Boat Plans Wood | Active Advisory Winter Storm Warning Shipping

Boat Plans Wood

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November 13th, 2014

From all of us here at the Gorge Fly Shop we hope you stay safe while driving. Hood River has an active Winter Storm Warning. Currently your online orders are being fulfilled, packaged and ready for shipping but we wanted to take this time and inform you there could be a delay with UPS or USPS picking up packages or getting out of the Gorge (surrounding area). So please stay safe and patient. As always if you have any questions or comments feel free to drop us a line.

Thank You,

The Gorge Fly Shop Team

541.386.6977

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www.gorgeflyshop.com

As always, for any of you bravehearts send us your Winter Fishing Photos.

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Boat Plans Australia | Interpreting the National Planning Policy Framework

Boat Plans Australia

There has been quite a lot of interest in the case of Redhill Aerodrome v. SSCLG since judgment was given in the High Court in July ([2014] EWHC 2476 (Admin)). That judgment has now been overturned by the Court of Appeal in a decision delivered on 9 October, with reasons handed down on 24 October - [2014] EWCA Civ 1386.

Most commentators have concentrated on the court’s interpretation of Green Belt policy, as set out in the NPPF compared with the former PPG2, but the implications of the Court of Appeal’s judgment would appear to go rather wider than this and may be applicable to the interpretation of the NPPF generally, as compared with the way in which ministerial policy on a number of topics was explained in the various policy guidance that was cancelled when the NPPF was published.

The dispute between the parties centred on these two paragraphs :

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” [emphasis added by the Court]

The question which arose for determination by the court was whether this formulation of Green Belt policy, which differs in its wording from the corresponding ministerial advice formerly set out in PPG2, represents a deliberate change of approach on the part of the government, or whether it is no more than a slightly different way of expressing the same policy without thereby intending any change of policy.

The dispute here focused on the meaning and interpretation of the phrase “any other harm”. The meaning of these words in paragraph 3.2 of PPG2 was considered by Frances Patterson QC (sitting as a Deputy High Court Judge – she has more recently been appointed to the bench) in R (River Club) v SSCLG [2009] EWHC 2674 (Admin), [2010] JPL 584. The claimant in that case had submitted that the “other harm” referred to in the third sentence of paragraph 3.2 meant harm to the purposes or objectives of the Green Belt, so that as a matter of law “any other harm” was confined to Green Belt harm. This submission was rejected. There was a requirement to consider the development as a whole to evaluate the harm that flowed from its being inappropriate (by definition) in the Green Belt, together with any other harm that the development may cause, in order to enable a clear identification of harm against which the benefits of the development can be weighed and on that basis to conclude whether very special circumstances exist (as required by ministerial policy) so as to warrant the grant of planning permission.

The Deputy Judge noted that there were no qualifying words within paragraph 3.2 of PPG2 in relation to the phrase “and any other harm”. Inappropriate development, by definition, causes harm to the purposes of the green belt and may cause harm to the objectives of the green belt also. “Any other harm”, she held, must therefore refer to some other harm than that which is caused through the development being inappropriate. It could refer to harm in the Green Belt context, therefore, but need not necessarily do so. Accordingly, she held that “any other harm” in paragraph 3.2 was to be given its plain and ordinary meaning – it referred to harm which is identified and which is additional to harm caused through the development being inappropriate. Consequently, she rejected the argument that the phrase was constrained so as to apply to harm to the Green Belt only.

The Redhill Aerodrome case came before the same judge (now Patterson J). She accepted the claimant’s submission that the policy matrix is now different, in that all of planning policy is contained within the NPPF which is to be read and interpreted as a whole. For each of the individual considerations a threshold is set which, when it is reached or exceeded, warrants refusal. It is for the decision maker to determine whether the individual impact attains the threshold that warrants refusal as set out in the NPPF. That is a matter of planning judgement and will clearly vary on a case by case basis.

Here, she continued, the individual non-Green Belt harms did not reach the individual threshold for refusal as defined by the NPPF. Was it right then to take them into account either individually or as part of the cumulative Green Belt harm assessments? On an individual basis, given the clear guidance given in the NPPF, her ladyship had no difficulty in concluding that, in this case, it was not right to take the identified non-Green Belt harms into account. The revised policy framework, she found, is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, she said, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in her judgment it would be wrong to include that consideration as “any other harm”.

The learned judge went on to consider whether individual considerations can be considered together as part of a cumulative consideration of harm even though individually the evaluation of harm is set at a lower level than prescribed for refusal in the NPPF. In her judgement, she said, it would not be right to do so. That is because the Framework is precisely as it says - a framework for clear decision making. It is a re-writing of planning policy to enable that objective to be delivered. It has no words that permit of a residual cumulative approach in the Green Belt when each of the harms identified against a proposal is at a lesser level than would be required for refusal on an individual basis. Without such wording, to permit a combination of cumulative adverse impacts at a lesser level than prescribed for individual impacts to go into the evaluation of harm of a Green Belt proposal seemed to her to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the NPPF does not provide for. It is clear, she felt, that the NPPF does contemplate findings of residual cumulative harm in certain circumstances, as is evident in paragraph 32, where it deals with the residual cumulative impact of transport considerations. However, such phraseology does not appear in the Green Belt part of the NPPF.

Pausing there, I have to say that I have considerable sympathy for Patterson J’s view on this point. I have pointed out on several occasions in this blog that the language used in the NPPF seems in various places to differ sufficiently from the wording of the former policy advice which it has replaced that it could justifiably be concluded that (whether or not it was actually intended to do so) it has brought about identifiable changes of ministerial policy. Several cases that have come before the courts since the NPPF was published seem to support this view, such as Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin) (reported here on Friday, 1 November 2013 - Inappropriate development in the Green Belt), and also R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin), to which I drew attention on Tuesday, 21 October 2014. (See Agricultural dwellings - the operational need test ).

Notwithstanding the apparent changes of policy which have (perhaps inadvertently) been effected by the NPPF, Sullivan LJ, in giving the leading judgment in the Court of Appeal, pointed out that excluding non-Green Belt harm from “any other harm” in the second sentence of paragraph 88 of the NPPF would make it less difficult for applicants and appellants to obtain planning permission for inappropriate development in the Green Belt, because the task of establishing “very special circumstances”, while never easy, would be made less difficult. All of the considerations in favour of granting permission would now be weighed against only some, rather than all, of the planning harm that would be caused by an inappropriate development.

Most significantly, he added that if it had been the Government’s intention to make such a significant change to Green Belt policy in the NPPF, one would have expected that there would have been a clear statement to that effect. There has been no such statement. In his lordship’s judgment, all of the indications are to the contrary. He cited three examples:

(1) While there have been some detailed changes to Green Belt policy in the NPPF, protecting the Green Belt remains one of the Core planning principles, the fundamental aim of Green Belt Policy to prevent urban sprawl by keeping land open, the essential characteristics of Green Belts, and the five purposes that they serve, all remain unchanged. By contrast with paragraph 86 of the NPPF, which does change the policy approach to the inclusion of villages within the Green Belt, paragraph 87 emphasises the continuation of previous Green Belt policy (in PPG2) in respect of inappropriate development: “As with previous Green Belt policy.”

(2) The Impact Assessment in respect of the NPPF published by DCLG in July 2012 said that “The government strongly supports the Green Belt and does not intend to change the central policy that inappropriate development in the Green Belt should not be allowed.” Under the sub-heading “Policy Changes”, the Impact Assessment said that “Core Green Belt protection will remain in place.” It then identified four proposed “minor changes to the detail of current policy” which would resolve technical issues, but not harm the key purpose of the Green Belt, “as in all cases the test to preserve the openness and purposes of including land in the Green Belt will be maintained.” On the face of it, paragraphs 87 and 88 of the NPPF would appear to constitute the “central policy” which the Government did not intend to change.

(3) That there was no intention to change this aspect of Green Belt policy is confirmed by the Inspector’s statement in the Redhill Aerodrome appeal decision that the River Club approach to “any other harm” in the balancing exercise is reflected in decisions by the Secretary of State since the publication of the NPPF. The court was not referred to any decision in which a different approach has been taken to “any other harm” since the publication of the NPPF.

On the other hand, Sullivan LJ accepted that the NPPF means what it says, and not what the Secretary of State would like it to mean. Nonetheless, he said, if the NPPF has effected this change in Green Belt policy it is clear that it has done so unintentionally. The claimant (the respondent in the Court of Appeal) did not submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the NPPF. The text of the policy has been reorganised, but all of its essential characteristics remain the same. It had been submitted that the change in policy was to be inferred, not from the wording of paragraphs 87 and 88, but from the other policies in the NPPF which “wrapped around” Green Belt policy, and which were, it was submitted, very different in some respects from previous policies in the earlier policy documents which were replaced by the NPPF. At the heart of the claimant’s case was “Context, context, context.”

It is true, his lordship accepted, that the “policy matrix” has changed in that the NPPF has, in the words of the Ministerial foreword, replaced “over a thousand pages with around fifty, written simply and clearly.” Views may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter. There have been changes to some of the non-Green Belt policies, and there have also been changes to detailed aspects of Green Belt policy, not all of which were identified in the Impact Assessment (Europa Oil and Gas being one example).

However, Sullivan LJ did not accept the premise which underlay the claimant’s case, as Patterson J had done, that the other policies “wrapping around” the Green Belt policy in paragraphs 87 and 88 of the Framework are “very different” from previous national policy, or that, as Patterson J put it, there has been “a considerable policy shift”.

Although this case was primarily focused the interpretation of “any other harm” in the Green Belt context, the Court of Appeal did accept that there are certain respects in which some other details of ministerial policy have been changed by the NPPF. Nevertheless, Sullivan LJ suggested that if it had been the Government’s intention to make any significant changes to policy in the NPPF, one would have expected that there would have been a clear statement to that effect. He accepted, on the other hand, that the NPPF means what it says, and not what the Secretary of State would like it to mean. This judgment therefore seems to accept the possibility that some minor changes to ministerial policy may have been effected by the NPPF unintentionally.

This judgment therefore still leaves an element of uncertainty over the correct interpretation of certain paragraphs of the NPPF, but it would seem that if a particular paragraph of the NPPF appears on the face of it to effect a significant change of policy, this in itself should indicate that no such change of policy was in fact intended, without a clear statement on the part of ministers of their intention to make such a policy change. In cases of this sort, the wording of the NPPF should be taken to be no more than a restatement of previous policy, albeit in slightly different language. The only problem with this approach to the interpretation of the NPPF is that it requires a knowledge of, and reference to, the relevant PPGs or PPSs which the NPPF was intended to replace in order to construe the changed language of the NPPF correctly, which would seem to undermine the intention of publishing the NPPF in the first place.

One other implication of the Court of Appeal decision in Redhill Aerodrome is that one or two decisions that have proceeded on the basis of changes of policy that have apparently been brought about by the NPPF may be open to question. In particular, it seems to me that R (Embleton PC) v. Northumberland CC (which I discussed recently – see above) may have been wrongly decided. The judge was persuaded in that case that the test of operational need for a proposed agricultural dwelling under paragraph 55 of NPPF is different from, and much less prescriptive than, the test under Annex A of PPS7. Applying Sullivan LJ’s approach to this issue, there would appear to be no indication that what would amount to a fairly significant shift in ministerial policy on a matter of substance was intended here, and so (contrary to the court’s decision in Embleton PC), the conclusion must be that an objective test substantially similar to the test laid down by Annex A of PPS7 must still be applied, notwithstanding the apparently less demanding requirement expressed by paragraph 55 of the NPPF.

I always said that it was folly for ministers to jettison the well established and clearly understood policy advice set out in PPGs and PPSs, and that the attempt to boil down statements of ministerial planning policy to a single document that was intended to comprise no more than 50 pages would lead to difficulty and uncertainty, and resulting litigation. So it has proved, and cases of which Embleton PC and Redhill Aerodromeare only a sample will continue to trouble the courts for some time to come, until or unless a future Secretary of State recognises that a more complete statement of ministerial planning policy, substantially in the form of the cancelled PPGs and PPSs, is the only way of resolving the problem.

© MARTIN H GOODALL

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Boat Plans Nz | Nuisance and Planning revisited

Boat Plans Nz

The Supreme Court has recently handed down an important decision on the tort of Nuisance (Coventry v. Lawrence [2014] UKSC 13) (26 February 2014). The case is of interest in the planning context, because the claim related to the use of a stadium built under a planning permission that had been granted in 1975. The permission authorised the construction of the stadium and permitted its use for “speedway racing and associated facilities” for a period of ten years (and this permission was renewed permanently in 1985, although subject to a condition making its use personal to the applicant).

The scope of the use of the stadium was in fact significantly extended, in breach of planning control, to include stock car and banger racing from 1984, but these additional uses became immune from enforcement under the 10-year rule, and a Certificate of Lawfulness of Existing Use or Development (a “CLEUD”) was issued by the LPA in 1995. A further CLEUD was issued in 1997 confirming that, for a period of ten years, there had been 20 stock car and banger racing events at the stadium each year, so that this use had become lawful. Furthermore, greyhound racing had been going on at the stadium since 1992.

In addition to this, at the rear of the stadium there is a motocross track, constructed and used under a personal planning permission for motocross events, granted in May 1992 for a year, and renewed from time to time thereafter, subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during those events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the track to a specified number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the track.

The stadium subsequently came into different ownership, and the trial judge had found that, between 1975 and 2009, the stadium had been used for speedway racing between 16 and 35 times per year, except for six years between 1990 and 2000 when it was not used at all for speedway racing. As for stock car racing, the judge found that it had occurred at the stadium between 16 and 27 times a year between 1985 and 2009 (although there was no stock car racing in 1991 or 1992). The judge also found that the track had been used for motocross to the full extent permitted by the relevant planning permission. In 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings.

The claimants (the appellants in this appeal) lived in a bungalow about 560 metres from the stadium, which they bought in 2006 from the previous owners, who had lived there since 1984. The claimants first complained to the local council about noise from the stadium and the track about three months after moving in, as well as complaining to the owner and operators of the stadium. Noise abatement notices in respect of this statutory nuisance were served by the council, and were eventually complied with by the completion of noise attenuation measures in 2009. A more general complaint of private nuisance was also pursued by the claimants, resulting in the present proceedings, which were commenced early in 2008, but seem to have taken rather a long time to come to trial.

The trial judge found that a nuisance had been committed, and granted an injunction to restrain and control the activities that were causing the nuisance. The Court of Appeal overturned this judgment, finding that what had occurred did not amount to a nuisance at common law, but the Supreme Court has now overturned the Court of Appeal’s decision and restored the decision of the judge at first instance, including the injunction that he had granted.

This was a unanimous decision of a strongly constituted 5-judge court. In five closely reasoned judgments, Lords Neuberger, Mance, Clarke, Sumption and Carnwath delivered what can only be described as a veritable tour de force in comprehensively reviewing the law of Nuisance. In doing so, they effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. This case will undoubtedly be seen as the locus classicus on the tort of Nuisance for many years to come.

It would be impossible to do justice to this decision in a single blog post, so I propose to concentrate solely on the relationship that planning law bears to the law of Nuisance, as confirmed by this decision. This was discussed in detail by both Lord Neuberger and Lord Carnwath, and I will try briefly to summarise the relevant observations of the latter on this topic. He identified this as the most difficult problem raised by the present appeal.

The issue has attracted particular attention over the last 20 years, since the judgment of the High Court in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343), and it has been considered by the Court of Appeal in two cases before the present action (Wheeler v J J Saunders Ltd [1996] Ch 19 and Watson v Croft Promosport [2009] 3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd [1997] AC 655). In the Gillingham Docks case, planning permission had been granted to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24-hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents.

The council subsequently had a change of heart, and brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. (Modifying the planning permission to achieve the same effect would have involved the payment of compensation.) The judge rejected the claim. Although he accepted that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance, an LPA can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of making various activities, which prior to the change would have been an actionable nuisance, immune from any such claim. The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, the judge thought, be realistic to attempt to limit the amount of trade at the port.

That judgment was considered by the Court of Appeal, some three years later, in Wheeler v J J Saunders Ltd [1996] Ch 19. In 1988 and 1989, a company had obtained planning permission to construct two buildings on an existing pig farm to house some 800 pigs. One of these buildings was only 11 metres from a holiday cottage owned by the claimants in that case. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling. The claimant succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. It was held by the Court of Appeal that the reasoning in Gillingham Docks had no application to the facts of the Wheeler case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it.

In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf [1997] AC 655. A claim for nuisance was brought by local residents based on interference with television signals due to the construction of a tower (One Canada Square, which has become a well-known feature of the London skyline) as part of the Canary Wharf development. This development had been carried out under planning permission granted by the London Docklands Development Corporation. The House of Lords was unanimous in rejecting the nuisance claim so far as it related to TV reception. The case turned largely on other authorities, but it was also accepted that the situation at Canary Wharf was very similar to that in the Gillingham Docks case, where the character of the neighbourhood had been substantially changed by the development that had been authorised in the area, including the construction of One Canada Square.

More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the level of activities, its use was relatively limited until 1994 (involving no more than 10 meetings a year between 1982 and 1994), and this appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the LPA in July 1995.

In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into a Section 106 agreement to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and it prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held.

Planning permission was granted by the inspector on this basis. He accepted that “the Development Plan policies weigh heavily against the project” and that the noise had at times “been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled”; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind “the very wide planning use rights which the site now enjoys”, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit.

Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. The judge at first instance, having noted the level of activity and the noise that it could generate, held that the character of the locality had been “essentially rural”, and that the circuit “could be, and was, run in a way that was consistent with its essentially rural nature”. He held that there was an actionable nuisance.

The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance, but whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could the planning permissions be regarded as “strategic” in their effect.

Having reviewed these cases, Lord Carnwath commented that they suggest that a planning permission may be relevant in two distinct ways – first, it may provide evidence of the relative importance of the permitted activity as part of the pattern of uses in the area and, secondly, where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.

Lord Carnwath respectfully disagreed with reservations that had been expressed by Lord Neuberger as to the potential utility of planning officers’ reports as evidence of the reasoning of the planning authority itself. Judged by his own experience in practice and on the bench over some 40 years, he had found that a planning officer’s report, at least in cases where the officer’s recommendation is followed, is likely to be a very good indication of the council’s consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the council’s thinking. That was illustrated by some of the planning reports in this case. In any event, in so far as the focus is on the evidence before the planning authority, rather than the decision itself, the planning officer’s report is likely to offer the most comprehensive summary of the relevant material.

On the issue of the relative importance of public and private interests in such cases, Lord Carnwath thought there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation (see Wheeler – cited above). The public interest comes into play in a limited sense, in evaluating the pattern of uses “necessary… for the benefit of the inhabitants of the town and of the public at large”, against which the acceptability of the defendant’s activity is to be judged. Otherwise its relevance generally in Lord Carnwath’s view should be in the context of remedies rather than liability.

He accepted ,however, that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged. He read Staughton LJ’s use of the word “strategic” as equivalent to Peter Gibson LJ’s reference to “a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted”.

For this reason, in Lord Carnwath’s view (differing respectfully from Lord Neuberger on this point), the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and in the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders nor in Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and, for the reasons he had noted in his judgment, neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests.

Apart from such strategic cases, Lord Carnwath suggested that a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authority’s view, with the benefit of its expert advisers, of the acceptable limits.

Lord Carnwath pointed out that Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. This did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control what had previously been the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of what was acceptable, and by the Court of Appeal in framing the limits of their injunction.

Where the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting-point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, Lord Carnwath would put the onus on him to show compliance (see by analogy Manchester Corporation v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.

The present case, Lord Carnwath observed, is illustrative of the opposite case, where the conditions attached to the planning permissions were of little help to the judge. It was perhaps unfortunate that the LPA did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The Lawful Development Certificate limited as to the hours that were lawful, but it was unclear how if at all these hours could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence the court was shown of compliance was in a planning report of December 2001.

In the circumstances, Lord Carnwath held that the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendant’s activity.

Earlier in this article, I wrote that in this case the Supreme Court effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. Other aspects of the law on this topic, which have not been discussed in this article (such as the acquisition of a prescriptive right to commit what would otherwise be a nuisance, the defence of ‘coming to a nuisance’, whether the defendant’s own activities should be taken into account in assessing the character of the area, and whether damages would be a sufficient remedy rather than an injunction) have indeed been substantially upset by this decision. However, so far as the effect of planning permission on an allegation of nuisance is concerned, this decision largely confirms the position that had been established by the cases that were discussed in Lord Carnwath’s judgment, but his further remarks on this topic represent a helpful commentary on the subject, and it is for that reason that I have reported them at some length.

It is to be hoped that, following this authoritative and definitive Supreme Court decision, it will not be necessary to revisit the principles governing the relationship between the grant of planning permission and the commission of the tort of nuisance for a good many years to come.

© MARTIN H GOODALL

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Boat Plans Uk | Further planning changes to go ahead

Boat Plans Uk

When does Autumn end, and Winter begin? I would have thought that it must be rather more than three weeks before the Winter Solstice, but the Treasury seems to think that Autumn continues at least until the 3rd December. That is the date (round about the same time as last year) on which the Chancellor will deliver his Autumn Statement.

I have pointed out in previous years that ‘Gorgeous George’ loves to upstage DeCLoG’s Uncle Eric, and it appears that this year will be no exception. De-CLoG Chief Planner, Steve Quartermain, told a conference yesterday that we can expect further planning changes to be announced in this Autumn Statement, just as they have been in almost every Budget and every Autumn Statement in recent years.

The likely content of the announcements is no mystery, as the government published a consultation paper on their further proposals for planning ‘reform’ (“Technical Consultation on Planning”) at the end of July. The consultation period ended several weeks ago, and no doubt the government (having duly ignored any responses that it received to this consultation exercise) is now preparing the necessary statutory instruments by which effect will be given to these proposals. Whether these can be laid before parliament before the Christmas recess depends on how efficient De-CLoG lawyers have been in getting on with the drafting. In any event, it would appear that they will not come into effect until some time in the New Year. It seems to have become the practice to bring new subordinate legislation into force on 6th April or 1st October, but with the General Election due on the 7th May, the government may wish to put the amendment orders to the Use Classes Order and to the General Permitted Development Order into effect rather sooner than early April.

George Osborne will no doubt announce these further planning changes with a flourish, like a conjurer producing a rabbit out of a top hat, in the hope (probably justified, so far as most journalists are concerned) that everyone will have forgotten that all these proposals had already been announced four months ago. As I have said before, politicians love announcing things twice, even three times in some cases, simply in order to grab a passing headline.

The changes to the GPDO will enable further changes of use in addition to those previously introduced within the past two years. These are expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

It is probable that the government will also go ahead with its intention to make permanent those permitted development rights which currently expire in May 2016. In the case of office-to-residential conversions, the existing time limit for completing those conversions will be extended from 30 May 2016 to 30 May 2019. But a revised PD right for change of use from office to residential use is intended to be introduced with effect from May 2016, although whether this will actually survive the General Election may be dependent on who is actually in power after next May. If the government does go ahead with this, it will replace the existing PD right, and the government has said that the exemptions which apply to the current PD right will not be extended to apply to the new PD right. So expect some very unhappy local planning authorities if the government does persist with this proposal.

However, as a sop to the critics, the amended Class J will be subject in future (i.e. after May 2016) to a consideration of the potential impact of the significant loss of the most strategically important office accommodation (although this criterion will be tightly defined), in addition to the impact on highways and transport, flooding and contamination risk.

The right to build larger domestic extensions (under Part 1), currently expiring in May 2016, is also likely to be made permanent. A single storey rear extension or conservatory that extends beyond the rear wall by between four metres and eight metres for a detached house, and by between three metres and six metres for any other type of house, will be PD, subject to neighbour consultation for these larger householder extensions, which will continue to require prior approval by the LPA.

The right to make alterations to commercial premises has not so far been extended to shops, and so the GPDO will be extended to allow retailers to alter their premises. PD rights are also expected to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises.

Whether the government has got enough time to go ahead with a complete consolidation of the GPDO remains to be seen, but we have certainly not been led to expect any more thorough re-drafting, so as to remove the numerous anomalies and ambiguities that it contains.

Turning to the Use Classes Order, contrary to the general trend, but unsurprisingly, it is expected that the scope of Class A2 will be restricted, so that betting offices and pay-day loan shops (both currently falling within this Use Class) will become sui generis uses.

In fact it is quite likely that Use Classes A1 and A2 will be merged in a single new ‘town centre’ use class, so as to create a much more flexible range of uses in our High Streets. This is expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). The existing PD right to allow the change of use from A1 and A2 to a flexible use for a period of two years will remain, as will the right to allow for up to two flats above, and the change of use to residential (C3). On the other hand, the Government is expected to remove the existing PD rights applying to the existing A2 use class, so as to allow LPAs to control these developments.

With effect from 10 May 2006, any internal increase in floorspace of 200 square metres or more (including the introduction of mezzanine floors) in a building in retail use has been included within the definition of development under section 55, and requires planning permission. This floorspace limit will be increased, so as to allow retailers to build a mezzanine floor (although I don’t recall that a maximum threshold figure for this has been mentioned yet).

Some changes are also expected to the Development Management Procedure Order, including a requirement for a written justification from the LPA as to why it is necessary for a particular matter to be dealt with by a pre-commencement condition. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions. I have already expressed my scepticism as to the effectiveness of such a requirement in dissuading LPAs from imposing unnecessary pre-commencement conditions, but time will tell. (As regards the government’s proposals with regard to the discharge of conditions, this is dependent on the passage of the Deregulation Bill – currently at committee stage in the House of Lords.)

Some further tinkering with the DMPO can be expected, including the involvement of statutory consultees in the planning process (e.g. a requirement to notify railway infrastructure managers of planning applications for development near railways).

It is possible that there might also be a consolidation of the DMPO, as well as devising some 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.

Finally, we have been promised an adjustment of EIA thresholds, whereby the requirement for an EIA will affect fewer development schemes in future.

Not all of these proposals are guaranteed to come forward, but the Autumn Statement can be expected to cover most of the items listed above, to be followed with the necessary subordinate legislation, as outlined above.

NOTE: Many of the changes to the law canvassed here have been implemented since this blog post was published. 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.

© MARTIN H GOODALL

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Boat Plans For A Chesapeake Deadrise | Grand Tetons National Park boating

Boat Plans For A Chesapeake Deadrise

This summer we have been traveling, towing our boat to new locations.  We started at Holter Reservoir, near Helena, Montana, then on to McDonald Lake in Glacier National Park, and, from there, onward to Lake Coeur dAlene, Idaho.  With the concern about invasive aquatic species, the boat has been inspected numerous times as we traveled from lake to lake.  In Wyoming, Montana, and Glacier N.P. the inspections were free.  In Idaho we were charged for a state sticker but received no inspection.  Then we traveled to Grand Tetons National Park.  There we first had a park entry fee, then a boat inspection, then an aquatic invasive species sticker $30 payment, a boat entry fee payment ($40 seasons pass only), then a $35 per day slip fee.  We then discovered that another boat was already tied up in our assigned slip.  It was almost sundown before we were able to launch and tie up in our assigned slip.  We were wondering if all the cost and hassle was worth it.  But, as we motored out onto the lake next morning, all our concerns faded.  The Grand Tetons have to be one of the most scenic mountain ranges on earth.  Steep, jagged peaks still with visible snow fields in mid-summer.  The mountains end right at the lakes edge; the shores are covered in undisturbed dense forest.  As we went out onto the main lake, I recorded a reverse compass bearing of the entrance to the cove where our dock was so that we could find our way back to it.  Jackson Lake is about 15 miles long by 7 miles wide with over a dozen islands and located at a high altitude of about 6800.  From a distance, the shoreline blends into continuous forest.

We spent the next three days exploring the lake (as well as hiking).  The water is clear, cold, and deep (almost 450 feet).  Few other boats were encountered.  We went water skiing briefly (no wet suit).  The Tetons, especially Mt. Moran, kept attracting us like moths-to-a-candle with its high, rugged prominence and partially snow (glacier?) clad slopes.  The peaks were so picture-perfect they seemed like something computer-generated out of a movie.  The weather was cool and calm which meant very few waves.
We met my brother and his wife at the lake.  They have a 27 Sea Ray cruiser, twin engine, 430 hp, so we cruised the lake together, stopping in quiet coves for lunch.  I had mounted a 13" pitch propeller on my boat which provided extremely quick acceleration and a top speed of 33-34 mph.  We had a full tank of gas (18 gallons) because we spent hours exploring away from any harbor.  My brother, Jay, commented that he had never skied behind a boat which pulled him out of the water so quickly (and he has been skiing for 50+ years).  I could have easily mounted a 15" pitch prop which would have provided more speed.  My wife, Dawn, also enjoyed the boat handling, such as making high-speed circles, banking into the turns and creating a large wake.  It rained several times, mainly at night, but our full canvas enclosure kept the boat interior completely dry.

At this point, I am completely satisfied with my boats performance.  The secret to success in this case is the strong but light-weight construction of the boat.  Modern wood/epoxy/glass construction provides a water-tight, monocoque, composite structure which is significantly lighter than normal fiberglass.  I should add that the boat tows on its trailer so easily that you can almost forget that it is there.  We towed on the highway at 80 mph or better when allowed.  Our SUV still got decent fuel efficiency, 16-18 mpg.  One thing needs to be addressed: I originally wanted to paint the topsides but was encouraged to finish it clear to show the wood grain.  Now the "clear" finish is becoming slightly opaque and uneven in color.  Before next boating season, I hope to sand and paint the topsides.  A black color, to match the deck edge, would be the most obvious choice, but I would prefer a lighter color to not absorb so much sunlight.

https://www.youtube.com/watch?feature=player_embedded&v=X1m7WiJS7S8
 

 

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Boat Plans Canada | Permitted development for homes in National Parks and AONBs

Boat Plans Canada

In an adjournment debate on National Parks in the House of Commons on Monday 24 February, a number of MPs expressed their concern about the proposed permitted development for barn conversions, on which the government consulted last year, and for which an amendment order to the GPDO is expected within the next few weeks. Members also expressed concern about such developments in AONBs.

In replying to the debate, the planning minister, Nick Boles said that, having set out the broad case for introducing a permitted development right in the country that would make it easier to convert agricultural buildings into homes, it is now entirely legitimate to ask whether it would be appropriate to extend that right to national parks and areas of outstanding natural beauty or, in planning jargon, Article 1(5) land [which, incidentally, also includes Conservation Areas, the Broads and World Heritage Sites].

Boles told the House that De-CloG has undertaken “a genuine consultation” on the issue, and he pointed to the fact that in other areas where the government has introduced an extended permitted development right, they had listened to the concerns raised and modified the original proposals. He said that his department has listened to the very powerful and very persuasive arguments made, and they are genuinely taking them fully into account in reaching their final conclusion on how this permitted development right should work.

In conclusion, the minister hoped that he had explained that the intention behind the proposed permitted development right is to bring forward more housing on land that is already developed, and to make maximum use of the buildings that our ancestors saw fit to build, so that we do not have to put up any more buildings on green fields than is necessary to meet our housing and other needs. The government recognises, however, that national parks and areas of outstanding natural beauty are designated for a reason and have a special status. The government would think hard about this and listen to the arguments put to them about the appropriateness of this measure in those areas. Although the minister could not anticipate the Government’s final position, he re-assured the House that the Government have heard the arguments loud and clear.

This seems to be a fairly clear hint that the PD rights for barn conversions (and the conversion of other agricultural buildings) to residential use may well be excluded in National Parks and AONBs, and possibly also in rural Conservation Areas and other sites covered by Article 1(5) of the GPDO. On the other hand, it seems clear that the government is still intent on proceeding with these permitted development proposals, and so we should know within a few weeks exactly what form this new permitted development right will take.



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

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed here (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.

© MARTIN H GOODALL

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