Wooden Boat Plans And Kits | Agricultural occupancy conditions and ‘dependants’

Wooden Boat Plans And Kits

The wording of the model agricultural occupancy condition (No. 45 in Appendix A to Circular 11/95, which remains extant following the cancellation of the remainder of that circular) has been widely used by many LPAs. It reads:

“The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependants”.

The question inevitably arises as to whether there would be a breach of such a condition where a member of the family living with the agricultural worker is not financially dependent on that person. The point was considered by the House of Lords in Fawcett Properties Ltd v Bucks CC [1961] AC 636, and the general impression derived from that judgment was that financial dependence was the qualifying criterion.

However, the question arose again in the case of Shortt v. SSCLG [2014] EWHC 2480 (Admin), in which judgment was given on 22 July. An LDC had been sought from the LPA on the basis of a continuous 10-year breach of the AOC, based on the fact that (a) the person actually working in the locality in agriculture had made a consistent loss in the agricultural enterprise throughout that period and (b) that, in consequence of this, the person’s husband was not financially dependent on her, and so could not be a ‘dependant’ for the purposes of the condition. The LPA failed to determine the LDC application, so the applicant appealed to the Planning Inspectorate under section 195.

The Inspector took what many would consider to have been a very sound commonsense approach to this issue. In his view, the appellant’s contention in reliance on Fawcett was an unnecessarily restrictive interpretation of the wording of the condition. In the context of people living in a family, the words subsistence and support are capable of having a non-monetary construction, he suggested. Furthermore, were the meaning of ‘dependant’ in the condition to be invariably interpreted as financially dependent, it would leave members of a family who lived in a dwelling whose occupation was the subject of such a condition, but who were not themselves working in agriculture, at risk of enforcement action whenever the agricultural worker’s income fell below a level deemed to establish dependency, which would be a nonsense. The Inspector considered that the wording of the condition should be interpreted so as to avoid such a possibility, having regard to the potential impact on, or interference with, ordinary family life.

For the purposes of the High Court application, the judge assumed that Mrs Shortt was an agricultural worker, but made no profit from the farm in any year, and therefore made no financial contribution to the family. This was clear from the evidence of her accounts. After considering various statutory definitions of ‘dependant’ in other legislation, His Lordship observed that, so far as the definition of “dependant” is concerned, context is everything.

Turning to the decision of the House of Lords in Fawcett, in His Lordship’s view that decision was is itself equivocal as to whether “dependant” in the statutory context from which agricultural occupancy conditions derive necessarily requires an element of financial dependency. Various appeal decision had been called in aid by the applicant, but these were not entirely in her favour. For example, in one case (Land at Meadows, Colwell Road, Freshwater, Isle of Wight: Planning Inspectorate Appeal No App/C/96/P2114/643380), the Inspector did not consider that “the condition could be construed as excluding a married couple, one of whom works outside agriculture”, where the agricultural worker appears to have earned nothing from that enterprise. Therefore, His Lordship held, even in the statutory context (or a context in which the precise statutory wording had been adopted), there is no clear authority to the effect that “dependant” necessarily implies financial dependency.

The wording of the condition in the present case differed slightly from the model condition, and this appears to have had a material effect on the judge’s decision. The condition did not simply refer to agricultural workers and their dependants, but agricultural workers and “the dependants (which shall be taken to include a widow or widower) of such persons”. So “dependants” here were deemed to include a widow or widower of an agricultural worker, whether or not, before that worker’s death, the spouse was financially dependent upon him or her. It would strain the construction of the condition too far for it to mean “the dependants (which shall be taken to include a widow or widower who was, prior to the agricultural worker’s death, a financial dependant of that worker)”.

Given that “dependants” may or may not include dependency other than financial dependency depending upon the context of the word, it seemed to His Lordship that, if the term is to include a widow or widower irrespective of earlier financial dependency, looked at objectively, it must have been intended to have included a husband or wife without financial dependency. In his view it could not have been the intention of the condition to prohibit spouses who are not financially dependent upon an agricultural worker from occupying the dwelling during the worker’s life, but allow such spouses to occupy it after the worker’s death.

Therefore, the words as used in the condition, looked at as a whole, appeared to His Lordship to envisage “dependency” in a wider and more open-textured way than one requiring an element of financial dependency, certainly to include a spouse and minor children of the worker who is their wife and mother and who provides them with usual family services and care.

To that extent it could perhaps be argued that this judgment is dependent on its facts, that is to say, on the precise wording of this condition. The judge himself pointed out that he was restricting himself to construing the particular condition in this case. It was unnecessary for him to seek to construe “dependants” in the statutory context, and he declined to do so. No doubt he was unwilling to be seen to be differing from a House of Lords decision, but Fawcett was decided over 50 years ago in a very different social and economic context, and a broader interpretation of “dependants” may now be more appropriate, not least because a narrow interpretation could throw up some undesirable and even nonsensical anomalies in such cases, as the Inspector pointed out.

It remains to be seen how much weight can be placed on Shortt as an authority on this issue, but I suggest that Fawcett, even though it was a House of Lords decision, should no longer be uncritically accepted as authority for the proposition that, in the context of an AOC, the interpretation of “dependant” is necessarily confined to financial dependants. It should reasonably be taken to include those in a family relationship with the agricultural worker living with them, such as spouses and even perhaps adult children, even though those persons are financially independent.

© MARTIN H GOODALL

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Boat Plans Skiff | Town centre uses – new Permitted Development rights

Boat Plans Skiff

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.

As I indicated when writing a short time ago on the new permitted development rights for agricultural buildings, the same amendment order to the GPDO (coming into effect on 6 April) also provides additional PD rights for shops (A1) and High Street offices (A2).

The Order introduces a new Class CA into Part 3. This new class consists of a change of use of a building and any land within its curtilage currently in use within Use Class A1 (shops) to use as a bank, building society, credit union or friendly society. However, this PD right is excluded in the unlikely event of the premises being within a site of special scientific interest, a designated safety hazard area or military explosives storage area, or if the site is, or contains, a scheduled ancient monument. However, unlike some of the other recently introduced PD rights, change of use under Class CA is not excluded on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site).

This change of use is subject to a condition that a site which has changed to one of these uses is not to be used for any other purpose (i.e. other than one or other of these purposes – referred to in the order as a ‘deposit taker’), except to the extent that the other purpose is ancillary to the primary use as a deposit-taker.

No prior approval is required in this case, but as soon as reasonably practicable after a change of use under Class CA the LPA must be notified of the change of use, and evidence must be provided that the site is being used for this purpose. A further change of use can only take place within this category (i.e. between a bank, building society, credit union or friendly society) and, again, the LPA must be notified of this further change of use as soon as reasonably practicable after the change together with evidence that the site is still being used for the purposes of a ‘deposit taker’.

Next, the Order introduces a new Class IA into Part 3. This authorises the residential conversion of a building falling within Class A1 (shops) or A2 (financial and professional services), or which is in combined use as a dwelling and a use falling within Class A1 or A2 (whether that use was previously granted permission under Class F of Part 3 or otherwise). In contrast to Class 3, Part J (introduced last May), this new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

There are several restrictions on the permitted development authorised by Class IA. It only applies where the building was used for a purpose within Use Classes A1 or A2 on 20th March 2013 or, if the building was not in use on that date, when it was last in use. A further change of use under this class cannot be made where permission to use the building within Class A1 or A2 arises only from a change of use already made under Part 3 of the GPDO. Furthermore, this change of use cannot be made if the cumulative floor space of the existing building changing use under Class IA exceeds 150 square metres, or if the development (together with any previous development under Class IA) would result in more than 150 square metres of floor space in the building having changed use under Class IA.

In relation to the building works permitted by Class IA, the external dimensions of the building as a result of such works must not exceed the external dimensions of the existing building at any given point. In addition, the works must not consist of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As with some of the other recently introduced PD rights, change of use under Class IA cannot be made if the building is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class IA is also excluded if the building in question is a Listed Building.

Where development is permitted under Class IA, there are various conditions attached to this PD right. To start with, it is subject to a prior approval procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(i) transport and highways impacts of the development,
(ii) contamination risks in relation to the building,
(iii) flooding risks in relation to the building, and
(iv) whether it is undesirable for the building to change to residential use because of the impact of the change of use —
(aa) on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (but only where there is a reasonable prospect of the building being used to provide such services), or
(bb) where the building is located in a key shopping area, on the sustainability of that shopping area,

I have put the last of these in italics, because it seems to me that this gives the LPA considerable scope for resisting such changes of use, although this discretion is subject to the proviso that in order to justify a refusal of prior approval based on the need to ensure the adequate provision of services of the sort provided by that building, the LPA must be able to demonstrate that there is a reasonable prospect of the building still being used to provide such services, or (where it is located in a key shopping area) that the loss of this unit would have an adverse impact on the sustainability of the shopping area.

The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. As I noted in relation to the residential conversion of agricultural buildings recently, this point was previously discussed in an earlier post on this blog on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). The inclusion in Class IA of the sub-paragraph I have put in italics [(iv) above] might tempt some LPAs to seek to apply the NPPF to these residential conversions in a wider context, not necessarily confined to the criteria listed above, although the scope for this may perhaps be limited by the proviso as to the likelihood of an alternative retail (or A2 office) use in this case, or the retail impact of the loss of the retail/A2 unit if the building is in a key shopping area.

As regards building operations permitted by Class IA, these are subject to a separate (or additional) condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant insofar as it addresses design issues (in paragraphs 56 to 68).

Finally, there is a condition that a building which has changed use under Class IA is to be used as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as such a dwellinghouse.

Other conditions in the amendment order provide that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

I referred in a previous post on this amendment order to various consequential amendments which it makes to the GPDO. I have already drawn attention to the power of the LPA to impose conditions on the grant of prior approval under Part 3. I ought also to mention the removal or restriction of PD rights for extensions and enlargements to the dwelling under Part 1 where the dwelling is created by a change of use under either Class IA (from agricultural use) or Class MB (from A1 or A2 use). I will try to find time to look at these consequential amendments in a future post, as they could prove to be a trap for the unwary.

A couple of further thoughts occur to me. First, as regards Class CA, this appears to be another instance of this government taking up and putting into practice the ideas canvassed by ‘James Hacker MP’ in his imaginary speech four years ago (see ”REAL reform of the Planning System”, published here on Tuesday, 20 April 2010. Sorry - we still don’t do internal links on this blog. To access this item, click in the side bar on the arrow next to ‘2010’, then click on the arrow against ‘April’, and click on the tile to open that post.)

As regards Class IA, this is a further example of ‘permitted’ development that may not in fact be permitted. It is rather like a double illusion. Rather than puling a rabbit out of the hat, the conjuror only appears to produce it, then with the other hand immediately whips it away again. There was in fact no rabbit, only the illusion of one.

The practical effect could be limited if LPAs are robust in using the power they will have when dealing with prior approval applications under Class IA to refuse approval if they consider that it is undesirable for the building to change to residential use, because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (where there is a reasonable prospect of the building being used to provide such services), or in those cases where the building is located in a key shopping area, on the sustainability of that shopping area. These are very much the sort of reasons that may well have been given for refusing planning permission before this new PD right was created, so arguably the new PD right may not change very much.

© MARTIN H GOODALL

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Boat Building Plans And Kits | Short term lets in Greater London the proposed relaxation

Boat Building Plans And Kits

Since I last blogged on this topic on Friday 13 June (“Announcing it twice. Announcing it twice.”), the promised new clause has been added to the Deregulation Bill. It was originally New Clause 21, but numbers are liable to change as further amendments are added to the Bill and, when I looked the other day, it had become Clause 34. I am making no guesses as to what the section number in the new Act will eventually be!

The clause is headed “Short-term use of London accommodation: power to relax restrictions”. It is purely an enabling power, so we still don’t know precisely how, to what extent, and indeed when, the government will relax the current rule on short-term lets in Greater London.

The new clause will give the Secretary of State power to make regulations by statutory instrument which will provide for the circumstances in which the use as temporary sleeping accommodation of any residential premises in Greater London does not involve a material change of use by virtue of section 25(1) of the Greater London Council (General Powers) Act 1973.

The regulations may also enable the Secretary of State or an LPA to direct that any provision included in those regulations will not apply to particular residential premises or to residential premises situated in a particular area. So there will be an opt-out which some of the London Boroughs will be eager to use (always assuming that power is not reserved to the Secretary of State to override the LPA’s direction, as he can in the case of Article 4 Directions).

The regulations may also in themselves amend the Greater London Council (General Powers) Act 1973, and there is a catch-all power that allows them to make different provisions for different purposes and/or include incidental, supplementary, consequential, transitional, transitory or saving provisions. This really does give the Secretary of State carte blanche.

So we are really none the wiser for having seen the new clause. Government press releases are not a reliable guide to what is really intended, or whether those intentions will in practice be achieved by the proposed regulations. Given the dire performance of civil servants in drafting subordinate legislation over the years, I am not confident that they will actually do what it says on the tin. Only time will tell.

I have already pointed out the dangers of substantially removing the existing restrictions in section 25(1) of the 1973 Act ( - see “Short-term lets in Greater London” posted on Tuesday, 25 February 2014), and I know that these concerns are shared by other commentators, such as Michael Bach, as set out in his article on this topic in the Summer 2014 issue of “newsforum”, the journal of the London Forum of Amenity and Civic Societies. Planning officers and others concerned with planning and housing throughout the Greater London area will be equally worried by the implications of the proposed changes.

For the time being, we have no choice but to wait and see what eventually emerges. There is at least one advantage of the method by which the government has chosen to deal with issue; a future government could use the enabling powers to restore the restriction on short-term lets in the capital without having to pass any amending primary legislation. Nice one, Sir Humphrey!

© MARTIN H GOODALL

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Boat Plans Wooden | Conditions preventing Permitted Development

Boat Plans Wooden

I have written on this topic before, and it is covered in my book (in Appendix A), but, as a result of discussions with my colleague Ben Garbett, it has become clear that a distinction needs to be drawn between a condition excluding the effect of section 55(2)(f) of the 1990 Act, and a condition which has the effect of precluding permitted development under the GPDO thus engaging Article 3(4) of that Order (which rules out permitted development contrary to any condition imposed by any planning permission).

We are dealing here with two separate statutory provisions, which differ not only in their wording but also in their purpose and effect. For this reason, it should not be assumed that a condition that appears on the face of it to preclude the use of a building or land for a purpose other than that which is expressly authorised by the terms of that planning permission necessarily has the effect of excluding the operation of both of these statutory provisions.

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither if these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. In contrast to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

There has been a tendency (not least on the part of planning inspectors in their appeal decisions), to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development that would otherwise be permitted by the GPDO. I confess that I may have been guilty of doing this in the past myself – it is all too easy to see the effect of a preclusive condition as applying equally to the operation of section 55(2)(f) and to permitted development under the GPDO. However, as I hope to show in this article, such an assumption is incorrect.

Let’s get a couple of preliminary points out of the way first. A planning permission which specifies the authorised use in the description of the development will thereby limit the initial use of the development (e.g. Wilson v. West Sussex CC [1963] 2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. Secretary of State for the Environment (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”). However, in the absence of an express condition attached to the permission, this will not prevent a different use being implemented subsequently, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998] P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685). Thus in a case such as those cited above, where the planning permission authorises a development that creates a single private dwellinghouse, the description of the development authorised by the planning permission cannot, by itself, prevent a subsequent change of use to unrestricted residential use, if the use of the dwelling continues to fall wholly within Use Class C3. Section 55(2)(f) will operate in such a case (subject to the rule in Kwik Save Discount Group Ltd v. SSW [1981] J.P.L. 198, where it was held that a change of use authorised as permitted development under Part 3 of the Second Schedule to the GPDO could not lawfully be made less than two months after the original use had been implemented; the original use had to be more than purely nominal.)

The second point is that a condition, if appropriately worded, can restrict the use or uses to which the development authorised by a planning permission can be put. It is beyond dispute that if a condition is expressly worded so as to preclude the effect of either or both of section 55(2)(f) [and Article 3(1) of the UCO] or the GPDO, then it will be effective to limit the use of the property in that way.

The model conditions recommended in Appendix B to Circular 11/95 (which remain extant, although the rest of the circular was cancelled in March 2014) read:

"[48] The premises shall be used for......…and for no other purpose (including any purpose in Class........… of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

and

“[50] Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 [2015] (or any order revoking and re-enacting that Order with or without modification) no..... .[specified development]........shall be [carried out].”

If so worded, there can be no doubt that such conditions do preclude the operation of these statutory provisions. However, difficulty arises (and has been the subject of litigation) where the allegedly preclusive condition does not refer explicitly either to section 55(2)(f) (and/or to Article 3(1) of the UCO) or to the GPDO.

What has not previously been noticed (and I am grateful to Ben Garbett for drawing attention to this point) is that the judicial authorities that are frequently cited in this connection are not universally applicable to the preclusion of both categories of statutory provision mentioned above. Certain judgments relate specifically to conditions that exclude the effect of section 55(2)(f); others relate solely to conditions that exclude (or purport to exclude) permitted development.

Bearing in mind that, as I pointed out above, negativing the effect of section 55(2)(f) does not have the effect of removing a planning permission that would otherwise enure for the benefit of the land, it is understandable that in this case, the condition in question need not necessarily refer expressly to section 55(2)(f) or to Article 3(1) of the UCO. This is confirmed by those judicial authorities that have dealt with this issue. For example, in City of London Corporation v. SSE (1971) 23 P&CR 169, the wording of the condition was that "the premises shall be used as an employment agency and for no other purpose." This was held to operate effectively to exclude the operation of the Use Classes Order.

Similarly, in Rugby Football Union v SSETR [2001] EWHC 927, a condition relating to stands at Twickenham Rugby Football Ground required that the stands "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected by the court on the ground that the words for no other use were clear. They had no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission, for example under the Use Classes Order (by virtue of section 55(2)(f)). The judge was satisfied that those words met the test of being sufficiently clear for the exclusion of the Use Classes Order.

R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin)) was similarly decided. This case related to planning permission for the construction of a non-food retail park comprising five units. This permission contained a condition which provided that:- "The retail consent shall be for non food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing." The stated reason for the condition was to ensure that the nature of the scheme would not detract from the vitality and viability of the nearby town centre.

The Court upheld an inspector’s decision that the use of the word only was effectively the same as the phrase and for no other purpose, especially when the condition was read in its entirety. When read alongside the reason for the imposition of the condition and in the context of the permission as a whole, the Inspector found that the condition prevented the exercise of rights under the Use Classes Order (to use the premises for other purposes falling within Use Class A1). The judge regarded the use of the word "only" as emphatic. It meant solely or exclusively. That was its plain and ordinary meaning. This would prevent any retail sales other than those stipulated of a non food nature.

The essential point in all the cases cited above is that they related solely to the exclusion of section 55(2)(f) [and Article 3(1) of the UCO]. None of these cases related to a condition that had the effect of precluding permitted development under the GPDO.

Although a condition worded like those in the City of London, RFU and Royal London Mutual Insurance cases may be sufficient to exclude the effect of section 55(2)(f), there is very clear judicial authority that a similarly worded condition does NOT exclude the effect of Article 3(1) of the GPDO, granting planning permission for the classes of development described as permitted development in Schedule 2 to the Order, unless the condition contains a specific reference to the GPDO (like Standard Condition 50).

There are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by express reference to the relevant statutory instrument in the wording of the condition. As Sir Douglas Franks QC put it in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806:

“As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.”

In light of the judgments in City of London, RFU and Royal London Mutual Insurance, Sir Douglas Franks’ inclusion of the UCO in the requirement for express words in the condition, mentioning the relevant Order, can no longer be taken as authoritative so far as the UCO itself is concerned, but in relation to the GPDO, the Court of Appeal subsequently concluded in Dunoon Developments Ltd -v- SSE [1992] JPL 936 that Article 3(4) of the GPDO was not engaged by a condition which contained no reference to the GPDO. Farquharson LJ held that:

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO 2015] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more.”

In our seminar in November, Ben Garbett made the point that no judgment since Dunoon Developments has suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The later cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) [and to Article 3(1) of the UCO], and cannot properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition. On the contrary, Carpet Decor and Dunoon Developments remain the leading (and indeed the only) authorities so far as the exclusion of the GPDO is concerned.

In our view, a number of planning appeals in prior approval cases have been wrongly decided as a result of Inspectors concluding that conditions that do not expressly mention the GPDO can nevertheless have the effect of precluding permitted development in accordance with Article 3(4). Thus in one case, the condition in question required that the premises were to be for office use only and not for any other purpose (including any other activity associated with an undertaker’s funeral business). The stated reason for the imposition of the condition was that any other use would be inappropriate and could place “unacceptable pressures” on the site and locality. It was argued on behalf of the appellant that in the absence of any mention in the condition of development under the GPDO it did not have the effect of removing the permitted development rights under Article 3(4), but the Inspector wrongly determined that the judgment in Royal London Mutual Insurance applied in this situation, and that the condition was therefore effective to remove permitted development rights in accordance with the Article 3(4).

Keystone Law’s planning law team are therefore in no doubt that any future appeal decisions which (in reliance on City of London, RFU or Royal London Mutual Insurance) conclude that a condition that does not explicitly refer to the GPDO nevertheless brings Article 3(4) of the GPDO into operation would be open to legal challenge in the High Court under section 288 and are likely to be quashed.

Happy New Year!

© MARTIN H GOODALL


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Yacht Boat Plans | The duty to co operate

Yacht Boat Plans

My former colleague, David Brock (who is only ‘former’ because he has now retired from active legal practice – lucky chap) posted an extremely interesting item on his blog last Friday, which I suggest that those interested in strategic planning and in the provision of strategic housing land would find it well worthwhile to read. A direct link to David’s blog will be found in the left-hand margin on this page.

I don’t propose to repeat or précis David’s piece, as you will no doubt read it yourself, but it does point up in very clear terms the complete failure of the ‘duty to co-operate’ (introduced by the Localism Act) to replace the gaping hole in strategic planning that has resulted from Uncle Eric’s ill-advised abolition of the Regional Strategies.

It reminds me of that well-known line in the Laurel and Hardy films – “Here’s another fine mess you’ve got me into, Ollie.” (No prizes for guessing which members of our wonderful coalition government could be cast in the respective parts of Laurel and of Hardy!)

© MARTIN H GOODALL


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Wooden Boat Plans Australia | Proposed changes to the processing of planning applications

Wooden Boat Plans Australia

In this third post on the government’s recent consultation paper (“Technical Consultation on Planning”), I propose to take a look at what they are suggesting by way of further changes to the planning application process.

I wrote in May (“Validation nonsense continues”) that many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined in that earlier post are made - nothing less will do. Well, I am sorry to say that this latest set of proposals does nothing to address the issues which have caused concern to so many planning practitioners in recent years.

Parts A and B are narrowly focused on the involvement of statutory consultees in the process, including a specific proposal to notify railway infrastructure managers of planning applications for development near railways. This is followed by a brief and superficial suggestion, in Part C, that there might be a consolidation of the Town and Country Planning (Development Management Procedure) Order 2010 and a vague reference to the means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination. This entirely misses the point. What matters is not the accurate measurement of the time taken in going through all the bureaucratic nonsense (which has greatly increased within the past 20 years) but urgent action to cut out all the unnecessary faffing about. Rather than being measured in greater detail, the process needs to be streamlined, which the government has signally failed to do, despite their claims to the contrary.

There are various different stages that can be identified in the application process. These include :

Pre-application consultation with the LPA
Community involvement
Submission of the application and supporting material
Validation (including requests for further information)
Registration
LPA’s consultation with neighbours and statutory consultees
Officer-level consideration of the application
Drafting of officers’ report to committee (or delegated report)
(including drafting conditions or reasons for refusal)
Determination of application by committee (or by designated officer under delegated powers)
Negotiation and execution of section 106 agreement (if required)
Issue of the planning permission
Submission of sample materials and/or further details required by conditions
Approval of materials and/or other details
Discharge of pre-commencement conditions
(Building Regulations consent - separate process)
Commencement of development

This is not intended to be definitive list, and readers can no doubt identify other steps in the process, but the essential message is that all these stages involve developers in significant time and costs, and there is considerable scope for cutting out a number of stages and streamlining this process.

Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases.

The requirement on the part of many LPAs that there should have been some community involvement in the formulation of the application involves an equally useless waste of time and effort. The response one gets to letters sent out in the neighbourhood (even where they contain plentiful information and illustrative details) and the response to exhibitions and meetings to explain the proposals is often minimal to non-existent, and the one or two responses that are forthcoming tend to raise points of minor detail or issues that are totally irrelevant to the application. The whole exercise is a useless waste of time not only for the developer but also for the local community. Neighbour consultations by the LPA after they have received an application are more than sufficient to ensure that local residents are aware of the application and that they have the opportunity to comment on it.

I have previously written about the information that must accompany a planning application. I won’t repeat myself, other than to state that the current rules are far too prescriptive. A very experienced planning consultant who, like me, has worked both in local government and in the private sector, agreed with me some time ago that the most effective improvement that could be made to the rules and requirements governing the submission of planning applications would be simply to repeal all the additional requirements that have been imposed in past 20+ years.

‘Major development’ should be identified as 50+ residential units or more than 2,500 sq m of gross retail floorspace. Industrial development should only be considered as ‘major’ if it falls into Class B2 and is within 400 metres of any residential property. All other development should be entirely exempt from the need for a Design & Access Statement. There should be a searching review (at ministerial level) of the justification for ecological reports, archaeological reports, Environmental Impact Assessments, noise impact assessments, flood risk assessments, heritage statements, land contamination assessments, lighting assessments, photographs or photomontages, sustainable construction statements or checklists, etc, etc, etc. In light of that review, strict (and restrictive) criteria should be laid down in the DMPO as to what information can legitimately be requested by an LPA in particular circumstances, so that only if such criteria do apply can the relevant type of information be required to accompany the planning application. This nationally uniform set of criteria in the DMPO would replace the local validation checklists individually adopted by LPAs, in contrast to the current position, where there are numerous demands for specific technical information and reports which are entirely inappropriate and unnecessary in many cases.

The whole concept of ‘validation’ should be entirely abandoned. It is of comparatively recent origin, and does not feature in the primary planning legislation. A planning application should be considered complete if an application form is submitted with payment of the application fee and is accompanied by such other documents as may be required by the nationally adopted criteria set out in the DMPO, referred to above.

The legal duty of the LPA (under section 69 of the 1990 Act) to enter the application on the planning register requires no separate ‘registration’ process. Time should run for all purposes from the day after the completed application documentation and fee are received by the LPA, and rules (again, written into the DMPO) should make it clear that the LPA is under an obligation to begin processing that application from that moment, irrespective of the date on which the purely administrative task of entering it on the planning register is completed. The essential point is that the application does not need to be registered in order to make it a valid application; registration is merely a matter of record keeping, which should not affect the processing of the application in any way.

There should be more clearly defined criteria that the LPA must follow in carrying out consultations. There should be a means (again, within the DMPO) of reliably identifying which neighbours and which statutory and internal consultees should be notified of the application, and which should not. There may perhaps be a case to made for prohibiting the consideration of representations made after the specified period (21 days) has expired, as well as a prohibition on entertaining representations made by other departments within the authority, if these are not departments having a legitimate interest relevant to planning in the subject-matter of the application. For all these purposes strict criteria should be written into the DMPO.

I have already explained my views on the use of conditions (which is dealt with elsewhere in the consultation paper). The problem for many years has been that, apart from the legal tests which have been established by the courts, the guidance has taken the form only of ministerial policy in circulars (most recently in 11/95 and now in the on-line Planning Practice Guidance). As a result, these requirements have been widely ignored by LPAs. The only reliable way to secure a uniform approach by LPAs to the use of conditions would be to write the well-established principles into the DMPO, so that they become mandatory rules which LPAs are bound by law to observe. The new rules might usefully restrict the circumstances in which approval of materials and other minor details can be required, and should also limit the circumstances in which pre-commencement conditions can be imposed.

Where conditions do require further approvals, the deemed discharge of the condition after a strict time limit following an application for such approval should apply, as the government has proposed, but it should be automatic and should not require the service of a further notice by the developer. The abolition of application fees for this type of approval would be a further incentive to LPAs not to impose such conditions unless they are really necessary.

Finally, it should be entirely unnecessary for conditions to be formally ‘discharged’. This is another comparatively recent innovation; I can certainly remember a time when conditions were simply complied with, and that was that. Some LPAs go to quite unnecessary trouble nowadays to formally determine applications for the discharge of conditions, even issuing a formal decision notice. Such bureaucratic nonsense was entirely unknown in my days in local government, and I can see no need for it.

The sad fact is that, despite their claims to be streamlining and improving the planning system, DeCLOG ministers have entirely failed to tackle these issues. The present consultation exercise probably represents their last opportunity before the General Election of achieving major reform of the planning system. They have botched it.

© MARTIN H GOODALL

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Dinghy Boat Plans | Can conditions preclude Permitted Development

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The immediate answer to this question is that of course they can, and such conditions are quite common. They are usually along the lines that “Notwithstanding [the GPDO – variously referred to] no development shall take place under Part 1, Classes A or E [etc. etc.]” (or as the case may be). Some conditions even exclude all types of PD under the whole of Parts 1 and 2. There is no doubt that if the condition is worded with sufficient precision (and most are) the type of permitted development specified by the condition cannot be carried out, and a planning permission would have to be sought instead. There must, of course, be an objective justification for such a condition, and I have come across rather too many examples of these conditions which were imposed without any such justification. The remedy in such a case is an application under section 73 (and, if necessary, an appeal against a refusal to remove the condition). I have even won costs against the LPA in such appeals.

However, I have recently been asked by a correspondent about the effect of a rather differently worded condition in relation to the recently introduced right to convert an office (Use Class B1(a)) to residential use. In this case, a duly implemented planning permission which had authorised a change of use of premises to office use contained a condition that read: “The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof).” Does this preclude a change of use to Use Class C3 under the new GPDO provisions (subject to the qualifying criteria and compliance with the prior approval procedure)?

At first sight, it appeared to me that this condition does have that effect – if you simply take the words : “The premises shall be used as an office (Use Class B1a) and for no other purpose. But second thoughts suggested otherwise. It seems to me that this condition does not (and cannot) preclude an application for planning permission for a further change of use. It was designed solely to prevent the use being changed within Use Class B1 in reliance on the terms of section 55(2)(f) of the 1990 Act (whereby such a change of use within the same use class would not constitute development within the meaning of the Act). Any other change of use, to a use outside the scope of Class B1, would have been development in any event, and would have required planning permission. Thus, if planning permission were to be granted for such a further change of use, it would supersede the previous permission (and its conditions). What Part 3 of the Second Schedule to the GPDO does is exactly the same; it grants planning permission (subject to certain requirements being met) for a further change of use. The condition in question cannot therefore have the effect of precluding this.

There are several reasons for reaching this conclusion. First, the condition referred specifically to the Use Classes Order and contained no reference at all to the GPDO. I do not consider that the quoted wording could be stretched to include the GPDO or to be construed so as to do so. Furthermore, if permitted development was intended to be precluded by this condition, this should have been stated in clear terms. It is well settled law that conditions must be clear in their intention and effect; their purpose cannot be implied. Permitted Development cannot be precluded by implication. If an LPA wishes to preclude PD, it must word the condition in such a way as expressly to remove specific PD rights.

I mentioned above that if planning permission were to be granted for a further change of use, it would supersede the previous permission (and its conditions). As I have pointed out, what the GPDO does is to grant planning permission for a further change of use. This is the primary reason for my taking the view that this condition in the previous permission does not preclude the further change of use now authorised by Part 3. For the same reason, I do not consider that the condition would prevent the other change of use permitted by Part 3 (subject to a floorspace limitation) from B1 to B8.

I recall that there used to be some doubt as to whether development carried out as permitted development would be free of conditions under an existing planning permission. The conclusion (although I can’t recall offhand the relevant authority for this) was that the conditions continued to apply to the property as a whole. However, I don’t see that rule as being applicable in this context, where planning permission is given by the GPDO for an entirely different use of the property, at least so far as concerns conditions that were specifically addressed to the actual use of the property. Where the GPDO authorises a change of use under Part 3, it seems to me that any such conditions attached to the earlier permission would no longer apply. The position as regards other conditions (for example as regards car parking) may, however, be more doubtful.

No doubt there are those who would take a different view, and I cannot pretend that the answer I have given above to the question that was posed to me is the last word on this subject. But for what it’s worth, and subject to any contrary statutory or judicial authority that might be brought to my attention, I don’t believe that a condition like the one quoted above would preclude a change of use under the GPDO.

UPDATE: In case anyone didn’t see Steve Jupp’s helpful contribution to this discussion among the comments posted below this item, I thought it might be useful to follow him in drawing attention to paragraph 86 of Circular 11/95 (recently cancelled, I know, but in my view the statements it contained are still relevant and should continue to be applied). This paragraph stated in clear terms that “a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well.” Q.E.D.

NOTE: This topic is more fully discussed in 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.

© MARTIN H GOODALL


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Boat Plans Wood | Conditions that fail to prevent Permitted Development

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In a blog post published here on Friday, 18 October 2013 (“Can conditions preclude Permitted Development?”) I drew attention to a type of condition attached to planning permissions along these lines : - “ The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof)” (or words to that effect). The question is whether a condition framed in these terms can prevent the operation of the permitted development right granted by Part 3, Class J of the GPDO, as amended in May 2013.

In my original piece, I expressed the view (for the reasons set out there) that this wording does not have the effect of precluding permitted development under Part 3 of the Second Schedule to the GPDO. But I was unable at that time to put my finger on any specific authority to back this up. Since then, our planning law team at Keystone Law has had to get to grips with this question ‘for real’, and I am grateful to my colleague Ben Garbett for having dug out the judicial authority that backs up the view I expressed last October.

In the meantime (as noted in an update to my original post), Steve Jupp had kindly drawn my attention to paragraph 86 of Circular 11/95 which, after making it clear that conditions of this type are officially discouraged, added that a condition restricting changes of use will not restrict ancillary or incidental activities unless it so specifies, and the paragraph ended with this sentence: “Similarly, a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition also specifically removes those rights as well.” Circular 11/95 has now been cancelled, but this sentence was not a statement of ministerial policy; it was a general statement of the law, which continues to be applicable.

The author of Circular 11/95 no doubt had in mind judicial rulings to that effect. The first of these was delivered by Sir Douglas Franks QC in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806, where he said:

“This case turns on the proper construction of the planning permission. As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.

The Court of Appeal reached a similar conclusion in Dunoon Developments Ltd -v- SSE [1992] JPL 936 (although the judgment in Carpet Decor does not appear to have been drawn to the attention of the court in that case). Article 3(4) of the GPDO had been called in aid by the LPA, but Farquharson LJ held that :

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.”

He concluded that he recognised that it is necessary to examine the condition with care, bearing in mind the appellants’ submission that that if the LPA were correct in their interpretation, it would deprive the appellants of a development right granted by statute. “It is clear that that the condition makes no express exclusion of the effect of the General Development Order. The question, therefore, is whether it is to be implied from the words themselves, in the context in which they are used, to so exclude them. As already indicated, the condition does not have that wide effect.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

“Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more. In the present case there is nothing more. Condition 1 delimits or circumscribes the ambit of the permitted use. The condition is not apt to achieve more. It is not apt to achieve more because it is not fairly apparent from the language of the condition, or the document [the planning permission] read as a whole, that Condition 1 is intended to do more than this. If the condition is fairly read, its purpose is, but is only, to define the ambit of the permission granted. There is not explicit or implicit an intention to negative development pursuant to any existing or future Use Classes Order or General Development Order.”

I am aware of an earlier decision in City of London Corporation v. SSE (1971) 23 P&CR 169 that appears to have gone the other way but, in light of the more recent judgments in both Carpet Decor and Dunoon Developments, I do not believe that any reliance can now be placed on that earlier decision.

The best that might be said for this type of condition is that it may (if appropriately worded) exclude the operation of section 55(2)(f), i.e. other uses within the same use class (as the condition quoted earlier would appear to do), although the judgments in Carpet Decor and Dunoon Developments make it clear that even the operation of section 55(2)(f) by reference to the Use Classes Order cannot be taken to have been excluded in the absence of clear words specifically referring to the UCO.

However that may be, it is abundantly clear from these judgments that (as was confirmed by paragraph 86 of Circular 11/95) a generally worded condition of the type under discussion here cannot prevent the operation of the General Permitted Development Order, and in particular Part 3, Class J in the Second Schedule. Local Planning Authorities who try to resist permitted development on the basis of such a condition are going to be on a hiding to nothing. Where time and effort had to be expended, we have found, is in persuading them that they are wrong in thinking otherwise and, if they still don’t accept the position, in taking the necessary legal and procedural steps to confirm our clients’ right to carry out the development. We are already working on several such cases, and no doubt more will follow.

NOTE: This topic is discussed more fully in 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.

© MARTIN H GOODALL

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Wood Boat Plans And Kits | Proposed changes in the use of planning conditions

Wood Boat Plans And Kits

The government’s recent consultation paper (“Technical Consultation on Planning”) contains a number of ideas for modifying planning procedures. They include, among other things, proposals relating to the use of planning conditions.

It is widely recognised that there has long been a tendency on the part of LPAs to impose too many conditions on permissions, and to be far too prescriptive in their approach. The oft-repeated six tests of legality are often overlooked and ministerial advice, formerly set out in Circular 11/95 and now to be found in the government’s on-line planning practice guidance is widely ignored. Many planning officers have never even read 11/95 and are entirely unaware of what it said.

The consultation paper expresses particular concern about the number of conditions imposed on full planning permissions that require the submission of various additional details for approval, so that developers are required to jump through yet more hoops to get the development fully approved. Another cause for concern is the increasing use of pre-commencement conditions (‘conditions precedent’) forbidding the commencement of development until the condition has been formally discharged by the LPA. Many of these details, if they really do require to be ‘signed off’ by the LPA, do not really need to be approved before a start is made on site.

In practice, the courts have long since recognised that the commencement of development before pre-commencement conditions are discharged is entirely lawful, provided the condition is not one that “goes to the heart of the permission”. There are nonetheless far too many instances of LPAs claiming that the commencement of development is unlawful in these circumstances, with resulting uncertainty and anxiety for the developers.

Another issue is the time it takes to get such conditions discharged, once the further details have been submitted to the LPA. The government makes the point that this can lead to substantial and unacceptable delays and costs at a stage in the development process where applicants are often close to starting on site or where the development is underway. Such delays can have severe practical implications for applicants – potentially impacting on the availability of finance, the sequencing of development, or resulting in unnecessary and costly down time where work on site could otherwise be proceeding.

This is the background to the proposals (previously announced), which will be inserted in the Deregulation Bill, for the deemed discharge of such conditions where the LPA does not make a decision within 6 weeks. A deemed discharge will mean that where an developer has sought the authority’s consent, agreement or approval to a matter required by the condition, and the LPA has not notified the developer of the decision within 6 weeks, the applicant may regard that matter as having the approval or consent of the LPA.

The only reservation I have about this is the need to ensure that the new provision operates in a straightforward manner, and does not require the developer to jump through further hoops (such as some form of appeal process, even a streamlined one). I do not even see the need for the developer to give a further 2 weeks’ notice to the LPA to discharge the condition following the expiry of the decision period, as is currently proposed. The new rule will not apply to all such conditions, but the categories of excluded or exempted conditions, where deemed approval will not apply, must be kept to a bare minimum.

In tandem with this proposal, the Fees Regulations (which currently provide for a fee refund for confirmation of compliance with conditions after 12 weeks) will be amended to require a refund upon no decision being made within 8 weeks.

Having identified in the consultation paper the well-known problems with planning conditions referred to earlier, De-CLoG’s proposals for tightening up on the use of conditions generally are disappointingly tentative. There is a rather wishy-washy suggestion that LPAs should discuss draft conditions with applicants for major developments before a decision is made. However, whilst De-CLoG recognise that this could also be beneficial in the case of minor developments, they propose to make it mandatory only for major developments. It is suggested that this should happen not less than 10 working days (or even 5) before the determination of the application, but it really needs to be done earlier than this if the applicant is to be given any meaningful input into the formulation of the conditions.

This does not tackle the fundamental problem of inappropriate or unnecessary conditions being imposed on a permission by the LPA. The rules and guidance on the use of conditions need to be given real statutory teeth. Appealing a condition under section 78 is never a satisfactory solution (as it theoretically puts the entire planning permission in jeopardy). An application under section 73, followed by an appeal against the LPA’s refusal to remove or relax the offending condition is the only practical way forward, which adds extra expense and delay for the developer, although it is usually effective because the Planning Inspectorate takes a robust approach to unnecessary of unwarranted conditions. What is really needed, however, is an automatic disqualification of conditions which fail to meet clearly defined statutory criteria, so that they would be deemed void without need of any application or appeal, and would be automatically severed from the permission so as not to jeopardise the permission as a whole. This would involve some very careful legislative drafting, but it is not beyond the abilities of skilled planning lawyers to achieve.

De-CLoG does propose to tackle unwarranted pre-commencement conditions, to ensure that they are used only where there is a genuine and justifiable reason to prevent any development until the matter covered by the condition has been addressed. Many of the matters covered by pre-commencement conditions could be dealt with at a later stage in the development process, rather than before construction starts. The proposal is to add an extra requirement in the Development Management Procedure Order, requiring a written justification from the LPA as to why it is necessary for that particular matter to be dealt with before development starts. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions.

I very much doubt that this will prevent the inappropriate imposition of ‘conditions precedent’ in future. It would be all too easy for LPAs to adopt a standard form of words in such cases, referring to “the need to ensure good planning and to secure an acceptable form of development” or some such meaningless rubric. What is needed is a legislative provision that gives effect to the judgments in Whitley & Sons, Hart Aggregates and similar cases, so that a condition requiring compliance prior to the commencement of development does not in fact prevent the implementation of the permission before compliance, unless the condition “goes to the heart of the permission”. That is already the law; it is simply a question of codifying it, so as to eliminate any uncertainty in particular cases.

I will discuss the proposals for changes to the planning application process in a future post.

© MARTIN H GOODALL

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