Wooden Boat Plans Australia | An appeal for bow rollers

Wooden Boat Plans Australia

WHEN I WALK AROUND our local marina I can hardly believe how many boats lack anchor rollers. What were the manufacturers thinking? Thirty footers and bigger, without any proper means of retrieving the anchor and its rode. Did they imagine their boats would never ever anchor, from choice or necessity?

In my humble opinion, no boat over 20 feet in length should be allowed to leave the factory without a proper anchor roller at the bow.

Anyone who has ever tried to weigh anchor by hand in a boat without a bow roller knows how awkward and difficult it is. Consequently, you’ll notice that all sorts of after-market rollers get bolted on by boat owners seeking to ease the pain of retrieving the anchor. Some of them look far too flimsy for the job. Some stick out from behind the forestay at an odd angle. Others have to be bolted on top of a bed of teak to bring them to the correct level. And they’re not cheap, either. A reasonably sized one that will house the anchor costs in the region of $200 with shipping. And then you have all the fun of fitting it yourself.

I was lucky enough to own a boat that was designed from the beginning to have an anchor roller. It was part of a simple bronze fitting that incorporated the bow chainplate, a bow roller, and the stemhead fitting to which the forestay attached. I blessed its little heart every time I weighed anchor, which I was able to do sitting down on deck behind it and bracing my feet in the anchor well.

In the days of my youth I used to be able to raise that way a 35-pound CQR on an all-chain 5/16-inch rode in 90 feet of water. But when I later bought a 27-foot Cape Dory with a built-in roller, my anchor weighed only 25 pounds and there was only 30 feet of 1/4-inch chain; the rest was nylon line. So I had it a lot easier and I was very grateful.

I can only imagine that unscrupulous boat manufacturers deliberately omit a bow roller in an effort to keep the selling price down a few bucks. It’s a wicked practice, like selling a new car without a horn, or without a spare tire. If I were in charge of the boat-manufacturing industry I would make it a federal crime to sell a boat without an anchor roller. But since they’re never likely to elect me to that position, the situation is unlikely to change unless we all start complaining to our representatives in Congress.

Never mind Obamacare for the moment. Never mind Trump and Isis and Iran and North Korea. Forget all that for now. Surprise your elected U.S. representative. Ask him or her to sponsor legislation about bow rollers. You never know. It might be such a refreshing change from the same-old, same-old, that Washington DC could catch fire with enthusiasm for compulsory bow rollers. And if that means some boat manufacturers will end up behind bars, so be it. They deserve it.

Today’s Thought

The law is the last result of human wisdom acting upon human experience for the benefit of the public.

—Samuel Johnson, Miscellanies

Tailpiece

“Did you know old Joe survived mustard gas and pepper spray?”

“No. How’s he doing?”

“Oh he’s a seasoned veteran now.”

(Drop by every Monday, Wednesday, Friday for a new Mainly about Boats column.)

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Boat Plans Skiff | Prior approval applications – the 56 day rule

Boat Plans Skiff

NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

I have been busy in the past few weeks working on my first book, of which more anon, but as a result there has been no time to write this blog. One of the topics which I have been considering is the widened scope for changes of use under Part 3 of the Second Schedule to the GPDO – especially the conversion of office buildings (under Class J) and of agricultural buildings (under Class MB). This has been the subject of several posts in this blog in the past couple of years, and so I won’t repeat that material here.

As readers will be aware, these changes of use cannot be made until an application has been made to the local planning authority for a determination as to whether the prior approval of the authority will be required in respect of certain aspects of the development (as specified in the relevant Class in Part 3). The LPA has 56 days in which to determine the application, and this has been the source of some difficulty, due to uncertainty as to precisely when the 56-day period begins and precisely what the LPA has to do (and when) in order to prevent the development going ahead without their prior approval after the end of the 56-day period.

So far as the start of the 56-day period is concerned, the wording of paragraph N(9) in Part 3 is perfectly clear. The development cannot be begun before “the expiry of 56 days following the date on which the application was received by the local planning authority”. Thus Day 1 of the 56-day period is the day immediately following the date on which the application is received by the LPA (no matter what day of the week that was). The incidence of weekends and public holidays has no effect on the 56-day period.

Some LPAs seem to be under the impression that time does not begin to run until they have ‘validated’ or registered the application, but this is not so. Provided the application complies with the requirements of paragraph N and is accompanied by the correct fee, the 56-day period will begin to run on the day after it is delivered to the LPA. If payment of the fee follows after the application itself, then the application may be considered to be complete upon subsequent receipt of the fee, and the 56-day period will then commence on the day after that date. (See Infocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin).)

Two points may arise with regard to the LPA’s compliance with the 56-day rule. One relates to the validity of their determination of the prior approval application (or whether it has in fact been determined); the other relates to the communication of that determination to the applicant.

The addition of paragraph N(2A) to Part 3 in 2014 has largely removed the ambiguity that was inherent in the original drafting of paragraph N where a prior approval application is rejected by an LPA because, in their opinion, the proposed development does not comply with one or more of the conditions, limitations or restrictions in the relevant class of Part 3, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with them. It is reasonably clear from the wording of paragraph N(2A) that a rejection of a prior approval application in accordance with that paragraph does amount to a determination of the prior approval application, even if the LPA is objectively wrong as to the non-compliance of the development with the qualifying criteria under the relevant class of Part 3. The correctness or otherwise of the LPA’s opinion can only be tested by way of an appeal against this decision under section 78 of the 1990 Act.

However, the adequacy of the information provided relates only to the issue as to whether it is reasonably sufficient to enable the authority to establish that the proposed development complies with the relevant conditions, limitations or restrictions, so as to qualify as permitted development under the class in question. If the LPA purports to reject the application in relation to the adequacy of the information for other purposes, going outside the question of compliance with the qualifying criteria, this may perhaps call in question the validity of the decision. If the LPA’s opinion on this point strays outside these stated parameters, it might possibly be argued that the authority has not actually determined the application, which could raise the possibility that the 56-day period might continue running. In such cases, however, a notice or other written communication informing the applicant of the LPA’s rejection of the prior approval application, whatever the stated reasons, would probably be regarded as a valid determination of the application, leaving an appeal under section 78 as the only course that would then be open to the applicant (unless they then choose to make a planning application instead). Thus it is unlikely that a wrongful or mistaken rejection of a prior approval application would result in the 56-day period continuing to run in these circumstances.

The other point to be borne in mind is that the critical event for the purposes of the 56-day rule is the authority’s “notifying the applicant as to whether prior approval is given or refused”. This does not necessarily seem to require a formal decision notice; a bald statement either that prior approval is given or that it is refused might suffice to meet this requirement. Nor does there seem to be any statutory obligation on the LPA to state their reasons for refusing prior approval, although it would no doubt be good practice to do so, and this does indeed appear to be the standard practice of most authorities.

Bearing in mind that subparagraphs (a) and (b) in paragraph N refer to a written notice of the LPA’s determination that their prior approval is not required, or giving their prior approval, it is clear that the notification of their determination must be in that form (although this does not preclude its being sent in electronic form, such as an email). Furthermore, as subparagraphs (a) and (b) refer to the receipt by the applicant of the notice, it would appear that the notification as to whether prior approval is given or refused must be received by the applicant within the 56-day period. It is clear that merely to make a decision within the 56-day period will not suffice (in contrast to the differently worded provision in Part 6 of the Second Schedule to the GPDO, relating to various operational development on agricultural land), but it also seems, by analogy with subparagraphs (a) and (b), that it may not suffice to post a notice of that decision within that time if it does not actually reach the applicant before the expiry of the 56-day period. Failure on the part of the LPA to observe both of these requirements may result in the applicant automatically being entitled to proceed with the development in accordance with paragraph N(9)(c).

The applicant may be able to provide evidence of the actual date of receipt of the notification, but where this remains uncertain the usual presumption as to the service of documents would no doubt apply.

Despite diligent research, I have been unable to find any relevant appeal decision or judgment precisely dealing with the situation where notice of a determination is posted within the 56-day period (under either Part 3 or Part 24), but is not received by the applicant until after the expiry of this period. (There have, of course, been a number of decisions confirming that the authority is out of time if, having determined the application within the 56-day period, it fails to dispatch the notification of its decision within that period.) However, there was a case in North Somerset in 2009 (apparently not the subject of any appeal or other proceedings), where notification of the refusal of prior approval of a mobile phone mast was sent to the applicant by Second Class post on Day 52 or Day 53, but was not received by them until Day 57. The applicant relied on this as allowing them to proceed with the development. The resulting dispute appears to have been settled by negotiation, although the company continued to insist that they had been correct to treat the late receipt of the notification of the council’s decision as being out of time.

I would be interested to hear from any reader who is aware of any appeal decisions on this precise point (i.e. posting of notification of a determination, either under Part 3 or under Part 24, within the 56 days, but its receipt by the applicant after the expiry of the 56-day period). [But please note – instances where this has occurred but has not been the subject of an appeal decision (or judgment) really won’t be of any practical help.]

The general approach to the 56-day rule is illustrated by the decision of the Court of Appeal in Murrell v. SSCLG [2010] EWCA Civ 1367, on which I commented in this blog at the time. (It was a case which actually involved the 28-day period for the determination of a prior notification of agricultural development under Part 6). This established that the GPDO does not make the running of time dependent on a decision by the local planning authority to accept an application as valid. Whether there was a valid application or not is an objective question of law. The application for determination as to whether prior approval is required does not need to be in any particular form and does not need to be accompanied by anything more than what is prescribed by the GPDO (in the case of a Part 6 application, a written description of the proposed development and of the materials to be used and a plan indicating the site, together with the required fee). It is not mandatory to use a standard form or to provide any information beyond that specified in the GPDO.

The appellant’s application in Murrell complied with the requirements of the GPDO and was a valid application, contrary to the LPA’s assertion. The GPDO does not require an application to be accompanied by proposed elevations or a block plan. It does not require a location plan, although in Murrell a location plan was in fact provided with the application. Nor does it require multiple copies of any documents. Since use of a standard application form is not mandatory, the council was mistaken in stating that these were the only forms they could accept and in requesting the appellants to complete and return, in quadruplicate, a new standard form. Accordingly, the councils assertion that the application was invalid was wrong in law.

The Court of Appeal agreed that the council was entitled to ask for further information. It was not, however, entitled to refuse to treat the application as a valid application until that further information was received. The clock carried on ticking from the date of receipt of the application until the expiry of (in that case) the 28-day period.

© MARTIN H GOODALL

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Small Boat Plans And Kits | Dealing with heavy weather

Small Boat Plans And Kits

THE WAY OF A SHIP in the sea is not as great a mystery as the Bible makes it out to be. Most of us can understand that a boat left to its own resources in heavy seas will tend to adopt a position that’s roughly broadside on to the wind.

Most keelboats will settle that way, and be quite happy, when all sail is taken down. Often, there’s a tendency, especially with sloops, for the bow to drift downwind a bit, which causes the hull to gather way and forereach. You can counteract that by lashing the helm to leeward, so that every time she tries to go forward the rudder will point her up into the wind and stop her in her tracks.  This is known as lying ahull, and works fine until conditions get so bad that your boat is being lifted by large breaking waves and hurled bodily down to leeward.

Most of us can also understand that things would be better if the boat could be made to lie with the pointy end facing the oncoming waves. Then she’d be presenting a much smaller area to the force of breaking waves, and she’d be much more difficult to overturn.

The question is how do you keep her facing that way in heavy weather without the help of an engine?  If you can keep the bow still in the water, then of course she will lie downwind as if she were made fast to a post. The sea anchor, made fast at the bow, is designed to do that, to act as a post, although it’s a post that actually moves very slowly through the water. But while it works well for boats with even, shallow draft, the sea anchor won’t keep a normal keel boat pointed into the waves, no matter whether it’s a fin keeler or a full keeler.

The Pardeys, a well known and very experienced cruising couple, claim to have kept their 29-footer pointing more or less into the waves by setting a sea anchor from a bridle, with one end of the bridle attached to the bow and the other to the stern. By taking up slack on one end of the bridle or the other, you can  of course alter the way the boat lies.

I’ve never tried this, but I have serious doubts whether normal people could manage this trick. For a start, I can’t imagine how I would be able to drag a sea anchor with its mass of small lines and its 25- to 30-foot spread of parachute material across the deck and over the side to windward in a heavy gale.

So I have never tried to lie bow-on to the waves in heavy weather. My method, in a full-keeler, is simply to lie ahull with the tiller lashed to leeward, until things get too dicey, and then to run off downwind under a storm job or bare poles. You need lots of sea room to do that, of course. A fin keeler is best kept moving at all times, but this needs a fit crew.

Some boats will lie about 45 to 60 degrees off the wind with the help of a special storm mainsail. It’s cut so that a lot of its area is aft of the boat’s underwater pivot point, the center of lateral resistance, so that it tries to point her up into the waves all the time.  But most boats these days don’t come equipped with a storm main, and few of us realize that using a third reef in the working mainsail instead doesn’t cut it, because that actually moves the sail’s center of effort farther forward, instead of aft where you want it.

 Anyway, the only real way to sort out this problem is to go out in bad weather and experiment with your own boat. The best way would be to persuade some experienced sailor with a sister ship to take you offshore, hunting for a storm, and watch what he or she does to cope with heavy weather. But I’d say your chances of pulling that off are rather slim.

Today’s Thought
Everybody talks about the weather, but nobody does anything about it.

— Charles Dudley Warner, Editorial, the Hartford Courant, c. 1890

Tailpiece

Overhead at a Boy Scout meeting:

“Did you ever have one of those days when you felt just a little untrustworthy, disloyal, unhelpful, discourteous, cowardly, and antagonistic toward those wretched old women who always wait for suckers to help them across the goddam road?”

(Drop by every Monday, Wednesday, Friday for a new Mainly about Boats column.)

 

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Boat Plans Wood | Yo ho ho and duty to be done

Boat Plans Wood

I REMEMBER once sailing past Dead Man’s Chest Island  in the British Virgin Islands, where 15 men are reputed to have been stranded with one bottle of rum. I remember it because I’ve often thought that one bottle of rum wouldn’t have gone far among 15 sailors in the old days. They were mighty topers in those days.

Sailors of the British Royal Navy were first officially supplied with a daily ration of rum in 1655, a privilege that lasted 325 years until the 1970s, and they drank prodigious quantities of it. In fact, a 20th-century British newspaper reporter revealed that Breathalyzer tests had shown that sailors could be legally drunk after drinking their rum rations.

Those rations amounted to 7 or 8 ounces of pure rum a day, the equivalent of about five cocktails for every man jack who claimed it, and I imagine there were very few who didn’t. I can’t imagine scrambling up the rigging, hanging upside down from the futtock shrouds, after five cocktails downed in one gulp. But it was quite normal procedure for them.

It didn’t necessarily make for more efficient ship handling, however, and this fact was not lost on the British Admiralty. But it took until 1740 for something to be done about it. That was when Admiral Edward Vernon ordered that the rum be diluted: one quart of water to every half-pint of rum.

Vernon’s nickname among the sailors was Old Grogram because he wore a coat of a material known as grogram,  a sort of waterproof foul-weather outfit.

So the new diluted rum ration became known as grog, and Old Grogram wasn’t too popular among the troops, even though the amount of rum was not reduced. It just didn’t have the same sudden shock value as raw rum.

When naval ships began to be run by computers, and carried missiles with nuclear warheads, it was inevitable that landlubbers would start worrying about the alcohol content of the people with their fingers on the buttons. On July 31, 1970, British navy ships around the globe stopped serving rum to the sailors. The sailors wore black armbands and organized mock funerals.

So it’s up to us, folks, it’s up to us amateur sailors  to resurrect the grand old tradition that will surely be forgotten and lost in the mists of time if we don’t do something about it. We don’t have futtock shrouds to worry about, so it shouldn’t be a problem. Grab your bottle of Pusser’s or Black Seal and do your duty. Cheers.

 Today’s Thought

The great utility of rum has given it the medical name of an antifogmatic. The quantity taken every morning is inexact proportion to the thickness of the fog.

— Unknown, Massachusetts Spy, 12 Nov 1789

Tailpiece

“Did you find a good math tutor for your son?”

“Yeah, he’s great. Even his teeth have square roots.”

(Drop by every Monday, Wednesday, Friday for a new Mainly about Boats column.)

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Wood Boat Plans And Kits | Why horror is sometimes rife

Wood Boat Plans And Kits

IT OCCURS TO ME now and then that I’ve written and repeated just about everything I know about boats and the sea, and that my readers must be getting just a tad bored with it all. But then I remember that new generations keep coming along, generations that have to learn all the same old things all over again, because humans don’t seem to be able to pass on the seeds of experience to the fruit of their loins.

So I console myself by catering to the newbies, the neophytes who are anxious to learn how not to kill themselves at sea, the ones who have not yet been bored by my ravings. And interesting things happen at sea, believe me.

So, in this vein of dispensing help for the unwitting, I ask: Do you know why boats so often broach, roll broadside on, and capsize when they’re running before the wind in large waves? It’s because when a wave breaks under your stern you have practically no steering power to keep her running straight. The rudder is suspended in foam, not water, and it can’t do its job. If you’ve ever been dumped by a big breaker while body surfing you’ll know the awful feeling of not being able to float high enough to get your head above water.

And if your boat heels to 45 degrees, you don’t have much steering ability, in any case. Think about it. The rudder is trying to lift the stern toward the sky as much as it is trying to turn the stern sideways. And, of course, if you do a 90-degree capsize you can’t steer at all. If the rudder isn’t totally out of the water, as it would be on a tubby light-displacement boat, it will be horizontal and unable to turn the stern either way.

Stability at sea is always a fascinating subject for sailors, whether they actually get away from the sight of land or not, and one of the very basic facts about boats is that stability comes as a cube of the length, other things being more or less equal. This means that a 30-footer is 72 percent more stable than a 25-footer, which explains why a 30-footer can stand up to its canvas so much better. It also explains why a 30-footer costs so much more than a 25-footer. But that’s another subject for neophytes to learn about. Some other day, perhaps. Class dismissed.

Today’s Thought

It hath been an opinion that the French are wiser than they seem, and the Spaniards seem wiser than they are; but howsoever it be between nations, certainly it is so between man and man.

—Bacon, Essays

Tailpiece

Golfer: “You must be the worst caddie in the world.”

Caddie: “Oh come now — that would be far too much of a coincidence.”

(Drop by every Monday, Wednesday, Friday for a new Mainly about Boats column.)

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Boat Plans Wooden | ‘White van man’ with the flags could be prosecuted

Boat Plans Wooden

Strood’s ‘white van man’, who achieved overnight fame as a result of a tweet by Labour’s (now ex-) Shadow Attorney General, Emily Thornberry, might possibly be liable to prosecution under section 224(3) of the Town and Country Planning Act 1990. This sub-section provides that if any person displays an advertisement in contravention of the Control of Advertisements Regulations, he shall be guilty of an offence and liable on summary conviction to a fine of such amount as shall be prescribed, not exceeding Level 4 on the standard scale and, in the case of a continuing offence (i.e. if the advertisement goes on being displayed), one-tenth of Level 4 on the standard scale for each day during which the offence continues after conviction.

No doubt some readers already have in mind two possible objections to this proposition. First, is the display of a flag an ‘advertisement’ for these purposes? Secondly, is the display of flags not either exempted or granted deemed consent by the Control of Advertisements Regulations? Let’s look at each of those points in turn.

Without going into chapter and verse, it is well-settled law that if a flag or other display is likely to draw attention to the premises where the flag is displayed (even domestic premises), this counts as an ‘advertisement’. The Control of Advertisements Regulations themselves recognise this by exempting certain flags from control, and by giving deemed consent for the display of various other flags. But here’s the snag; the regulations are quite prescriptive as to what is actually permitted, and if the display does not comply with the conditions prescribed by the regulations, then it is unlawful. Even after Uncle Eric’s much-trumpeted (but in fact very limited) ‘liberalisation’ of the rules in 2012, there are still some quite strict rules as to what, and how, flags may be displayed.

Class H of Schedule 1 (adverts that are exempt from control altogether) allows the display of any country’s national flag, civil ensign or civil air ensign, but neither the flag nor the flagstaff may display any subject matter additional to the design of the flag, other than a black mourning ribbon. Now I know that the permanent addition of a black mourning ribbon to England’s national football flag might well be justified, but if you look at the lowest of the three flags displayed on the house in Strood, it had the England FA’s shield on it. So it doesn’t qualify as the country’s national flag, and it does display subject matter additional to the design of the cross of St George. So this one would not appear to be exempt under Sch 1, Class H.

In any event, it would appear to be implicit in the Control of Advertisements Regulations that a flag is expected to be flown from a flagpole, not draped across the wall of a building like a banner. This is not explicitly stated in Schedule 1, but the deemed consent granted for certain other flags by Schedule 3 (see below) certainly does refer specifically to flags flown from variously located flagpoles. It would also appear to be implicit in Schedule 1 (again, by analogy with Schedule 3) that the exemption granted by Class H applies only to a single flag, not to two or more.

In addition, Standard Condition 3 in the Second Schedule provides that any advertisement displayed shall be maintained in a condition that does not impair the visual amenity of the site. This is, of course, a matter of judgment, and I make no comment on the effect that festooning the house with flags in this case may have had on the visual amenity of the site in this case.

Turning now to Class 7 in Schedule 3 (adverts which have deemed consent), this class (together with several sub-classes) permits an advertisement in the form of a flag, but in each case attached to a single flagstaff, mounted at various angles. Bearing in mind that national flags are covered by Sch 1, Class H, none of the types of flag authorised by Sch 3, Class 7 includes any national flags (although it does include a flag bearing the device of any sports club, so flying the English FA flag from a flagpole would be OK). In any event, this deemed consent certainly doesn’t extend to flags draped over the wall of a house. Furthermore, on sites comprising less than 10 houses, only one flag is permitted.

As readers will have gathered from previous posts in this blog on the subject of flags, I think the whole business of regulating the display of flags under the Control of Advertisements Regulations is a complete nonsense, but if an eager and ambitious enforcement officer in the local planning authority for the Strood area wants to make a name for themselves, then the opportunity to do so is presented by a possible prosecution under section 224(3) of the 1990 Act in this case. The evidence is there in the form of Ms Thornberry’s photograph, and it would merely be necessary to call her to prove the photo. (If she proved to be a reluctant witness, her attendance could be compelled by a witness summons.) This case would be bound to attract huge attention from the media, and so this would be a real feather in the cap for the enforcement officer, and a valuable addition to their CV.

Taking my tongue out of my cheek for a moment - if the display of flags (particularly the flag of St George) were to be thought to be provocative or racist in some areas (and I am not for one moment suggesting that this applies to the example in Strood), then prosecution under section 224(3) of the 1990 Act might be an effective way of nipping it in the bud.

One final thought, particularly bearing in mind the approaching festive season – what about Christmas lights? These, and particularly the more extravagant displays, could also be the target for prosecutions under section 224(3), if they were thought to be objectionable in terms of their effect on the amenity of the area. (November 5th is behind us now, but this is the point at which I should perhaps observe the warning on the fireworks to “Light blue touch paper, and retire to a safe distance”!)

© MARTIN H GOODALL

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Boat Plans And Kits | Uncle Eric’s wheelie bin crusade

Boat Plans And Kits

Since it’s Friday, I couldn’t resist passing on to you a joke sent to me by Stephen Ibbitson.

The date is some time in 2015 (I suggest before May of that year). Uncle Eric is walking down a new street and sees a collection of wheelie bins standing there.

"I thought wed made sure new houses had to store their wheelie bins out of sight?" he lamented to his Permanent Secretary.

"Oh, but we did, Minister. Those are the new houses!"

--------------

There is in fact a possibility that Uncle Eric may have moved to pastures new before the next general election. The Westminster rumour mill already has him marked down as the next Tory Chief Whip in the expected cabinet reshuffle during the current summer recess. If this appointment does eventuate, no doubt we can look forward to predictions that he will sit firmly on any Tory MPs who step out of line in the run-up to the general election, and that he will personally squash any backbench rebellions.

© MARTIN H GOODALL


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Boat Plans For A Chesapeake Deadrise | Barn conversions again Part 6

Boat Plans For A Chesapeake Deadrise

[The first five parts of this saga were posted here in March 2013.]

In the last of my 5-part series reviewing the development of the law on barn conversions, which was posted on 13 March 2013, I reported on the High Court decision in Williams v. SSCLG. I expressed some misgivings about this judgment and, although I did not spell it out in that article, I had very much expected that the LPA and/or the Secretary of State would take the case on to the Court of Appeal. At that point, being very busy with other matters, I took my eye off the ball and failed to spot that the Court of Appeal did in fact overturn this judgment on 26 July 2013, only four months after my article on the High Court decision was published.

I am very grateful to my colleague David Evans for drawing my attention to the Court of Appeal’s judgment - [2013] EWCA Civ 958. The leading judgment, with which the other judges agreed without comment, was given by Beatson LJ.

The Secretary of State and the Council both argued before the Court of Appeal that the Deputy Judge at first instance had failed to respect the Inspector’s statutory role as the primary decision-maker on questions of fact and degree, that he wrongly became embroiled in questions of planning policy, and that he adopted an approach to the construction of an enforcement notice which risked undermining the certainty that is required in such notices.

The respondent (Mr Williams, the original appellant in the planning appeal which was under challenge) argued that the Inspector’s decision erred in law, because requiring demolition of the building exceeded what was necessary to remedy the breach of planning control (pursuant to his Ground (f) appeal) and that the Inspector failed to give adequate reasons for his decision. It was submitted on his behalf that the most that could be required by the Council and the Inspector was the alteration of the existing building to make it conform to the planning permission granted.

A point which did not emerge from the judgment in the court below was that it was accepted on all sides that the planning permission for the ‘barn conversion’ had not in fact been implemented. It was common ground between the parties that the development that had been carried out went outside the scope of the planning permission. Non-payment of the appeal fee led to the Ground (a) appeal (that planning permission ought to be granted) lapsing, although the appeal was consolidated with a contemporaneous section 78 appeal against the LPA’s refusal of retrospective planning permission. In the section 174 appeal there was, however, as noted above, a Ground (f) appeal (that the requirements of the enforcement notice exceeded what was necessary to remedy the breach, or to remedy any injury to amenity).

Perhaps most importantly, the Inspector found as a matter of fact and degree that the previous building had been substantially demolished and a new one erected in its place, whereas the planning permission had authorised only the adaptation and alteration of the existing building, and not the erection of a new structure. As a matter of fact and degree, the inspector therefore found that the development could not reasonably be called a conversion of the original building. It followed that all of the building operations were unauthorised. In light of that, Mr Williams’ appeals under Grounds (b) and (c) had unsurprisingly been dismissed.

So far as the Ground (f) appeal was concerned, Beatson LJ drew attention to the Inspector’s material findings in the section 78 appeal, which was dismissed but was not challenged in these proceedings. These included a finding that the subject building with its livery business had little or no relationship with the predominantly agricultural use of the surrounding farm, and the Inspector was not satisfied that the location for a full livery business was necessarily dependent upon the use of the land at this farm.

In particular, the Inspector found that the increase in bulk and mass of the new building had reduced the openness of the Green Belt and, although the footprint of the building was similar to what was approved in 2006, the new building’s siting had had a significant impact on the openness of the Green Belt because of its materially larger scale. The decision letter referred to the visibility of the development from the surrounding area, and found that the building did not assimilate into the countryside because of its bulky appearance, due to the roof’s effect on the skyline, and that the building had a jarring effect because of its blocky form and appeared over-dominant because of its bulk. Furthermore, the mansard roof and skylights were found to be atypical of the form and shape of nearby buildings, and intrusively large.

The Inspector considered whether modifications to the roof form and external appearance of the building could overcome the objections, but was unpersuaded by Mr Williams’ arguments. Crucially, when dealing with Mr Williams Ground (f) appeal under section 174, the Inspector cross-referred to his findings on the section 78 appeal. In dealing with the argument that the steps required exceeded what was necessary to remedy any breach of planning control, the Inspector stated that the purpose of the enforcement notice was to remedy the breach of planning control and that this required full compliance with the terms of the enforcement notice. He stated that, in light of his findings on the section 78 appeal, he did not accept that modifications to the building’s external appearance and fabric would be acceptable. This cross-reference to the decision on the section 78 appeal was perfectly adequate to explain the Inspector’s reasons for refusing the appeal under section 174(2)(f)

In light of the foregoing, it is unsurprising that the Court of Appeal allowed the Secretary of State’s (and the LPA’s) appeal on the principal ground that they had pleaded, namely that the Deputy Judge had gone behind the Inspector’s findings of fact, which the courts are not permitted to do. The Deputy Judge was also held to have erred in going behind the Inspectors’ planning judgement in determining that modifications to the building’s external appearance and fabric would not be acceptable as a means of remedying the breach of planning control. It lies beyond the powers of the court to ‘second guess’ the Inspector’s planning judgment in this way. Only if a decision-maker reaches a decision which no reasonable decision-maker properly informed of the facts could properly have reached (in other words, only if the decision-maker’s judgment on the merits can be truly categorised as ‘perverse’) can the court then intervene on legal grounds.

Where this judgment is of some importance, in relation to the questions that were considered in my previous series of articles on this topic, is with regard to the way in which a planning permission for a barn conversion is to be construed. Beatson LJ criticised the Deputy Judge’s interpretation of the planning permission based on the absence of express directions or restrictions in the planning permission, rather than the fact that permission was given for “alterations” and “conversion”. The Deputy Judge had stated that, because no condition limited or directed the building method to be used, the sequence of work, or the parts of the existing structure or proportion to be retained in the light of the approved plans, the implementation of the planning permission involved both the substantial demolition of the old barn and the provision of what would be tantamount to a new building in its place. It is an argument that I have put forward myself in the past, but Beatson LJ made it clear that this approach is inconsistent with the principle, set out, for example, in Slough Estates Ltd v Slough BC [1971] AC 958 at 962. The apparent meaning of the terms “alteration” and “conversion” was not to be modified by reference to what was not in the planning permission. [I would comment that this is very much in line with the Inspector’s reasoning in the Bridgend appeal decision, referred to in an earlier episode in this series of articles.] To do that would detract from the certainty that is needed in such documents because they are relied on by third parties.

It was argued on behalf of Mr Williams that the Inspector’s finding of fact that the original barn was “substantially demolished” did not amount to a finding that the building was entirely demolished or that the demolition was either in fact or in law a separate operation to the construction of the new building. Counsel for Mr Williams maintained that, because the works resulting in the substantial demolition were so integral to the construction of the new building, the breach of planning control included both elements. Accordingly, ordering the demolition of the building went beyond what was necessary to remedy the breach of planning control and, in so ordering, the Inspector erred in law.

These submissions were rejected. It was not an error for the enforcement notice to allege that the relevant breach of planning control was the erection of a new building, because that was the effect of what had happened (and, as noted above, the planning permission could not be construed as authorising such a development). Beatson LJ also rejected the submission that the Inspector’s use of the phrase “substantially demolished” meant he did not find it was entirely demolished. Read fairly, the Inspector’s decision was that the barn had been demolished. The evidence before the Inspector was that, in proportional terms, 99% of the building was new. Determining whether changes to a building constitute a “conversion” or a “new building” is a classic fact-sensitive matter involving evaluation. The Inspector’s finding that the barn had been demolished and could not be restored was unchallengeable in a section 289 appeal.

This Court of Appeal decision would appear to put an end to arguments based on the approach taken by the inspectors in the South Hams and Woodspring appeals (see earlier articles in this series), and so it seems that the Cheshire Cat (whose views on this topic were originally canvassed in “More development in Wonderland” posted on 15 July 2011) has finally got his come-uppance. It is clearly going to be more difficult in future to argue that a planning permission for a barn conversion that does not require in terms that the pre-existing structure should be retained can therefore be construed as a permission that authorises in effect the creation of a new building. It has to be accepted that “alterations” and/or “conversion” does mean only alterations and conversion, and not substantial demolition and rebuilding.

UPDATE: On further reflection, I do not believe that the Court of Appeal’s decision in Williams altogether disposes of the proposition that was accepted by the High Court in Basildon. I have dealt with at least one case which was on all fours with Basildon, in the sense that the barn conversion that was authorised would have resulted in a building in which only the basic steel frame of the pre-existing barn structure would have been retained, and this frame would be entirely hidden from view (both externally and internally) when the development was completed. In the event, due to storm damage during the conversion works, it did not prove possible to retain the original steel frame and so it was removed and replaced with an entirely new frame. The development was then completed substantially in compliance with the approved drawings. After some argument, the LPA did eventually grant an LDC confirming the lawfulness of the development as executed. I stress, however, that the facts in this case were almost identical to the facts in Basildon, whereas the Williams case clearly differed on its facts and would not have fitted the Basildon scenario, even if that judgment had been cited on Mr Williams’ behalf.

© MARTIN H GOODALL

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Boat Plans For A Chesapeake Deadrise | Barn conversions to be permitted development

Boat Plans For A Chesapeake Deadrise

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Lack of time prevented my writing on all the changes proposed by the recent consultation paper on “Greater flexibilities for change of use”, and so I dealt initially only with the proposed permitted development rights for change of use from retail (A1) or from professional and financial services (A2) to residential use (C3). However, a more dramatic, and potentially controversial, proposal is to allow a change of use of existing agricultural buildings to residential use (together with associated physical works) – the classic barn conversion.

There are already permitted development rights for the change of use of agricultural buildings to use for commercial purposes. So, having allowed conversion of agricultural buildings to other uses, the government sees no reason in principle to restrict this, although they acknowledge that what would be an acceptable change of use needs to be carefully defined. They say they want to avoid high-impact development occurring without the opportunity for local consideration.

The specific proposal is that up to 3 additional dwelling houses (which could include flats) could be converted on an agricultural unit which already existed on 20 March 2013, with an upper limit of 150 sq m for each dwelling, which would allow for a home of reasonable size without its being excessively large. This would apply to any agricultural unit irrespective of its size. (An agricultural unit comprises agricultural land which is occupied as a unit for the purposes of agriculture, including any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or any dwelling on that land occupied by a farm worker.)

Such a new permitted development right for change of use of agricultural buildings to residential use is likely to need some external alterations, and the government recognises that for this permitted development right to be effective it should also include provision for some limited physical development. This would even extend “where appropriate” to the demolition and rebuilding of the property on the same footprint. (Hallelujah! At last we shall see an end to the precious insistence on retention of the existing grotty fabric of life-expired barns and similar buildings that are being converted.)

The catch to these proposals is that prior approval for siting and design would be required to ensure that the physical development complies with local plan policies on design, materials and outlook, and that there would also be a requirement for prior approval in respect of transport and highways impact, noise impact, contamination and flooding risks to ensure that the change of use takes place only in ‘sustainable’ locations. No mention is made here, however, of the NPPF or of the local development plan in general.

Unless I have misread the consultation paper, this permitted development right would not be excluded on “Article 1(5) land” (i.e. in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Norfolk Broads and World Heritage Sites). No mention is made of listed buildings, but perhaps the need for Listed Building Consent for alterations affecting their character is thought to be sufficient protection without requiring any further restriction affecting the proposed permitted development rights set out here.

One of the consequences of the proposed change is that it may become easier in future to create new agricultural dwellings, without having to jump through the hoops currently required by paragraph 55 of the NPPF (and the tests formerly prescribed by Annex A to PPS7). Furthermore, such a dwelling would not be subject to an agricultural occupancy condition.

The government seems dimly to perceive that they may be creating a potential loophole here, and so they propose that in future an owner will be able to choose to exercise either the existing permitted right to construct a new agricultural building under Part 6 (for purely agricultural, not residential use) or the new right for conversion of an agricultural building to a dwelling house. Where the new right is exercised the owner will only be able to exercise the permitted development right for construction of a new agricultural building once a period of 10 years has elapsed. The stated intention is that only where the agricultural buildings are genuinely redundant will it be appropriate to grant a permitted development right to allow for the change of use of that building to residential use. In addition an owner will not be able to exercise the new right if they used the existing permitted development right to construct a new agricultural building on or after the publication of this consultation paper (on 7 August 2013). However, as the paper points out, this will not prevent an application for planning permission for development during this period.

As noted elsewhere in the consultation paper, local planning authorities will be able to issue Article 4 Directions to prevent or restrict such changes of use, although compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

UPDATE: The amendment order was made on 10 March 2014, laid before Parliament on 13 March and will come into force on 6 April. See now the post I published on 17 March 2014 (“Barn conversions – the new rules”)

© MARTIN H GOODALL


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Boat Plans Wood | Financial incentives to be offered for injunctions

Boat Plans Wood

Enforcement action against breaches of planning control has always been the Cinderella of the planning service in most planning authorities, and the squeeze on council budgets has only served to further weaken local councils’ exercise of their enforcement powers. It can be a very expensive exercise, especially if the enforcement action is simply ignored by a recalcitrant developer, so that the council has to resort to applying for an injunction.

Now, however, albeit rather late in the day, De-CloG has announced a new fund to give LPAs some financial help in dealing with proceedings for injunctions in planning cases. Of course, if local authority funding had not been cut in the first place, this extra financial support might not have become necessary, but no doubt it will be welcomed by any hard-pressed authority having to go for an injunction against a persistent breach of planning control, or at least it may be until they read the small print.

The fund provided by De-CloG is £1 million, of which £200K will be available between now and 31 March this year, and the remaining £800K will be available until 31 March 2016. However, this funding is not as generous as it sounds. The maximum grant for any one case is limited to not more than half the council’s estimated costs, but is limited to a maximum payment of £10K.

So the maximum amount of grant that an LPA can apply for is £10,000 (or 50% of their estimated legal costs, whichever is the lesser) towards the cost of securing a Court Injunction in the High Court or County Court. The authority is required to provide a costs estimate setting out details of anticipated legal costs likely to be incurred in preparing and issuing legal proceedings and attending court, but this estimate is not to include non-legal specialist officer time. The LPA must take responsibility for any legal costs incurred in excess of £10K or in excess of any lesser sum that may be granted.

The fund is solely for use by LPAs in England, towards the cost of securing a Court injunction (High or County Court), under Section 187B of the Town and Country Planning Act 1990, against actual or apprehended breaches of planning control to be restrained. Funding is only available where other enforcement options have been, or would be, ineffective, or where there have been persistent breaches of planning control over a long period.

Funding will not be available for court proceedings which have already been started, or where an appellant lodges an appeal under section 174 against an enforcement notice that the LPA has issued. The criteria refer to an appeal made “within 28 days of receiving the notice”, but as the notice will usually come into effect within a fairly short time after the minimum 28-day period, it seems a little odd that an LPA could be deprived of funding for injunction proceedings where an enforcement notice is timed to come into effect (say) 35 days after service, and the developer appeals after 28 days but within the 35-day period.

LPAs will have to jump through hoops to get the funding they are seeking. Before a grant is made, they will have to demonstrate why the action is in the general interest, explain the degree and flagrancy of the breach of planning control, set out the enforcement history for the site (e.g. what other measures have failed over a long period of time), explain any urgency needed to remedy the breach, set out the planning history of the site, provide details of previous planning decisions in relation to the site, set out consideration of the Public Sector Equality Duty (section 149 of the Equality Act 2010) and Human Rights Act 1998, and demonstrate that an injunction is a proportionate remedy in the circumstances of the individual case, in addition to stating the amount of funding requested, including a breakdown of estimated legal spend on legal costs in 2014-15 and 2015-16. And all of this must be written in no more than 1,000 words, writing on one side of the paper only in the Head of Planning’s best joined-up handwriting. Deductions from funding will be made for untidy handwriting, poor grammar and spelling errors. (OK – I made the last bit up, apart from the thousand-word limit, but you get the general drift.)

And that’s not all. To qualify for consideration, the authority is required to confirm that it has adopted the enforcement best practice recommended in paragraph 207 of the National Planning Policy Framework and published its plan to manage enforcement of breaches proactively. The authority’s enforcement plan must have been published at least three months prior to applying for grant and the authority is required to confirm adherence to the recommendations of the National Planning Policy Framework with regard to the way in which the authority monitors the implementation of planning permissions, investigates alleged breaches of planning control; and takes enforcement action whenever it is expedient to do so.

Finally, to support the application for funding, the authority will be required to provide an active web link for their published local enforcement plan together with written confirmation that they are adhering to the objectives of the plan in a positive, pro-active and proportionate way and have been doing so for at least the previous three months.

Contractors engaged by De-CLoG (Ivy Legal) will assess applications for funding against the eligibility criteria in January, April, July and October, and applications for grant must be received no later than the last working day of the relevant application month.

You might think that someone in De-CLoG is trying to make it difficult, if not practically impossible, for local authorities actually to get their hands on this money! I wonder what level of take-up there is going to be when the amount of work involved in applying for funding, and the sum that is likely to be doled out, are taken into account. Getting funding might prove to be more difficult than getting the injunction itself, and many LPAs may conclude that it’s not worth the hassle.

© MARTIN H GOODALL


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Boat Plans Bateau | ‘Whitley’ principle to be re visited

Boat Plans Bateau

A potentially very interesting case on pre-commencement conditions - R (Ellaway) v. Cardiff CC - is being heard in the High Court today and tomorrow, with judgment expected early in the New Year, following permission having been given by HH Judge Curran QC on 27 September 2013 on a renewed application after initial refusal on the papers.

On 29 June 2010, Cardiff granted a full planning permission for a waste incinerator and associated plant and other works. There were a number of pre-commencement conditions attached to the permission (otherwise known as ‘conditions precedent’) requiring the developer to obtain approvals from the council to certain matters before development commenced under the permission. Applications for such approvals under the pre-commencement conditions constituted “subsequent applications” under Reg. 2(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations.”). There was no challenge by way of judicial review to the actual grant of permission, whether in relation to the EIA Regulations, or in respect of Habitats Directive.

The case raises a point that has been explored on a number of previous occasions, namely the extent to which (and, if so, how) a commencement of development without compliance with pre-commencement conditions can be retrospectively validated. It is clear from what Woolf LJ (as he then was) said in Whitley & Sons v. Secretary of State for Wales and Clwyd County Council (1992) 64 P. & C.R. 296 that it does not matter if development commenced prior to the approval of such matters, provided that application for the necessary approvals was made before the permission would otherwise have expired if it had not been implemented. Furthermore, it does not matter that actual approval of such details is issued even after that date, provided that the works actually carried out do conform with the details as subsequently approved.

It seems that the claimants are seeking to go behind this ruling, and are arguing that a development commenced without compliance with pre-commencement conditions can only be validated by a retrospective planning application under section 73A. They are arguing that the current development is wholly unlawful and are seeking judicial review of the council’s failure or refusal to take enforcement action against the development, which is now well advanced. Leaving aside the fact that the council, in its reasonable discretion, decided that it would be inexpedient to take enforcement action (a decision which, if not wholly unassailable, would be very difficult to overturn on Wednesbury grounds), the claimant would appear to have a very high hurdle to surmount when one looks not only at Whitley but also at various more recent judgments on ‘conditions precedent’, principally Hart Aggregates and also Hammerton and Prokopp. Further support for the proposition that some flexibility should be allowed, so as to avoid an absurd result that runs contrary to the purpose of the legislation, can also be derived from Rastrum Limited v. Secretary of State [2009] EWCA Civ. 1340 and Greyfort Properties Ltd v. Secretary of State [2011] EWCA Civ. 908.

The issue of delay has also been raised in the present case, and may well be significant in view of the advanced stage that has already been reached in the construction of the development.

In giving permission in this case, HH Judge Curran QC had considerable reservations as to the Claimant’s likelihood of success on the first three grounds on which the application for permission was renewed. However, he thought it would be wrong to characterise the case generally as hopelessly unarguable, and the contention, in particular, that the process adopted by the council amounted to an impermissible extension or addition to any previously-recognised exception to the Whitley principle might, he felt, be arguable (although for the reasons forcefully put forward by counsel for the defendants, with which your humble scribe fully agrees, the prospects of success even on this ground must be extremely doubtful).

A fourth ground, in respect of the Habitats Directive, was in His Honour’s view unarguable. The assessment was on its face, and in substance, merely a screening assessment, and not an “appropriate assessment” and for that reason no obligation, statutory or otherwise, arose to consult the public or to give reasons for not doing so. Permission was therefore refused in respect of that ground. His Honour also refused permission to apply for relief in the form of a mandatory order requiring the council to issue an enforcement notice.

It is entirely possible that the current claim could be dismissed on grounds of delay alone, in which case the court might feel it unnecessary to go into the other issues canvassed at today’s hearing. It is equally possible that, even if the substantive issues are dealt with in the judgment, the judge may find it necessary to do no more than apply the well-established principles that can be derived from the judicial authorities mentioned above. There is, on the other hand, an outside chance that the section 73A point (taking a narrow view of Whitley) might succeed, and this would make for a very interesting and potentially far-reaching decision, although a trip to the Court of Appeal would be almost inevitable in such circumstances.

Nonetheless, when one looks at the prospects of the case, one can only hope that the claimant managed to get a protective costs order!

© MARTIN H GOODALL

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Boat Plans Skiff | More restrictions on judicial review

Boat Plans Skiff

In an article by the Justice Secretary, Chris Grayling, published in the ‘Daily Wail’ this morning, he calls for further restrictions on the right to apply to the High Court for the judicial review of ministerial decisions in planning and infrastructure cases. [The web version can be found at - http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html ]

He makes no bones about that fact that he is taking a strongly partisan political approach to this issue, seeing it as an avowedly Right-Left struggle. The first four short paragraphs of his article are pure bile, complaining about a growing number of “professional campaigners” who, he alleges, are “taking over charities, dominating BBC programmes and swarming around Westminster” (!) Worst of all, in Grayling’s view, is that they “articulate a Left-wing vision”. He seems to be particularly annoyed that former advisers and politicians are joining the ranks of what he calls “serial campaigners”, and he singles out the charity sector as an area where “advisers from the last Government can be found in senior roles”. He seems to be equally unhappy about moves in the opposite direction, “with campaigners lining up to try to become Labour MPs”.

This very much sets the tone and the background for what follows. Grayling alleges that charities “target the legal system as a way of trying to get their policies accepted”, particularly through the medium of judicial review. He objects to these people being able to challenge the decisions of government and public bodies in the courts, aided and abetted, as he puts it, by “teams of lawyers who have turned such legal challenges into a lucrative industry”.

It is at this point that the real lies start, and as the Nazis’ propaganda and police chief, Joseph Goebbels once observed, the bigger the lie, the more easily it will be swallowed by a gullible public. Grayling casually remarks that there are now thousands of judicial review applications each year, but he carefully omits to mention that, as a proportion of all JR applications, planning and infrastructure-related JR applications account for less than 2% of the whole!

As I have previously pointed out in this blog [Judicial review – the statistics on Tuesday, 20 November 2012 and Judicial review - statistics update on Sunday, 2 December 2012], the numbers of JR (i.e. non-statutory) cases relating to town and country planning and infrastructure cases in recent years have been: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191. (I don’t have the figure for 2012, but it is unlikely to show any really dramatic increase.)

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications in 2011 which ministers are so fond of quoting (or mis-quoting). Most of these were in fact immigration/asylum cases. Even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). Furthermore, it is not possible to discern any indication that there has been any increase in hopeless applications in this area of the law. The notion that ministers have been peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development and infrastructure projects, is clearly nonsense. In most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application.

Grayling’s assertions are based on an outright lie! But that does not deter him from proposing further restrictions on judicial review in addition to those introduced only a couple of months ago.

What these proposals actually are is not vouchsafed to us in his vituperative article in the Mail. According to the Press Association, a consultation paper is due to be published today, and we shall know more of what is afoot when this emerges. However, the PA report suggests that under these new plans, “campaigners will be banned from launching challenges” and that “local councils will also no longer be able to judicially review major infrastructure projects in their area”. It is also suggested that Grayling wants to penalise unsuccessful JR applicants with payment of a greater proportion of the government’s costs. Never mind the Aarhus Convention – a document that Grayling no doubt dislikes as much as he hates all those pesky lefties.

It is difficult to imagine a man less suited to being the Minister of Justice (and Lord Chancellor) than Chris Grayling (unless it might possibly be Michael Gove).

[UPDATE (14.17 6.9.13) : The consultation paper can now be accessed at - https://consult.justice.gov.uk/digital-communications/judicial-review. I may blog on this topic again when I have had the chance to read it in detail.]

© MARTIN H GOODALL


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Boat Plans Wood | We’re all going to be film stars!

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Not to be outdone by the forthcoming second series of ‘The Planners’ on the telly (which, by the way, is going to be re-titled “Not in My Back Yard!”), Uncle Eric has decided that the cameras should be allowed into planning committee meetings and planning hearings and inquiries.

New guidance is to be issued by De-CLoG, which "will make clear the rights for members of the press and public, including local bloggers and hyper-local [?] journalists, to report, film and tweet planning appeal hearings." In a press release, De-CLoG ministers express the hope that “this will open up a previously mysterious and rarely seen side of the planning process”.

The new freedom to record and film proceedings, including the use of digital and social media can be exercised in future in appeal hearings and inquiries, provided that it does not disrupt proceedings. According to the blurb, "Inspectors will advise people present at the start of the event that the proceedings may be recorded and/or filmed, and that anyone using social media during or after the end of the proceedings should do so responsibly."

Pickles is particularly annoyed, because previous guidance he published in June, which was intended to open up planning committee meetings in the same way, has been deliberately ignored by some councils. Unfortunately, he omitted to write this into recent changes to subordinate legislation on the conduct of council meetings, and so he can do no more for the time being other than to huff and puff about it (something Uncle Eric is rather good at doing).

The press release ‘names and shames’ several of the offending councils:

• Wirral Council banned a blogger from filming its planning committee on health and safety grounds, asserting the ban was necessary as they cannot ‘police’ people filming.

• Tower Hamlets stopped a 71 year old resident and OAP campaigner filming a council meeting in June 2013. Council officers asserted that allowing filming could lead to “reputational damage to the authority”

• Keighley Town Council stopped a council meeting when a group of pensioners started to film the meeting and called in the police who escorted the 11 residents from the town hall. Officials argued allowing filming would be a “breach of Standing Orders”

• Blogger Richard Taylor, producing a guide for citizens on how to film meetings, has warned that some councils have demanded identity papers, such as a passport, before allowing filming, and warned “be prepared for the police to be called and the possibility of arrest, especially if you intend to film, photograph, tweet or take notes on a laptop” (Apparently, he was threatened with arrest when he tried to film Huntingdon District Council.)

• Bexley Council has asserted it intends to continue to prohibit audio and visual filming due to its “agreed protocol”

• Stamford Town Council meeting has reaffirmed its ban on a newspaper reporter tweeting from a council meeting, due to “concerns about 140 character snippets of information not accurately portraying a debate”

I have no more sympathy than Pickles with these weak excuses. If meetings are open to the public (as most planning committee meetings must be by law), there can be no reasonable objection to the proceedings being filmed, photographed and recorded, or reported ‘live’ on social media.

On the other hand, if you have attended as many different planning committee meetings as I have, you may well understand the reluctance of elected members to have their ‘deliberations’ broadcast to the great unwashed. The sad fact is that the standard of debate in many planning committees is absolutely dire, and the poor calibre of elected members, their profound ignorance of planning principles and procedures, and general lack of common sense is appallingly obvious. When officers in one authority claimed that allowing filming could lead to “reputational damage to the authority”, their fears may well have been justified!

As for opening up planning inquiries and hearings to the cameras, camera phones and recorders, I rather suspect that interest in recording the proceedings in this way will rapidly wane. It is rare even to see a local print journalist at an appeal hearing or inquiry, and those members of the public who bother to attend mostly drift away by lunchtime on the first day. The plain fact is that for those not directly involved in the process, it is arcane and incomprehensible, and opening it up to the cameras is not going to change that.

Major public inquiries into controversial development proposals might attract the TV cameras, but they will have the same problem as print journalists who have tried to cover these proceedings in the past. The bigger the development scheme, the longer the inquiry, and for journalists and TV crews it is likely to prove as exciting as watching paint dry.

Still, it makes a good silly season story, and Uncle Eric can feel satisfied that he has taken yet another decisive step to improve the planning system. Never mind, that we are still not building more than a tiny proportion of the new homes that are so urgently needed. Never mind that local planning authorities are starved of funds and can hardly cope with their work as a result. And never mind that all Uncle Eric’s previous brave words and stirring deeds have done virtually nothing to make any really significant change to the planning system.
______________

UPDATE (30 August 2013): I am told that Merton Council has begun webcasting various meetings within the past few months, including its Planning Applications Committee (although I am told that after two meetings no further webcasts have been made due to "technical difficulties"). A correspondent has suggested that readers should watch the first three applications presented on 18 April.

The webcasts can be accessed on:

http://www.merton.public-i.tv/core/portal/webcasts

This is not a link, but if you copy and paste this URL into the address line on your browser, the page should open. Don’t panic when you get no sound at the beginning. The camera was switched on before the meeting began, and the sound only starts when the Chairman opens the meeting, 7½ minutes into the recording. (You can move the cursor along to get to this point without having to watch usual the pre-meeting comings and goings in total silence. Alternatively, the menu on the right of the page enables you to go straight to the start of each item. The first application is reached about 10¾ minutes ibnto the recording.)

The 18 April meeting seems fairly typical to me. One thing you’ll notice is that the proceedings might reasonably be described as ‘unhurried’. It takes over 20 minutes, including the planning officer’s introduction, and public statements, before the members of the committee start to discuss the first application around 33½ minutes into the recording.

Anyway, see what you make of it.


© MARTIN H GOODALL


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Boat Trailer Plans Australia | Offices to homes – judgment in the High Court

Boat Trailer Plans Australia

Rather sooner than some of us had expected, Mr Justice Collins gave judgment this morning in the challenge brought by Islington and three other London boroughs against De-CLoG’s handling of the consultation process leading to changes to Part 3 of the General Permitted Development Order being made on 9 May, which came into effect on 30 May.

The result, however, was unsurprising. The claim was dismissed.

In a comparatively brief judgment, Collins J focused solely on the consultation process itself. He pointed out that the consultation letter informed its recipients that in order to achieve an exemption they must demonstrate clearly by reference to supporting evidence that an adverse economic impact would be likely to result from the new right to change the use of offices to residential use as permitted development. They must show clearly how that evidence supported their submissions. The level of adverse impact required was high. It must have been obvious that exemptions were not likely to be granted unless a very convincing case was submitted, supported by evidence shown to be reliable and seen to support the application.

It was made clear in the 24 January 2013 letter that it was for any council seeking exemption to establish its case and to decide on the material it should present and the manner in which it should be presented. That the threshold was to be set at a high level was equally made clear.

It followed that, having regard to the context, his lordship was not persuaded that there was unfairness in either of the ways argued by the claimants. He could understand the concerns which led to these claims and it may well be that in parts of the claimant boroughs the benefits which it is believed will accrue from the amendment to the GPDO will not be felt in those areas. His lordship agreed that the lack of any requirement for affordable housing is worrying. However, those were not matters which could lead to the grant of relief on the claimed basis of unfairness in the process for seeking exemptions.

Clearly, this was enough in itself to defeat the councils’ claim, and so the learned judge presumably felt it unnecessary to discuss any other issues. In my view, the availability of Article 4 directions to address the problems the councils had identified would in any event have militated against the court’s granting the relief the councils sought. Admittedly any Article 4 directions might be vulnerable to the Secretary of State’s power to cancel them, and would give rise to claims for compensation, but I would still see the power to make Article 4 directions as an effective ‘remedy’ as an alternative to the exemptions sought by these four councils.

As I noted on the day of the hearing, the scope of this challenge to the GPDO amendment was very limited (no doubt on legal advice), and did not seek to impugn the actual legislative amendment to the GPDO. So the battleground will now shift to the actual interpretation of the new rules, and in particular the considerations that councils are permitted in law to take into account in assessing the impacts of a proposed change of use from offices to residential. The battle lines have already been drawn, not least by a decision of Camden LBC to which I recently drew attention.

© MARTIN H GOODALL

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Boat Building Plans And Kits | How can they be seaworthy

Boat Building Plans And Kits

SOME YEARS AGO I helped construct a seaworthiness quiz for Small Craft Advisor magazine. The quiz was designed to give the owners of small sailboats a reasonable idea of how seaworthy various designs might be. And, perhaps more importantly, it demonstrated for them the desirable qualities that add up to seaworthiness in very small craft.

But now and then someone comes along and says: "What were you thinking? How can such small boats be seaworthy?" Well, they say that a little knowledge is a dangerous thing, and that’s what most of these someones are equipped with.

It’s quite obvious that dinghies and their ilk can’t meet all the qualities necessary to claim seaworthiness for larger vessels, ones that can accommodate people in the shelter of a cabin. But sailing dinghies can indeed provide two of the most important qualities: to stay afloat and to keep their crews alive.

If those someones had done their homework, they’d know that tiny open boats have made remarkable ocean voyages that demonstrate their seaworthiness. I could mention Captain Bligh, for a start, and Webb Chiles, who singlehandedly sailed his open, 17-foot, Drascombe Lugger, Chidiock Tichborne, almost all of the way around the world. And then there was Frank Dye, who sailed his 16-foot Wayfarer dinghy hundreds of miles across the North Sea from Scotland to Iceland, and to Norway.

These sailors provided an element of seaworthiness that their small craft lacked, of course. They were all expert seamen. In fact, when faced with storms at sea, Dye, in his unballasted, centerboard dinghy, would lower the mast, set a sea anchor so that the boat faced into the oncoming seas, and then lie down on the floorboards and go to sleep. “There’s nothing much else to do,” he said. Except pray, perhaps.

In coastal cruising, much of the seaworthiness of a dinghy like the Wayfarer lies in its ability to run for shelter close inshore, to maneuver closely among rocks, and to land on a beach and be pulled up out of harm on inflatable rollers. Larger, less nimble yachts with deep keels would not dare close a shore like that in heavy weather; their only recourse then is to seek deep water offshore, where their seaworthiness will be well tested.

In at least one way, the smaller the sailing dinghy, the more seaworthy it is. That is when the worst happens and the boat capsizes. The smaller the boat, the easier it is for the crew to right her.

The well-found camp-cruising dinghy cannot sink — she has built-in buoyancy. With a sealed mast and boom for flotation, she cannot turn completely turtle, and so the crew can stand on the centerboard to right her. She will also have self-bailers that will draw all the water from the cockpit once she comes upright again and gains way.

So there’s no doubt in my mind that small boats can be seaworthy. They can’t provide the shelter and comfort of a larger vessel, admittedly, but their closeness to the water provides delicate insights and thrills unknown to those lofty someones who batter their way through the seas in their seaborne chariots, carefully insulated from both the sea’s danger and its intimate delights.

Today’s Thought

There are many advantages in sea-voyaging, but security is not one of them.— Sadi (Emerson, English Traits: The Voyage)

Tailpiece

“That’s a funny-looking dog you’ve got there.”

“What? I’ll have you know I paid $1,000 for this dog. He’s part terrier and part bull.”

“Which part is bull?”

“The part about the $1,000.”

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