Boat Building Plans And Kits | Breaches of planning control – the need for continuity 4

Boat Building Plans And Kits

The first of the judgments I mentioned in this extended article (Nicholson) related to a breach of condition, and this is a type of breach that has troubled the courts on several other occasions, particularly with regard to occupancy conditions. The previous judicial authorities on the topic were helpfully reviewed in the judgment in Ellis v. SSCLG [2009] EWHC 634 (Admin).

This case had been the subject of an LDC application which had been dismissed on appeal by an Inspector. Between 1961 and June 2000 a cottage was occupied in breach of an agricultural occupancy condition. From June 2000 to October 2001 the cottage was vacant while it was being renovated. From October 2001 to July 2003 the cottage was again occupied in breach of the occupancy condition. From July 2003 to October 2003 the cottage was unoccupied during a gap between tenants. From October 2003 to November 2006 the cottage was again occupied in breach of the occupancy condition. From November 2006 to March 2007 the cottage was unoccupied. In particular, it was unoccupied at the date when the LDC application was made.

There had undoubtedly been more than 10 years’ uninterrupted breach of the condition from 1961 to 2000, so that by that time immunity from enforcement had long since been achieved in respect of that breach of the condition. However, this case illustrates the important distinction between a breach of condition and a change of use, where the rule in Panton would have applied after 2000 in the absence of subsequent abandonment of the use. As the deputy judge emphasised, Panton did not concern a breach of condition as Ellis did.

The deputy Judge in Panton had held that, if immunity from enforcement is acquired in respect of a material change of use, that immunity could only be lost by abandonment, by the formation of a new planning unit or by a further material change of use. That was based upon well-established principles of planning law: see Hartley v MHLG [1970] 1 QB 413, at pp. 420-421 (Lord Denning MR); and Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, at pp. 143-144 (Lord Scarman). However the deputy judge in Ellis accepted the submission for the Secretary of State that material changes of use are to be treated in a different way from breaches of condition and that this distinction was recognised in Panton itself.

Reference was also made to the earlier judgment in N Devon DC v. SSE and Rottenbury [1998] PLCR 356, which was another AOC case. In that case, the dwelling was adapted for holiday accommodation for short lets between May and September each year. In the period from October to April the premises were not occupied at all. An LDC was sought on the basis that the cottage had been used as a holiday cottage for more than 10 years without complying with the AOC. In an appeal against the LPA’s refusal to grant an LDC, the Secretary of State granted the certificate, because “such seasonal occupation, while intermittent, could nevertheless be regarded as part of the normal, regular pattern of use of the property as a dwelling-house for holiday accommodation in breach of the condition, which, in the absence of any evidence of alternative or intervening uses remains subsisting throughout any period of non-occupation, and is not therefore considered to have given rise to a fresh breach of the condition each year”.

The deputy judge in North Devon concluded that there would normally be no breach of the AOC (which clearly required that the premises were not to be occupied otherwise than by persons employed or last employed locally in agriculture) if the premises were vacant in the sense of not being occupied by anybody. Counsel for the Secretary of State, in seeking to defend his appeal decision, had submitted that “occupation is a function of use”, but the court held that the two terms should not be elided, and it was on this basis that the appeal decision was quashed.

In North Devon, the deputy judge did nonetheless opine that “clearly, continuous physical occupation is not require for there to be occupation in breach”. However, beyond that brief comment, he declined to indicate any guidelines on the interpretation of the word “occupation”.

Reference had been made in that case to an earlier judgment in Mitchell v. SSE [1992] JPL 553. The deputy judge in North Devonfound the cited report unhelpful (due to the apparent lack of reasoning, at least as reported), but the deputy judge in Mitchell had at least found that the inspector in that appeal had not misunderstood the concept of occupation when he concluded that the AOC was not offended, even though the owner (who was a retired person “last employed in agriculture”) in fact lived in Spain but kept some of his furniture in the house. It was the owner’s son (not employed in agriculture) who actually lived in the house. There was no breach of the AOC because the person in “occupation” within the meaning of the condition was the owner. He satisfied the condition. He was in control of the property. He was the person in “occupation” until March 1986, when it was then let to someone else. It had been argued on behalf of the LPA that the inspector had wrongly introduced the test of “possession” or “control”, but other than rejecting that submission, the deputy judge had not explained the point. In retrospect, it appears that little reliance can be placed on Mitchell, which does not appear to be consistent with other more recent decisions.

North Devon was subsequently the claimant in another case involving a breach of condition. This was N Devon DC v FSS and Stokes [2004] 3 PLR 62. That case involved a condition restricting the occupation of bungalows to the period between March and November each year. A CLEUD was sought in circumstances where the bungalows had been occupied all year round for a period of ten years. The council asserted that there were separate breaches every year and relied upon Nicholson to support a submission that those breaches could not be aggregated to constitute the necessary ten-year period. Sullivan J (as he then was) rejected that submission, holding that it was not appropriate “mechanically” to apply the dicta in Nicholson to cases involving conditions that could not be breached throughout the year. This case was clearly distinguishable from the AOC cases.

Reference was also made in Ellis to the Court of Appeal’s decision in Fairstate Ltd v FSS [2005] EWCA Civ 283. That case did not concern a breach of condition so much as a material change of use, by reason of the operation of the section 25(1) of the Greater London (General Powers) Act 1973, as amended, which provided that for the purposes of what is now section 55(1) of the 1990 Act, the use as temporary sleeping accommodation of any residential premises in Greater London (defined by the Act as less than 90 days) involves a material change of use of the premises and of each part of the premises which is so used.

In Fairstate the question at issue (as Ward LJ put it in his judgment) was “what if any breach of planning control occurs where the use to which a London flat was put changed over three stages – (1) for more than ten years as temporary sleeping accommodation which made that unauthorised use lawful, but (2) with a change for about five months to longer-term residential occupation, and finally (3) reverting back for the next four years to temporary sleeping accommodation.” It was common ground between the parties in that case that, at stage (1), use of the flat for temporary sleeping accommodation was a material change of use that had become a lawful use by virtue of section 191(2) of the 1990 Act. Nevertheless, it was held by the Court of Appeal that the change from stage (2) to stage (3) (from permanent back to temporary sleeping accommodation) was a further breach of planning control in respect of which enforcement action could be taken.

Fairstate clearly turned on the particular effect of the 1973 Act in Greater London. It is an example of one change of use, which had become immune from enforcement and therefore lawful, being ‘killed off’ by a further change of use, so that when a third change of use took place, this was a fresh breach of planning control that could not benefit from the lawfulness of the earlier identical change of use, even though such changes of use would not have been material in planning terms if they had taken place outside Greater London. Fairstate clearly did not assist the claimant’s case in Ellis, and is unlikely to be of any assistance in other cases, not least because (as the deputy judge in Ellis pointed out) the legal issue which arose in Nicholson, and had been raised again in Ellis, was not before the Court of Appeal in Fairstate, namely whether the relevant breach of planning control must subsist at the time of an application for a CLEUD.

If you have followed the various judicial authorities cited in previous parts of this article, it should come as no surprise that the claimants case in Ellis was unsuccessful.

I propose to leave it there for today, and to make some general observations and draw some conclusions in the next and final part of this article.

© MARTIN H GOODALL

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Wood Boat Plans And Kits | Changes to High Court challenges

Wood Boat Plans And Kits

As predicted in The Times yesterday, the Criminal Justice and Courts Bill has been published today. I have not yet had time to look at the Bill in any detail, but one change that I noticed immediately is contained in Clause 57, whereby it will be necessary in future to apply for the permission (‘leave’) of the Court before an application under section 288 can be brought before the court.

This will bring section 288 cases (relating to appeal decisions under section 78 in respect of the refusal of planning permission) into line with section 289, where permission has long since been required to appeal to the High Court against decisions in enforcement notice appeals under section 174, and with claims for judicial review brought under CPR Part 54. Thus all these procedures will now be brought into line so far as the need for leave is concerned. This change was foreshadowed in last year’s consultation paper on judicial review, although I am not at all convinced that this change was necessary.

The existing six-week time limit for launching a High Court application under section 288 will apply in future to the time for making the leave application.

It will take several months for the Bill to make its way through parliament, and it will be brought into force by a commencement order (or orders), so this and other changes that the Bill will introduce will not come into effect until nearer the end of the year, maybe even next year. In the meantime, section 288 claims can continue to be launched in the High Court as of right, without the need for leave.

Other clauses in the Bill make further changes to Judicial Review, as proposed in last year’s consultation paper. These include limitations on the extent to which protective costs orders (costs capping orders) can be made in future, provisions for the ‘leap-frogging’ of appeals from the High Court in certain cases to the Supreme Court (by-passing the Court of Appeal) and codifying the court’s discretion as to whether or not to grant relief in cases where no different outcome is likely to be achieved if the decision under challenge were to be quashed. This will no longer be a matter of discretion as such; instead, the court will be required to dismiss a challenge where the court considers the conduct complained about would be likely not to have resulted in a substantially different outcome for the applicant.

Unless I have missed something, this Bill does not contain the promised legislation to set up a fast-track specialist planning court (as part of the Upper Tribunal), but I am not aware of this proposal having been abandoned by the government, and so this may perhaps be dealt with by some other route. No doubt all will become clear shortly.

© MARTIN H GOODALL

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Pontoon Boat Plans Aluminum | Breaches of planning control – the need for continuity

Pontoon Boat Plans Aluminum

[I generally try to avoid posting very long items in this blog, but just occasionally a topic crops up that requires a more lengthy treatment. The following article might justify publication in a legal journal, but I thought I would share it with readers of this blog in the first instance. As with a previous lengthy article I wrote on barn conversions, I propose to split this article into at least three separate blog posts.]

______________________

It is an interesting coincidence that my colleagues Ben Garbett and Oliver Goodwin and I have all been puzzling over the same legal conundrum recently in connection with various cases in which each of us is currently involved. The issue that we have all been considering is the need to demonstrate continuity of a breach of planning control in the case of a change of use and/or breach of condition in order to establish that this breach has become immune from enforcement and therefore lawful.

The judicial authorities differ slightly depending on the nature of the breach (change of use to a single dwelling – the 4-year rule, change of use to some other use – the 10-year rule and breach of condition – the 10-year rule again). However, it is convenient to look at all these cases together in the chronological order in which the respective judgments were delivered.

The first of these cases, Nicholson v. SSE [1998] JPL 553, was heard in 1997. It related to the breach of an agricultural occupancy condition [“AOC”] in respect of which an LDC was being sought. The inspector, having reviewed the evidence concluded that the condition had not been breached continuously for a period of 10 years. The appellant also challenged the finding that there should be a subsisting breach at the time of the application.

The break in the continuity of the breach of condition arose from a period of several years when the property was unoccupied. The Inspector, applying an approach to this issue previously taken by the Secretary of State in other appeals, considered that there is no breach of the AOC during a period when an agricultural dwelling is not occupied at all. The house had remained unoccupied right up to the time of the LDC application. Its use as a dwelling had not been abandoned as such, and in fact it had been substantially extended (with planning permission) and had been subject to a lengthy process of refurbishment. However, following this continuing period of non-occupation, the inspector had concluded that any future occupation of the property by a person not complying with the AOC would be a fresh breach of the condition, with which previous periods of non-compliance could not be aggregated.

The Deputy Judge analysed the legal position in this way. By section 191(1), if a person wishes to ascertain whether “(c) any other matter constituting a failure to comply with any condition.....is lawful” he may make an application for that purpose. This paragraph is worded in the present tense, and is clearly directed towards the time when the application is made and to the lawfulness of the breach of condition at that time. By section 191(3), any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if the time for taking enforcement action in respect of the failure has expired (provided, of course, that it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force).

The Deputy Judge held that to answer the question whether enforcement action can be taken against a failure to comply with a condition, the decision maker should identify the failure to comply, look to see when, as a matter of fact and degree, that failure began and, finally, decide whether a period of ten years has since expired. He made the point that in this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Most significantly, he observed that if non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition will, however, in an appropriate case continue in force. If there is subsequently renewed non-compliance, this would be a fresh breach, and the period for enforcement against the breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches.

In applying that test under section 191(3) the decision maker is concerned with the particular non-compliance, the subject of the application for a certificate. This is consistent with a requirement that the non-compliance should exist at the time of the application. The Deputy Judge was careful to make it clear that he was confining himself to those provisions of section 191 which deal specifically with failure to comply with a condition, and he concluded that an application for an LDC can only be made if non-compliance exists at the time of the application. The applicant will then be entitled to a certificate if, at that time, the failure the subject of the application satisfies the definition of lawfulness, i.e. that a period of 10 years has expired since that breach occurred [or one might say ‘began’, in the case of the breach of a condition requiring continuous compliance, such as an occupancy condition].

The Deputy Judge then went on to make a number of observations (which were in their nature obiter) on the relationship of this issue with the other provisions of section 191 in respect of uses and operations. These observations are nevertheless of relevance in view of their having been quoted in later judgments relating to those issues, which I will examine in the next part of this article.

© MARTIN H GOODALL

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Wooden Boat Plans And Kits | Breaches of planning control – the need for continuity 3

Wooden Boat Plans And Kits

I turn now to the change of use of a building to use as a single dwelling, to which the 4-year rule applies under section 171B(2). What this sub-section actually provides is that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. Thus, apart from the different time limit for enforcement action, this provision is precisely the same in its wording and effect as section 171B(3) relating to other changes of use.

The practical interpretation of this sub-section was considered by the Court of Appeal in Swale BC v. FSS [2005] EWCA Civ 1568. In a re-determined planning appeal (the third after two previous decisions had been quashed in the High Court) an Inspector had decided that the claimed residential use was then immune from enforcement because the time for such action had expired. Referring to the Court of Appeal decision in Thurrock Keene LJ observed that there was no dispute that, as a matter of law, the owner had to show not only that the change of use to residential use had occurred four years or more before 6th March 2001, but also that residential use had continued throughout that four year period.

In Thurrock Schiemann LJ had made the point that an enforcement notice requires the breach of planning control to be remedied, but if the new activity ceases the breach will be regarded as having been remedied. Moreover, he emphasised that the concept of abandonment which had been central to the Inspectors reasoning in the Thurrock case had evolved in respect of established use rights (that is to say rights which have already been established) and not in respect of a use, the continuity and lawfulness of which was in issue.

Also in Thurrock, Chadwick LJ had agreed that the Inspector had needed to ask whether the use in question had been continuous during the period and he too rejected the Inspectors approach of asking whether the use, having been commenced, had subsequently been abandoned.

In the Swale appeal, the Inspector had found that residential use of the building had begun during occupation by a predecessor, between about March 1995 and February 1996, at which point that person had ceased to own the property. The Inspector also found that it was in full-time residential occupation from the year 2000 onwards. Neither of those findings of fact was challenged. It was his approach to the intervening period which was the basis of the Councils case that the decision was flawed.

What the Inspector had to focus on was the period from 6th March 1997 to 6th March 2001. The owner’s own evidence at the inquiry was that he had bought the site in 1996, did not move in straight away but visited regularly to do improvement works. In the first part of 1997, he lived partly on the site (as distinct, it seems, from the barn the subject of the appeal) and partly in a house in Maidstone. From late summer 1997 the site (although not necessarily the subject building itself) became his only home. Someone helping with work on the barn also moved to the site in 1998, living partly in the barn and partly in a freestanding mobile home. Between September 1998 and May 1999, the owner was legally required to live at Maidstone but after May 1999 he lived at the site, sometimes in the barn, sometimes in the freestanding mobile home.

The way that the Inspector had approached the matter had been that there had been an erratic pattern of use of the barn over a two or three-year period after 1996. However, once initial repairs were carried out, the barn appeared to have been fitted and available for residential use from then onwards. The Council acknowledged a residential use from 2000 onwards. The Inspector found that there was no substantial evidence that since the previous occupation of the barn (between March 1995 and February 1996) the barn was used for any purpose other than residential, except from time to time for minor storage connected with the use of the site as a whole.

There had been a lack of reference to the residential use in some planning applications and correspondence that the owner had with the council. However, during part of the relevant period, the owner had a difficult and complicated personal life and the Inspector accepted that these factors affected both his use of the site and the control that he was able to apply to the work being carried out there. The Inspector had no doubt that the barn was in full time residential occupation in 1995/6 and again from 2000. In the period 1997 to 1999 the evidence indicated substantial work on the barn to complete its conversion for residential purposes, as well as on the remainder of the site. The owner and several other people were involved in this work and frequently slept in the barn for substantial periods. The Inspector was aware of no evidence of any intention to abandon the residential use of the barn. Indeed, the main intention appears to have been to improve it to allow for full-time occupation as the owners home.

In his decision letter, the Inspector went on to say that he had borne in mind the meaning of residential use described above, but he opined that the failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased. He therefore concluded on the balance of probability that residential use of the barn as a single dwelling house began more than four years prior to the date of submission of the LBC application and had continued since then without significant break.

In challenging this decision, the Council relied on the Court of Appeal’s decision in Thurrock, and contended that the Inspector erred in law in using the concept of abandonment of a use and took into account immaterial considerations by applying that concept and by relying on the fact that no other use had been introduced. Counsel for the LPA laid stress on what was said in Thurrock about abandonment being a concept relevant only to already established use rights, but not to whether there had been continuity of use so as to achieve immunity under the 4/10-year rule. The council contended that the same was true of the Inspector’s finding as to whether or not an alternative use had been introduced. The only proper question, they submitted, was whether the building was in continuous use for residential purposes throughout the 4-year period beginning with the breach, so that the Council could have served an enforcement notice at any time during those four years.

The council argued in particular that it is wrong to distinguish the use in the Thurrock case, which was the use of land as an airfield, from the use of a building as a dwelling. In both cases, it was argued, there has to be activity for the use to exist. If there are long periods of absence from the building, there is no activity and hence no use is continuing. It was submitted that this was the case here. The mere presence of personal effects and the connection of services such as water and electricity would not suffice, it was argued, especially in a building which was not physically a dwelling house. Nor, it was contended, was it enough, as the Inspector appeared to have thought, for the building to have been occupied "for substantial periods". The council criticised the Inspectors statement that "failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased". They pointed to the evidence that the owner was not himself in occupation for the eight months between September 1998 and May 1999 and that the barn was not lived in between Christmas 1997 and May 1999. It was not occupied in 1998. Notwithstanding this, the Inspector had found that residential use had been continuous throughout the 4-year period, which was perverse, and it showed that the Inspector was over-influenced by the concept of abandonment.

The Secretary of State sought to defend his Inspector’s decision. The Inspector had found as a matter of fact and degree that the residential use began more than four years before the relevant date "and has continued since then without significant break" (a finding of fact that would not ordinarily be open to legal challenge). The Inspector, it was argued, was not applying any presumption of continuity and was not using the concept of abandonment, except in order to reject something which would have been fatal to establishing a four-year use.

Furthermore, the Secretary of State argued, some uses of land involve more fluctuations in activity than others. An airport use will see little or no fluctuation in the activity taking place, whereas a dwelling house use is likely to involve periods where a building is not actually being occupied; for example, at weekends or holidays. It was contended that the presence of furniture and personal effects is relevant to the question of use (relying on cases dealing with the seasonal use of land, such as Webber v MHLG [1967] 3 AER 981).

It was accepted on behalf of the Secretary of State that the critical period of time was 6th March 1997 to 6th March 2001, but it was emphasised that the evidence was not concerned solely with occupation by the owner himself; occupation by others was also relevant, and it had been said that on the evidence there were confused living arrangements with various people coming and going.

The owner also sought to defend the Inspector’s decision. On his behalf it was submitted that the Inspectors findings were consistent both with the evidence and with the approach endorsed in Thurrock. Counsel for the owner submitted that it is a question of fact whether a building is being used as a dwelling house, and drew attention also to a passage in Schiemann LJs judgment in Thurrock in which he accepted that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on - because it is the weekend or the factorys summer holiday, for instance. The land would still be properly described as being used for the objectionable activity, and Schiemann LJ had rejected a contrary submission that enforcement action can still be taken after an activity which resulted from the material change in the use of land has permanently ceased. He accepted that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity, but these were matters of fact and degree for the judgment of the decision maker in each case.

Effectively, it was argued, the Inspector in the Swale case found that the residential use had not permanently ceased during the critical period. The judge at first instance had been right to distinguish between a cessation of use on the one hand and an absence of the occupier for a time, such as for the purpose of a holiday. Counsel for the owner argued that the absence of an intention to abandon residential use was relevant because, had such an intention existed, it would have negated the continuity of that use.

Having recited the arguments on both sides at some length (but without commenting on them beyond the remarks reported above) Keene LJ made the following points. He accepted that whether a building is, or was, being used for a particular purpose at a particular time or times is largely a question of fact. But it is not, in the planning law context, wholly such. It is necessary, as Thurrock demonstrates, for the decision-maker to adopt the proper approach as a matter of law to his decision on that question. It is not always an easy question to answer. But the legally correct question for the Inspector here to have asked was whether this building had been used as a single dwelling throughout the whole of the four years preceding 6th March 2001, so that the planning authority could at any time during that period have taken enforcement action. That is a quite different question from whether a use has been abandoned, at least in the sense in which that word is normally used in planning law in the context of abandoning established use rights. Patently, when Schiemann LJ referred in Thurrock to the permanent cessation of the use, he was not intending to advocate a test similar to that of abandonment, which he had already expressly rejected in his judgment.

Keene LJ also endorsed the words of Chadwick LJ in Thurrock in which he had rejected the notion that time for the purposes of the 4/10-year rule could continue to run where a use was simply ‘dormant’ (as had been suggested in Panton), due to the difficulty in which this would put local planning authorities in having to decide whether they should take enforcement action against a ‘sleeping’ use (or face the risk of that use becoming immune from enforcement by reason of time continuing to run under the 4/10-year rule).

In dealing with the decision letter itself, Keene LJ noted that, on the face of it, the Inspector in the Swale appeal did find that residential use had begun more than four years earlier and had continued since then "without significant break", but the process of reasoning which preceded that finding was faulty. The Inspector had also found that there were periods of time during 1997 to the end of 1999 when this building was not occupied for residential purposes. He referred not only to the "erratic pattern of use", but also to the owner and others frequently living and sleeping in the barn "for substantial periods". However, that did not mean that there were not also substantial periods when it was not so occupied, and nowhere prior to his conclusion did he suggest (and nor did the evidence) that the non-occupation periods were de minimis. Nor did the Inspector ever clearly deal with what the use was, or what was happening in the building, in March 1997 when the four year period began. That was a crucial date.

What appeared to have led the Inspector to the conclusion that residential use had begun more than four years earlier and had continued since then without significant break were a number of other factors. One of those was the absence of evidence of an intention to abandon the residential use of the barn. Had that been the only troubling reference it might not have cast sufficient doubt on his process of reasoning. But there were other references which also gave rise to concern. The Inspector referred to there being no substantial evidence that during the critical period "the barn was used for any purpose other than residential", apart from some minor storage. That, however, is not the test. A building may not be in use at certain times for any purpose at all. The fact that it is not put to some alternative use does not demonstrate that it was in residential use, which is the real issue. Likewise, the Inspector emphasised that once initial repairs had been carried out "the barn appears to have been fitted and available for residential use from then onwards". That was irrelevant. The decision-maker is required to consider not the buildings availability or suitability for residential use, but whether it was actually put to such use.

Those factors, relied on by the Inspector, had to be added to his reference to the absence of evidence of intention to abandon residential use. That caused his lordship concern, because a building may well not be in continuous use for residential purposes and yet the owner fully intends to resume occupation for such purposes at a future date. The existence of such an intention would not by itself entitle the planning authority to serve an enforcement notice when the building is not being residentially used. The concept of abandoning the use is, he held, best confined to the topic of established use rights where it is a well recognised concept (see Hartley v MHLG [1970] 1 QB 413).

In agreeing with this judgment, Sedley LJ confirmed the well-settled point that if a building is in an already established use as a dwelling-house, something approaching abandonment of that use will be necessary “if a break in continuity is to be shown”. [What I suspect he meant was – if that established use is to be lost.] Short of this, the law has always recognised that an occupier does not have to be continuously or even regularly present in order to establish unbroken use of the premises as a dwelling-house - see the decision of the Court of Appeal in Brown v Brush [1948] 2 QB 247; Megarry on the Rent Acts, 11th edition, Volume 1, pages 245 to 249.

Sedley LJ contrasted this with a structure that is not yet in established use as a dwelling-house at the start of the material period. In that case, such use has to be affirmatively established, not merely at the start but over the whole 4-year period. Here, logically, intermittent [‘discontinuous’] residential use is not continuous residential use. This confirms the clear view expressed by the Court of Appeal in Thurrock.

The question remained, however, whether on the evidence the Inspector could, by proper reasoning, have reached the same conclusion. Sedley LJ agreed with Keene LJ that the question was not open and shut, and would have to be determined by another inspector at yet another inquiry. Whatever the outcome, but especially if it turned out to be a fifth inquiry, his lordship drily observed that this building looked like finding a place not only in the Law Reports but in the Guinness Book of Records.

I have dealt with this decision at some length, as it discusses in more detail than any of the other judgments on this subject the issue of continuous use. The judgment confirms the basic principle that in order to show that the use of a dwelling is immune from enforcement in accordance with section 171B(2), the owner or occupier must establish not only that the material change of use to use as a single dwellinghouse took place more than four years before the date of the enforcement notice or application for a lawful development certificate, but they must also show that the use of the property as a dwelling was continuous throughout that four-year period.

However, this case like many others was nonetheless very much fact dependent, and so it would be wrong to extrapolate from this judgment points of detail that did not in the event form part of the ratio decidendi. Keene LJ’s summary of the submissions made on behalf of the council were no more than that; and he similarly summarised the submissions made on behalf of the Secretary of State and the owner. He did not pronounce any conclusion with regard, for example, to counsel’s assertion that mere absence from the building, even for some months (for example on an extended holiday), necessarily denotes a cessation of the residential use of the property. Similarly, no finding was made on counsel’s suggestion that in such circumstances there is no activity and hence no use is continuing. More important perhaps, the court expressed no opinion on counsel’s submission that the mere presence of personal effects and the connection of services such as water and electricity would not suffice to substantiate continuing residential use of the property.

I will come back to these points in a later part of this article. In the next instalment, I will mention the judgments in Ellis v. SSCLG [2009] EWHC 634 (Admin) and also R (Fairstate Limited) v FSS [2004] EWHC 1807 (Admin).

© MARTIN H GOODALL

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Boat Designs And Plans | Breaches of planning control – the need for continuity 2

Boat Designs And Plans

As I mentioned in the first instalment of this article, in giving judgment in Nicholson v. SSE [1998] JPL 553, the Deputy Judge made some further observations on the legal effect of section 191 in respect of uses and operations.

The Deputy Judge observed that the construction he placed on section 191 in respect of breaches of condition (as explained in the first part of this article) seemed to him to be consistent with the linked provisions in section 191 for Lawful Development Certificates in respect of uses and operations.

By section 191(1)(a) the purpose of the application in respect of uses is to ascertain whether any “existing use of buildings or other land is lawful”. It is accordingly plain (he suggested) that, in respect of uses, the use must exist at the time of the application. Note, however, that he did not suggest that the breach should still subsist at that time. I will come back to the significance of that point later.

Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past, in that generally they will already have taken place. However, it is clear from the wording of the section that the building or structure (or other works) should continue to be in existence in some physical sense.

In relation to all three of these types of breach of planning control, the Deputy Judge observed that there is a necessary implication in the wording of section 191 that there is something in existence against which enforcement action might be taken if it were not for the absence of a requirement for planning permission (i.e. because it does not constitute ‘development’ within the definition of section 55), or the fact that planning permission has been granted for it, or if it were not for the expiry of the time for enforcement action. It was the view of the Deputy Judge that the natural reading of section 191 in respect of uses and operations is that the section requires that the uses or operations should exist at the time of the LDC application in the sense that he had indicated.

Turning, then, to the other main type of breach to which section 171B(3) applies – changes of use, other than to use as a single dwelling, we come next to the judgment in Panton and Farmer v. SSETR [1999] JPL 46, in which it was noted that by section 171B(3) the relevant period for the acquisition of immunity is the passage of 10 years from the date of the breach [original emphasis]. The sub-section is silent on any requirement for continuation of the use. This is consistent with the definition of development in section 55, which in relation to the use of land and buildings defines the relevant development not as the use itself, but as the material change of use by which it commences.

The court noted that under the previous (pre-1992) provisions, the Secretary of State had accepted in a number of appeal decisions that these former provisions could apply to an ‘inactive’ or ‘dormant’ use, provided that it had not been abandoned, in other words where the breach of planning control (the material change of use) by which it commenced had not been remedied, because (for example) the building, whilst not in active occupation, nevertheless remained adapted, equipped and available for resumed occupation for the unauthorised purposes. The relevant question, it would seem, is whether there remained a subsisting breach of planning control upon which an enforcement notice could bite.

As the learned Deputy Judge observed in Panton and Farmer, this principle applies to all types of breach. In the case of operational development, the unauthorised works must still exist; in the case of a material change of use, the use must still exist (although it was held in Panton and Farmer that the use might be ‘inactive’ or ‘dormant’, provided it had not been abandoned); and in the case of a breach of condition, the failure to comply with it must still subsist. An enforcement notice could only be served in respect of such a continuing breach of planning control, and equally an application under section 191 can only be made in respect of a breach of planning control (*) that still subsists at the date of the application.

[* For reasons that I will explain in a later part of this article, I would not agree that it is the “breach of planning control” as such that must still subsist, but rather the building or other works or the use of land or buildings that originally constituted a breach of planning control.]

The finding in Panton and Farmer regarding ‘inactive’ or ‘dormant’ uses was distinguished and, in part, over-ruled by the Court of Appeal in SSETR v. Thurrock BC [2002] EWCA Civ 226. This case was concerned with a non-domestic change of use (to which the 10-year rule therefore applied) involving the use of land on a farm for the landing and take-off of aircraft. Crucially, the level of use had been subject to wide fluctuations over the years. An enforcement notice was served in 1999, well over 10 years after the first flights had taken place. In quashing the enforcement notice, the Inspector specifically relied on the judgment in Panton and Farmer. The Inspector stated: “There is no need to demonstrate that a use has been in continuous existence throughout a ten-year period. Unless there has been a clear-cut change in planning circumstances, such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use then the use will survive throughout ten years.” It was on this basis that the Inspector concluded that if the appellant could demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before 15 July 1989, then his appeal should succeed.

On the evidence before him, the Inspector found that a material change use of the land to an airstrip with associated storage of aircraft had taken place well before 15 July 1989. There had been no clear-cut changes in planning circumstances between the end of 1983 (when there was a cessation of the previous aviation activities) and the middle of 1989, such as a conflicting grant of planning permission or an indication that the use had at some time been abandoned, and so the appeal was allowed on ground (d). There was evidence from the LPA of intensification of the use only after 1989, but this did not alter the Inspector’s view that the material change of use had taken place well before 1989 and had never been abandoned, as this evidence showed. The Inspector again referred to Panton and Farmer, which he observed, “makes it clear that once a use had ceased, its resumption would not amount to a material change of use unless that use had been abandoned. The result is that land can have a dormant use even though the unauthorised activities may not be functioning for significant periods of time.”

The Inspector therefore concluded that overall he could find no clear evidence of abandonment of the airfield use since previous flying operations had ceased in 1983-4. “As a consequence, I find, as a matter of fact and degree, that the airfield operation of 1983 is not materially different from the present usage of the site which has therefore continued for more than ten years. In these circumstances, the appeal on ground (d) against Appeal 1 succeeds.”

The judge at first instance in Thurrock held that the Panton case was distinguishable. The statute gives immunity if the breach complained of in the enforcement notice occurred more than 10 years ago. The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards “the rolling period of years” (**) which gives rise to the immunity. It was for the landowner to show that at any time during the relevant period enforcement action could have been taken. On this basis it was held that the inspector had misunderstood Panton and treated the two years of unlawful activity in the early 1980s as though this had resulted then and there in that activity being a lawful use. This constituted an error of law.

[** Note that I profoundly disagree with the concept of a “rolling period of years”, bearing in mind that section 171B(3) clearly refers to the period of 10 years “beginning with the date of the breach”. I will return to this point in a later part of this article.]

The Court of Appeal endorsed this approach, and made a further distinction between the situation in Panton, where the use had clearly become lawful after 10 years, but there had subsequently been some discontinuity in the use (not amounting to abandonment), and the situation in the instant case, where the discontinuity in the use had occurred during the claimed 10-year period.

It appeared from the decision letter that the Inspector approached his task by considering whether in 1981 there had been a material change of use to a commercial use and then considering whether the LPA had satisfied him that the commercial use had been abandoned. However, the concept of abandonment was only relevant where there was already a lawful use, in circumstances where a landowner then either does not use it actively at all or starts to use it in a different way. Can the landowner thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date? It was that sort of situation with which Panton was concerned (and the Court of Appeal decision in Thurrock did not disturb that aspect of the judgment in Panton).

So, in the Thurrock case, if the activities which took place on the land between 1981-1983 had continued unabated until 1992 and the landowner had then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities, then this would have been the sort of situation with which Panton was concerned, namely whether or not an existing lawful use had been lost only by abandonment, or by some other supervening event in planning terms. The appellant’s problem in the Thurrock case was that there had been a cessation in the aviation activities well within the 10-year period.

The Inspector did not ask himself whether enforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10 year period. That was the question which should in the court’s judgment have been addressed by him.

The Court of Appeal specifically criticised the concept of a ‘dormant use’ as adumbrated in Panton. This would put local planning authorities in a difficult position in having to decide whether they should take enforcement action against a ‘sleeping’ use (or face the risk of that use becoming immune from enforcement by reason of time continuing to run under the 10-year rule), or whether they should alternatively regard the breach of planning control as having been remedied by the cessation of the use. It is on this basis that it can be inferred from the judgment of the Court of Appeal in Thurrock that a breach of planning control must be continuous throughout the 10-year period beginning with the date of the breach in order for immunity from enforcement, and therefore lawfulness of the use, to be achieved under section 171B(3).

It is clear, however, that the Court of Appeal decision in Thurrock did not disturb the other aspect of the Panton judgment, namely that if that 10-year period beginning with the date of the breach had expired, with continuity of the unlawful use throughout that period, so that immunity from enforcement (and therefore lawfulness of the use) had thereby been attained, then a later interruption in the use, falling short of abandonment or any other supervening event in planning terms which would have brought that use to an end [as per Hartley v MHLG [1970] 1 QB 413, at pp. 420-421 (Lord Denning MR); and Pioneer Aggregates (UK) Ltd v SSE [1985] AC 132, at pp. 143-144 (Lord Scarman)], does not prevent an LDC being applied for and granted, provided that the use can still be said to be subsisting at the date of the LDC application.

I will go on in the next part of this article to consider changes of use to use as a single dwelling, and the judgment in Swale BC v. FSS [2005] EWCA Civ 1568.

© MARTIN H GOODALL

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Small Boat Plans And Kits | Breaches of planning control – the need for continuity 5

Small Boat Plans And Kits

The provisions of section 171B have caused quite a lot of doubt and difficulty over the years, and there are still one or two anomalies that have not been entirely ironed out. We can at least be confident about the straightforward operation of section 171B(1) relating to operational development. The only issue that needs to be considered is the date when the development was substantially completed (as per Sage), and it is entirely logical that if you want an LDC regarding operational development under section 191(1)(b), the building or other operational development must still be in existence at the time when the application is made. You cannot apply for an LDC for the lawfulness of a building that has ceased to exist, whatever the reason for its demise.

What clearly emerges from the cases involving section 171B(2) and (3) (and section 191(1)(a) and (c)) is that a very clear distinction has to be made between breaches of planning control involving a material change of use and those involving a breach of condition. There is no doubt at all that, in order to become immune from enforcement, a breach of condition must be continuous. In the case of occupancy conditions, even a void period (other than a temporary stopping and starting, for example between tenancies) will bring the breach of condition to an end, and resumed occupation in breach of the condition will be a fresh breach of that condition, with the clock starting again from zero.

It is important to remember that if a breach of condition becomes immune from enforcement and therefore lawful, even where an LDC is issued to that effect, that immunity will still be lost by any subsequent compliance with the condition, for example by a void period where the condition in question is an occupancy condition (other than a purely seasonal condition –see N Devon DC v FSS and Stokes (2004), which I cited earlier). Lawfulness of the breach of condition, even when confirmed by an LDC, does not remove the condition, so that the lawfulness of the breach will continue only so long as the breach of condition continues.

This is to be contrasted with the position where the breach of planning control comprises a material change of use. Here, continuity of the use is clearly required in order to attain immunity (and therefore lawfulness), but it is clear from Panton that upon lawfulness being achieved under section 191(2) (and the operation of that sub-section does not depend on the issue of an LDC) subsequent continuity of the use is no longer required, so long as any later cessation in the use does not amount to abandonment or is not brought about by some other supervening event in planning terms (see Hartley and Pioneer Aggregates cited in an earlier part of this article). What Thurrock and Swale established, on the other hand, is that those earlier authorities have no application during the period when immunity has not yet been achieved under either the 4-year or the 10-year rule (as applicable).

There are certain points that emerge from the decided cases that need to be borne in mind. First, in the case of changes of use at least, the relevant period in respect of which immunity from enforcement is acquired is the period of four years or ten years “beginning with the date of the breach”. It is abundantly clear from this wording that it is entirely wrong to talk in terms of a ‘rolling period’ of 4 years or 10 years so far as a change of use is concerned. The relevant period in this case does not end with the section 191 application or with the service of an enforcement notice under section 172. It is equally wrong to think in terms of the ‘breach’ continuing until one or other of those events.

It is apparent that there has from time to time been some woolly thinking on this point, or at least some rather loose and imprecise use of language. What emerges from the decided cases discussed in earlier parts of this article is that, following the relevant period of continuous breach so as to achieve immunity from enforcement (whereby the change of use becomes lawful), uninterrupted continuity of the use is not thereafter necessary (as discussed above, see Panton), but that the use must be current at the time of making an application under section 191(1)(a). It is incorrect to talk of the ‘breach’ continuing at that date, because the breach of planning control ceased upon the use becoming lawful at the end of the 4/10-year period beginning with the date of the breach.

It is entirely logical that the use must be current at the date of the application under section 191(1)(a), just as a building must be in existence at the date of an application under section 191(1)(b); otherwise there is nothing that an LDC can properly certify. But it is entirely erroneous to assume on this basis that the ‘breach of planning control’ (the change of use) must have been continuous for a ‘rolling period’ ending with the date of the application. In accordance with the rule in Panton it is entirely possible that, following lawfulness having been achieved by continuous use for 4 or 10 years beginning with the date of the breach, there may then (quite legitimately) have been some subsequent interruption in the use which is of no legal effect in terms of the lawfulness of the use. These points clearly emerge from the judgments cited in the course of this article.

The one remaining point that may require clarification is the situation where there is a material change of use followed by, say, two years’ continuous use, then a cessation of the use for, let us say, a year, followed then by a resumption of the use for (in a 10-year rule case) 11 years, followed thereafter by further intermittent use for the same purpose, but no other intervening use or supervening event, with the use once again being current at the date when an LDC application is made.

We know from Thurrock that the break of continuity after the first two years will have prevented immunity having been acquired from the date of the original change of use, but how are we to treat the resumption of the use after the cessation of that use for a year, bearing in mind that section 171B(3) provides that no enforcement action may be taken after the end of the period of ten years “beginning with the date of the breach”? The answer, I think, must be that the original change of use must be entirely discounted, so that the date of the breach for the purposes of the 10-year rule must be taken to be the date of the resumption of the use after the end of the one-year cessation of that use. This must for the purposes of the Act be taken to be a fresh change of use and thus an entirely fresh breach of planning control.

I appreciate that during the one-year cessation in the use the property may well have retained fixtures, fittings and equipment associated with the original change of use, and it might perhaps be argued that for that reason the original breach of planning control had not been remedied when the use was suspended after the first two years. It would seem from various judicial dicta, however, that it would not be open to the LPA to serve an enforcement notice during the period that the use was in abeyance, even though removal of the fixtures, fittings and equipment associated with the original change of use could both before and after the interruption in the active use of the property have legitimately been included in the requirements of an enforcement notice (see, for example, Somak Travel Ltd v. SSE [1987] JPL 630), the point being that the requirements of the notice can go beyond the scope of the actual breach itself to encompass items not constituting part of the actual breach of planning control, i.e. matters which in themselves would not amount to development.

It follows that, in the case I have predicated above, the “date of the breach” with which the 10-year period commenced must be the date on which the use resumed after the year-long cessation in the use. There was then (in my example) an 11-year period of continuous use, as a result of which immunity from enforcement (and consequently lawfulness) was undoubtedly achieved. Thereafter the rule in Panton (following Hartley and Pioneer Aggregates) will have operated so that any subsequent discontinuity in the use will not have affected the position, provided that the use is actually current at the time of the LDC application under section 191(1)(a). For all these reasons, in the case I have imagined an LDC would undoubtedly have to be issued.

There are just a couple of other loose ends. As I noted in discussing Swale earlier, that case turned to a significant degree on the inspector’s treatment of the evidence. However, no mention is made in the judgment of the well-known rule established by Gravesham B.C. v. SSE (1984) P.& C.R. 142, that where a change of use to use as a dwelling is alleged to have occurred the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence. There must at the very least have been a question mark in this regard over the alleged barn conversion in the Swale case.

Finally, despite the numerous references in the decided cases to the need for continuity of use, even Thurrock (which went into the matter more deeply than the other reported cases) did not address the problem of deciding whether or not the use had in fact continued throughout the 10-year period. In other words, what actually constitutes a discontinuity in the use? It is, of course, ‘a matter of fact and degree’ in each case, but there is still a significant degree of uncertainty as to precisely what incidents might constitute a discontinuity in the use for the purposes of the 4/10-year rule. There is similarly some remaining uncertainty as to exactly what amounts to “occupation” in relation to the continuity of a breach of condition relating to an occupancy condition.

THE END

© MARTIN H GOODALL

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Boat Plans Aluminium | Control of demolition

Boat Plans Aluminium

The rules relating to demolition continue to cause confusion, particularly as regards the demolition (in whole or in part) of walls, gates and fences in conservation areas. The rules changed on 1 October 2013, and so (if one is dealing with an enforcement situation) it will depend on whether the demolition took place before or after 1 October 2013 as to which set of rules must be applied.

The demolition of buildings constitutes ‘building operations’ (see section 55(1A) of the 1990 Act) and therefore comes within the definition of ‘development’. However, by section 55(2)(g), some types of demolition are exempted from the definition of development where a Direction to that effect is made by the Secretary of State. The scope of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 was considerably cut down by the decision of the Court of Appeal in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334, so that after that judgment the only demolition that was still exempt from the definition of development under that Direction was the demolition of any building with a cubic content not exceeding 50 cu m, and the whole or part of any gate, fence, wall or other means of enclosure, but the latter exemption did not extend to the whole or part of any gate, fence, wall or other means of enclosure in a conservation area. The Town and Country Planning (Demolition – Description of Buildings) Direction 2014 (replacing the 1995 Direction) is intended to regularise the position, in line with the SAVE judgment.

Most types of demolition that are not exempt from the definition of development under the ministerial Direction are Permitted Development under Part 31 of the Second Schedule to the GPDO, Class A of which covers any building operation consisting of the demolition of a building (other than gates, fences, walls or other means of enclosure - the demolition of these is dealt with under Class B).

By Article 1(1)(a) of the GPDO, the word “building” includes part of a building, except in a few specified parts of the Second Schedule to the Order, including Part 31, Class A (which permits the demolition of most buildings). Thus the demolition of part only of a building is not permitted development under Part 31, Class A.

By Article 1(1)(b) the word “building”, although it does not include any gate, fence, wall or other means of enclosure for most purposes under the GPDO, does include gates, fences, walls or other means of enclosure for the purposes of Class B of Part 31. Thus the combined effect paragraphs (a) and (b) of Article 1(1) is that the demolition of part only of any gate, fence, wall or other means of enclosure (other than in a conservation area – see below) is permitted by Part 31, Class B, because it is a building for the purposes of Class B, and the definition of a building includes part of a building (bearing in mind that the exclusion of part only of a building applies only to Class A, not to Class B).

[If you think this is a piece of absolute gobbledygook, you should try reading the legislation itself, of which this is an attempted translation into more or less plain English!]

Development is not permitted by Class A where the building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the building stands, if it is practicable to secure safety or health by works of repair or works for affording temporary support.

The permitted development under Part A is subject to a requirement that the developer must before beginning demolition apply to the LPA for a determination as to whether their prior approval will be required to the method of demolition and any proposed restoration of the site. (The detailed requirements of this procedure are set out in the text of the GPDO.)

There are several points to note here. First, in common with all other permitted development that is subject to prior notification (or prior approval) requirements under the GPDO, commencement in advance of such notification (or approval, where required) cannot be retrospectively validated or ratified. Failure to give the required notice before commencing the work (or to obtain prior approval where required) renders the entire operation unlawful. It cannot then be permitted development and will be vulnerable to enforcement action. On the other hand, under Part 31, Class A, the developer is entitled to proceed with the demolition after the expiry of 28 days following the date on which the application was received by the LPA, if by that time they have not made any determination as to whether their prior approval is required or they have not notified the applicant of their determination. [I suggest that ‘or’ has to be construed as ‘and’ in this context – i.e. the LPA must notify the applicant within the 28-day period, failing which the demolition can proceed in any event.]

The LPA’s control over demolition under these provisions is strictly limited. They cannot prevent the demolition if it falls within Part 31, Class A (unless, of course, they have made an appropriate Article 4 Direction, or in the unlikely event that there is a condition attached to a relevant planning permission that is effective in removing this particular PD right); they can only approve or disapprove the method of demolition and any proposed restoration of the site. This largely duplicates the local authority’s role under the Building Act 1984, section 80 of which requires that six weeks’ notice be given to the local authority’s building control section before commencing the demolition of any building. Nonetheless it is necessary to comply with both of these requirements.

Bearing in mind the definition of “building operations” in section 55(1A), and the definition of “building” for the purposes of the 1990 Act in section 336(1), which includes any part of a building, it might appear that the demolition of part of a building, is thereby included in the definition of development and that, being excluded from the permitted development authorised by Part 31, Class A, the demolition of part only of a building (other than any gate, fence, wall or other means of enclosure) requires planning permission.

However, it was held in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481 (admittedly in a slightly different context) that demolition of only part of a building not amounting to demolition of the whole or substantially the whole of the building is to be regarded as an alteration of the building rather than as demolition. The practical effect of the Shimizu judgment is very limited, because partial demolition of a building, i.e. alteration of the building (assuming that it is not purely internal and/or that it does materially affect the external appearance of the building) also comes within the definition of “building operations” in section 55(1A). The effect of the judgment in Burroughs Day v. Bristol City Council [1996] 1 PLR 78 should, however, be borne in mind in determining whether or not such partial demolition (i.e. alteration) materially affects the external appearance of the building for the purposes of section 55(2)(a).

Whilst partial demolition of a building is excluded from permitted development under Class 31, Part A, it may (bearing in mind its classification by Shimizu as an alteration) be permitted development under some other part of the second schedule to the GPDO (e.g. Parts 1, 2, 6, 8 or 41, among others). Failing that, however, planning permission will be required.

The Shimizu judgment did not affect the need for Listed Building Consent for the partial demolition of a listed building, because this is required for any works to a listed building which would affect its character as such, but it did have the effect of removing the need for what used to be known as ‘Conservation Area Consent’ for the partial demolition of an unlisted building in a conservation area, although this now has to be considered in the light of further legislative changes in 2013 (as explained below).

Before discussing these changes, however, there is one point that requires further discussion. Nowhere in the legislation (either primary or subordinate) is “demolition” actually defined. We must therefore interpret the word according to its plain and ordinary meaning, subject to any relevant judicial authorities. One judicial authority that is clearly relevant in this context is the decision of the House of Lords in Shimizu.

The case was concerned with a listed building, and the decision of the House of Lords turned very much on precisely what was meant by a “listed building”. The definition of “demolition” fell to be considered in that context, but some of their Lordships’ observations on the meaning of “demolition” are of wider application. Lord Hope of Craighead pointed out that in the Court of Appeal Russell L.J. had said that the question whether a particular activity was “demolition” or “alteration” of a building was essentially a question of fact to be determined in the light of all the relevant circumstances. It was noted by Lord Hope that the discussion in the Court of Appeal was conducted throughout on the basis that the expression “building,” (except in so far as the context otherwise requires) includes “any part of a building”.

As Lord Hope put it, works of alteration to a building may take various forms, and the description which is to be applied to them will vary according to whether these works are to be seen in the context of their effect on the whole building or on the parts only of the building where the work is to be done. An architect who is asked to design a scheme to alter a building in order to modernise it or improve its accommodation may propose that parts of the existing structure should be removed. He may say that he needs to do this in order to replace that part with a different part or that he needs to do so in order to accommodate a new design which will not involve any replacement. He may describe what he proposes as the taking away or removal of that part, or he may say that that part needs to be demolished. But the various proposals which he makes and the words which he uses to describe them will all fall within the general description of works of alteration to the whole building [emphasis supplied]. The architect would no doubt resist the idea that he was proposing demolition of the building just because his scheme of alteration required the removal or demolition of parts of it in order to accommodate his scheme.

After examining the term “listed building”, Lord Hope then went on to consider the meaning of “demolition” in more detail. According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. Lord Hope agreed, therefore, with Millett L.J. (when this case was before the Court of Appeal) when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone. The problem which had led the majority in the Court of Appeal to hold that the works which were proposed to the chimneybreasts in this case amounted to works of demolition and not alteration arose when they applied these words to a part only of the listed building, i.e. to the chimney-breasts, not to the whole building.

Lord Hope did make a distinction in the case of what is popularly known as ‘façadism’, where the façade is left standing while clearing the remainder of the site for redevelopment. This would amount to the demolition of the building for all practical purposes. It would go far beyond what could reasonably be described as its alteration, as the works would be so extensive and so much would be pulled down and taken away, although the façade would be retained. It is, however, a question of fact for the decision of the relevant tribunal and so his lordship did not think that any more precise definition of this expression was required.

The House of Lords was referred by counsel to Lord Diplocks observations in Customs and Excise Commissioners v. Viva Gas Appliances Ltd [1983] 1 W.L.R. 1445 , where he said that the word “demolition” meant destroying the building as a whole. That case was concerned with a phrase in the description of an item in Group 8 of Schedule 4 to the Finance Act 1972 relating to value added tax, where there was no reference to “any part of a building.” What had to be construed was the meaning of “demolition” when it appeared in the phrase “in the course of the construction, alteration or demolition of any building.” Lord Hope preferred not to take Lord Diplocks observation out of its context, but the present writer would respectfully suggest that what Lord Diplock said in that case does lend weight to the distinction between “demolition” and “alteration”.

We come then to the special rules that apply to the demolition of unlisted buildings in a conservation area. [To avoid repeated references to ‘unlisted buildings’, I don’t propose to use this expression again below. The provisions that are about to be discussed do not apply to listed buildings, because Listed Building Consent is required under sections 7 and 8 of the Listed Buildings Act for both the demolition of and most (but not all) alterations to a listed building.]

Authorisation is required (under section 74 of the Listed Buildings Act) for the demolition of a building in a conservation area. With effect from 1 October 2013, it is Planning Permission that is now required, instead of the previous ‘Conservation Area Consent’ (which has been abolished), but the statutory provision under section 74 was in place before the House of Lords delivered their decision in Shimizu, yet clearly the provision in section 336 of the principal Act whereby the use of the word “building” includes any part of a building, did not prevent them from deciding that removing only part of a building does not amount to “demolition” but only to “alteration”.

The definition of a “building” for the purposes of section 74 of the Listed Buildings Act is the same as the definition in section 336(1) of the principal Act and includes any structure or erection and any part of a building as so defined, and so is wide enough to include gates, walls and fences within the conservation area (if they do not constitute part of a listed building). Thus the requirement for planning permission for demolition applies also to the demolition of the whole or substantially the whole of these structures in a conservation area, although (as noted above), following the Shimizu judgment, what used to be ‘Conservation Area Consent’ was not required for their partial demolition, because this was seen only as an alteration of the building or structure.

The question, however, now arises as to whether the further legislative changes that took effect on 1 October 2013 have had the effect of abrogating the rule in Shimizu, so far as concerns gates, fences, walls or other means of enclosure in a conservation area.

Prior to 1 October 2013, Class B of Part 31 authorised the demolition in whole or in part of any gate, fence, wall or other means or enclosure, whether inside or outside a conservation area, and this was not subject to any exclusions or conditions. Furthermore, no prior notification under Part 31 was required in this case. However, with effect from that date, by Article 2 of the Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013, Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (relating to the demolition of buildings) was amended by adding at the end of Class B:

“Development not permitted: B.1 Development is not permitted by Class B where the demolition is “relevant demolition” for the purposes of section 196D of the Act (demolition of an unlisted etc building in a conservation area).” Section 196D(3) defines “relevant demolition” as the demolition of a building that is situated in a conservation area in England, but is not a listed building, an ecclesiastical building to which the ecclesiastical exemption applies, or a scheduled ancient monument.

However, various buildings may be exempted under section 75 by a direction made by the Secretary of State, and Paragraph 31 of Circular 01/2001 contains such a direction under that section which exempts various descriptions of building from the effect of section 74, including "any gate, wall, fence or means of enclosure which is less than one metre high where abutting on a highway (including a public footpath or bridleway), waterway or open space, or less than two metres high in any other case". I have checked the list of cancelled circulars appended to the government’s on-line planning procedure guidance, and Circular 01/2001 does not appear on that list, so this direction remains in force. Thus the demolition of structures that come within that category is not “relevant demolition” for the purposes of section 74, and does not therefore require planning permission. This preserves the previous position, whereby Conservation Area Consent was not required for the demolition of such structures (i.e. the same category of structures that may be erected as Permitted Development under Part 2, Class A).

As noted earlier, by virtue of the definition of a “building” in Article 1(1) of the GPDO (and also section 336(1) of the principal Act), the word “building” includes part of a building. (The exclusion of part of a building by Article 1(1)(a) of the GPDO, applies only to Class A of Part 31, not to Class B). So demolition of part only of a gate, fence, wall or other means of enclosure in a conservation area is “relevant demolition” for the purposes of Section 196D of the principal Act, and thus (by virtue of paragraph B.1) is not permitted development. But this does not dispose of the question as to what actually constitutes “demolition” (in the absence of any statutory definition of that word).

Subject to the exclusion from permitted development of the demolition on or after 1 October 2013 of the whole or part of any gate, fence, wall or other means or enclosure in a conservation area, Part 31, Class B continues to apply to the demolition in whole or in part of any other gate, fence, wall or other means or enclosure (i.e. other than in a conservation area), and this remains free of any exclusions or conditions. As noted, prior notification under Part 31 is not required in that case.

The key to the question I have posed lies in the lack of any statutory definition of “demolition”. Because of this, it seems to me that the decision of the House of Lords in Shimizu must continue to apply, so far as concerns the identification of the precise type of development that is involved in a particular case, i.e. as to whether it is “demolition” or is “alteration”.

If it is the latter, then Part 2, Class A of the Second Schedule to the GPDO applies, rather than Part 31. Class A of Part 2 permits not only the erection or construction of a gate, fence, wall or other means or enclosure, but also its maintenance, improvement or alteration. It seems to me that if a part of a wall is removed in order to insert new gates, the removal of that part of the wall (even though it may be described in purely colloquial terms as “partial demolition”) is in fact merely an alteration, as there remains a wall or other means of enclosure, now with new gates inserted in it, after the works are completed. Bearing in mind Lord Hope’s observations in Shimizu, and viewing the works as a whole, none of these works can realistically be described as “demolition”. They are clearly authorised in their entirety by Part 2 of the Second Schedule rather than any part of them having to rely on Part 31, Class B for their authorisation. It follows that, in this case, the provisions of paragraph B.1 in Part 31 do not apply, and it also follows that no “relevant demolition” for the purposes of Section 196D of the principal Act has taken place.

This would apply equally to other alterations to a wall, gate or fence in a conservation area, for example if it was simply lowered in height. In light of Shimizu, it is an alteration, rather than demolition, because there is still a gate, wall, fence or other means of enclosure in place after the works have been completed. This too, I would submit, is therefore development that is wholly authorised by Part 2 (subject to the conditions and limitations set out there). On the other hand, the entire demolition of a length of the wall without its being replaced (for example, by the insertion of gates) might perhaps be seen as demolition, rather than as the maintenance, improvement or alteration of the wall, and would therefore be governed by Part 31, Class B, and would be subject to the exclusion in paragraph B.1, and section 196D (if it is in a conservation area), although this is by no means certain. As always this is bound to be ‘a matter of fact and degree’, and so any judgment on this issue will inevitably be fact-dependent in any particular case. Planning officers should therefore proceed with caution when dealing with such cases, and not jump to the conclusion that unauthorised demolition has necessarily taken place.

If any readers can add to this discussion by reference either to the interpretation of the legislative provisions or by reference to the applicability of Shimizu or any other relevant judicial authority, I would welcome their comments. Meanwhile, I must go and lie down in a darkened room.

[UPDATE (9.10.14): I am grateful to two correspondents who have drawn my attention to the direction in Circular 01/2001 exempting the demolition of many walls, gates, fences, etc. from the effect of section 74. The text above has been now been amended to include a reference to this direction.]

© MARTIN H GOODALL

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Boat Plans Catamaran | Government’s U turn “to save the Green Belt”

Boat Plans Catamaran

You can tell there’s an election coming. Even though ministers and their advisers are well aware that there is an urgent need to release land, including Green Belt land, to meet the requirements for housing land, De-CLoG has issued a statement in which they once again trot out the old mantra that, once established, Green Belt boundaries should only be altered in exceptional cases.

Eric Pickles is quoted as saying: “Protecting our precious green belt must be paramount. Local people don’t want to lose their countryside to urban sprawl, or see the vital green lungs around their towns and cities lost to unnecessary development.” [Translation: “We know the NIMBYs are wrong really, but they might go and vote for UKIP, so at all costs we are going to say and do whatever it takes to get the Tory defectors back into fold, even though it makes a complete nonsense of our pledge to get more houses built. Getting ourselves re-elected has to come first.”]

Uncle Eric and his friends have suddenly re-discovered ‘Localism’ and are claiming that “Local Plans are now at the heart of the reformed, democratic planning system, so councils can decide where development should and shouldn’t go in consultation with local people.”.

Planning officers can naturally be expected to take a more objective view of these matters, because they have to work out a way of planning for the housing needs of their localities, but this had led them (unsurprisingly) to recommend to their authorities that some Green Belt land will have to be released in order to meet objectively assessed targets (even though these are no longer set by central government.) But to counter this, the government’s on-line guidance has been amended to read that assessing need is just the first stage in the preparation of a council’s local plan, and that in assessing the suitability of land to meet the identified need for housing over the plan period, they “should take account of any constraints such as Green Belt which indicate that development should be restricted and which may restrain the ability of an authority to meet its need”.

This makes it quite clear that having objectively assessed housing need in their area, LPAs should feel free to ignore it, if is politically inexpedient to release green field sites (and particularly some parts of the Green Belt) in order to allocate sufficient land to meet their housing need. If this advice is to be taken at face value, it would appear that the government is abandoning the requirement that LPAs must demonstrate that they have a five-year housing land supply, plus a 5% margin (six years’ supply in cases where council’s have failed to produce sufficient housing land in the past, in the form of committed schemes) if they can excuse themselves by pointing to constraints such as the Green Belt (or any other plausible excuses). It also seems to let them off the hook of having to co-operate with neighbouring authorities in the provision of housing land, even though the 2011 Act requires them to do so.

This is bad news for house-builders, and it is bad news for first-time buyers. It also makes a nonsense of recent legislative and policy changes which were directed at securing the provision of adequate housing land. But then, as I said, we are now in the run-up to the General Election, and I did predict a major U-turn sooner or later in this pre-election period. This latest ministerial statement seems to herald that U-turn, and there will no doubt be more to come, as an increasingly panic-stricken Tory Party thrashes about trying to find something, anything, that might secure a few more votes and get them across the winning line next May.

© MARTIN H GOODALL

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