior approval is the design or external appearance of the building. Clearly the LPA is not concerned in any shape or form with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.
I have set out the position in relation to Class O and Class M, in order to examine the planning permission granted by Classes Q(a) and Q(b) in light of the points established in relation to these other Classes of development in Part 3. Class Q(a) grants permission for the residential conversion of a building and any land within its curtilage from a use as an agricultural building, and Class Q(b) grants permission for building operations reasonably necessary to convert the building to residential use.
In the same way as in Class M, the only restrictions in Class Q that relate to the building works authorised by Class Q(b) are Q.1(g), which prohibits development which would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and Q.1(i) which prohibits development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, or water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwellinghouse, and also partial demolition to the extent reasonably necessary to carry out those authorised building operations.
Whilst this restriction is more prescriptive in its details than the corresponding restriction in Class M, there would appear to be no justification for treating purely internal alterations any differently from internal alterations carried out in connection with a change of use made under Class O or under Class M. For this reason, I would argue that even in the case of the residential conversion of an agricultural building there is no limit to the extent of the internal works that may be carried out, in accordance with section 55(2)(a). There still seems to me to be no basis on which it can be argued that where building works are proposed which require prior approval under Class Q(b), this somehow has the effect of bringing all the internal works into consideration as part of the development. As in the case of Class M, it seems to me that section 55(2)(a) must continue to apply to these internal works, notwithstanding the inclusion in the development of (external) building works under Class Q(b).
The conditions in paragraph Q.2 requiring the submission of a prior approval application are in the same terms as in paragraph M.2. discussed above, and so this too confirms that where building works are to be carried out under Class Q(b), the only additional matter requiring prior approval is the design or external appearance of the building, and that the LPA is not concerned in any way with any of the internal works that the developer proposes to carry out, nor is the LPA entitled to require any details of those works as part of the prior approval application or otherwise.
We come then, at last, to Prudential Insurance. How, if at all, does this judgment affect the argument? This was a spat between the claimant and a rival developer (Peel Holdings), with the LPA as the unfortunate ‘piggy-in-the-middle’. The claimant was seeking to quash a Lawful Development Certificate granted by the LPA to Peel Holdings in respect of a proposed development that they sought to carry out under an extant planning permission. The planning permission authorised “Conversion of one retail unit into two units, construction of new free-standing entrance canopies and formation of a goods access road at 1 Peel Centre, The Glover, Washington..”
The development of the Peel Centre as a whole had been authorised by an earlier planning permission issued by the Secretary of State under section 77 of the 1990 Act. A condition in that original permission provided that the development permitted should not be used for the retailing of 19 different classes of goods without the prior written consent of the LPA. A section 52 agreement (under the 1971 Act) had been signed some years earlier by Peel Holdings which precluded the sale of the same classes of goods.
The proposed use or development for which the LDC was granted comprised “open A1 retail use and a planning permission dated 11.12.2006 (06/04039/FUL) unfettered by the requirements of the section 52 agreement of 08.08.1988 as amended by the deed of revocation of 14.07.2006.”
The question for the Court was - What did the planning permission in respect of Unit 1, properly interpreted, authorise? The judge had no difficulty in stating straight away that the LPA was authorising the conversion of one shop into two together with, specifically, works to the exterior of the building necessary to achieve that conversion. He observed that the work necessary to achieve the conversion was necessarily to be undertaken both to the interior and exterior of Unit 1. As a matter of interpretation of the planning permission it might be thought obvious, he said, that it was authorising the carrying out of the building activity necessary to put in place what was shown on the two plans and which would result in the conversion of the unit from one shop into two [that is to say, both internal and external buildings works].
The claimant disagreed, relying on the definition of development in section 55(1) and the exemption from that definition provided by section 55(2)(a). Counsel for the claimant accepted that in this case planning permission was required for certain of the building operations which were specified in the planning application. They were the external alterations to Unit 1, the construction of new free-standing entrance canopies and the formation of a goods access road; each clearly constituted operational development within section 55 of the 1990 Act. He submitted, however, that the conversion of Unit 1 into two units was achieved solely by virtue of internal alterations to the building. He submitted that no planning permission was necessary for the internal alterations by virtue of section 55(2)(a). Accordingly, he submitted that, as a matter of interpretation, all that the planning permission in respect of Unit 1 authorised was the physical alterations to the exterior of the building.
The case for Peel Holdings was that "the conversion of Unit 1 into two units" constituted operational development, and that the conversion was inextricably linked with both the interior and exterior alterations to the building. [Note that this development did not constitute or include a material change of use. The judge accepted that the planning permission related to purely operational development. The use of the two new units was in practice governed by section 75.]
The judge accepted that there can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. In his judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, falls within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seemed to him to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. He took the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either ‘Yes’ or ‘No’.
Looked at in this way, there was no doubt in his mind that the proposal for which planning permission was sought in respect of Unit 1 constituted development. The planning permission which was granted authorised the carrying out of the whole of that development. In his judgment, therefore, the planning permission authorised the conversion of Unit 1 into two separate units and it authorised the works necessary to achieve that end.
The planning permission so granted did not limit the use to which the two units could be put. In those circumstances, Peel Holdings submitted, permission was granted for retail uses falling within Use Class A1. On any view of the wording of the planning permission, the permission granted was for retail units i.e. shops. In the absence of a condition limiting the use of the units to certain categories of goods, or a condition limiting that which could be sold, all the uses permitted under class A1 were permitted.
I am afraid I have considerable difficulty with this judgment, and in particular with the conclusion that it would be “wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development” and that “the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole”. This appears to me to be an assertion that is entirely unsupported by any reasoning, and which (although it refers in passing to counsel’s submissions with regard to section 55(2)(a)) makes no attempt to analyse the wording and effect of section 55.
A clear distinction must be made between, on the one hand, the conversational use of the word “development”, which can embrace all aspects of what is colloquially meant by that word in ordinary conversation (and this would undoubtedly include internal works), and on the other hand, the use of the word “development” in the Town and Country Planning Act 1990, which is precisely defined by section 55 and must be construed strictly in accordance with the rules of statutory interpretation. If parliament had intended that “development” should be interpreted more widely in some contexts than in others, it would undoubtedly have legislated accordingly in the 1990 Act (or in a subsequent amendment of that Act). There is nothing in the wording of section 55 to suggest that the effect of section 55(2)(a) only applies to internal works where those works are carried out in isolation, but that when internal works are carried out in conjunction with building operations to the exterior of the building, or which materially affect its external appearance, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the external works. There is similarly nothing in the legislative wording to suggest that when internal works are carried out in conjunction with a material change of use, perhaps in fact in order to facilitate that change of use, the development is then to be taken for the purposes of the Act as embracing those internal works as well as the change of use itself. Such an interpretation would fly in the face of the clear statutory provision contained in section 55(2)(a), and with all due respect, it is not for a High Court judge to attempt to amend statute law, or to ignore its clear meaning and intention by applying a wider more colloquial interpretation to the word “development”.
There were in fact several other grounds of challenge in the Prudential Insurance case, all of which were dismissed, and it is clear that the case turned on the fact that what the LPA had granted was an unlimited planning permission for the creation of two new retail planning units, without any condition restricting the goods that could be sold in each of those two new units. They had failed to repeat the condition in the original planning permission for the development of the Peel Centre (as perhaps they should have done), and so they had been correct in issuing an LDC in the terms that had been sought by Peel Holdings.
In my view, the court’s apparent finding with regard to the scope of the development, in relation to section 55(1) and 55(2), would by itself have merited an appeal to the Court of Appeal, but the dismissal of the other grounds of challenge was less susceptible to challenge, and this no doubt explains why the judgment was not in fact appealed. Whilst this judgment cannot be dismissed as being ‘special to its facts’, the case for the claimant may not have seemed particularly meritorious to the Court when viewed as a whole, being (as I mentioned earlier) a commercial ‘spat’ between rival developers, and as someone once observed “context is everything”.
[Although this judgment was followed by the Court of Appeal in R. (Peel Land and Property Investments Plc) v Hyndburn BC [2013] EWCA Civ 1680, that case turned entirely on other issues (such as the effect of section 75), and the judgment did not discuss section 55 or any suggestion that “development” could embrace internal works in addition to external works or a material change of use. The Court of Appeal did not therefore endorse the view taken in Prudential Insurance on this issue.]
For the reasons I have explained, I do not believe that any weight can be put on the court’s approach in Prudential Insurance to the definition of development in relation to internal works. Some LPAs may be tempted to cite this judgment in support of the contention that the scope for internal works, and in particular for internal structural alterations or strengthening, is limited by the conditions attached to Class Q, and some inspectors may be persuaded to accept that argument, but if or when the matter comes before the court in a future application under section 288, I doubt whether the Court will follow Prudential Insurance when a full and careful analysis is made of the statutory wording and effect of section 55, and in particular section 55(2)(a).
© MARTIN H GOODALL
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As I mentioned in the first instalment of this article, in giving judgment in Nicholson v. SSE [1998] JPL 553, the Deputy Judge made some further observations on the legal effect of section 191 in respect of uses and operations.
The Deputy Judge observed that the construction he placed on section 191 in respect of breaches of condition (as explained in the first part of this article) seemed to him to be consistent with the linked provisions in section 191 for Lawful Development Certificates in respect of uses and operations.
By section 191(1)(a) the purpose of the application in respect of uses is to ascertain whether any “existing use of buildings or other land is lawful”. It is accordingly plain (he suggested) that, in respect of uses, the use must exist at the time of the application. Note, however, that he did not suggest that the breach should still subsist at that time. I will come back to the significance of that point later.
Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past, in that generally they will already have taken place. However, it is clear from the wording of the section that the building or structure (or other works) should continue to be in existence in some physical sense.
In relation to all three of these types of breach of planning control, the Deputy Judge observed that there is a necessary implication in the wording of section 191 that there is something in existence against which enforcement action might be taken if it were not for the absence of a requirement for planning permission (i.e. because it does not constitute ‘development’ within the definition of section 55), or the fact that planning permission has been granted for it, or if it were not for the expiry of the time for enforcement action. It was the view of the Deputy Judge that the natural reading of section 191 in respect of uses and operations is that the section requires that the uses or operations should exist at the time of the LDC application in the sense that he had indicated.
Turning, then, to the other main type of breach to which section 171B(3) applies – changes of use, other than to use as a single dwelling, we come next to the judgment in Panton and Farmer v. SSETR [1999] JPL 46, in which it was noted that by section 171B(3) the relevant period for the acquisition of immunity is the passage of 10 years from the date of the breach [original emphasis]. The sub-section is silent on any requirement for continuation of the use. This is consistent with the definition of development in section 55, which in relation to the use of land and buildings defines the relevant development not as the use itself, but as the material change of use by which it commences.
The court noted that under the previous (pre-1992) provisions, the Secretary of State had accepted in a number of appeal decisions that these former provisions could apply to an ‘inactive’ or ‘dormant’ use, provided that it had not been abandoned, in other words where the breach of planning control (the material change of use) by which it commenced had not been remedied, because (for example) the building, whilst not in active occupation, nevertheless remained adapted, equipped and available for resumed occupation for the unauthorised purposes. The relevant question, it would seem, is whether there remained a subsisting breach of planning control upon which an enforcement notice could bite.
As the learned Deputy Judge observed in Panton and Farmer, this principle applies to all types of breach. In the case of operational development, the unauthorised works must still exist; in the case of a material change of use, the use must still exist (although it was held in Panton and Farmer that the use might be ‘inactive’ or ‘dormant’, provided it had not been abandoned); and in the case of a breach of condition, the failure to comply with it must still subsist. An enforcement notice could only be served in respect of such a continuing breach of planning control, and equally an application under section 191 can only be made in respect of a breach of planning control (*) that still subsists at the date of the application.
[* For reasons that I will explain in a later part of this article, I would not agree that it is the “breach of planning control” as such that must still subsist, but rather the building or other works or the use of land or buildings that originally constituted a breach of planning control.]
The finding in Panton and Farmer regarding ‘inactive’ or ‘dormant’ uses was distinguished and, in part, over-ruled by the Court of Appeal in SSETR v. Thurrock BC [2002] EWCA Civ 226. This case was concerned with a non-domestic change of use (to which the 10-year rule therefore applied) involving the use of land on a farm for the landing and take-off of aircraft. Crucially, the level of use had been subject to wide fluctuations over the years. An enforcement notice was served in 1999, well over 10 years after the first flights had taken place. In quashing the enforcement notice, the Inspector specifically relied on the judgment in Panton and Farmer. The Inspector stated: “There is no need to demonstrate that a use has been in continuous existence throughout a ten-year period. Unless there has been a clear-cut change in planning circumstances, such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use then the use will survive throughout ten years.” It was on this basis that the Inspector concluded that if the appellant could demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before 15 July 1989, then his appeal should succeed.
On the evidence before him, the Inspector found that a material change use of the land to an airstrip with associated storage of aircraft had taken place well before 15 July 1989. There had been no clear-cut changes in planning circumstances between the end of 1983 (when there was a cessation of the previous aviation activities) and the middle of 1989, such as a conflicting grant of planning permission or an indication that the use had at some time been abandoned, and so the appeal was allowed on ground (d). There was evidence from the LPA of intensification of the use only after 1989, but this did not alter the Inspector’s view that the material change of use had taken place well before 1989 and had never been abandoned, as this evidence showed. The Inspector again referred to Panton and Farmer, which he observed, “makes it clear that once a use had ceased, its resumption would not amount to a material change of use unless that use had been abandoned. The result is that land can have a dormant use even though the unauthorised activities may not be functioning for significant periods of time.”
The Inspector therefore concluded that overall he could find no clear evidence of abandonment of the airfield use since previous flying operations had ceased in 1983-4. “As a consequence, I find, as a matter of fact and degree, that the airfield operation of 1983 is not materially different from the present usage of the site which has therefore continued for more than ten years. In these circumstances, the appeal on ground (d) against Appeal 1 succeeds.”
The judge at first instance in Thurrock held that the Panton case was distinguishable. The statute gives immunity if the breach complained of in the enforcement notice occurred more than 10 years ago. The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards “the rolling period of years” (**) which gives rise to the immunity. It was for the landowner to show that at any time during the relevant period enforcement action could have been taken. On this basis it was held that the inspector had misunderstood Panton and treated the two years of unlawful activity in the early 1980s as though this had resulted then and there in that activity being a lawful use. This constituted an error of law.
[** Note that I profoundly disagree with the concept of a “rolling period of years”, bearing in mind that section 171B(3) clearly refers to the period of 10 years “beginning with the date of the breach”. I will return to this point in a later part of this article.]
The Court of Appeal endorsed this approach, and made a further distinction between the situation in Panton, where the use had clearly become lawful after 10 years, but there had subsequently been some discontinuity in the use (not amounting to abandonment), and the situation in the instant case, where the discontinuity in the use had occurred during the claimed 10-year period.
It appeared from the decision letter that the Inspector approached his task by considering whether in 1981 there had been a material change of use to a commercial use and then considering whether the LPA had satisfied him that the commercial use had been abandoned. However, the concept of abandonment was only relevant where there was already a lawful use, in circumstances where a landowner then either does not use it actively at all or starts to use it in a different way. Can the landowner thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date? It was that sort of situation with which Panton was concerned (and the Court of Appeal decision in Thurrock did not disturb that aspect of the judgment in Panton).
So, in the Thurrock case, if the activities which took place on the land between 1981-1983 had continued unabated until 1992 and the landowner had then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities, then this would have been the sort of situation with which Panton was concerned, namely whether or not an existing lawful use had been lost only by abandonment, or by some other supervening event in planning terms. The appellant’s problem in the Thurrock case was that there had been a cessation in the aviation activities well within the 10-year period.
The Inspector did not ask himself whether enforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10 year period. That was the question which should in the court’s judgment have been addressed by him.
The Court of Appeal specifically criticised the concept of a ‘dormant use’ as adumbrated in Panton. This would put local planning authorities in a difficult position in having to decide whether they should take enforcement action against a ‘sleeping’ use (or face the risk of that use becoming immune from enforcement by reason of time continuing to run under the 10-year rule), or whether they should alternatively regard the breach of planning control as having been remedied by the cessation of the use. It is on this basis that it can be inferred from the judgment of the Court of Appeal in Thurrock that a breach of planning control must be continuous throughout the 10-year period beginning with the date of the breach in order for immunity from enforcement, and therefore lawfulness of the use, to be achieved under section 171B(3).
It is clear, however, that the Court of Appeal decision in Thurrock did not disturb the other aspect of the Panton judgment, namely that if that 10-year period beginning with the date of the breach had expired, with continuity of the unlawful use throughout that period, so that immunity from enforcement (and therefore lawfulness of the use) had thereby been attained, then a later interruption in the use, falling short of abandonment or any other supervening event in planning terms which would have brought that use to an end [as per Hartley v MHLG [1970] 1 QB 413, at pp. 420-421 (Lord Denning MR); and Pioneer Aggregates (UK) Ltd v SSE [1985] AC 132, at pp. 143-144 (Lord Scarman)], does not prevent an LDC being applied for and granted, provided that the use can still be said to be subsisting at the date of the LDC application.
I will go on in the next part of this article to consider changes of use to use as a single dwelling, and the judgment in Swale BC v. FSS [2005] EWCA Civ 1568.
© MARTIN H GOODALL
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Those of you who follow the comments on various posts in this blog may have seen that Andy Rogers contributed a comment on my previous piece about the amalgamation of dwellings to form a single enlarged dwelling, in which he drew attention to another appeal decision in London last October that led to the opposite conclusion to that reached in the appeal on which I reported in my last article.
For reasons that I shall explain, I do not see any inconsistency between these two appeal decisions. I made it clear in my first article that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use. A decision on this issue must necessarily depend on the facts of each case and on the relevant policy considerations that apply in that situation. I appreciate that people may be uncomfortable (as I am myself) with the proposition that what should in principle be an objective judgement as to the lawfulness of a change of use should be dependent in any way on the consideration of planning policies but, in light of the Richmond judgment, this would appear to be unavoidable in these cases.
The appeal to which my attention has now been drawn (3028049) was in the Royal Borough of Kensington and Chelsea and involved the amalgamation of two self contained flats to form one self contained residential unit, involving internal alterations. The appeal site was a mid-terraced property that was originally two houses, which had been amalgamated into one dwelling in 1949 and the building was subsequently converted into flats. The proposal involved the amalgamation of the flat at ground floor level and the flat above it on the first floor so as to create a single residential unit.
The main issue was whether the amalgamation of the two flats to create one residential unit would constitute a material change of use. The amalgamation of the two flats would have no material effect on the external appearance of the property and no harm would be caused to the character of the building or to the surrounding area. The Council did not allege that the proposed amalgamation of the two flats would have any effect on the character of the use of land other than through the loss of one residential unit. However, they argued that the “…scale of amalgamation currently under way in this Borough is having a material effect on a matter of public interest, namely it is significantly reducing the number of dwellings in the housing stock”.
The Inspector pointed out that prior to 2000 it was commonly accepted that a reduction in the number of dwelling units on land in residential use did not represent, and could not contribute to, a material change in use of the land. [Although it was not spelt out in the decision letter, this was by reason of the operation of section 55(2)(f) in the 1990 Act.] However, the judgment in the Richmond case, cited in my previous article, modified that view, and the Council sought to rely on this judgment in resisting the grant of an LDC in the present case.
The Inspector drew attention to the reference in the Richmond judgement to Mitchell v SSE [1994] 2 PLR 23, although it has always seemed to me that Mitchell was only of marginal, if any, relevance in the context of the Richmond case, because it dealt with an application for planning permission and was concerned with the material considerations that had to be taken into account under section 70, and so it would not appear to me to have been an appropriate foundation on which to base the judgment in Richmond (although that judgment might perhaps be justified on other grounds that do not depend on Mitchell, for example the passage I quoted in my last article from the judgment of Lord Denning in Wakelin). Nevertheless the Inspector accurately quoted the relevant passage from Richmond: “It is undoubtedly the law that material considerations are not confined to strict questions of amenity or environmental impact and that the need for housing in a particular area is a material consideration...…”. But he pointed out that, in order for it to be a material consideration, the need for housing must be expressed in and supported by local planning policy.
The Inspector observed that the High Court challenge in Richmond was successful because the Inspector in that case had failed to take into account a material consideration, namely the policy factor, which he considered to be “…a question of planning merit than of law”. The Inspector in the present case stated (correctly, in my view) that Richmond did not establish that the policy factor can be the sole determinative factor in an LDC case but one that must be taken into account with all other considerations. But, in the instant case, the Council was wholly relying on the policy factor.
The Inspector nevertheless, went on to consider whether this was a material consideration of any weight. Policy CH 2 ‘Housing Diversity’ of the Council’s Core Strategy (CS) states that the Council will, amongst other things, resist development which results in the net loss of five or more residential units. The proposed amalgamation of the two flats would result in the loss of only one residential unit. So the proposal did not conflict with CS policy CH 2. Saved policy H17 of the Council’s Unitary Development Plan (UDP) states that the loss of existing, small, self-contained flats of one or two habitable rooms will be resisted. Both flats had more than two habitable rooms, so the proposal did not conflict with UDP policy H17.
Policy 3.14 of the London Plan states, amongst other things, that the loss of housing should be resisted unless the housing is replaced at existing or higher densities with at least equivalent floorspace. The London Plan is a strategic plan and places an emphasis on the increase or preservation of residential floorspace rather than the number of housing units. This strategic objective is reflected in the LPA’s Core Strategy, but the relevant policy in this element of a local plan was considered in the passage in the decision letter referred to above. The proposed amalgamation of the two flats would not result in any loss of residential floorspace. The proposal did not therefore conflict with London Plan policy 3.14.
The Council had referred to similar LDC cases in a neighbouring London Borough but planning policy in place (or planning decisions made) in that area could not be imported to support the Council’s case. The scale of amalgamation in Kensington & Chelsea may be having a material effect on the number of dwellings in the housing stock but the proposed amalgamation of the two flats did not conflict with CS policy CH 2, UDP policy H17 or London Plan policy 3.14. The policy factor in this case, given that there was no policy conflict, was a material consideration of no weight. Given that the Council accepted that no harm would be caused to the character of the building or to the surrounding area, the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use that would constitute development as defined in Section 55 of the Act. Planning permission was not therefore required for the proposed use. The section 195 appeal thus succeeded, and the Inspector issued the requisite LDC.
I have no doubt whatsoever that this appeal decision is entirely compatible with the judgment in Richmond, and it clearly demonstrates the limits of what might be called “the rule in Richmond”. Re-reading that judgment myself while preparing this article has brought home to me the strictly limited application of that rule. One can see why it was applied in the appeal that I reported in my previous article, and on the facts of that case, that Inspector’s decision was also correct. In fact, my statement that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use should perhaps be qualified, by saying that it will not be a change of use in the absence of clear policy objections, and that this in turn will depend the nature and scale of the proposed amalgamation. Clearly the amalgamation of only two residential units is going to be of less significance in policy terms than the amalgamation of a larger number of existing flats or houses, and is therefore rather less likely to be material in planning terms. Ultimately, of course, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account.
© MARTIN H GOODALL
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| Outcast OSG Commander: Command the Water! |
Ready for your Fishing Report?
Go Fish!
We are moving into a little bit of a warm and dry spell here, which will be great for the trout fishing on the Deschutes ; maybe not so good for the winter steelhead crew. It has been a great winter so far as far as water levels and snowpack, so a week of low and clear should be welcomed.
Winter Steelhead: Rivers are dropping; hit them before they bottom out. Most look like they are clearing up significantly and many could start to flatten out by the end of the week. Low, steady flows are not ideal for steelheading, but it should be great in most rivers for the early part of the week. The rain looks like it will return next week and rivers will bump back up, bringing a wave of new fish in.
Rainbow Trout fishing should be absolutely stellar this week. Sunny, warm conditions may not be good for steelheading, but they will produce nice mayfly hatches during mid-day. Fish should eat dries during the warmest part of the day. March Brown and Blue Wings Olives could be hatching, so be prepared for both. Warming water temps should also create great conditions for nymphing and streamer fishing. Nymph with a small, dark rubber leg doubled with a mayfly nymph in size #14-20. If you want to swing/twitch a streamer, keep it low and slow through slower runs and tailouts as the water is still cold and fish are not terribly active, but they are warming and will move more than when it is just frigid out.
As always, we are happy to talk fishing any time. Give us a call if you have any specific questions on local rivers, gear, and tactics, or if you just want some encouragement to get out of the office.
Andrew Perrault
Gorge Fly Shop | Product Specialist
541.386.6977
"Fly Fish the World with Us"
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